<DOC>
[DOCID: f:weva9913cd.wais]

.
RAWL SALES & PROCESSING COMPANY
May 9, 2001
WEVA 99-13-R




        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                   1730 K STREET NW, 6TH FLOOR

                     WASHINGTON, D.C.  20006

                           May 9, 2001


SECRETARY OF LABOR,              :
  MINE SAFETY AND HEALTH         :
  ADMINISTRATION (MSHA)          :
                                 :
          v.                     :  Docket No. WEVA 99-13-R
                                 :
RAWL SALES & PROCESSING          :
  COMPANY                        :

BEFORE:  Jordan, Chairman; Riley, Verheggen, and Beatty,
Commissioners

                             DECISION

BY THE COMMISSION:

     This civil penalty proceeding arises under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. � 801 et seq. (1994)
("Mine Act" or "Act").  At issue is a citation issued by the
Department of Labor's Mine Safety and Health Administration
("MSHA") charging Rawl Sales & Processing Company ("Rawl") with
violating 30 C.F.R. � 75.362(b)[1] for failing to conduct an
examination of the belt haulageway in the Rocky Hollow mine
between 3:30 p.m. and 11:30 p.m. when the belt conveyor was
carrying coal through the mine but no miners were present.
Administrative Law Judge Jerold Feldman granted Rawl's motion for
summary decision and vacated the citation.  21 FMSHRC 219, 228
(Feb. 1999) (ALJ).  The Commission granted the Secretary's
petition for discretionary review challenging the judge's
decision.

     The Commission's vote in this case is evenly split.
Commissioners Riley and Verheggen would affirm the judge's
decision.  Chairman Jordan and Commissioner Beatty would reverse
the judge's decision and remand to the judge for assessment of
penalty.  For the reasons set forth in Pennsylvania Electric Co.,
12 FMSHRC 1562, 1563-65 (Aug. 1990), aff'd, 969 F.2d 1501 (3d
Cir. 1992), the effect of the split decision is to allow the
judge's decision to stand as if affirmed.

                               I.

                Factual and Procedural Background

     Rocky Hollow is an underground coal mine, categorized under
MSHA's guidelines as "active-nonproducing," and is owned and
operated by Rawl.  21 FMSHRC at 221.  A belt conveyor runs
through Rocky Hollow carrying coal for approximately 5.5 miles
from an adjacent underground mine, Sycamore Fuels ("Sycamore"),
to the Sprouse Creek Preparation Plant ("Preparation Plant"),
which is also owned and operated by Rawl.  Id.  The coal from
Sycamore is brought to the surface by belt line once again, and
is then transported approximately 3/4 of a mile on the surface.
It then goes underground and travels through the Rocky Hollow
mine.  Id.  Upon surfacing from Rocky Hollow, the belt line runs
approximately 100 feet to the Preparation Plant.  Id. at 220.
Sycamore is located about 8 miles by road from the Preparation
Plant.  Id. at 221.  Coal is extracted from Sycamore on two
shifts - 7 a.m. to 4 p.m. and 4 p.m. to 12 a.m.  Id. at 222.  The
belt conveyor carries coal from Sycamore from 7:30 a.m. to 11:30
p.m., and a maintenance shift is conducted at Sycamore from 12
a.m. to 7 a.m.  Id. at 221-22.

     Miners are underground in Rocky Hollow from 7:30 a.m. to
3:30 p.m., performing various tasks, including the examination,
cleaning, and maintenance of the belt line and related areas of
the mine.  Rawl Mot. for Summ. Dec. at 4-5, Stip. 11 (hereinafter
cited as "Stip.").  Also during that shift, an on-shift
examination is conducted.  Stip. 12.  The belt conveyor in Rocky
Hollow continues transporting coal from 3:30 p.m. to 11:30 p.m.,
when there are no miners underground.  21 FMSHRC at 220.  From
3:30 a.m. to 7:30 a.m., three miners conduct a preshift
examination in the Rocky Hollow mine.  Id. at 220, 222; Stip. 12.
Rocky Hollow is equipped with an automatic fire warning system
which is active 24 hours-a-day, and the belt conveyors are flame-
resistant.  21 FMSHRC at 222.  There are four portals through
which intake air enters the mine, and a mine fan which operates
24 hours per day and is examined daily.  Id.

     On October 1, 1998, MSHA Inspector Gary Collins issued
Citation No. 7175284 to Rawl alleging a violation of section
75.362(b).  Id.  The citation stated: "Coal is being transported
through the [Rocky Hollow] mine, from Sycamore Fuels to the
Sprouse Creek Preparation Plant, on the 1530 to 2330 shift, an
on-shift examination is not being conducted on this shift."  Id.
at 220.  The inspector found moderate negligence and the
Secretary proposed a $55 penalty.

     Rawl filed a notice of contest, and the parties filed cross-
motions for summary decision.  In his decision, the judge found
that although the language of section 75.362(b) was plain, the
meaning advanced by the Secretary was contrary to legislative
intent under the Mine Act when applied to Rocky Hollow, and
therefore, an on-shift inspection of the belt conveyor haulageway
was not required, because no miners were underground between 3:30
p.m. and 11:30 p.m.  Id. at 219, 223.  As an alternative ground
for his decision, the judge found that the Secretary's
interpretation was not entitled to deference because she failed
"to advance any consistent, convincing policy concerns that
justify interpreting the pertinent statutory and regulatory
provisions in a way that prohibits unattended operation of the
Rocky Hollow beltline," or to identify any miners who were
particularly at risk.  Id. at 227.  Finding that it would be more
desirable to have miners above ground, the judge concluded that
there was no justification for the exposure of on-shift examiners
to the danger of an operational belt line.  Id. at 226-27.  The
judge granted Rawl's motion for summary decision and vacated the
citation.  Id. at 228.

                               II.

                           Disposition

     The Secretary argues that the plain language of section
75.362(b), its regulatory history, and the purpose of the
standard support the Secretary's position that an on-shift
examination of the Rocky Hollow belt line is required between
3:30 p.m. and 11:30 p.m.  S. Br. at 12-20.  The Secretary
contends that section 75.362(b) is applicable, although no miners
are underground, because the transportation of coal is within the
regulatory definition of coal production.  Id. at 16-19.
Alternatively, the Secretary argues that coal production at
Sycamore may be considered for purposes of satisfying the
standard.  S. Reply Br. at 3-4.  The Secretary also contends that
the judge's conclusion is erroneous because he failed to address
the Secretary's arguments and evidence in support of her
position, while applying irrelevant Mine Act provisions in his
plain meaning analysis.  S. Br. at 20-22.  In addition, the
Secretary argues that, if the regulation is ambiguous, then the
judge erred by concluding that the Secretary was not entitled to
deference, by applying the wrong standard for deference,
substituting his judgment in place of the Secretary's, and
failing to consider and analyze the entire record.  Id. at 23-30.
Finally, the Secretary replies that no notice problem exists
because section 75.362(b) is not impermissibly vague.  S. Reply
Br. at 9-11.

     Rawl responds that section 75.362(b) is inapplicable to the
Rocky Hollow mine because there is no "shift," "active workings,"
or "working sections," because there are no miners working and no
coal produced from 3:30 p.m. to 11:30 p.m., while the belt is in
operation.  R. Br. at 7-10.  Rawl contends that the plain
language of the standard, in addition to the regulatory and
statutory histories, supports its reading of the regulation.  Id.
at 10-17.  Finally, Rawl argues that the Secretary is not
entitled to deference because her interpretation reduces rather
than promotes the safety of miners and is not reasonable.  Id. at
17-23.  Alternatively, Rawl asserts that, even if the Secretary's
interpretation were reasonable, the result would be the same
because it did not have notice of the Secretary's interpretation.
Id. at 23-25.


**FOOTNOTES**

     [1]:  30 C.F.R. � 75.362(b) provides:

          During each shift that coal is produced, a cer-
          tified person shall examine  for  hazardous 
          conditions along each belt  conveyor  haulage-
          way where a  belt conveyor is operated.  This 
          examination may be conducted at the same time 
          as the preshift examination of belt conveyors 
          and  belt conveyor haulageways, if the  exami-
          nation is conducted within three hours before 
          the on-coming shift.
          
                               II.

             Separate Opinions of the Commissioners

Commissioner Riley, in favor of affirming the decision of the
judge:

     The Chairman and Commissioner Beatty conclude that the
language of section 75.362(b) is plain and applicable to Rocky
Hollow, even when no miners are present.  Slip op. at 11, 13.
Because an essential element of the inspection requirement under
section 75.362(b) is the presence of miners who must be protected
from hazardous conditions during their work shift, I conclude
that Rocky Hollow is not required to perform an "on-shift"
examination when no miners are working or present.  I therefore
affirm the judge's decision finding no violation.

     In a free market system, government regulation is not an end
in itself, but rather interference, albeit necessary, in what is
otherwise a self-regulating economic system.  Such intervention,
especially where it imposes additional burdens on a regulated
entity, is to be undertaken reluctantly, carefully, and only to
achieve a higher public purpose, such as protecting miners from a
cognizable threat to their life or health.  Since I cannot
discern what mining danger threatens miners at home in their
beds, I will not support the Secretary's gratuitous demand that
Rawl order miners underground for several hours, who would
otherwise be at home, to conduct an "on-shift" examination to
protect nobody from anything.

     Generally, where the language of a regulatory provision is
clear, the terms of that provision must be enforced as they are
written unless the regulator clearly intended the words to have a
different meaning or unless such a meaning would lead to absurd
results.  See Dyer v. United States, 832 F.2d 1062, 1066 (9th
Cir. 1987) (citing Consumer Prod. Safety Comm'n v. GTE Sylvania,
Inc., 447 U.S. 102, 108 (1980)); Utah Power & Light Co., 11
FMSHRC 1926, 1930 (Oct. 1989) (citing Chevron U.S.A., Inc. v.
Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984));
Consolidation Coal Co., 15 FMSHRC 1555, 1557 (Aug. 1993).
Section 75.362(b) requires an inspection for hazardous conditions
along each belt conveyor haulageway while the belt is operating
during each coal-producing shift.  However, to apply the
regulation to a non-producing mine when no miners are present
leads to an absurd result and in no way furthers the purposes of
the Mine Act.[1]

     The belt conveyor at issue operates from 7:30 a.m. to 11:30
p.m.  21 FMSHRC at 220.  Miners work a single (day) shift, from
7:30 a.m. to 3:30 p.m.  Id.  Thus, for the remainder of the time
during which the belt is operating in Rocky Hollow, from 3:30
p.m. to 11:30 p.m., the belt passes through an empty mine.  Id.
The purpose of the inspection requirement in section 75.362(b) is
to protect miners from hazards as they work or travel along the
haulageway.  Applying the standard when no miners are underground
at Rocky Hollow clearly does not further the statutory purpose of
the Mine Act, protecting miners from occupational hazards.  See
Emery Mining Corp. v. Sec'y of Labor, 744 F.2d 1411, 1414 (10th
Cir. 1984).  In short, I agree with the judge that, in the
absence of any miners at Rocky Hollow, the record in this case
demonstrates absolutely no enhancement to miner safety in
applying the regulation's inspection requirement to Rocky Hollow.
21 FMSHRC at 225-26.

     I am well aware of the hazards associated with belt
conveyors noted by my colleagues.  Slip op. at 12 n.2.  However,
I have found no Commission case involving a belt conveyor in
which a violation was found in a mine empty of miners.  Thus, the
Secretary has presented the Commission with a unique situation
involving a regulation in search of a hazard from which miners
must be protected in futuro.  I agree with the judge's
well-reasoned analysis on this point:

               In essence, the Secretary asserts that
          it is safer to expose beltline examiners to
          the hazards of underground mining in an
          attempt to prevent a belt malfunction and
          possible fire.  However, the Secretary has
          failed to identify any miners who would be
          exposed to any hazard if a fire occurred
          because the beltline was not routinely
          examined after 3:30 p.m.  A fire or other
          smoke hazard could occur at any time,
          anywhere along this 5� mile belt, with or
          without the presence of belt examiners.  In
          such event, it is more desirable to have
          personnel on the surface rather than
          underground.

               Finally, the Secretary contends the
          failure to on-shift the beltline may
          contribute to a fire which would pose a
          hazard to firefighters.  The potential hazard
          to victims trapped underground in the event
          of a fire, far outweighs the potential hazard
          to firefighters who would enter the mine from
          the surface fully prepared to extinguish a
          fire.

21 FMSHRC at 226-27.

     The language and purpose of the underlying provisions of the
Mine Act, which section 75.362(b) implements, further support
this common-sense application.  As the judge explained in his
decision, the Secretary's regulations regarding pre-shift and on-
shift examinations, found in 30 C.F.R. �� 75.360[2] and 75.362,
implement statutory requirements for inspections set forth in
sections 303(d)(1) and (e) of the Mine Act, 30 U.S.C. ��
863(d)(1) and (e).[3]  21 FMSHRC at 224.  These statutory
provisions require inspections only in active workings and
working sections of a mine.[4]  Id.  Limiting the requirement for
inspections (either "pre-shift" or "on-shift") to active workings
and working sections imposes the burden of inspection only when
it enhances the safety of miners who will soon be or are already
working or traveling in such areas of the mine.  If there are no
miners present, there is obviously no one to protect from
hazards.  Similarly, during periods when no miners are assigned
to work anywhere in the mine, there is no "shift," a prerequisite
to any obligation to inspect.[5]

     Indeed, the legislative history of the Mine Act is clear
regarding the link between "hazards involved with . . . mining"
and "the need to provide for the health and safety of the
nation's miners."  S. Rep. No. 95-181, at 1 (1977), reprinted in
Senate Subcomm. on Labor, Comm. on Human Res., Legislative
History of the Federal Mine Safety and Health Act of 1977, at 589
(1978).  Therefore, the Secretary's interpretation and
application of section 75.360(b) to require an on-shift
inspection during a time when no miners are present would not
serve any safety-promoting purpose of the Act.  If the Secretary
is permitted to impose her present interpretation, the result
will be counter to the Mine Act's entire regulatory scheme.  The
Mine Act was enacted to protect miners, not mines.  Here the
Secretary seeks to interfere in the normal operations of a mine,
requiring miners to be on-site, underground and exposed to
hazards in order to monitor the operation of an automated
overland conveyor system in an otherwise closed mine.

     I also find unpersuasive the Secretary's resort to the use
of miners in the adjacent Sycamore Fuels mine and Sprouse Creek
Processing Preparation Plant to argue that section 75.362(b)
imposes an obligation for an "on-shift" inspection of Rocky
Hollow when no miners are working any shift that would otherwise
impose such an obligation.  PDR at 18-19; S. Br. at 19-20, 26-27,
29.  The judge rejected the Secretary's contention that the
presence of miners in nearby facilities triggered the standard's
inspection requirement.  21 FMSHRC at 225.  The Secretary has
presented no evidence to suggest that Rocky Hollow or Sycamore
Fuels are under common ownership or management, share a workforce
or in any other way constitute a unitary operator, responsible
jointly for the safety of all miners employed by any of its
constituent parts.  Compare, e.g., Berwind Natural Res. Corp., 21
FMSHRC 1284, 1317 (Dec. 1999).  Nor is there any record support
for the Secretary's contention that hazards which may develop at
Rocky Hollow could somehow travel to the surface and migrate to
Sycamore or the Preparation Plant, thus putting at risk miners
who do not work in Rocky Hollow.  Consequently, the Secretary's
importation of risk from Rocky Hollow to Sycamore or the
Preparation Plant is without factual foundation.

     Under the facts of this case, I conclude that section
75.362(b) does not require an inspection of the belt conveyor in
the Rocky Hollow mine while the belt is operating from 3:30 p.m.
to 11:30 p.m., because no hazardous conditions can conceivably
threaten miners who are not present in the mine.  21 FMSHRC at
224-25.  Moreover, miners are not scheduled to enter Rocky Hollow
until 3:30 a.m. the following morning, when a pre-shift
inspection is conducted before the next scheduled work shift
begins at 7:30 a.m.  Id. at 220.  The only purpose that an
examination between 3:30 p.m. to 11:30 p.m. could possibly serve
is to enhance protection for pre-shift examiners on the next
shift, i.e., preshifting the preshift, an obligation heretofore
never imposed on any operator.[6]

     Based on the foregoing, I thus would affirm the judge's
decision dismissing the violation in this proceeding.  To do
otherwise merely encourages unnecessary bureaucratic muscle
flexing with no salutary purpose.  The Secretary's illogical
insistence that an "on-shift" examination is required to protect
"off-shift" miners when "no shift" is present is not only an
unfortunate case of regulatory excess, but a perfect example of
regulation for regulation's sake.


                              James C. Riley, Commissioner


**FOOTNOTES**

     [1]:  It is well established  that even if the language of a
statutory or regulatory provision appears  to  be plain, one must
not  read  that  language in a way that produces absurd  results.
Cardenas-Uriarte v. INS, 227 F.3d 1132, 1137 (9th Cir. 2000) ("We
adhere to plain meaning `unless that meaning would lead to absurd
results.'") (citing  Reno  v.  NTSB, 45 F.3d 1375, 1379 (9th Cir.
1995)); Tanimura & Antle, Inc. v. Packed Fresh Produce, Inc., 222
F.3d 132 (3d Cir. 2000) (refusing  to  read the plain language of
the Perishable Agriculture Commodities Act  in  such  a  way that
would  produce an absurd result and defeat Congress' intent);  In
re Lehman,  205  F.3d  1255,  1256  (11th  Cir.  2000) ("Although
statutory interpretation begins with the language  of the statute
itself,  .  . . a court may look beyond the plain language  of  a
statute if applying  the  plain  language would produce an absurd
result.") (citations omitted).

     [2]:  Section 75.360 requires a pre-shift inspection "within
three hours preceding the beginning of any shift during which any
person is scheduled to work or travel underground."

     [3]:  Section 303(d)(1), in pertinent part, provides:

          Within three hours immediately  preceding the
          beginning of any shift, and before  any miner
          in such shift enters the active workings of a
          coal  mine,  certified persons designated  by
          the operator of  the  mine shall examine such
          workings and any other  underground  area  of
          the  mine  designated by the Secretary or his
          authorized  representative.   .   .   .  Belt
          conveyors  on which coal is carried shall  be
          examined after  each coal producing shift has
          begun.

30 U.S.C. � 863(d)(1) (emphasis  added).  Section 303(e) provides
in  pertinent  part,  "At least once during each  coal  producing
shift,  or  more often if  necessary  for  safety,  each  working
section shall  be  examined for hazardous conditions by certified
persons designated by the operator to do so."  30 U.S.C. � 863(e)
(emphasis added).

     [4]:  Both the  Mine  Act  and  the  Secretary's regulations
define active workings as "any place in a coal  mine where miners
are normally required to work or travel" (30 U.S.C.  � 878(g)(4);
30 C.F.R. � 75.2), and working section as "all areas of  the coal
mine  from the loading point of the section to and including  the
working faces" (30 U.S.C. � 878(g)(3); 30 C.F.R. � 75.2).

     [5]:  Of  particular importance in this case, "words should
never   be  given  a   meaning   that   produces   a   stunningly
counterintuitive  result  - at least if those words, read without
undue  straining,  will  bear  another,  less  jarring  meaning."
United States v. O'Neil, 11  F.3d 292, 297 (1st Cir. 1993).  Laws
"must be interpreted in light  of  the  spirit in which they were
written  and  the  reason  for  their  enactment."    Gen.  Serv.
Employees  Union  Local  No. 73 v. NLRB, 578 F.2d 361, 366  (D.C.
Cir. 1978).

     [6]:  Moreover, in attempting  to  examine  the belt for the
benefit  of  the  pre-shift  examiners,  the  on-shift  examiners
themselves would be traveling the belt without the benefit  of  a
pre-shift  examination,  since  the  Secretary  conceded  that  a
pre-shift  examination of the mine prior to the 3:30 p.m. "shift"
was not required under section 75.360.  21 FMSHRC at 226 n.3.  As
the judge noted,  if  a pre-shift examination is not required for
the 3:30 p.m. to 11:30 p.m. period because no one is underground,
it makes little sense to  require an on-shift examination for the
same period.  Id. at 226.


Commissioner Verheggen, in favor of affirming the decision of the
judge:

     I concur with the opinion of my colleague Commissioner Riley
in its entirety, and join him in affirming the judge's decision
finding no violation.  I write separately to address points on
which I respectfully disagree with the Chairman and Commissioner
Beatty's opinion in which they would reverse the judge.

     The Chairman and Commissioner Beatty assert that affirming
the judge and finding no violation here "is contrary to the
protective intent of the regulation," arguing that if a belt
conveyor in an underground coal mine that is "idle and
unattended" and experiences "an unanticipated and unchecked
disruption in its normal functioning routine," the hazards of
such a situation are self evident because of the "hazardous
nature" of such conveyors.  Slip op. at 14.  I find it contrary
to the overall safety objectives of the Mine Act, however, to
require that the belt be attended simply to identify hazards for
those who might have to enter the belt line in the event of a
belt stoppage.  In my view, any such requirement would needlessly
expose miners to hazards.

     I also note that the Chairman and Commissioner Beatty point
to what they characterize as an "operator's practice" under which
they allege that "any interruption in the belt conveyor system
would completely halt production at the Sycamore mine on the 4
p.m. to 12 a.m. shift."  Slip op. at 13.  They further allege
that "only a certified mine examiner would be permitted to enter
the Rocky Hollow belt line to ascertain the nature of [a]
conveyor belt disruption."  Id.  My colleagues, however, have
gleaned this purported "operator's practice" from a statement
made at oral argument by counsel for Rawl, who stated:  "If the
belt goes down . . . from 3:30 [p.m.] to 11:30 [p.m.], there has
not been any experience where they've called people back out to
get that taken care of.  They've waited until the next morning."
Oral Arg. Tr. 11.  Referring to "general maintenance problems,"
counsel further explained that "the problem is more of a
logistical issue.  It requires a number of people, before going
back in . . . to first pre-shift and then a number more . . . to
do the work."  Oral Arg. Tr. 12.

     These unsworn statements by counsel regarding the practices
of his client are part of an argument before the judge, not
evidence, material or otherwise,  of  what  Rawl  does  in  a
particular situation.  In fact, these statements have no
evidentiary basis whatsoever.  But even if these statements could
somehow be transformed into relevant evidence of an operator's
practice, on their face, the statements do not foreclose Rawl
from responding immediately to any situation or emergency that
might arise along the Rocky Hollow belt line.  As the Chairman
and Commissioner Beatty point out, in the event of a belt
disruption, "a certified mine examiner would be permitted to
enter the Rocky Hollow belt line to ascertain the nature of the
conveyor belt disruption" (slip op. at 13), and I certainly see
no harm in that.

     Finally,  as  for  my  colleagues'  concern  that "any
interruption in the belt conveyor system would completely halt
production at the Sycamore mine on the 4 p.m. to 12 a.m. shift"
(id.), if the interruption is an emergency, even an "incipient"
one (see id.), I reiterate the judge's point that, in such an
event, "it is more desirable to have personnel on the surface
rather than underground."  21 FMSHRC at 227.  Production halts
due to routine maintenance problems, on the other hand, are
irrelevant and of no proper concern to this Commission - it is
not for us to second guess Rawl's apparent business decision to
occasionally suffer such down time.

     Ultimately, the choice here is whether to expose miners to
the myriad hazards that exist in underground coal mines when
there is no necessity for such exposure.  To expose miners to
risk gratuitously certainly thwarts "the first priority and
concern of all in the coal . . . industry" to protect "the health
and safety of its most precious resource - the miner."  30 U.S.C.
� 801(a).  I agree with the judge that the Secretary "has failed
to advance any consistent, convincing policy concerns that
justify interpreting the pertinent statutory and regulatory
provisions in a way that prohibits unattended operation of the
Rocky Hollow beltline."  21 FMSHRC at 227.  I would thus affirm
the judge's decision dismissing the violation.


                              Theodore F. Verheggen, Commissioner

Chairman Jordan and Commissioner Beatty, in favor of reversing
the judge's decision:

     Based on the plain language of section 75.362(b), we find
that the regulation requires an inspection of the Rocky Hollow
mine during the 3:30 p.m. to 11:30 p.m. shift while the belt is
operating.  Therefore, we would reverse the judge and remand for
assessment of penalty.

     It is well established that "[w]hen the meaning of the
language of a statute or regulation is plain, the statute or
regulation must be interpreted according to its terms, the
ordinary meaning of its words prevails, and it cannot be expanded
beyond its plain meaning."  W. Fuels-Utah, Inc., 11 FMSHRC 278,
283 (Mar. 1989).  If the regulation is plain on its face, effect
should be given to the regulation's clear meaning.  Exportal
Ltda. v. United States, 902 F.2d 45, 50 (D.C. Cir. 1990).

     In this case, the regulation expressly provides that during
each shift in which coal is produced a certified person must
examine each belt conveyor haulageway for hazardous conditions.
Thus, the only prerequisite for a belt line inspection during a
shift is that coal production occur.  The undisputed evidence
here shows that from 7:30 a.m. to 11:30 p.m. coal is cut from the
face of the Sycamore Fuels mine, placed on a belt conveyor,
transported over 6 miles (the majority of which is in the Rocky
Hollow mine), and then unloaded at the Preparation Plant for
further processing.  Consequently, the operations at Sycamore and
Rocky Hollow constitute coal production.

     Moreover, the relationship between Rocky Hollow and Sycamore
support the application of the standard to Rocky Hollow in this
case.  Sycamore and Rocky Hollow are involved in one continuous
production process and are functionally integrated.  A clear
nexus exists between the extraction of coal in Sycamore and its
immediate transportation through Rocky Hollow.  Hence, there can
be little doubt that the transportation of coal through Rocky
Hollow on the belt conveyor is an integral part of coal
production.  See e.g., Bulk Transp. Servs., Inc., 13 FMSHRC 1354,
1459 (Sept. 1991) (finding that a trucking company that hauled
coal between mine and generating plant was an independent
contractor operator under the Mine Act because coal hauling
services were essential and closely related to the extraction
process).  Under these facts, section 75.362(b) clearly requires
an inspection of the Rocky Hollow belt haulageway.

     The standard's regulatory history supports a plain meaning
approach.  See Consolidation Coal Co., 18 FMSHRC 1541, 1547-48
(Sept. 1996) (analyzing regulatory history of a plain regulation
to determine whether the regulation's exemption applied to the
facts).  The regulatory history clearly states that the words
"during each shift that coal is produced" includes the
transportation of coal.  In the preamble to the final rule
implementing section 75.362(b), the Secretary explained that she
intended the phrase "during each shift that coal is produced" to
have the same meaning as "coal-producing shift," as used in 30
C.F.R. �� 75.303 and 75.304 (1991), predecessors to sections
75.360 and 75.362, regarding preshift and on-shift examinations.
57 Fed. Reg. 20,868, 20,896 (May 15, 1992).  The term "coal-
producing shift" was defined in section 75.304-1 (pertaining to
on-shift examinations), as "any shift during which one or more of
the following operations are performed: cutting, blasting, or
loading of coal, or the hauling of coal from the face areas,
regardless of whether the coal is dumped at a tipple."  30 C.F.R.
� 75.304-1 (1991) (emphasis added).  The Secretary has explained
that this definition includes "activities performed in a working
place that are related to the extraction and transportation of
coal from the face."  57 Fed. Reg. at 20,896 (emphasis added).

     Here, coal is cut and extracted from the face in Sycamore
where it is loaded directly onto a belt and immediately
transported through Rocky Hollow.  Carrying coal on the Rocky
Hollow belt line is certainly "haulage" and "transportation" of
coal from the face, as contemplated in the Secretary's definition
of coal production.  See 30 C.F.R. � 75.304-1 (1991); 57 Fed.
Reg. at 20,896.  Thus, it is apparent that the Secretary intended
the words "during a shift that coal is produced" to apply to
Rocky Hollow from 3:30 p.m. to 11:30 p.m. while the belt is
operating.[1]

     Furthermore, the plain meaning application of section
75.362(b) is also consistent with the underlying purpose of the
Mine Act - to provide safe working conditions for miners.  See W.
Fuels-Utah, Inc., 19 FMSHRC 994, 998-99 (June 1997) (considering
the legislative history and purpose of the Mine Act to determine
the meaning of a plain regulation).  In the preamble to the final
rule, the Secretary recognized the need to inspect operating
belts, stating that "[e]xamination of belt conveyors reduces the
potential hazards associated with operating belts."  57 Fed. Reg.
at 20,896.  The Secretary clearly intended that belt haulageways
through which belt conveyors continuously operate to transport
coal be inspected during a coal-producing shift to prevent these
hazards from arising.[2]  Interpreting the regulation to require
an inspection during any coal-producing shift while the belt is
operating, regardless of whether miners are present, is
consistent with the prophylactic purpose of this inspection
requirement under the Secretary's regulatory scheme and the
protective purpose of the Mine Act.  See, e.g., Manalapan Mining
Co., 18 FMSHRC 1375, 1396 (Aug. 1996) (Jordan and Marks, separate
opinion) (recognizing the prophylactic purpose of preshift
examinations).

     We disagree with Commissioner Riley that application of the
standard during a time when no miners are present defeats the
safety-promoting purpose of the Mine Act.  See slip op.
at 5.  At the hearing, the Secretary presented examples of
specific hazards that could arise from the unattended belt line -
including coal accumulation, coal spillage, float dust,
malfunctioning equipment, belt friction and slippage, which could
contribute to explosions and fires - and poor roof and mine
conditions.  Tr. 9, 19-30; see also PDR at 19-20; S. Br. at 19-
20, 26-29; Stips. 24-31 (citations issued to Rawl for coal
accumulations, bad roof, and inoperative fire warning system in
Rocky Hollow).  The inspection of any conveyor belt transporting
coal enhances the safety of miners who may enter the mine during
that shift for emergency purposes or to conduct a preshift
examination, as well as those who enter the mine at a later time.

     In essence, under the operator's practice, as explained by
its counsel (Tr. 11-12),[3] any interruption in the belt conveyor
system would completely halt production at the Sycamore mine on
the 4 p.m. to 12 a.m. shift.  Under this scenario, only a
certified mine examiner would be permitted to enter the Rocky
Hollow belt line to ascertain the nature of the conveyor belt
disruption.  Simply stated, from a safety perspective, the
situation causing the disruption in the conveyor system could
linger for up to 12 to 16 hours before being detected.[4]  By
contrast, applying the standard, consistent with its plain
meaning, to require an inspection of the belt line during the
afternoon shift would increase the likelihood that any incipient
problem could be identified and addressed before it developed
into a dangerous situation.[5]

     In the legislative history of the Coal Act, Congress
expressed its concern with coal-carrying belts and the potential
hazards associated with belt lines, noting that "[m]any fires
occur along belt conveyors as a result of defective electric
wiring, overheated bearings, and friction; and therefore, an
examination of belt conveyors is necessary."  S. Rep. No. 91-411,
at 57 (1969), reprinted in Senate Subcomm. on Labor, Comm. on
Labor and Public Welfare, Part I Legislative History of the
Federal Coal Mine Health and Safety Act of 1969, at 183 (1975).
Given these potential hazards, Congress deemed it necessary for
operators to conduct an inspection of coal-carrying belts during
each production shift these belts are in operation.[6]  The
Secretary's concern with the hazards associated with belt
conveyors led her to require operators to inspect belt
haulageways during coal production to guard against those
hazards.

     In spite of this, Commissioner Riley contends that a plain
meaning interpretation of 30 C.F.R. � 75.362 leads to "absurd
results."  Slip op. at 4.  Given the hazardous nature of belt
conveyors in underground coal mines, any interpretation of this
regulation that creates a situation where a belt conveyor remains
idle and unattended, in the face of an unanticipated and
unchecked disruption in its normal functioning routine, is
contrary to the protective intent of the regulation.

     Finally, we reject Rawl's argument that the presence of
miners is required to constitute a "shift."  Unlike our
colleague, we do not believe that the physical presence of miners
is a prerequisite to the application of the inspection
requirement under the plain language of the standard.  Slip op.
at 6-7.  If the Secretary intended, by the use of the term
"shift," to require the presence of miners in the belt
haulageway, she would have explicitly said so as she has done in
other provisions of Part 75.  See 30 C.F.R. �� 75.360(a)(1) ("any
shift during which any person is scheduled to work or travel
underground") and 75.362(a)(1) ("at least once during each shift,
a certified person . . . shall conduct an on-shift examination of
each section where anyone is assigned to work during the shift").
Section 75.362(b), unlike sections 75.360(a) and 75.362(a), does
not specify or refer to the presence of miners in the belt
haulageway area of the mine.  Generally, the omission of
particular language in one section of a provision found in
another section of the same provision indicates that the drafter
intentionally and purposefully acted in the disparate exclusion.
See Russello v. United States, 464 U.S. 16, 23 (1983) (applying
principle to statutory interpretation); see also Morton Int'l
Inc., 18 FMSHRC 533, 539 n.9 (Apr. 1996) (recognizing that the
same rules of statutory construction apply to the construction of
regulations).  This is particularly true when, as is the case
here, the differing sections were adopted at the same time.  See
61 Fed. Reg. 9764, 9838-39 (Mar. 11, 1996).  Because section
75.362(b) does not specify the presence of miners, there is no
basis for reading such a requirement into the regulation.

     Based on the above, we have no difficulty concluding that
section 75.362(b) applies to Rocky Hollow, requiring an
inspection of the belt conveyor haulageway during the second
shift while the belt is in operation, but no miners are
underground.  Contrary to the judge's analysis, the statutory
requirements for preshift and on-shift inspections in sections
303(d)(1) and (e) of the Mine Act, 30 U.S.C. � 863(d)(1) and (e),
are not applicable to the regulation's requirement for on-shift
inspections of belt haulageways.  The requirements that a
preshift or on-shift examination take place in active workings or
in working sections apply only to general preshift and on-shift
inspections under section 303(d)(1) and clearly do not apply to
on-shift belt haulageway inspections required under section
75.362(b).[7]

     For the foregoing reasons, we would reverse the judge's
decision and remand for assessment of penalty consistent with
the criteria in section 110(i) of the Mine Act, 30 U.S.C.
� 820(i).


                              Mary Lu Jordan, Chairman

                              Robert H. Beatty, Commissioner


Distribution

Yoora Kim, Esq.,Office of the Solicitor, U.S. Department of Labor,
4015 Wilson Blvd., Suite 400, Arlington, VA 22203

William K. Doran, Esq., Heenan, Althen & Roles, 1110 Vermont Avenue,
N.W., Suite 400, Washington, D.C.  20005

Administrative Law Judge Jerold Feldman, Federal Mine Safety & Health
Review Commission, Office of Administrative Law Judges, 5203 Leesburg 
Pike, Suite 1000, Falls Church, VA 22041


**FOOTNOTES**

     [1]:  Rawl argues that  there is no coal production in Rocky
Hollow because it is classified  as "nonproducing," and indicates
that an underground mine is "non-producing," as defined in MSHA's
regulations, when "no material is  being produced."  R. Br. at 10
(citing 30 C.F.R. �  70.220(b)(1)(ii)).  Rawl's argument  is  un-
persuasive  because this   definition  of  "non-producing"  is  ap-
plicable  only  for purposes  of respirable dust sampling procedures
under Part 70 of the Secretary's  regulations  and  is  not  appli-
cable  here  for  purposes  of  mine  inspections  under  Part  75, 
regarding mandatory safety standards in underground mines.

     [2]:   The   Secretary  has  promulgated  several  standards
regulating  belt  conveyors,   including   30  C.F.R.  ��  75.400
(accumulation  of combustible materials around  belt  conveyors);
75.342 (methane  monitors in belt haulageways); 75.1102 (slippage
and sequence switches  on belts); and 75.1100 (fire protection in
belt haulageways).  The heavily regulated nature of belt conveyor
haulageways  illustrates   the  Secretary's  recognition  of  the
dangers associated with this  area of the mine and the importance
of inspections.

     [3]:  At the hearing, the  operator's  counsel asserted that
"[i]f the belt line goes down during the . . . period of time . .
.  from  3:30 to 11:30, there has not been any  experience  where
they've called  people  back  out  to  get  that  taken  care of.
They've waited until the next morning."  Tr. 11.

     [4]:   The  on-shift examination could conceivably start  at
7:30 a.m., and takes  three to four hours.  21 FMSHRC at 221.  It
could thus be completed  by 11:30 a.m., and the belt would not be
inspected again until 3:30  a.m.  the  next  day,  as part of the
preshift examination for the day shift.

     [5]:   Commissioner  Verheggen  asserts  that the Commission
need  not be concerned with "[p]roduction halts  due  to  routine
maintenance  problems."  Slip  op. at 9-10.  In fact, there is no
way to identify the problem, routine maintenance or otherwise, if
miners  are  not  permitted  to enter  the  belt  line.   We  are
concerned  with non-routine problems  that  could  give  rise  to
serious and dangerous hazards that threaten the health and safety
of miners.

     [6]:  There  are  numerous Commission cases illustrating the
hazards associated with  belt  conveyors.   See,  e.g., Cannelton
Indus.  Inc.,  20  FMSHRC  726,  726-27  (July  1998) (finding  a
violation  for  failure  to  clean up coal accumulation  under  a
conveyor  belt)  and W. Fuels-Utah  Inc.,  19  FMSHRC  at  994-96
(concerning slippage  and  sequence  switches  and  dry  chemical
powder  fire  suppression system on belt conveyor and the failure
of both to stop  the belt at the time of an incident resulting in
a fire).

     [7]:  The judge's  reliance on Jones & Laughlin Steel Corp.,
5 FMSHRC 1209 (July 1983),  remanded 8 FMSHRC 1058 (July 1986) is
also  misplaced.  21 FMSHRC at  225.   First,  Jones  &  Laughlin
involved  preshift  inspections  of coal-carrying belts under the
first sentence of section 303(d)(1) and an identical implementing
regulation,  and  not on-shift inspections  of  belt  haulageways
under section 75.362(b).   5  FMSHRC  at  1209-10.   Moreover, as
noted above, the regulation at issue does not contain an explicit
requirement for an active working, as did the regulation in Jones
&  Laughlin.  Finally, in Jones & Laughlin, the Commission  noted
that  despite  the exemption of coal-carrying belts from preshift
inspections under  section  303(d)(1),  coal-carrying  belts were
subject to on-shift inspections after the beginning of each coal-
producing shift.  5 FMSHRC at 1212-14; 8 FMSHRC at 1063 n.7.