.
ASARCO INCORPORATED
June 5, 2001
WEST 2000-603-RM


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
                    1244 SPEER BOULEVARD #280
                      DENVER, CO 80204-3582
                  303-844-3577/FAX 303-844-5268

                          June 5, 2001

ASARCO INCORPORATED,           : CONTEST PROCEEDINGS
               Contestant      :
                               : Docket No. WEST 2000-603-RM
                               : Citation No. 7945733; 
                               :   8/07/2000
          v.                   :
                               : Docket No. WEST 2000-604-RM
                               : Citation No. 7945734;
                               :   8/07/2000
                               :
SECRETARY OF LABOR,            : Docket No. WEST 2000-605-RM
  MINE SAFETY AND HEALTH       : Citation No. 7945735;
                               :   8/07/2000
  ADMINISTRATION (MSHA),       :
               Respondent      : Docket No. WEST 2000-613-RM
                               : Citation No. 7945743;
                               :   8/08/2000
                               :
                               : Docket No. WEST 2001-44-RM
                               : Citation No. 7945587;
                               :   9/25/2000
                               :
                               : Mission Mine Underground
                               : Mine ID. No. 02-02626


                             DECISION

Before: Judge Manning

     These proceedings are before me on notices of contest 
filed by Asarco Incorporated ("Asarco") against the Secretary 
of Labor pursuant to section 105 of the Federal Mine Safety 
and Health Act ff 1977, 30 U.S.C. � 801 et seq. (the "Mine 
Act").  The Department of Labor's Mine Safety and Health 
Administration ("MSHA") issued five citations against Asarco 
alleging violations of the Secretary's safety standard at 
30 C.F.R. � 57.14131 at the underground mine at its Mission 
Mine Complex in Pima County, Arizona.

     The parties agreed to waive their right to a hearing and
submitted joint stipulations of fact.  Each party filed a 
motion for summary decision and responded to the other party's 
motion for summary decision.  These cases present the issue of 
whether section 57.15131 applies to haulage equipment that is 
designed for underground use but which is brought to the 
surface on a regular basis to dump ore. The Secretary contends 
that the standard applies to the cited haulage trucks because 
they are used on the surface.  Asarco maintains that the 
standard does not apply to the cited trucks because they are
not "surface haulage trucks."

     The safety standard at issue provides, in pertinent part:

          � 57.14131  Seat belts for surface haulage trucks.

          (a) Seat belts shall be provided and worn in
          haulage trucks.

          . . . .

          (c) Seat belts required under this section
          shall meet the requirements of SAE J386,
          "Operator Restraint Systems for Off-Road Work
          Machines," 1985, which is incorporated by
          reference in accordance with 5 U.S.C. �
          552(a).

     Five section 104(a) citations are at issue in these cases.
Citation No. 7945733 states that the operator of a Toro 40D Haul
Truck ("Toro truck" or haulage truck") was not wearing a seat
belt while driving on the surface at the mine, in violation of
57.14131(a).  Citation No. 7945734 states that the operator of
another Toro truck was not wearing a seat belt while driving on
the surface at the mine, in violation of 57.14131(a).  Citation
No. 7945735 states that the seat belt installed in a Toro truck
did not meet the requirements of SAE J386, in violation of
57.14131(c).  Citation No. 7945743 states that the seat belt
installed in another Toro truck did not meet the requirements of
SAE J386, in violation of 57.14131(c).  Citation No. 7945587
states that seat belt installed in still another Toro truck did
not meet the requirements of SAE J386, in violation of
57.14131(c).  Four of these citations were issued in August 2000
and the other one was issued in September 2000.

                      I.  JOINT STIPULATIONS

     The key factual stipulations entered into by the parties are
as follows:

     8.   The Asarco Mission Complex is made up of the Mission
          Underground Mine, the Mission Open Pit Mine, and two
          mills.

     9.   The portals of the Mission Underground Mine are located
          near the bottom of the Mission Open Pit.

     10.  In August 2000, the Mission Mine operated three eight-
          hour production shifts per day.  It changed to two ten-
          hour shifts per day on October 23, 2000.

     11.  Asarco Mission Underground mine had three portals to
          the surface:  the north portal, the south portal, and
          the Pima portal.

     12.  The south portal is no longer in use.  Therefore, the
          only two portals currently operational are the north
          portal and the Pima portal.  All three portals were
          operational in August 2000.
     13.  Copper ore is hauled from the underground to two ore
          dumps on the surface.

     14.  Haul trucks are used to haul ore from the underground
          to the ore dumps.  The trucks haul from 3,000 to 4,000
          tons of ore per day.

     15.  The haul trucks that are used to haul ore from the
          underground to the ore dumps at the Mission Underground
          are manufactured by Toro, Inc., and known as Toro 40D
          haul trucks.  Each Toro 40 D haul truck is diesel
          engine powered mobile equipment and transports an
          average of 29 tons per load. . . .

     16.  Toro 40D haul trucks also haul waste material inside
          the underground area of the mine.

     17.  Waste material is only moved inside the underground by
          the Toro 40D haul trucks.  Except where trucks are
          unable to dump underground due to mechanical problems,
          waste material is not brought to the outside area of
          the mine.

     18.  Toro 40D haul trucks are not used to transport anything
          out of the underground except for ore.

     19.  There is currently a fleet of seven Toro 40D haul
          trucks.  Since October 23, 2000, an average of four to
          five trucks operate each shift.

     20.  At the time the citations were issued, each Toro 40D
          haul truck made an average of approximately six to
          seven truck runs per shift carrying ore to the ore
          dumps.

     21.  Established routes, or haulage roads, exist by which
          Toro 40D haul trucks travel from the mine portals to
          the ore dumps and return to the underground.

     22.  The distance from the north portal to the north ore
          dump is approximately 362 feet from the centerline of
          the dump, with a range of 75 feet to 400 feet.  The
          road between the north portal and the north ore dump
          has a grade of 0%.

     23.  The distance from the Pima portal to the Pima ore dump
          is approximately 360 feet from the centerline of the
          dump with a range of 75 to 400 feet.  The road between
          the Pima portal and the Pima ore dump had a grade of
          approximately 5.5%. . . .

     24.  In August 2000, a road running outside of the
          underground portion of the mine linked the north portal
          and the south portal.  That road was known as the "goat
          trail" because it was very narrow.  The "goat trail"
          was approximately one-half mile in length.  The Toro
          40D haulage trucks also used this road in August 2000.
          The goat trail was too narrow to be used by the haul
          trucks from the Open Pit . . . that are regularly used
          to transport ore exclusively on the surface.

     25.  The distance from the Pima portal to the south portal
          is approximately 1500 feet.

     26.  The goat trail was specifically designed to be used by
          underground haul trucks.

     27.  In approximately November 2000 the goat trail went out
          of use when the Mission Open Pit started to cut into
          that area.

     28.  The method of mining, the use of the haul trucks, and
          the location of the north ore dump have been relatively
          unchanged since the mine opened in 1994.  The Pima ore
          dump was not constructed until March 1999.

     29.  In the course of their regular operations, the Toro 40D
          haul trucks leave the underground to go to the ore
          dumps and once the ore has been off-loaded, they
          immediately return to the underground.

     30.  At the end of each shift, each of the Toro 40D haul
          trucks is driven out of the underground to the shop
          where it is fueled for the next shift.  The shop is
          approximately 400 feet from the north portal.

     31.  After being fueled, the Toro 40D haul trucks are driven
          from the shop and parked on a "ready line" where they
          are lubricated for use on the next shift.  The ready
          line is located about 200 feet outside the north
          portal.  At the beginning of each shift, each of the
          haul trucks is driven off the ready line and back
          underground.

     32.  The Toro 40D haul tricks also leave the underground
          area of the mine to go to the shop for maintenance or
          repairs, but for no other purpose.  On rare occasions,
          the Toro 40D trucks travel on the main haulage roads
          for the Pit between the north and Pima portals.

     33.  Therefore, the only time that the haul trucks leave the
          underground portion of the mine is when they are driven
          to and from the ready line, when they dump ore at the
          dump, and when they are taken to the shop for repairs.

     34.  There is sometimes other traffic such as tractors and
          other types of surface equipment as well as other Toro
          40D trucks on the haulage roads near the portals and
          dump areas.

     35.  Underground haul trucks have design features unique to
          that type of vehicle.

     36.  Underground haul trucks are designed with low ground
          clearance to fit inside a confined space where there is
          a limitation on vehicle height.

     37.  Underground haul trucks are specifically designed to be
          loaded from a low profile, within the restricted limits
          of the underground work space.
     38.  Because of the restricted space in which they primarily
          operate, underground haul trucks have a load capacity
          that is smaller than haul trucks that operate on the
          surface.

     39.  The Toro 40D haul trucks which were cited in these
          proceedings are equipped with seat belts.

     40.  The title of 30 C.F.R. � 57.14131 is "Seat belts for
          surface haulage trucks."

     41.  There is no definition of "surface haulage trucks" in
          Title 30 of the Code of Federal Regulations.

     42.  30 C.F.R. � 57.14131 does not explicitly state that it
          applies to underground haul trucks that are used on the
          surface at an underground mine.

     43.  30 C.F.R. � 57.14131 requires, among other things, that
          seat belts for surface haulage trucks meet the
          requirements of the 1985 version of a publication of
          the Society of Automotive Engineers designated as SAE
          J386, "Operator Restraint Systems for Off-Road Work
          Machines."

     44.  The Society of Automotive Engineers has published new
          guidelines on Operator Restraint Systems for Off-Road
          Work Machines since 1985.

     45.  At the time the citations were issued, the seat belt
          assemblies in the Toro 40D haul trucks did not comply
          with SAE J386 (1985).

     46.  There is no definition of "surface haulage trucks" in
          MSHA's Program Policy Manual.

     47.  There is no definition of "surface haulage trucks" in
          MSHA"s Program Policy Letters.

     48.  MSHA has issued no written guidelines as to the
          definition of "surface haulage truck."

     49.  The Program Policy Letters do not state whether 30
          C.F.R. � 57.14131 applies to underground haul trucks
          brought to the surface areas of an underground mine.

     50.  There is no definition of "surface haulage trucks" in
          MSHA's Program Information Bulletins.
             II.  SUMMARY OF THE PARTIES' ARGUMENTS

     A.  Secretary of Labor

     The Secretary maintains that the Toro trucks are required 
to comply with section 57.14131 when they are operated on the
surface area of the underground mine. She contends that any
haulage trucks operating on the surface must comply with the
safety standard.  She reasons that "haulage trucks are haulage
trucks regardless of design, manufacturer, labels, or names."
(S. Motion 10).  If haulage trucks are operated on the surface
areas of underground mines, then the trucks are required to
comply with the seat-belt requirements of the standard.

     The Secretary argues that the words "surface haulage trucks"
in the title of the safety standard refers to the location of the
trucks not the type of truck that is covered by the standard. A
haulage truck that is used on the surface of an underground mine
is a "surface haulage truck," whether it is used exclusively on
the surface or underground and on the surface.  She states that
the stipulated facts establish that the haulage trucks routinely
travel to the surface areas of the mine to dump mined ore as part
of the ongoing mining operations.

     In support of her position, the Secretary relies upon the
regulatory history of section 57.14130, as well as the cited
standard.  In addition, she maintains that her interpretation is
reasonable, is consistent with the language and purpose of the
standard, and should be accorded deference.  The Secretary
believes that she provided fair notice of her interpretation 
of the safety standard and that there is no evidence of 
inconsistent enforcement.  The Secretary contends that the 
alleged violation described in each citation has been 
established.[1]

      B.  Asarco

     Asarco maintains that the plain language of the safety
standard excludes the cited haulage trucks from its scope as a
matter of law. The plain language of the safety standard limits
its application to "surface haulage trucks." The trucks cited by
MSHA are not surface haulage trucks.  Asarco argues that anyone
familiar with mining equipment will instantly identify the Toro
trucks as "vehicles designed and intended for use underground."
(C. Motion 7).  As a consequence, these trucks are not surface
haulage trucks, which are an entirely different type of vehicle.
Asarco contends that all the citations must be vacated because
the cited trucks are not subject to the requirements of section
57.14131.

     In support of its position, Asarco relies upon the plain
language of the safety standard, the reasonably prudent person
test, the deposition testimony of MSHA officials, and the fact
that there can be no dispute that the cited vehicles are
underground haulage trucks.  Asarco also argues that, even if 
the safety standard can be said to include the cited vehicles,
SAE J386 does not apply to them. Finally, it contends that even 
if SAE J386 is applicable, the seat-belt assembly on the haulage
trucks met the requirements of that provision. Asarco maintains
that all five citations must be vacated in these cases.[2]

  III.  DISCUSSION WITH FINDINGS OF FACT AND CONCLUSIONS OF LAW

     A.  Interpretation of the Safety Standard

     This case appears to present an issue of first impression
before the Commission. The issue boils down to what is meant by
the phrase "Seat belts for surface haulage trucks" in the title
for section 57.14131. Asarco contends that the title defines the
scope of the safety standard. The title tells the world that the
safety standard only applies to "surface haulage trucks" and to
no other type of truck.  Part 57 of the Secretary's regulations
contains the safety and health standards for underground metal
and nonmetal mines.  Section 57.1 explains that "part 57 sets
forth mandatory safety and health standards for each underground
metal or nonmetal mine, including related surface operations
...."  The provisions of sections 57.14000 through 57.14219
(subpart M of part 57) contain safety standards for machinery 
and equipment.  Most of the standards in subpart M do not 
contain language that limits their application to particular 
areas of the mine.  Asarco maintains that the fact that section 
57.14131 contains such limiting language demonstrates that the 
standard was intended to apply only to surface haulage trucks.

     The Secretary takes the position that all haulage trucks
that travel on the surface at underground mines are surface
haulage trucks.  She contends that the title to the standard
identifies the area in which the standard applies rather than 
to the design of the truck.  She believes that the fact that 
the Toro trucks were designed for underground use is irrelevant
because the trucks were, in fact, used on the surface.  Any
haulage truck used on the surface is a "surface haulage truck"
no matter what the manufacturer's intent was when designing 
the truck.

     The first inquiry is whether the language of the safety
standard is clear on its face. It is significant that the body
of the safety standard does not include any limiting language.
It simply states that "[s]eat belts shall be provided and worn 
in haulage trucks."  The limiting language is provided only in 
the title.  Nevertheless, the title of a safety standard 
provides notice of the scope of the regulation to mine operators.  
I find that the title of the safety standard is somewhat
ambiguous. "Ambiguity exists when a [regulation] is capable of 
being understood by reasonably well-informed persons in two or
more different senses." Island Creek Coal Co., 20 FMSHRC 14, 19 
(Jan. 1998) (citation omitted).  I believe that a reasonably 
informed person might interpret the title to section 57.14131 
to mean that its scope is limited to trucks designed and used
exclusively as surface haulage trucks.  There can be no dispute
that the cited haulage trucks were designed for underground use.

     Because the phrase "surface haulage trucks" is ambiguous, I
must determine whether the Secretary's interpretation of this
phrase is reasonable.  The Commission recently summarized the
appropriate analysis in Island Creek, 20 FMSHRC at 18-19, as
follows:

          If ... a standard is ambiguous, courts have
          deferred to the Secretary's reasonable
          interpretation of the regulation.  See Energy
          West Mining Co. V. FMSHRC, 40 F.3d 457, 463
          (D.C. Cir. 1994).  Accord Secretary of Labor
          v. Western Fuels-Utah, Inc., 900 F.2d 318,
          321 (D.C. Cir. 1990) ("agency's
          interpretation . . . is `of controlling
          weight unless it is plainly erroneous or
          inconsistent with the regulation'") [citation
          omitted].  The Secretary's interpretation of
          a regulation is reasonable where it is
          "logically consistent with the language of
          the regulation[] and . . . serves a
          permissible regulatory function."  General
          Elec. Co. v. EPA, 53 F.3d 1324, 1327 (D.C.
          Cir. 1995) (citation omitted).  The
          Commission's review, like the courts',
          involves an examination of whether the
          Secretary's interpretation is reasonable. . .
          .

     The issue is whether the Secretary's interpretation is
reasonable, not whether Asarco's interpretation is more
reasonable. The Secretary's interpretation of a safety standard
may be reasonable even if it diverges from what a "first-time
reader of the regulation[] might conclude was the `best'
interpretation of [the] language."  General Elec. Co. at 1327.

     I find that the Secretary's interpretation that the title 
of the safety standard identifies the area in which the standard
applies is reasonable. First, this interpretation is "consistent
with the protective purposes of the Mine Act."  Rock of Ages
Corp. v. SOL, 170 F.3d 148, 155 (2d Cir. 1999).  The purpose of
the safety standard is to protect persons driving haulage trucks
on surface areas at underground mines.  Including all haulage
trucks that operate on the surface furthers this protective
purpose.  If, for example, a mine operator purchases used
underground haulage trucks at a good price for use on the
surface, the operator would be required to comply with section
57.14131, despite the fact that the trucks were designed for
underground use.  The hazards associated with driving haulage
trucks on the surface are not mitigated by the fact that the
trucks were designed for underground use.

     Second, the Secretary has not taken conflicting positions
with respect to her interpretation of the standard.  She has
previously maintained that haulage trucks and other equipment 
are subject to the provisions of sections 57.14131 or 57.14130 
if they are used on the surface.  In their depositions, MSHA
Inspectors Ronald S. Goldade and Tyrone Goodspeed testified that
they have issued similar citations in the past. (Goldade Depo.
33, 53; Goodspeed Depo. 54-56).  In Au Mining, Inc., 22 FMSHRC
771 (June 2000)(ALJ), the Secretary alleged a violation of
section 57.14130(a) because a loader was not equipped with a
roll-over protective structure ("ROPS") or a seat belt.  The
loader brought ore out of an underground mine, dumped the ore 
on the surface, and then returned underground for another load.  
22 FMSHRC at 776.  It made up to 20 trips per day.  The mine
operator argued that the loader was not "surface equipment," as
that term is used in the standard.  The Secretary successfully
argued that her interpretation was reasonable because the loader
was used on the surface.  Thus, the Secretary's position in the
present case does not present "the sort of "post hoc
rationalization[]" to which the courts will not defer."  Azco
Nobel Salt v. FMSHRC, 212 F.3d 1301, 1305 (D.C. Cir. 2000)
(citation omitted).

     Third, the regulatory history of the safety standard
supports the Secretary's position.  Section 57.14131 was
promulgated in 1988 along with section 56.14131, which is the
identical standard for surface mines that is entitled "Seat 
belts for haulage trucks." 53 Fed. Reg. 32496 (August 25, 1988).  
As applied to underground mines, the preamble states that the 
"new standard requires that seat belts be provided and worn in 
haulage trucks at . . . surface areas of underground mines." 
53 Fed. Reg. at 32512-13.  Before this standard was promulgated, 
seat belts were required only for surface equipment that was 
required to have ROPS.  Because haulage trucks were not required 
to be equipped with ROPS, seat belts were not required. Although 
the preamble does not discuss haulage trucks that are used
underground and on the surface, the clear implication is that 
any haulage trucks used on the surface at underground mines are
required to comply with section 57.14131.  This language
envisions a use test not an equipment design test for coverage
under the safety standard.  Nothing in the preamble suggests that
haulage trucks designed for underground use are not required to
comply with the safety standard when they are used on the
surface.

     In sum, I find that the Secretary's interpretation of the
phrase "surface haulage trucks" to be reasonable. It effectuates
the purpose of the safety standard by ensuring that drivers of
haulage trucks are protected by seat belts.  Although Asarco has
taken steps to make sure that the Toro haulage trucks are
segregated from the much larger haulage trucks used in the open
pit, other conditions are present that create potential hazards
to the drivers of the Toro trucks.  Seat belts would help protect
these drivers from injury.  I limit my decision to the facts
presented in this case.  My holding on this issue and the notice
fair issue, discussed below, might be different if the Toro
haulage trucks were brought to the surface solely for repair and
maintenance.

     B.  Fair Notice of the Secretary's Interpretation

     The Secretary is required to provide fair notice of the
requirements of her safety and health standards.  The Commission
recently summarized this requirement Island Creek, 20 FMSHRC at
24, as follows:

               Where an agency imposes a fine based on
          its interpretation, a separate inquiry may
          arise concerning whether the respondent has
          received "fair notice" of the interpretation
          it was fined for violating.  Energy West
          Mining Co., 17 FMSHRC 1313,1317-18 (Aug.
          1995).  "[D]ue process . . . prevents . . .
          deference from validating the application of
          a regulation that fails to give fair warning
          of the conduct it prohibits or requires."
          Gates & Fox Co. v. OSHRC, 790 F.2d 154, 156
          (D.C. Cir. 1986).  An agency's interpretation
          may be "permissible" but nevertheless fail to
          provide notice required under this principle
          of administrative law to support imposition
          of a civil sanction.  General Elec., 53 F.3d
          at 1333-34.   The Commission [does not
          require] that the operator receive actual
          notice of the Secretary's interpretation.
          Instead, the Commission uses an objective
          test, i.e., "whether a reasonably prudent
          person familiar with the mining industry and
          the protective purposes of the standard would
          have recognized the specific prohibition or
          requirement of the standard."  Ideal Cement
          Co., 12 FMSHRC 2409, 2416 (Nov. 1990).

     Asarco maintains that the Secretary did not make any public
statements, either in the form of recommendations or
requirements, that would put operators on notice that she 
intends to apply section 57.14131 to underground haul trucks 
that operate on the surface.  It points to the depositions of 
MSHA Supervisory Inspector Goldade and MSHA Inspector Horning 
in support of its position.  These individuals testified that 
MSHA did not issue any policy statements to provide guidance to
mine operators. Inspector Horning agreed that the title of the 
safety standard is confusing and suggested that mine operators 
"ask around" to find out if it applies to underground haulage 
trucks that operate on the surface.  MSHA Inspector Eubanks 
stated that an operator could contact the local MSHA office 
for guidance. Inspector Eubanks stated that he was taught at 
an MSHA training class in 1992 that "whenever a haul truck is 
used on the surface it becomes a surface haul truck."  He 
further testified that he knows of no written material that 
contains such an interpretation.  Asarco contends that a 
reasonably prudent person familiar with the mining industry 
and the protective purposes of the standard would not have 
recognized that the Toro haulage trucks were covered by the 
safety standard taking into consideration the design of the 
trucks and the fact that they were primarily used underground.

     The Secretary contends that the language of the standard
provides adequate notice of its coverage.  In addition, she
argues that the language in the preamble for the standard
provided notice to mine operators that any haulage truck used
at surface areas of underground mines was covered by the safety
standard.  The Secretary states that her placement of the
standard in both parts 56 and 57 provides notice that she
intended the standard to apply to specified geographic locations
rather than to particular truck designs.  The Secretary also
maintains that she is "not required to promulgate interpretations
through rulemaking or the issuance of policy guidance, but may
instead do so through litigation or enforcement."  (S. Reply 3
citing National Wildlife Fed'n. v. Browner, 127 F.3d 1126, 1129
(D.C. Cir. 1997)).  She states that her enforcement history
provides notice of her consistent interpretation of the standard.

     I find that the Secretary provided fair notice of the
requirements of the standard as applied to the facts in these
cases.   The phrase "surface haulage trucks" appears only in the
title of section 57.14131.  But for the presence of this phrase,
all haulage trucks at underground mines would be required to be
equipped with the type of seat belts specified at SAE J386.  A
reasonably prudent person would first look to see if the phrase
"surface haulage truck" is defined by the Secretary in 30 C.F.R.
Part 57, in her program policy manual, or in any other policy
statements.  If the Secretary were using the phrase as a
technical term of art to refer to a particular type of haulage
truck, one would expect to see a definition.  The absence of a
definition indicates to a reasonably prudent person that the
Secretary did not intend the phrase to have a technical meaning.
One would not expect to see the phrase defined if the Secretary
intended it to mean a haulage truck that is used on the surface.

     The preamble to the safety standard also provides a clue
that the title does not have a technical meaning. It states that
seat belts are required to be "provided and worn in haulage
trucks at . . . surface areas of underground mines."  53 Fed.
Reg. at 32512-13.  This language clearly suggests that the
limitation in the title is geographic in scope.  It does not
impart any sense that the safety standard is limited to a
particular type of haulage truck used on the surface.  Reading
that language, a reasonably prudent person would conclude that
haulage trucks used on the surface are covered by the safety
standard.

     Asarco relies on the deposition transcripts of four MSHA
inspectors to support its position. These inspectors acknowledge
that the title of the safety standard is somewhat ambiguous.
They agree that the Toro trucks contain features, such as roof
fall protection devices, that clearly indicate that they are
designed for underground use.  This testimony does not establish
that a reasonable prudent person would conclude that the Toro
trucks are not covered by the section 57.14131.  The reasonably
prudent person test does not imply that the person would have
recognized the specific requirement of the standard on his 
"first reading."  In some instances the reasonably prudent 
person may be required to put some thought to the matter. The 
large haul trucks that Asarco contends are covered by the 
standard are generally not used at underground mines. Section 
56.14131 is applicable to large off-road haul trucks that are 
used at quarries and open pit mines.  Asarco's interpretation 
of section 57.14131 would significantly narrow its scope to the 
point that it would be applicable to very few haul trucks. The 
only haul trucks covered would be those designed for surface 
use that transport material from one point to another on the 
surface at an underground mine and those that are designed for 
surface use that are nevertheless used underground.

     All of the inspectors testified that MSHA has consistently
interpreted section 57.14131 to cover haul trucks that are used
to haul material on the surface from the underground. MSHA looks
at how the haul truck is used not the design of the truck to
determine whether it must be equipped with an SAE seat belt.
This interpretation is the most logical construction of the
safety standard and would be understood by a reasonable prudent
person.  As Inspector Horning stated, a "reasonable operator
should assume that if the truck is used on the surface, the [the
safety standard] would apply."  (Horning Dep. 57).  MSHA has
issued similar citations at other underground mines that have
apparently not been contested by mine operators.

     Although this issue has not arisen with great frequency, 
the Secretary has been consistent in her application. Inspectors
Goldade and Goodspeed testified that they have issued similar
citations in the past.  The judge's decision in Au Mining, Inc.,
provides notice of the Secretary's interpretation of section
57.14130, a similar provision.  Asarco argues that section
57.14130 helps its case because that provision lists types of
equipment covered by the standard.  Asarco states that it was
reasonable for it to believe that the Secretary intended the
phrase "surface haulage trucks" to refer to a particular type 
of haulage truck.  Its argument is not convincing.  Section
57.14130(a) serves notice that certain types of equipment
operating on the surface are required to have ROPS.  Likewise,
under section 57.14131, haulage trucks operating on the surface
are required to have off-road seat belts.

     This case does not present a situation in which the
Secretary is offering a post hoc rationalization for MSHA's
actions.  Inspector Eubanks stated that his 1992 training class
included instruction on this safety standard that was consistent
with the Secretary's position here.  Thus, the Secretary's
position reflects the "agency's fair and considered judgment on
the matter."  Auer v. Robbins, 117 S.Ct. 905, 912 (1997).  
The Secretary is not required to have a written document 
interpreting every safety and health standard she has 
promulgated.  She is simply required to provide fair notice 
of the requirement of each standard.  Although there is some 
ambiguity in the title for the standard, as discussed above, 
I find that a reasonably prudent person, after due 
consideration, would understand that haulage trucks used to 
transport material on the surface at an underground mine are 
required to meet the requirements of the safety standard, 
even when the truck is loaded underground and was designed 
to meet the conditions of an underground environment.  
Asarco's contrary interpretation is overly technical and 
illogical.

     C.  The Application of SAE J386 to Asarco's Toro Trucks.

     Asarco argues that by its own terms, SAE J386 does not 
apply to the Toro trucks.  SAE J386 states that it applies to 
"off-road, self-propelled work machines commonly used in 
construction, logging and, mining as referred to in SAE J1040c 
. . . ."  (A. Motion at 25).  That provision lists categories 
of work machines that are recommended for coverage under SAE 
J386.  There is no question that the Toro trucks do not fall in 
any of these categories.  Asarco argues that, for this reason, 
its Toro trucks were not required to comply with the
requirements of section 57.14131.  Asarco also argues that it 
was reasonable for it to rely on the language in SAE J1040c 
for guidance in the interpretation of the safety standard.

     The Secretary argues that the plain language of section
57.14131(c) makes clear that the reference to SAE J386 is solely
for the purpose of indicating the type of seat belt that must be
installed in haulage trucks.  The safety standard does not refer
to any provision of the SAE guidelines for the purpose of
establishing what types of equipment are covered by the standard.

     I agree with the Secretary.  The reference to SAE J386 in
section 57.14131(c) is clear and unambiguous.  Mine operators 
are directed to SAE J386 for the sole purpose of obtaining
information about the type of seat belt that is required to be
installed in haulage trucks.  Section 57.14131(c) provides that
"[s]eat belts required under this section shall meet the
requirements of SAE J386. . . ."  It was unreasonable for Asarco
to assume that the SAE guidelines also delineate the types of
off-road work machines to which the Secretary's safety standard
applies.

     Finally, Asarco argues that Citation Nos. 7945743 and
7945735, alleging that there were no tethers connecting the seat
belts to the floor of two trucks, must be vacated.  It states
that the use of tethers is permissive under SAE J386, Part III
5.1.2.  (A. Motion at 30).  It relies, in part, on the decision
of Chief Judge Barbour in Daanen & Janssen, Inc., 18 FMSHRC 1796,
1802 (Oct. 1996).  The parties stipulated, however, that "[a]t
the time the citations were issued, the seat-belt assemblies in
the Toro 40D haul trucks did not comply with SAE J386 (1985)."
(Stip. � 45).  Consequently, this argument is not well taken 
and I therefore reject it.

     D.  The Penalty Criteria of Gravity and Negligence.

     The parties did not enter into stipulations concerning the
inspectors' evaluation of gravity and negligence.  In section
104(a) citations, gravity, including the significant and
substantial determination, and negligence are only considered
when assessing a civil penalty under section 110(i) of the Mine
Act.  The Secretary submitted a two-page affidavit of Inspector
Goldade, dated February 21, 2001, containing some evidence to
support the inspectors' determinations with respect to gravity
and negligence.  Asarco did not offer any specific evidence or
argument on the gravity and negligence criteria, although many 
of the facts and arguments it presented on the merits would be
equally applicable to these penalty criteria.  In her reply to
contestant's motion for summary decision, the Secretary argues
that I should credit her evidence and affirm the inspectors'
evaluation of the penalty criteria because Asarco did not offer
any other evidence.

     I reject the Secretary's position because entering findings
with respect to two of the six penalty criteria is beyond the
scope of the motions for summary decision in these pre-penalty
contest proceedings.  I cannot assess civil penalties in these
cases.  Penalties assessed by Commission judges must "reflect
proper consideration of the penalty criteria set forth in 
section 110(i) and the deterrent purposes of the Act."  Hubb 
Corp., 22 FMSHRC 606, 611 (May 2000) (citations omitted).  
Inspector  Goldade's affidavit does not provide sufficient 
information for me to enter findings with respect to gravity 
and negligence. Consequently, I decline to do so.  Once 
penalties are proposed for these citations and the penalty 
cases are assigned to me or another judge, the parties can 
consider how they wish to proceed with respect to the six 
criteria in section 110(i) and MSHA's proposed penalties.

                            IV.  ORDER

     For the reasons set forth above, the notices of contest
filed by Asarco Incorporated in these cases are DENIED.  The
Secretary established that Asarco violated 30 C.F.R. � 57.14131
as set forth in each citation, as modified.  Citation Nos.
7945733, 7945734, 7945735, 7945743, and 7945587 are AFFIRMED.
Because I did not make any findings with respect to the
inspectors' evaluation of the gravity and negligence criteria,
this order does not apply to Section II, Parts 10 and 11, of 
the citations.  Those issues can be resolved in the subsequent 
civil penalty case.  Accordingly, these proceedings are 
DISMISSED.


                              Richard W. Manning
                              Administrative Law Judge


Distribution:


Mark Savit, Esq., Patton Boggs, 2550 M Street, NW, Washington,
DC 20037-1350 (Certified Mail)

James B. Crawford, Esq., Office of the Solicitor, U.S. 
Department of Labor, 4015 Wilson Boulevard, Arlington, VA 
22203-1954 (Certified Mail)

Jan M. Coplick, Esq., Office of the Solicitor, U.S. Department 
of Labor, 71 Stevenson St., Suite 1110, San Francisco, CA 
94105-2999 (First Class Mail)


RWM

**FOOTNOTES**

     [1]:  The Secretary's objection,  filed  by  letter dated
February 23, 2001, to the declaration of Peter Graham filed  
by Asarco is DENIED.

     [2]:  For good cause shown, Asarco's motion objecting to
certain photographs and the captions  for  other photographs 
that were submitted by the Secretary is GRANTED.