Refuge Alternatives for Underground Coal Mines, 61531 [E9-28214]
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Federal Register / Vol. 74, No. 226 / Wednesday, November 25, 2009 / Rules and Regulations
Approved: November 11, 2009.
Steven T. Miller,
Deputy Commissioner of Services and
Enforcement.
Approved: November 11, 2009.
Michael F. Mundaca,
Acting Assistant Secretary of the Treasury
(Tax Policy).
[FR Doc. E9–28330 Filed 11–24–09; 8:45 am]
AGENCY: Mine Safety and Health
Administration (MSHA), Labor.
ACTION: Final rule; correction.
States and with a sufficient legal basis
for preemption. The Memorandum
directs executive departments and
agencies to ‘‘review regulations issued
within the past 10 years that contain
statements in regulatory preambles or
codified provisions intended by the
department or agency to preempt State
law, in order to decide whether such
statements or provisions are justified
under applicable legal principles
governing preemption.’’ In addition, the
memorandum states that ‘‘where the
head of a department or agency
determines that a regulatory statement
of preemption or codified regulatory
provision cannot be so justified, the
head of that department or agency
should initiate appropriate action,
which may include amendment of the
relevant regulation.’’
Section 506(b) of the Federal Mine
Safety and Health Act of 1977 (Mine
Act), concerning ‘‘Effect on State Laws,’’
specifically addresses preemption of
state law as follows:
SUMMARY: This rule informs the mining
community that MSHA rescinds the
Agency’s intent stated in the preamble
to the final rule on Refuge Alternatives
for Underground Coal Mines,
concerning preemption of private tort
litigation with respect to the Agency’s
approval of specifications for a refuge
alternative.
The provisions of any State law or
regulation in effect upon the operative date
of this Act, or which may become effective
thereafter, which provide for more stringent
health and safety standards applicable to coal
or other mines than do the provisions of this
Act or any order issued or any mandatory
health or safety standard shall not thereby be
construed or held to be in conflict with this
Act. 30 U.S.C. 955.
BILLING CODE 4830–01–P
DEPARTMENT OF LABOR
Mine Safety and Health Administration
30 CFR Parts 7 and 75
RIN 1219–AB58
Refuge Alternatives for Underground
Coal Mines
DATES:
Effective Date: November 25,
wwoods2 on DSK1DXX6B1PROD with RULES
2009.
FOR FURTHER INFORMATION CONTACT:
Patricia W. Silvey, Director, Office of
Standards, Regulations, and Variances,
MSHA, 1100 Wilson Boulevard, Room
2350, Arlington, Virginia 22209–3939.
Ms. Silvey can be reached at 202–693–
9440 (voice), 202–693–9441 (facsimile),
or silvey.patricia@dol.gov (Internet
e-mail).
SUPPLEMENTARY INFORMATION: On
December 31, 2008, MSHA published a
final rule on Refuge Alternatives for
Underground Coal Mines. (73 FR
80656). The preamble includes a
discussion on preemption, and states
that ‘‘it is MSHA’s intent that its
approval of specifications for a refuge
alternative preempts private tort
litigation questioning the propriety of
those specifications.’’ (73 FR 80658).
On May 20, 2009, the President issued
a Memorandum for the Heads of
Executive Departments and Agencies on
Preemption. The purpose of the
Memorandum is to state the general
policy of the Administration that
preemption of State law by executive
departments and agencies should be
undertaken only with full consideration
of the legitimate prerogatives of the
VerDate Nov<24>2008
15:27 Nov 24, 2009
Jkt 220001
In addition, the House Report to the
Mine Act, states that ‘‘Federal law
would supersede any State law in
conflict with it,’’ but that ‘‘State laws
providing more stringent standards than
exist under the Federal law, however,
would not be held in conflict with the
[Mine] act.’’ H. Rep. No. 95–312, 95th
Cong., 1st Sess., at 55 (1977).
In accordance with the Presidential
Memorandum on Preemption, MSHA
has reviewed the Agency’s standards
and regulations issued within the past
10 years. MSHA’s review found that a
statement in the preamble to the Refuge
Alternatives final rule is the only rule
issued in the past 10 years to contain a
preemption statement.
MSHA has determined that the Mine
Act does not show any basis, or
Congressional intent, for inferring any
attempt to preempt state tort law
regarding MSHA’s approval
specifications for refuge alternatives. As
stated earlier, the Mine Act provides, for
example, that State laws or regulations
that provide more stringent
requirements than those imposed under
the Mine Act, are not construed or held
to be in conflict with the Mine Act.
MSHA’s determination to rescind the
preemption statement in the preamble
to the Refuge Alternatives rule is
PO 00000
Frm 00031
Fmt 4700
Sfmt 4700
61531
consistent with the intent of the Mine
Act and is consistent with the
Presidential Memorandum. The
preemption statement in the preamble
was, at best, interpretive guidance
purporting to interpret statutory
language in the Mine Act, which was
included in the preamble of the final
rule without seeking prior public
comment. It did not create any new law
or substantive rule, but simply stated
what the agency thought the statute
meant. Further, this interpretation was
published only recently, making it
unlikely that any member of MSHA’s
regulated community has relied to their
detriment on the interpretation. Under
these circumstances, notice and
comment also are not required in
withdrawing this interpretation. See
Warshauer v. Solis, 577 F.3d 1330 (11th
Cir. 2009); MetWest, Inc. v. Sec’y of
Labor, 560 F.3d 506, 509–511 (DC Cir.
2009).
Accordingly, MSHA rescinds the last
paragraph of the section-by-section
discussion of ‘‘Section 7.501 Purpose
and Scope,’’ starting on line 51 of the
center column and ending on line 24 of
the third column, 73 FR 80658, for the
reason that this statement is not justified
under the Mine Act principles
governing preemption, and there was no
intent by Congress, under the Mine Act,
to supersede state action in this regard.
Dated: November 19, 2009.
Joseph A. Main,
Assistant Secretary for Mine Safety and
Health.
[FR Doc. E9–28214 Filed 11–24–09; 8:45 am]
BILLING CODE 4510–43–P
POSTAL REGULATORY COMMISSION
39 CFR Part 3020
[Docket Nos. MC2010–2 and CP2010–2;
Order No. 324]
New Postal Product
Postal Regulatory Commission.
Final rule.
AGENCY:
ACTION:
SUMMARY: The Commission is adding
the Priority Mail Contract 20 to the
Competitive Product List. This action is
consistent with changes in a recent law
governing postal operations.
Republication of the lists of market
dominant and competitive products is
also consistent with new requirements
in the law.
DATES: Effective November 25, 2009 and
is applicable beginning October 28,
2009.
FOR FURTHER INFORMATION CONTACT:
Stephen L. Sharfman, General Counsel,
E:\FR\FM\25NOR1.SGM
25NOR1
]]>Agencies
[Federal Register Volume 74, Number 226 (Wednesday, November 25, 2009)]
[Rules and Regulations]
[Page 61531]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-28214]
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DEPARTMENT OF LABOR
Mine Safety and Health Administration
30 CFR Parts 7 and 75
RIN 1219-AB58
Refuge Alternatives for Underground Coal Mines
AGENCY: Mine Safety and Health Administration (MSHA), Labor.
ACTION: Final rule; correction.
-----------------------------------------------------------------------
SUMMARY: This rule informs the mining community that MSHA rescinds the
Agency's intent stated in the preamble to the final rule on Refuge
Alternatives for Underground Coal Mines, concerning preemption of
private tort litigation with respect to the Agency's approval of
specifications for a refuge alternative.
DATES: Effective Date: November 25, 2009.
FOR FURTHER INFORMATION CONTACT: Patricia W. Silvey, Director, Office
of Standards, Regulations, and Variances, MSHA, 1100 Wilson Boulevard,
Room 2350, Arlington, Virginia 22209-3939. Ms. Silvey can be reached at
202-693-9440 (voice), 202-693-9441 (facsimile), or
silvey.patricia@dol.gov (Internet e-mail).
SUPPLEMENTARY INFORMATION: On December 31, 2008, MSHA published a final
rule on Refuge Alternatives for Underground Coal Mines. (73 FR 80656).
The preamble includes a discussion on preemption, and states that ``it
is MSHA's intent that its approval of specifications for a refuge
alternative preempts private tort litigation questioning the propriety
of those specifications.'' (73 FR 80658).
On May 20, 2009, the President issued a Memorandum for the Heads of
Executive Departments and Agencies on Preemption. The purpose of the
Memorandum is to state the general policy of the Administration that
preemption of State law by executive departments and agencies should be
undertaken only with full consideration of the legitimate prerogatives
of the States and with a sufficient legal basis for preemption. The
Memorandum directs executive departments and agencies to ``review
regulations issued within the past 10 years that contain statements in
regulatory preambles or codified provisions intended by the department
or agency to preempt State law, in order to decide whether such
statements or provisions are justified under applicable legal
principles governing preemption.'' In addition, the memorandum states
that ``where the head of a department or agency determines that a
regulatory statement of preemption or codified regulatory provision
cannot be so justified, the head of that department or agency should
initiate appropriate action, which may include amendment of the
relevant regulation.''
Section 506(b) of the Federal Mine Safety and Health Act of 1977
(Mine Act), concerning ``Effect on State Laws,'' specifically addresses
preemption of state law as follows:
The provisions of any State law or regulation in effect upon the
operative date of this Act, or which may become effective
thereafter, which provide for more stringent health and safety
standards applicable to coal or other mines than do the provisions
of this Act or any order issued or any mandatory health or safety
standard shall not thereby be construed or held to be in conflict
with this Act. 30 U.S.C. 955.
In addition, the House Report to the Mine Act, states that
``Federal law would supersede any State law in conflict with it,'' but
that ``State laws providing more stringent standards than exist under
the Federal law, however, would not be held in conflict with the [Mine]
act.'' H. Rep. No. 95-312, 95th Cong., 1st Sess., at 55 (1977).
In accordance with the Presidential Memorandum on Preemption, MSHA
has reviewed the Agency's standards and regulations issued within the
past 10 years. MSHA's review found that a statement in the preamble to
the Refuge Alternatives final rule is the only rule issued in the past
10 years to contain a preemption statement.
MSHA has determined that the Mine Act does not show any basis, or
Congressional intent, for inferring any attempt to preempt state tort
law regarding MSHA's approval specifications for refuge alternatives.
As stated earlier, the Mine Act provides, for example, that State laws
or regulations that provide more stringent requirements than those
imposed under the Mine Act, are not construed or held to be in conflict
with the Mine Act. MSHA's determination to rescind the preemption
statement in the preamble to the Refuge Alternatives rule is consistent
with the intent of the Mine Act and is consistent with the Presidential
Memorandum. The preemption statement in the preamble was, at best,
interpretive guidance purporting to interpret statutory language in the
Mine Act, which was included in the preamble of the final rule without
seeking prior public comment. It did not create any new law or
substantive rule, but simply stated what the agency thought the statute
meant. Further, this interpretation was published only recently, making
it unlikely that any member of MSHA's regulated community has relied to
their detriment on the interpretation. Under these circumstances,
notice and comment also are not required in withdrawing this
interpretation. See Warshauer v. Solis, 577 F.3d 1330 (11th Cir. 2009);
MetWest, Inc. v. Sec'y of Labor, 560 F.3d 506, 509-511 (DC Cir. 2009).
Accordingly, MSHA rescinds the last paragraph of the section-by-
section discussion of ``Section 7.501 Purpose and Scope,'' starting on
line 51 of the center column and ending on line 24 of the third column,
73 FR 80658, for the reason that this statement is not justified under
the Mine Act principles governing preemption, and there was no intent
by Congress, under the Mine Act, to supersede state action in this
regard.
Dated: November 19, 2009.
Joseph A. Main,
Assistant Secretary for Mine Safety and Health.
[FR Doc. E9-28214 Filed 11-24-09; 8:45 am]
BILLING CODE 4510-43-P
