[00:00:00] Speaker 00:
Case number 22-1143, GMS mine repair petitioner versus Federal Mine Safety and Health Review Commission and Secretary of Labor, Mine Safety and Health Administration, MSHA.

[00:00:13] Speaker 00:
Mr. McHugh for the petitioner, Mr. Wilson for the Respondent Secretary of Labor.

[00:00:20] Speaker 02:
Mr. McHugh, good morning.

[00:00:24] Speaker 05:
Morning, Your Honor.

[00:00:26] Speaker 05:
My name is James McHugh, and I represent GMS Mind Repair, and I would request two minutes for rebuttal.

[00:00:32] Speaker 05:
GMS appeals from the decision of the Federal Mind, Safety, and Health Review Commission, ALJ, interpreting 30 CFR 100.3C.

[00:00:42] Speaker 05:
In this case, GMS had five citations prior to the citations that were penalized in the previous 15 months.

[00:00:51] Speaker 05:
However,

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According to the secretary's reading of the regulation, they were penalized as though they had 15 or 16 violations in the 15 months period discussed in 30 CFR 100.3 C. In other words, during the look back period in the regulation, they had five citations, but they were penalized for 15.

[00:01:13] Speaker 05:
This resulted in a 100% increase in the penalty for GMS.

[00:01:19] Speaker 05:
In this case,

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GMS contends that the ALJ erred in failing to apply 30 CFR 100.3 C as it's written and also erred in failing to apply the analytical template in Kaiser versus Wilkie, which requires a multi-step process before declaring a regulation to be ambiguous.

[00:01:41] Speaker 05:
In this case, the judge just basically said, well, I look at this side and I see this side and I'm going to declare it ambiguous.

[00:01:49] Speaker 03:
But I didn't find that your request, it seemed like it also was somewhat ambiguous because you gave us a few ways to look at this.

[00:01:58] Speaker 03:
I'm not sure what you've actually settled on in terms of the interpretation.

[00:02:02] Speaker 05:
are, GMS contends that there's a very clear three-step process in the regulation.

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There's two sentences at issue in the regulation.

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The first sentence talks about the violations that occur in the previous 15 months.

[00:02:18] Speaker 05:
Two key words in there, violation, which means an occurrence under Webster's, and in as opposed to outside of.

[00:02:26] Speaker 05:
The secretary wants to apply it as outside of the 15-month period.

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The second step is the next sentence.

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And that is of that set of violations in the 15 month period, those that are not final are removed.

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This we call the due process step.

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And the key word there is the word only.

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That qualifier shows quite clearly that that sentence was intended to apply to the previous sentence and remove those regulations, which are not final that occurred in the previous 15 month period.

[00:03:00] Speaker 04:
So as you are, I know that you have a third step about repeat violations, which doesn't seem to be an issue here, but just to follow up on Judge Child's question, as you just read it, it sounds like, um,

[00:03:14] Speaker 04:
It talks about violations and violations occurring within a 15-month period.

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And I had understood your argument to me, and tell me if it's incorrect, that the violation has to be assessed within the preceding 15 months and then finalized for that second sentence.

[00:03:36] Speaker 04:
Is that right?

[00:03:36] Speaker 05:
Our position, Your Honor, is that the violation has to occur first, and then when a violation occurs, it's cited.

[00:03:46] Speaker 04:
I'm sorry, citation not assessed, excuse me.

[00:03:48] Speaker 04:
So you think even

[00:03:51] Speaker 04:
If the citation had occurred in 15 months, but if the violation hadn't, that would be out.

[00:03:57] Speaker 04:
Because I understood your argument to be citation to finalization have to be in 15 months, but the act that's in dispute, the act that's charged to be violating the law doesn't have to be within the 15-month period.

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Can you clarify whether the violation also has to be in?

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Because that would be very different

[00:04:15] Speaker 05:
Our position, Your Honor, is the violation itself must occur within the 15-month period, because a violation, they use the word violation, they chose to use it, but by Webster's it means the occurrence of a violated condition.

[00:04:34] Speaker 05:
So it has to occur within the 15-month period, and then of course it's cited usually on the same day, not always, but usually, and then

[00:04:44] Speaker 05:
Oftentimes it's paid, 80 to 90 percent of them are paid immediately when there's assessment.

[00:04:48] Speaker 05:
Assessment comes a little bit later.

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But our position is it's the violation must occur in because we're following the regulation.

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So you have to have violation and citation and finalization of the process in whatever form it finalizes itself.

[00:05:03] Speaker 04:
Yes.

[00:05:03] Speaker 04:
All within 15 months.

[00:05:05] Speaker 04:
Correct.

[00:05:05] Speaker 04:
A lot of your arguments were about, as I understood them, were about the citation having to be there.

[00:05:13] Speaker 04:
on page 21 of your brief and keep talking about issued violations and issued violations and I don't know what an issued violation is and so but just to make clear so you citation isn't enough it has to be the act of violation because that's your brief is not

[00:05:36] Speaker 04:
That's not how I understood your brief.

[00:05:38] Speaker 05:
Okay.

[00:05:38] Speaker 05:
I apologize.

[00:05:39] Speaker 05:
We didn't make that clear, but that is the intent is that the violation has to occur within the 15 months because that's what's stated.

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And then, of course, it's cited most of the time 95 or more percent.

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It's the same day that it's it's the violation occurs.

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And then, um,

[00:05:54] Speaker 04:
Sorry.

[00:05:55] Speaker 04:
How often is it the same day the violation occurs?

[00:05:58] Speaker 05:
Well, I'm just going off my total recollection.

[00:06:01] Speaker 04:
I don't think you don't have any record evidence on how often that happens.

[00:06:05] Speaker 05:
It's not in the record.

[00:06:05] Speaker 03:
Your honor.

[00:06:06] Speaker 03:
But then does how does citation play into what you're asking to?

[00:06:10] Speaker 03:
Because if it's not occurring the same day, it seems like that throws off the math as well.

[00:06:14] Speaker 05:
Yes, your honor.

[00:06:15] Speaker 05:
Very few.

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I mean, the secretary, of course, has the data on this, but very few are not cited the same day.

[00:06:21] Speaker 03:
No, but citations not in here.

[00:06:23] Speaker 05:
Right.

[00:06:23] Speaker 03:
But you're using that term.

[00:06:25] Speaker 05:
Yes, your honor.

[00:06:26] Speaker 05:
I agree.

[00:06:27] Speaker 05:
I'm using that term because the citation is the written record of the violation and I don't I mean there's no way practically to know if a violated condition occurs unless there's a piece of paper that that goes with it.

[00:06:39] Speaker 05:
That's that's kind of the way we interpret the word violation using Webster's dictionary and and also the way that Webster's doesn't define.

[00:06:47] Speaker 04:
I'm sorry doesn't define a citation as a violation.

[00:06:51] Speaker 05:
I know your honor, it does not.

[00:06:52] Speaker 05:
Okay, it does not.

[00:06:53] Speaker 02:
Sorry.

[00:06:54] Speaker 02:
All right.

[00:06:54] Speaker 02:
What were then in your interpretation?

[00:06:58] Speaker 02:
Does the word assessed in the second sentence?

[00:07:02] Speaker 05:
The word is assessed.

[00:07:04] Speaker 05:
Uh, it means once the citation is issued, it does take the secretary a brief period of time before it's assessed by the, the emcee points, uh, the emcee, um, penalty office.

[00:07:16] Speaker 05:
I can't remember what the name of it is.

[00:07:18] Speaker 05:
They take the citations in and then they assign

[00:07:20] Speaker 05:
you saw the exhibit a in here with they applied part 100 and cut across the numbers and come up with an assessor.

[00:07:28] Speaker 02:
All right, so your position is the first sentence by use of the word violations sets the date of occurrence.

[00:07:36] Speaker 02:
Yes, and then the only assessed violations in the second sentence.

[00:07:41] Speaker 02:
It refers to when the citation is actually issued.

[00:07:46] Speaker 05:
No, the assessed in the second is

[00:07:48] Speaker 05:
that that's like, we call that the due process laws that was tacked on to the first sentence.

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You have the subset of those violations, which are in paper and citations.

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And then those that are assessed and final, they get removed or not.

[00:08:02] Speaker 05:
Excuse me.

[00:08:03] Speaker 05:
I'm sorry.

[00:08:03] Speaker 05:
I misspoke.

[00:08:04] Speaker 05:
Not assessed and final get removed because they haven't been proven yet in court or, or haven't been admitted to.

[00:08:10] Speaker 02:
Non-assessed and final.

[00:08:12] Speaker 02:
Isn't it assessed and non-final or I mean the assessment

[00:08:18] Speaker 05:
The assessment.

[00:08:19] Speaker 02:
Tied to the final order.

[00:08:21] Speaker 02:
The assessment.

[00:08:24] Speaker 02:
Go ahead.

[00:08:24] Speaker 02:
What is the assessment?

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When does that occur?

[00:08:27] Speaker 05:
You're right, your honor.

[00:08:27] Speaker 05:
It occurs just a short period of time after this citation has been issued.

[00:08:31] Speaker 05:
It is not a final definitely until it's admitted either in a when they send it, the the the operator sends in their contest and they they say we admit these and we deny this one or two.

[00:08:44] Speaker 05:
And so it's assessed at that point, but it's not final until they so assessed relates to the fine.

[00:08:51] Speaker 05:
Assessed relates to the fine.

[00:08:52] Speaker 05:
Yes, absolutely.

[00:08:54] Speaker 05:
I'm sorry.

[00:08:54] Speaker 05:
I didn't make that clear.

[00:08:56] Speaker 05:
I see I'm down to my rebuttal time.

[00:08:59] Speaker 02:
All right, we'll give you a couple minutes.

[00:09:05] Speaker 02:
Hi, Mr Wilson.

[00:09:14] Speaker 01:
They please the court.

[00:09:16] Speaker 01:
Good morning.

[00:09:16] Speaker 01:
My name is Robert Wilson.

[00:09:17] Speaker 01:
I represent the Secretary of Labor and Mind, Safety and Health Administration.

[00:09:22] Speaker 01:
I agree that there is a three-step analysis to be applied in this case, just not the one that GMS made.

[00:09:29] Speaker 01:
Proper analysis is what the Supreme Court articulated in Kaiser v. Wilk.

[00:09:33] Speaker 01:
Under that building, there are three issues that need to be addressed.

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One, whether section 100.3C is ambiguous with regard to when violations are included in an operator's history of violations, it is.

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Number two, whether the secretary's interpretation of section 100.3C is reasonable, it is.

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Number three, whether the secretary's interpretation merits deference, it does.

[00:09:59] Speaker 01:
and then a fourth issue in this case is whether the administrative law judge made any errors when he material errors when he granted the secretary's motion for summary decision and denied gms's motion for summary decision he did not and can't this court do that kaiser be with me analysis we don't need to send it back i'm sorry can't we do that analysis here yes your honor that is back as opposed to sending it back

[00:10:27] Speaker 01:
Yes, Your Honor.

[00:10:28] Speaker 01:
OK.

[00:10:28] Speaker 01:
Yes.

[00:10:29] Speaker 01:
There are a couple of facts I would like to emphasize for the court.

[00:10:32] Speaker 01:
First of all,

[00:10:34] Speaker 01:
company does not contest that they committed any of the five violations at issue in this case.

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They stipulated to all of the penalty criteria other than history of violations.

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They stipulated that three of the five violations were significant and substantial, which means that they had a reasonable likelihood of resulting in serious injury or death.

[00:10:57] Speaker 01:
The other point is that under GMS's interpretation of the regulation, none of these violations would ever be included in their history of violations simply because they took more than 15 months to become final.

[00:11:12] Speaker 04:
I ask you, um, uh, if you, if you know, in your experience or your client knows how often citations are issued on the same day as a violation,

[00:11:23] Speaker 01:
I don't have a percentage, your honor, but as we pointed out in our brief, there are several instances when citations are not issued when violations occur.

[00:11:34] Speaker 01:
And the most prominent of those situations are fatal accident investigations, which is the most serious type of incident under the Minot.

[00:11:42] Speaker 01:
People die.

[00:11:43] Speaker 01:
And clearly the violations occur when the accident occurs, not when the citation is issued several months later.

[00:11:50] Speaker 04:
And I think that- Sorry, so citations can come even months after

[00:11:53] Speaker 04:
violations, including serious violations?

[00:11:56] Speaker 01:
Well, as an example, Your Honor, we cite in the brief to the upper big branch tragedy where 29 minors lost their lives.

[00:12:03] Speaker 01:
And that occurred in April of 2010.

[00:12:07] Speaker 01:
By the time the investigation was completed and contributory citations were issued, that was December of the following year.

[00:12:15] Speaker 01:
So under GMS's interpretation,

[00:12:19] Speaker 01:
By the time those violations were issued, they'd already be excluded from an operator's history of violation.

[00:12:24] Speaker 01:
That cannot be what was intended by Congress or by the Secretary when this regulation was promulgated.

[00:12:32] Speaker 02:
So is the sequence first the occurrence of the violation, then the citation, which may be the same day it may not, then the assessment, which may attach to the citation but not

[00:12:49] Speaker 02:
ever be the first day of the occurrence?

[00:12:53] Speaker 01:
Yes, Your Honor.

[00:12:55] Speaker 01:
And as we argue in the brief, I mean, the violation is basically a life of a violation from when the violation occurs all the way to when it becomes final.

[00:13:03] Speaker 01:
And in between that, you have the citation is issued.

[00:13:08] Speaker 01:
Sometime after that, a penalty is assessed for the citation.

[00:13:12] Speaker 01:
The operator then contests

[00:13:15] Speaker 01:
the assessed penalty.

[00:13:16] Speaker 01:
So now it's a contested violation and section 100.3 C simply says violations.

[00:13:22] Speaker 01:
It doesn't say citations.

[00:13:24] Speaker 01:
And I think, you know, council was, was confusing those two issues here today.

[00:13:30] Speaker 04:
And the, the gap between, so you have the violation and then there can be a gap and even be, I guess it sounds like a year or so a gap between violation and citation, especially in serious cases.

[00:13:41] Speaker 04:
And is there a general estimate or estimate on the gap between the citation and the assessment?

[00:13:48] Speaker 01:
Your Honor, in the preamble, it noted that, on average, it takes about three months for a regular assessment to be assessed.

[00:13:57] Speaker 01:
And a regular assessment is where we go by the points, which is what we're dealing with in this case.

[00:14:00] Speaker 01:
But there are other cases that may be specially assessed, which may take longer than the regular assessment.

[00:14:07] Speaker 02:
Can I ask you, since we're talking about the preamble,

[00:14:11] Speaker 02:
The sentence that says MSHA reviewed violations that were assessed in 2005 and determined that because it takes approximately three months, so on and so forth, would provide the agency with at least one full year of data.

[00:14:30] Speaker 02:
That to me indicates that it's going to reach back further, that there could be more than one year.

[00:14:41] Speaker 02:
In other words, it supports your reading of it.

[00:14:45] Speaker 02:
Yes.

[00:14:46] Speaker 02:
At least.

[00:14:46] Speaker 02:
In other words, it wasn't just one year.

[00:14:49] Speaker 02:
It was at least one year, and it could be two years.

[00:14:54] Speaker 01:
Yes, Your Honor.

[00:14:55] Speaker 01:
And that provision of the preamble was addressing comments where the new rule, when this rule was promulgated, reduced the period of time that was being looked at from 24 months

[00:15:09] Speaker 01:
to 15 months.

[00:15:11] Speaker 01:
And commenters raised a concern that that wasn't going to give enough time for a full consideration of the operator's history of violation.

[00:15:21] Speaker 03:
And speaking of that, under the big mine citation, that occurred years later.

[00:15:27] Speaker 03:
And so how does that fit the kind of intent of the statute to get these repeat violations and or

[00:15:34] Speaker 03:
problematic violations for purposes of the assessment because that citation violation occurred years later.

[00:15:42] Speaker 01:
Years after the citation came from 20 months after the violation.

[00:15:48] Speaker 01:
Right.

[00:15:49] Speaker 01:
And that's part of the problem here with GMS's interpretation, that violations, I mean, the most serious violations under the act would never be considered as part of an operator's history of violations.

[00:16:00] Speaker 01:
And that's clearly directly contrary to what Congress intended.

[00:16:04] Speaker 01:
As this court noted in Coal Employment Project versus Dole, Congress was intent on assuring that civil penalties provide an effective deterrent against all offenders

[00:16:17] Speaker 01:
and particularly against offenders with records of prior violation.

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And so what GMS's interpretation would do is it would defeat that intent by excluding valid violations from an operator's history simply because they took more than 15 months to become final.

[00:16:35] Speaker 04:
How long has the Department of Labor had?

[00:16:37] Speaker 04:
The position you're arguing here, your interpretation of the regulation.

[00:16:40] Speaker 04:
How long has that been the interpretation the Department of Labor has had and has applied and enforced?

[00:16:48] Speaker 04:
Always.

[00:16:50] Speaker 04:
Since it was first written, which was when?

[00:16:53] Speaker 04:
I'm sorry?

[00:16:53] Speaker 04:
Which was when?

[00:16:54] Speaker 04:
When did it always start?

[00:16:56] Speaker 01:
What was the promulgation?

[00:16:58] Speaker 01:
This current rule was promulgated in 2007, and that was the position of the secretary ever since then.

[00:17:05] Speaker 01:
And it is clearly articulated in the preamble, which obviously was issued at the same time that the rule was promulgated.

[00:17:12] Speaker 01:
And in the preamble, during notice and comment, there were concerns raised that using only

[00:17:18] Speaker 01:
final orders would encourage mine operators to contest violations simply to eliminate them from their history of violation, exactly what GMS is trying to do in this case.

[00:17:29] Speaker 01:
And in the preamble, the secretary said, quote, as each penalty contest becomes final, however, the violation will be included in an operator's history as of the date it becomes final.

[00:17:42] Speaker 01:
The secretary's intent could not be any clearer.

[00:17:47] Speaker 01:
and the secretary's interpretation has been consistent ever since then.

[00:17:54] Speaker 01:
As the Commission Administrative Law Judge found, another problem with DMS's interpretation is it would encourage contests and violations.

[00:18:02] Speaker 01:
We all know that litigation takes time.

[00:18:05] Speaker 01:
By the time you go through discovery and depositions, you go to a hearing, you wait for the transcript, you file a brief, so on and so forth,

[00:18:13] Speaker 01:
15 months goes by like that and as we pointed out to the to the ALJ and as he cited to in his decision on the commission's website they list all their decisions and the 10 most recent ALJ decisions where a case went through the hearing process all of them took more than 15 months

[00:18:34] Speaker 01:
In fact, in GMS's brief, all of the cases that they cite to took more than 15 months to become final, except for one, which we note in our brief.

[00:18:45] Speaker 04:
And GMS argues that if we were to get to the Kaiser factors, that this doesn't implicate the secretary's expertise, this regulation or its interpretation, that it's just sort of a procedural thing.

[00:19:04] Speaker 04:
How would you explain, how can you tie this to this interpretation to the agency's expertise?

[00:19:12] Speaker 01:
Yes, you are.

[00:19:13] Speaker 01:
And this very report addressed that issue in DOE versus SEC.

[00:19:19] Speaker 04:
Well, we didn't talk about the secretary expertise on mining in an SEC case, so I really wanted to know exactly what on the ground here, what in reality would make your expertise

[00:19:30] Speaker 01:
Well, Congress authorized, not only authorized, but ordered the Secretary of Labor to promulgate regulations to implement the civil penalty process.

[00:19:42] Speaker 01:
And so Congress entrusted the secretary with that task.

[00:19:47] Speaker 01:
And so that puts it within the secretary's expertise.

[00:19:50] Speaker 04:
What is the connection between enforcing a civil penalty process and the secretary's clear duty to promote mine safety?

[00:19:59] Speaker 01:
Well, the ultimate purpose of the Mine Act is to promote safety and protect the health and safety and lives of mines.

[00:20:09] Speaker 01:
And what civil penalties do is they provide an incentive for mine operators to comply.

[00:20:15] Speaker 01:
Further, more compliance leads to fewer violations, fewer hazards, which leads to fewer deaths and fewer injuries.

[00:20:25] Speaker 04:
And so then the concern is that under GMS's view, there would be less enforcement and so less incentive to promote safety.

[00:20:33] Speaker 01:
Yes, under GMS's interpretation, an operator could simply contest violations, drag out the finality for more than 15 months.

[00:20:42] Speaker 01:
Those violations would then never be included in an operator's history of violations.

[00:20:46] Speaker 01:
which would reduce penalties, which Congress recognized is an incentive to comply, and so therefore it would reduce compliance, increase hazards, and violate.

[00:20:57] Speaker 03:
And to what degree is the Secretary's interpretation really just kind of a policy-laden choice?

[00:21:04] Speaker 01:
Well, I mean, to an extent there was a policy decision made by the Secretary that they would include

[00:21:11] Speaker 01:
final violations in the look back period and not, as we discussed, issued or, you know, occurrence date or assessment date, they would look at the final date, which, you know, corresponds with the second sentence in the regulation.

[00:21:29] Speaker 03:
And then we also have in here that it becomes final within the relevant 15 month period.

[00:21:34] Speaker 03:
So discuss with me the periods of assessment, if you will, because obviously it's almost like a statute of limitations in what comes within that period and what's outside of that period.

[00:21:46] Speaker 03:
So what are those kind of periods of assessment points?

[00:21:50] Speaker 01:
So it varies from case to case.

[00:21:55] Speaker 01:
Like I said, in the Upper Big Branch case, it was some 20 months between when the violation occurred and when the citation was assessed or when the citation was issued.

[00:22:06] Speaker 01:
And then most violations are assessed, a penalty.

[00:22:09] Speaker 01:
Some time after the citation is issued, as the preamble said, average time is three months, but it can be more or less than that.

[00:22:18] Speaker 01:
And then how long it takes for that to become final is just up to the individual case.

[00:22:24] Speaker 01:
We pointed out in our brief, there were instances where violations did not become final 10 years later.

[00:22:30] Speaker 03:
And I guess I'm asking the question a little differently.

[00:22:33] Speaker 03:
When are you trying to capture the information?

[00:22:35] Speaker 03:
Like at what points in time?

[00:22:37] Speaker 03:
When is it relevant or matters to the Secretary of Labor about these violations?

[00:22:42] Speaker 03:
Are there certain reporting periods?

[00:22:46] Speaker 01:
The date when the violation is included in an operator's history of violations is the date it becomes a final order of the commission.

[00:22:57] Speaker 01:
In other words, when it is finally resolved.

[00:23:00] Speaker 01:
And that takes into account the due process concern that it wouldn't be fair to mine operators to include violations that may later be vacated.

[00:23:08] Speaker 01:
I see my time is way beyond.

[00:23:11] Speaker 02:
All right, thank you.

[00:23:14] Speaker 02:
Thank you very much.

[00:23:15] Speaker 02:
Mr. McHugh, why don't you take two minutes?

[00:23:27] Speaker 05:
30 CFR 100.3 C is a policy decision by the secretary.

[00:23:32] Speaker 05:
They made a very specific policy decision when they drafted it the way they drafted it.

[00:23:37] Speaker 05:
Nowhere in the secretary's argument does the secretary explain where in the regulation it says that you can include violations that were issued four years ago.

[00:23:49] Speaker 05:
If you read the preamble, it's quite clear that what they wanted to do and the policy decision was for history, we need the most recent violations.

[00:24:01] Speaker 05:
If you look at the part in the preamble about repeat, it becomes very clear.

[00:24:04] Speaker 05:
They said, we want to look back at the last three or four

[00:24:08] Speaker 05:
inspections and see if they're doing the same thing over and over again.

[00:24:12] Speaker 05:
So we can determine if they violated if they've got a bad history.

[00:24:16] Speaker 05:
And that's exactly what the preamble did.

[00:24:19] Speaker 05:
Like I said, the regulation itself mentions a 15 month period in connection with violations in.

[00:24:27] Speaker 05:
It doesn't say 15 month period violations outside.

[00:24:31] Speaker 04:
So page 21 of your opening brief where you first tell us what your step one is.

[00:24:36] Speaker 04:
you talk you don't talk about a violation you talk about the citation step one the regulation considers the date of the citation issue and then you go down any citations issued more than 15 months prior to the citation dispute will not count because under the clear standard only the citations issued in the preceding 15 months

[00:24:57] Speaker 04:
are part of the universe of relevant citations in the first step of the process.

[00:25:01] Speaker 04:
But your argument this morning hasn't been what your blue brief says.

[00:25:04] Speaker 04:
It has been the violation rather than the citation.

[00:25:08] Speaker 04:
And you've come to us with a plain language argument, but now I'm seeing your plain language shifting from your brief to your oral arguments.

[00:25:16] Speaker 04:
So how can it possibly be plain if

[00:25:20] Speaker 04:
if you're not even using the same language in your brief, that you're using an oral argument.

[00:25:23] Speaker 05:
Your Honor, because citation is the only record of a violation.

[00:25:27] Speaker 05:
There can be a violation at the mine today, but nobody knows about it.

[00:25:31] Speaker 05:
It's underground.

[00:25:32] Speaker 05:
No one sees it.

[00:25:33] Speaker 04:
That's exactly the point.

[00:25:34] Speaker 04:
The citation could come later.

[00:25:36] Speaker 04:
They find out about it later.

[00:25:37] Speaker 04:
A miner complains.

[00:25:38] Speaker 04:
Someone reports it.

[00:25:39] Speaker 04:
Maybe the owner is good and reports it.

[00:25:43] Speaker 05:
But in this case, normally what happens is I know there's situations with accidents where it comes later and there's an investigation, but those are like this guy's falling situation where the vast majority of these things happen right on the day.

[00:25:57] Speaker 04:
But they're right that those would not be included in the in the history for your purposes.

[00:26:00] Speaker 05:
Right.

[00:26:01] Speaker 04:
And why would Congress not want the most serious death causing violations not to be included in the history of violations?

[00:26:10] Speaker 05:
Your Honor, obviously the Secretary had the ability to draft policy on penalties.

[00:26:18] Speaker 05:
And they did that when they drafted 100.3.

[00:26:20] Speaker 05:
They made a policy decision that they wanted to get a recent snapshot as opposed to a holistic over the

[00:26:30] Speaker 05:
the length of a long period of time.

[00:26:32] Speaker 04:
Judge Henderson said they said at least 12 months.

[00:26:36] Speaker 04:
That doesn't mean they're confined to the 12 month or 15 month period.

[00:26:40] Speaker 04:
She pointed out at least reaches further back than that.

[00:26:44] Speaker 05:
My reading of the sentence that the court mentioned was it's got a 15 month period that in response to the questions in the preamble they said it only takes three months for the citation to become final and therefore um

[00:26:58] Speaker 05:
we'll still have a 12 month snapshot and we'll still have a 12 month history.

[00:27:02] Speaker 05:
And that's what we want to do.

[00:27:04] Speaker 05:
And oh, by the way, we're adding this repeat section that wasn't in there before to counterbalance the fact that we've reduced the snapshot, the 24 months to 15 months.

[00:27:17] Speaker 05:
So there was a trade off, a policy trade off when they drafted the regulation.

[00:27:22] Speaker 05:
And it's very clear in the preamble how they came to that conclusion.

[00:27:28] Speaker 05:
And also, as far as these serious violations, the history under Part 100 doesn't mention anything about the level of severity.

[00:27:37] Speaker 05:
That comes under a different part of the penalty regulations, under likelihood and negligence, whereas the history was simply raw numbers of violations.

[00:27:50] Speaker 05:
It wasn't intended to get

[00:27:53] Speaker 05:
It wasn't intended to be like a double dipping situation that what the secretary is talking about.

[00:27:58] Speaker 05:
That's why they have the six different criteria that the court follows.

[00:28:02] Speaker 05:
So our position is that in essence, the secretary wrote this regulation, it set forth a policy, and then it proceeded to ignore it.

[00:28:13] Speaker 05:
And, you know, this case just happened to show a really extreme example of it because GMS had five citations, but it was penalized for 15.

[00:28:23] Speaker 05:
And so it was just an extreme example just to bring it to the court's attention that the secretary wasn't following its own regulation.

[00:28:36] Speaker 02:
All right.

[00:28:37] Speaker 02:
We've got your argument.

[00:28:38] Speaker 05:
Thank you.

[00:28:38] Speaker 05:
Thank you.