Opposition Brief — United States v. Finley Coal Co.

“rs te ts, Oe OuUpicniCcC vue, v- we

Pe SS a

IN THE | MICHAEL ROGAK. JR Cut

SUPREME COURT OF THE UNITED STATES

October Term, 1974 |

No. 74-382

UNITED STATES OF AMERICA, - - Petitioner

versus

FINLEY COAL COMPANY and

CHARLES FINLEY, - - - - Respondents

On Petition For A Writ of Certiorari to the United States

Court of Appeals For the Sixth Circuit

BRIEF FOR RESPONDENTS IN OPPOSITION

BERT T. COMBS

1700 Kentucky Home Life Bldy.

Louisville, Kentucky 40202

EDWARD F. PRICHARD

Frankfort, Kentucky

JAMES S. WILSON

Pikeville, Kentucky

Attorneys for Respondents

TARRANT, COMBS, BLACKWELL & BULLITT

Of Counsel

WESTERFIELD-BONTE CO., INC., 619 W. KENTUCKY, LOUISVILLE, KY.

pier!

PAGE

RR OE SI ON occ in cs o'v rvs be evencsrnse 1- 2

Argument: The Regulations Promulgated by the Sec-

retary of the Interior Are Invalid Because the

Seeretary Failed to Follow the Procedures Required

Under 30 U.S.C. § 811 in Developing and Revising

Mandatory Safety Standards.........-....-++++55 2-20

I. The Rulemaking Authority Conferred by the

Federal Coal Mine Health and Safety Act of

ee ec bce dee cawecr eet se> 2- 6

Hi. The Act and Its Legislative History lestab-

lish That Criminal Prohibitious Were To Be

Contained in Mandatory Standards To Be Pro-

mulgated Only After Compliance With See-

I ia ores Le Ree Nan eek es okt wares 6-12

I. In Promulgating the Regulations in Issue, the

Secretary Was Engaged in the Development

and Revision of Mandatory Safety Standards

and Was Required to, But Did Not, Comply

With the Provisions of Section S11(¢)....... 12-17

IV. The Regulations in Issue Cannot Be Upheld

pd) | a ea 17-20

i eon ee eater Ae alas pais ne oe 6 68 31-22

CITATIONS

Cases: PAGE

Hellmich v. Hellman, 276 U. S. 233 (1928)........ 5

Kelly v. United States Department of the Interior,

339 F. Supp. 1095 (E. D. Cal. 1972)........... 18, 19

Pharmaceutical Manufacturers Association v. Finch,

307 F. Supp. 858 (D. Del. 1970)............... 18

Texaco, Inc. vy. Federal Power Commission, 412 F.

Pe tee Ce BE ss coves ksceeee banks foe's 19

Textile Mills Securities Corp. v. Commissioner, 314

eS Bole aaagiestie an ine Rb Reinet ania 18

United States v. Consolidated Coal Company, —_

F. 2d . (Nos. 73-2085, 73-2086, 6th Cir. 1974) 21

Statutes and Regulations:

Administrative Procedure Act, 5 U.S.C. 553...... 4, 6

Coal Mine Health and Safety Act of 1969, 83 Stat.

742, 30 U.S.C. 801, et seq. 2

Section 2, 30 UBC. GOO... cccccessccccese 7

Section 3, 30 U.S.C. 6802 7

Section 5, 30 U.S.C. §804 7

Section 101, 30 U.S.C. §811....2, 3-4, 5, 6, 7-8. 12, 16, 20

eee ee OO oe a eo ee ee

OPPS RAABRICEDEOD OOO 28 6

Section 109, 30 U.S.C. §819(b)................. 2

Section 201, 30 U.S.C. §841.............cc0c00- 8

Section 301, 30 U.S.C. §861...... 4, 5, 6, 8-9, 13, 17, 20

Section 304(a), 30 U.S.C. $864(a).2............ 12

Section 508, 30 U.S.C. $957.......... 4, 5,6, 13,17, 18

edi i FE ay | Reade SARE RSS OI ai Se ee EI 3

agi gt RT FGMa NE ea la Le ey I ate ay 12

Oe Pa ee eb ck aw ese yuo 12, 16, 19

We Re PMNS vi kbccncckeeceeeccsecn.. 12, 16, 19, 20

Miscellaneous:

H. Rep. No. 563, 91st Ce, set Mees... . x... 6,9-11,17

S. Rep. No. 411, 91st Cong., Ist Sess. .0.00.0..... 5

PP BOW MO: BIOS oobi vise bse cavesccteccecccces 13

IN THE

SUPREME COURT OF THE UMTED STATES

October Term, 1974

No. 74-382

Unirep STATES OF AMERICA, - - Petitioner

Vv.

Fixiey Coat CoMPpany and

CHARLES FINLEY, - - - - Respondents

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR RESPONDENTS IN OPPOSITION

STATEMENT OF THE CASE

The United States has petitioned for a writ of

-ertiorari to review the judgment of the United States

Court of Appeals for the Sixth Circuit which affirmed

an order of the District Court dismissing Count VIT

of a pending indictment charging Finley Coal .Com-

pany, a partnership, and Charles Finley, the partner

in general supervision, with violating (1) interim

mandatory safety standards which are part of the Fed-

eral Coal Mine Health and Safety Act of 1969, Pub. L.

2

Ce

7

91-173, Dee. 30, 1969, 83 Stat. 742, 30 U.S.C. §§ 801-960,

and (2) ‘Mandatory Health and Safety standards

amended and revised’ promulgated by the Secretary

of the Interior under the provisions of that Act.’

ARGUMENT

THE REGULATIONS PROMULGATED BY THE SEC.

RETARY OF THE INTERIOR ARE INVALID BE.

CAUSE THE SECRETARY FAILED TO FOLLOW

THE PROCEDURES REQUIRED UNDER 30 US.C.

§ 811 IN DEVELOPING AND REVISING MANDA-

TORY SAFETY STANDARDS

I. The Rulemaking Authority Conferred by the Federal

Coal Mine Health and Safety Act of 1969.

The Federal Coal Mine Health and Safety Act of

1969 (hereinafter referred to as the ‘*Act’’) was

enacted by Congress after extensive debate in both

houses and after a conference report that reconciled

the differences between the Senate bill and the House

bill. Because it did not have the expertise to establish

specific and workable health and safety standards ap-

plicable to underground coal mines in all parts of the

country, Congress provided in the Act that the stan-

dards enacted by it were interim standards and directed

that the Secretary of the Interior ‘‘shall’’ promulgate

improved standards and, in so doing, ‘‘shall’’ consult

with specified government officials and other interested

government agencies, representatives of the coal in-

'The penalty for willful violation of a mandatory health or

safety standard is one year imprisonment, a fine of $25,000 or both.

201 S.C. § 8190b

4

ad

dustry, and other interested persons and organizations,

with the opportunity for a public hearing if requested.

30 U.S.C. § 811. The Petitioner admits that consulta-

tions within government were not undertaken and that

the judgment of the Court of Appeals is correct if,

in promulgating the regulations in issue, the Secretary

was required to comply with the procedures under

30 U.S.C. 9 811.

The Act contains three separate and different grants

of rulemaking authority. Section 101 of the Act,

30 U.S.C. § 811, provides both a mandate and the pro-

cedure for the promulgation and revision of manda-

tory health and safety standards under the Act. See-

tion 811(a) provides in part:

“The Secretary shall, in accordance with the

procedures set forth in this section, develop,

promulgate and revise, as may be appropriate, im-

proved mandatory safety standards si

30 U.S.C. § 811(c) provides as follows:

“Tn the development and revision of mandatory

safety standards, the Secretary shall consult with

the Secretary of Health, Education, and Welfare,

the Secretary of Labor and with other interested

Federal agencies, appropriate representatives of

State agencies, appropriate represcutatives of the

coal mine operators and miners, other interested

persons and organizations, and such advisory com-

mittees as he may appoint. Such development and

revision of mandatory safety standards shall be

based upon research, demonstrations, experiments,

and such other information as may be appropriate.

4

‘In addition to the attainment of the highest degree

of safety protection for miners, other considera-

tions shall be the latest available scieutific data in

the field, the technical feasibility of the standards,

and experience gained under this and other safety

statutes.’’

The second grant of rulemaking authority is con-

tained in section 301(d) of the Act, 30 U.S.C. § 861(d),

aud provides as follows:

“In any case where the provisions of Sections

862 to 878, inclusive, of this title provide that cer-

tain actions, conditions, or requirements shall be

carried out as prescribed by the Secretary, or the

Secretary of Health, Education and Welfare, as

appropriate, the provisions of Section 593 of Title 5

shall apply unless either Secretary otherwise pro-

vides. Before granting any exception to a manda-

tory safety standard as authorized by this sub-

chapter, the findings of the Secretary or his au-

thorized representative shall be made publie and

shall be available to the representative of the

miners at the affected coal mine."

The third grant of rulemaking authority is found

i, section 508 of the Act, 30 U.S.C. § 957, which

provides;

“The Secretary, the Secr tary of Health, Edu-

cation, and Welfare and the panel are authorized

to issue such regulations as each deems appropriate

to carry out any provision of thix Chapter.”’

*Section 553 of Tithe 5 referred to in section S61(d)

is part of

the Administrative Procedure Act, a sa r $ 551 of se q.

The courts have traditionally construed different

sections of the same statute in part passu. All parts of

the Act must be considered, compared and construed

together. Hellmich v. Hellman, 276 U.S. 233 (1928).

Section 811(c) is the general formal rulemaking

procedure which the Secretary **shall’’ follow in the

‘development and revision of mandatory safety stan-

dards.”’ Sections 861(d) and 957 are limited grants of

rulemaking authority and are insufficient authority for

the development and revision of mandatory safety stan-

dards. Section 861(d) is a more informal procedure

for an entirely different and strictly limited purpose,

i.¢., it authorizes the Secretary to provide for **certain

actions, conditions or requirements’? when such diree-

tives are provided for in sections 862 to S78, inclusive.

More simply stated, this section merely authorizes the

Secretary to take any action which he is specifically

commanded to perform in sections 862 through 87s.

Section 957, on the other hand, ix authority for ad-

ministrative rulemaking only. Ut is codified under sub-

section 5—ADMINISTRATIVE. Provistoxs—and the legis-

lative history of the Act) shows conclusively that

Congress did not intend section 957 to apply in estab-

lishing safety standards. In the section-by-section

analysis contained in the Senate Committee Report it

ix stated that ‘where administrative regulations are

needed, the provisions of Section 409 Chow section 957 )

of this act would apply.”” Senate Report No. 91-411.

91st Congress, Ist Session, 87 (1969). Similarly, i

the House Report it ix stated that section 408 of the

Aetoas passed by the Plouse Chew section VT) “at

wees ee

ed

6

thorizes the Secretary to issue administrative regula-

tions to carry out the act.’’ H.R. Rep. No. 91-563,

Y1st Congress, Ist Session, 618 (1969). Thus, it was

clearly the intention of both the Senate and the House

to authorize the Secretary under section 957 only to

issue regulations necessary to carry out the administra-

live requirements of the Act. ,

Since section 957 is silent on the question of notice

and consultative and hearing procedure, the Secre-

tary must look to the Administrative Procedure Act

(5 U.S.C. § 553) for these requirements. Section 553

itself provides that when a statute by its terms pro-

vides for a hearing section 553 is inapplicable. It fol-

lows that section 957, since it is dependent on section

593, confers no greater authority on the Secretary than

does section 861(d) which also is dependent on sec-

tion 553.

II. The Act and Its Legislative History Establish That

Criminal Prohibitions Were To Be Contained in Manda-

tory Standards To Be Promulgated Only After Com-

pliance With Section 811.

The Act and the extensive legislative history which

underlies it display an undeviating Congressional in-

tent that the criminal prohibitions were to be contained

in mandatory health and safety standards and that

these standards were to be promulgated only after the

Secretary of the Interior had complied with the con-

sultative procedures contained in Section 101 of the

Act, 30 U.S.C. 8 811.0 This Congressional intent. is

clearly shown in the following sections of the Act:

§ 801. CoNcREsSION AL FixpIncs AND DECLARATION

oF PURPOSE.

““(g) it is the purpose of this chapter (1) to

establish interim mandatory health and safety

standards and to direct the Secretary of Health,

Edueation and Welfare and the Secretary of the

Interior to develop and promulgate improved

mandatory health or safety staudards to protect

the health and safety of the Nation’s coal miners;

9

§ 802. DEFINITIONS

(1) ‘mandatory health or safety standard’

means the interim mandatory health or safety

standards established by subchapters IL and ITI

of this chapter, aud the standards promulgated

pursuant to subchapter I of this chapter ;”’

§ 804. Interim Compliance PANEL—ESTABLISH-

MENT: COMPOSITION.

‘*(a) There is hereby established the Interim

Compliance Panel which shall be composed of five

members as follows:

(Assistant Secretary of Labor and others)

SUBCHAPTER I—HEALTH AND SAFETY

STANDARDS

§ 811. PRroMULGATION AND REVISION OF MANDATORY

HEALTH AND SAFETY STANDARDS—POWER OF SECRE-

TARY : TRANSMITTAL.

‘*(a) The Secretary shall, in accordance with

the procedures set forth in this section, develop,

promulgate, and revise, as may be appropriate,

improved mandatory safety standards for the pro-

tection of life and the prevention of injuries ina

Ss

coal mine, and shall, in accordance with the pro-

cedures set forth in this section, promulgate the

mandatory health standards transmitted to him by

the Secretary of Health, Education and Welfare.”

* * *

“(e) In the development and revision of

mandatory safety standards, the Secretary shall

consult with the Secretary of Health, Educatio:.

wud Welfare, the Secretary of Labor. and with

other interested Federal ageucies, appropriate

representatives of State ageicies, appropriate rep-

resentatives of the coal mine operators and miners,

other interested persons and organizations. and

such advisory committees as he may appoint.”

SUBCHAPTER [I—-INTERIM MANDATORY

HEALTH STANDARDS

» S41. Manxpyrony Hearra Sraxpanns ror Uxper-

GROUND Mines; Exeronceuent: Review: Perpvosr,

(a) The provisions of sections 842 through

546 of this title and the applicable provisions of

section 878 of this title shall be interim mandatory

health standards im

SUBCHAPTER IIL — INTERIM MANDA-

TORY SAFETY STANDARDS FOR UNDER-

GROUND COAL MINES

§ 861. Manpatory Sarety Staxparps ror Uxper-

GROUND MINES—Coverace: Exvorcement: Review

(a) The provisions of sections 862 through

S78 of this title shall be interim mandatory safety

standards applicable to all underground coal mines

until superseded in whole or in part by improved

mandatory safety standards promulgated by the

Secretary under the provisions of section 811 of

this title

“*(b) The purpose of this subchapter is to pro-

vide for the immediate application of mandatory

safety standards developed on the basis of experi-

ence and advances in technology and to prevent

newly created hazards resulting from new tech-

nology in coal mining. The Secretary shall im-

mediately initiate studies, investigations, and re-

search to further upgrade such standards and to

develop and promulgate new and improved stan-

dards promptly that will previde increased pro-

tection to the miners.

*(¢) (Provision for public hearing)”

The intention of Congress ix cousistently expressed

throughout the Act that it was enacting interim stan-

dards ouly and that the Secretary* would promulgate

revised and improved standards after consultation with

designated groups and opportunity for a public hearing.

This intent as expressed in the Act is confirmed by

the legislative history. The Legislative History, Fed-

eral Coal Mine Health and Safety Act, H.R. Rep. No.

91-563, Committee on Education and Labor, 91st Con-

gress, Ist Session, page 585 contains the following:

“Subsection (a) of this section (U.S.C. 811)

requires the Secretary, in the manner described

later, to develop, promulgate, and revise manda-

tory safety standards for the protection of life and

the prevention of injuries in coal mines subject to

the Act.”

* = *

$Respondents are not charged with violating any health stan-

dard so the word **Seeretary”* as used herein means the Secretary

of the Interior

Ne on ae So net eke BUNT A a a TR

WP

ea ad Maa

10

“Subsection (b) provides that when he de-

velops mandatory safety standards, the Seeretary

must consult with interested persons and organi-

zations de

* * *

“Subsection (f) provides that the Federal Coal

Mine Health and Safety Board of Review shall, as

soon as a matter is referred to it, issue notice and

hold a public hearing. Within 60 days after it has

finished the hearing, the Board must issue a report

to the Secretary setting forth findings of fact and

appropriate recommendations.’

At page 653 of the same publication appears the fol-

lowing:

The flexibility afforded in the establishment

of mandatory health and safety standard (sie) by

Title | of the bill is not accomplished at the ex-

pense of either the operator or the miner. An

elaborate system of development, consultation,

publication, notice, hearings, and review—admin-

istrative and judicial—is provided.”

At page 1041 of the same publication we find this-

“o. The Senate bill provided that, where the

safety standards in this title provide that the Sec-

retary prescribe how certain actions, conditions. or

requirements be carried out, the rulemaking pro-

Visions of 5 U.S.C, 553 will apply, unless the See-

retary otherwise provides. The House amendmeit

had no comparable provision. The conference

agreement adopts the Senate provision with a

modification to recognize that the Secretary of

Health. Education, and Welfare also needs this

11

authority. This provision is not intended to apply

when a safety mandatory standard is being pro-

posed. In lieu of the rulemaking provisions, the

Secretary could utilize the procedures of section

101.”°

At page 726 of this same publication is a statement by

Congressman Dent of Pennsylvania who, as Chairman

of the Subcommittee, Education and Labor, House of

Representatives, did much of the spade work in draft-

ing the bill:

“A number of mandatory safety standards in

this title are written in broad general language,

such as those relating to the transportation of men

and materials, fire protection, perniissiblity, and

welding. The committee considered it unnecessary

at this time, to write into the bill detailed require-

ments in these cases, since present provisions of

the Bureau's code, interpretations, regulations, and

instructions which cover these matters in very

great detail will still be preserved under this act

so long as they do not conflict or are not incon-

sistent with the provisions of this act. The eom-

mittee, however, expects that the Bureau of Mines

will carefully review all of these and quickly im-

prove and revise them, and publish them as manda-

tory standards in order to insure adequate safety

to the miners. This comment is of particular im-

portance in the case of the code which has not been

revised since 1953. Further, if a particular item

in the code or any of these publications is of sig-

nificance from a safety standpoint it should be

published as a standard.”’

pene aM

—y

i

Se ae

ee ee tee er ae bs

Brew. Kune

12

The foregoing makes it abundantly clear that man-

datory standards which would form the basis of a

criminal prosecution were to be promulgated by the

Secretary ouly after compliance with the consultative

provisions of section 811.

III. In Promulgating the Regulations in Issue, the Secre-

tary Was Engaged in the Development and Revision

of Mandatory Safety Standards and Was Required to,

But Did Not, Comply With the Provisions of Sec-

tion 811(c).

Count VII of the indictment charged violations of

30 U.S.C. § 864(a) and the regulations codified at

30 C.F.R. § 75.400. Section 864(a) provides that coal

dust, including float coal dust, loose coal, and other com-

bustible materials, shall be cleaned up and not be per-

mitted to accumulate. Regulation § 75.400-1 defines

the terms coal dust, float coal dust, and loose coal.

Regulation § 75.400-2 requires the establishment and

maintenance of a **program for regular cleanup and

removal of accumulations of coal and float coal dusts,

loose coal, and other combustibles’’ which program

shall be available to the Secretary or his authorized

representative.

The critical question becomes whether the Secretary.

in promulgating these regulations, was engaged in the

“development and revision of mandatory safety stan-

dards**? If so, the formal rulemaking procedure set

out in section 811(¢) had to he followed, irrespective

of any other statutory authority. Section 811(¢) makes

apparent on its face that Congress has carved out of

13

sections 861(d) and 957 any rulemaking power that

deals with either the development or revision of these

mandatory safety standards.

In promulgating these regulations, the Secretary

published on November 20, 1970, some forty-five (45)

printed pages headed ** Part 75—Mandatory Safety

Standards, Underground Coal Mines” (Federal Regis-

ter, Volume 35, No. 226—30 C.F.R. Part 75). The

conclusory words in the headnote of the Federal Regis-

ter in which the regulations are published are these:

“Mandatory Health and Safety Standards, Under-

ground Coal Mines, amended and revised as set forth

below is (sic) herewith promulgated and shall become

effective upon publication in the Federal Register.”’

(Emphasis added.) The front page of this publication

reads as follows:

“TITLE 30—MINERAL RESOURCES

Chapter I—Bureau of Mines

Department of the Interior

Subchapter O—Coal Mine Health and Safety

Part 75—Manpatory Saretry STanparps, Uxper-

GROUND Coat MINES |

‘Pursuant to the authority contained in para-

graph (d) of section 301 of the Coal Mine Health

and Safety Act of 1969 (Public Law 91-173), there

was published in the Feperat REGISTERED (sic) for

August 14, 1970 (35 F.R. 12911), a°notice of pro-

posed rulemaking setting forth proposed amend-

meits and a new Subpart S, ‘Approved Books and

Records,’ to Part 75 of Title 30, Code of Fed-

eral Regulations, regarding mandatory health and

safety standards in underground coal mines.

ee wer

+) ae eee eltel OR ae oh

14

‘Interested persons were afforded a period of

30 days from the date of publication of the notice

in which to submit written comments, suggestions,

or objections to the proposed amendments and the

proposed new Subpart S. The period for sub-

mitting written comments, suggestions or objee-

tions was subsequently extended to September 30,

1970, by a notice published in the Feperat Recister

for September 5, 1970 (35 F.R. 14146). Approx-

imately 21 associations, companies, and individuals

submitted comments, suggestions or objections.

All were given careful consideration. A summary

of the comments and an explanation of the actions

taken with respect to them will be prepared by the

Bureau of Mines and will be available 30 days from

the date of this publication in the Office of the

Deputy Director for Health and Safety, Room

4512, Burean of Mines, Department of the Interior,

Washington, D. C. 20240,

“Some of the standards have been revised as

suggested ; in other instances, revisions were made

in view of the comments received. Some of the

suggestions could not be adopted because they were

contrary to the statutory provisions.

“Part 75 of Title 30 Code of Federal Regu-

lations, Subchapter O—Coal Mine Health and

Safety—Mandatory Health and Safety Standards,

Underground Coal Mines, amended and revised as

set forth below is herewith promulgated and shall

become effective upon publication in the Feperan

REGISTER.

Walter J. Hickel

Secretary of the Interior

November 25, 1970."

lo

In the forty-tive pages that follow, the Secretary

sets forth the interim mandatory standards section by

section and, for the most part, puts meat on the bones

of the Act by adding more specific requirements than

those contained in the Act. The Secretary could not

have made it any plainer what kind of rulemaking he

Was engaged in. The Secretary thus followed the Con-

gressional mandate by promulgating revised manda-

tory safety standards, but he studiously avoided the

consultative procedures and the opportunity for public

hearing which Congress had so clearly spelled out in

the Act. This was uo insignificant error for, in pro-

ceeding as he did, he was establishing standards the

violation of which could result in the imposition of

criminal sanctions. The complaint of the United States

that the ruling below will frustrate criminal and civil

penalty proceedings aud will render numerous viola-

tions unpunishable ix inapposite. It begs the question

whether the regulations, having been promulgated as

they were, can be legal imperatives which can serve

as a basis for a criminal prosecution and conviction.

The further contention that the Secretary was merely

defining terms and interpreting. the manner in which

the sections would be enforced is absurdly simplistic.

What he purported to do went to the very substance

of the Act—setting the limits of coal mine safety as a

matter of law.

It ix therefore clear that the Secretary accomplished

his announced purpose, .¢., the regulations in issue in

fact constitute revised mandatory safety standards.

Petitioner attempts to minimize the coal dust regula-

weet et

eR rh

16

tious at 30 C.F.R. § 75.400-1 as definitional because

they lack *‘noveity’’ in that they were first issued in

1911 and were reaffirmed in 1950 by the Bureau of

Mines. But, in setting the standards of what is legal

and what is criminal in a coal mine, section 811(¢)

enjoins him to consider **the latest technical data in the

field, the technical feasibility of the standards, and

experieuce gained under this and other safety statutes.”’

Surely the technology of coal mining has changed since

1911. Perhaps the regulations should be novel. Dif-

ferent tools, different means for circulating air, and

different extraction procedures all may infiuence the

matter of what is to be considered coal dust. Those

agencies and persons designated in section 811(¢) may

have constructive suggestions about what is to be con-

sidered coal dust. But the Secretary has had the benefit

of none of these consideratious—considerations which

Congress required him to apply in drafting standards—

because he unilaterally promulgated standards and now

seeks to impose them as standards of criminality. This

is exactly the kind of rulemaking which requires con-

sultation pursuant to section S11(c).

Similarly, 30 C.F.R. § 75.400-2 requires that a

“program for regular cleanup” of coal dust must be

established and maintained and that “such program

shall be available to the Secretary or his authorized

representative.” The statute, however, requires only

that the dust be **cleaned up and not permitted to

accumulate.”’ A coal operator, therefore, could comply

with the command of the statute but not be able to

~how that the eleanup was the result of a regular pro-

7

gram which he could produce for the Secretary. Of

this, the Court of Appeals said, -*We conclude that

30 C.F.R. § 75.400-2 changed the standard in § 864(a).”’

IV. The Regulations in Issue Cannot Be Upheld

Urder Section 957.

In drafting the Act, Congress chose uot to rely

exclusively upon the existing rulemaking provisions

already available in the Administrative Procedure Act.

The following statement by the House managers of the

Act is informative (H.R. Rep. No. 91-563, Committee

on Education and Labor, 91st Congress, Ist Session,

1041 (1969) ):

“This provision (5 U.S.C, 553) is not intended

to apply when a mandatory safety standard is

being proposed. In “1eu of the rulemaking pro-

visions, the Secretary could utilize the procedures

of seetion 101.”

The United States relies primarily upon the argu-

ment that the regulations in issue are interpretative of

statutory standards and were promulgated under sec-

tion 957, apparently no longer seriously contending

that the regulations in issue may be upheld under sec-

tion 861(d). While the distinction between interpreta-

tive or legislative regulations enjoys some judicial

acceptance in cases arising under the Administrative

Procedure Act, it is not pertinent here in dealing with

a special and unique statute. As stated by the District

Court. this distinction “should not be applied to the

construction of this law since all disputed regulation»

~

Is

are cited in the indictment, together with statutory pro-

visions, for maintaining the criminal prosecution.”’

The applicability of 7'ertile Mills Securities Cor-

poration V. Commissioner, 314 U.S. 326 (1941), cited

by the Govermnent, is dependent upon the Govern-

ment’s thesis that section 957 amounts to a grant of

general rulemaking authority to the Secretary. Tectile

Mills did not involve a criminal prosecution or a stat-

ute in which Congress had explicitly established and

required a consultative procedure peculiar to the in-

dustry. The authority of the Secretary to promulgate

definitional regulations is uot, per se, in issue iv this

case except when the Secretary secks to invade the

area of mandator™ safety staridards. Whilethe manda-

tory safety standards which pertain to Count VII of

the indictment happen to be cast in part in definitional

language, it is substance and not verbiage which deter-

mine< the issue. Pharmaceutical Manufacturers Asso-

ciation NV. Finch, 307 ¥. Supp. 858 (D. Del. 1970).

In Kelly vy. United States Department of the In-

terior, 339 F. Supp. 1095 (.D. Cal. 1972), the court

considered a department regulation which the Secre-

tary had published without giving the thirty-day notice

required by the Administrative Procedure Act. The

Seeretary had claimed the “good cause’ exception to

the notice rule, but failed to give adequate supporting

reasons for using the exception. Finding that the regu-

lation had been promulgated illegally, the court made

an observation which is even more telling in the present

ease in which Congress has commanded more explicit

econsiltation than that provided for in the Administra-

tive Procedure Act:

Iv

“Voiding the present regulations on what at

first blush appears to be a technicality is not as

pointless as it may seem. We believe that the

30-day notice rule serves an important interest,

the right of the people to present their views to the

government agencies which increasingly permeate

their lives. The interchange of ideas between the

government and its citizenry provides a broader

base for intelligent decision-making and promotes

greater responsiveness to the needs of the people,

especially in cases such as this where Congress has

only roughed in its program.”’ Jd. at 1102.

It is clear that Congress considered even the dia-

logue provided for in the Adiministrative Procedure

Act inadequate for regulation of coal mine safety, since

it specifically provided for a more rigorous consulta-

tive procedure. Nevertheless, the basie judicial rea-

soning in Kelly is consistent with the Congressional

intent expressed in the Federal Coal Mine Health and

Safety Act. See also Teraco, Ine. v. Federal Power

Commission, 412 F. 2d 740 (3d Cir. 1969).

Even if the term ‘interpretative’ is thought te

have signifieance in analyzing what the Secretary did,

the reasonable meaning of that term is totally ineom-

patible with the effect of the specific regulations in

issue here. By establishing **No. 200° or **No, 207°

seive standards in 30 CLF_R. § 75.400-1, the Secretary

purports to establish the point at which a criminal

case is made out; and in 30 C.F.R. § 75.400-2, he estab-

lishes an affirmative requirement not stated in the

statutory st.ndards at ail. The statutory interim stan-

dard requires that coal dust be ‘cleaned up” and

net “permitted to accumulate.” but under CPLR.

aniawneny §

20

§ 7400-2, the operator could have accomplished this

and still be subject to a criminal sanction for not hav-

ing set up a “regular cleaning program.’’ This sub-

section obviously does not merely define a erimiual

offense, but rather, it establishes a new criminal offense.

The Government also argues that section 811(¢) was

intended to apply only to long term improvement in

nine safety based upon new research and technology

which could not be accomplished virtually contem-

poraneously with the effective date of the Act. See-

tion S11(¢) obviously was intended to authorize the

Secretary to promulgate regulations to improve mine

safety in the vears to come. It is equally clear, how-

ever, that, i enacting section 811(¢), Congress con-

templated the immediate revision and upgrading of

mandatory standards. 30 U.S.C. § 861(b) expressly

provides that the Secretary **shall immediately initiate

studies, investigations, and research to further upgrade

such standards and to develop and promulgate new

and improved standards promptly that will provide

increased protection to the miners * * *.”

That the regulations involved in this proceeding

are not administrative in uature would thus seem to be

hbevond argument. They are substantive standards,

violation of which will subject the operator to civil

penalties and in some cases to criminal sanctions. They

were referred to as standards by the Secretary when

he promulgated them, and the Secretary has con-

sistently treated the challenged regulations as con-

stituting mandatory safety standards as ix evidenced

hy the fact that their violation is charged in the pend-

ing prosecution.

21

CONCLUSION

Four years ago, Cougress directed the Bureau of

Mines to establish mandatory safety standards aid

itself established certain interim standards. The

Secretary promulgated in the Federal Register what

he termed revised mandatory standards. He has

assessed against respondents civil penalties for alleged

Violation of these standards and has sought and ob-

tained an indictment against respondents for allegedly

violating them.’ It is clear from the context of the Act

that the Secretary was to proceed with dispatch in obe-

dience to the Congressional mandate. Now, four years

later, there are no mandatory safety standards in the

Federal Register unless the Secretary was promulgat-

ing mandatory safety standards on November 20, 1970,

as he said he was.

Respondents submit that the Secretary has at-

tempted to comply with the Congressional mandate to

promulgate standards but has failed to follow the re-

quired procedure. It would be fortuitious for the

Secretary if this case were to be resolved so that what

he has done would be allowed to stand without the in-

convenience of having to do it the way he was told.

Then the Bureau of Mines could persist indetinitely

in its failure to engage in the consultation demanded

by Congress. Congress made a careful legislative judg-

‘The Petitioner has tried to convey the impression that all crim-

inal enforcement of mine safety is hanging in the balance in this

case. Respondents, after some investigation, have learned of only

one other criminal proceeding under the Aet. United States of

America ¥. Consolidated Coal Company, Gi Cir. 1974 (Nos, 73-2086.

73-2085 >.

»)

ment concerning the manner in which the discretion

delegated to the Secretary was to be exercised, and the

Secretary must abide by that judgment. The thought-

ful opinions of the District Court and the Court of Ap-

peals correctly place upon the Secretary the responsi-

bility Congress intended him to bear. The petition

for certiorari should be denied.

Respectfully submnitted,

Bert T. Comes

1700 Kentucky Home Life Bldg.

Louisville, Kentucky 40202

Epwarp F. Pricuarp

Frankfort, Kentucky

JAMES S. WILSON

Pikeville, Kentucky

Attorneys for Respondents

Tarrant, Combs, Buackweu & Beitr

Of Counsel