Federal inspectors, and so on, of regulations, but I think we ought to know what those regulations might be. I think there ought to be some appeal if it is an unreasonable type of regulation.

Secretary CHAPMAN. That is right.

Mr. McCONNELL. Human beings are such that they make mistakes, and it might be a very serious mistake they make.

Secretary CHAPMAN. That is right.

Mr. McCONNELL. I think that kind of mistaken action should be correctable in some way.

Secretary CHAPMAN. I think your counsel probably would know whether the Administrative Procedure Act applies to this or not. I I haven't checked it.

am not sure.

Mr. KELLEY. Does it?

Mr. FORSYTHE. I have serious doubts about it at the moment.
Secretary CHAPMAN. I don't know.

Mr. FORSYTHE. I might carry that on for just a moment.
Mr. KELLEY. Surely.

Mr. FORSYTHE. What sort of inspections do you anticipate here at the beginning of your procedure? You will have a Federal inspector go in and look at the mine, and if he finds it is unsafe it is closed. What is the next step that you anticipate under the power you have asked for by these amendments?

Secretary CHAPMAN. After it is closed they would notify the operator what the reasons for closing it were.

Mr. FORSYTHE. What if he didn't agree with them?

Secretary CHAPMAN. If he doesn't agree with them then you have to set up some opportunity for him to argue his case before the proper authorities.

Mr. FORSYTHE. Do you have anything here?

Secretary CHAPMAN. He would have to argue before the Director of the Bureau of Mines.

Mr. FORSYTHE. Would you have a formal hearing before the Director of the Bureau of Mines?

Secretary CHAPMAN. I haven't given any thought to that, but that is a procedural matter that we would have to work out.

Mr. FORSYTHE. I think that is pretty important. It seems to me you would have to have some sort of record on the administrative level in order for there to be an opportunity for court review.

Secretary CHAPMAN. I think the administrative level is a very important one.

Mr. FORSYTHE. I wonder if we could get you to ask the Solicitor to list for the committee's information what sort of review would be available to the operator under the Administrative Procedure Act both as to the closing order and also any rules and regulations that might be promulgated by the Bureau of Mines or the Secretary of the Interior? Secretary CHAPMAN. I will be glad to do that. I think that ought to be submitted for the record. We ought to know exactly where we are going in this.

(The information referred to is as follows:)

DEPARTMENT OF THE INTERIOR,

Hon. AUGUSTINE B. KELLEY,

OFFICE OF THE SOLICITOR, Washington, D. C., February 25, 1952.

Chairman, Subcommittee on Mine Safety,
Committee on Education and Labor,

House of Representatives, Washington, D. C.

DEAR MR. KELLEY: This responds to the request of the Subcommittee on Mine Safety of the House Committee on Education and Labor for a statement of my views concerning the applicability of the judicial-review provisions of the Administrative Procedure Act to H. R. 268, if that bill should be enacted in the form proposed by the Secretary of the Interior in his report, dated February 13, 1952, on the bill.

If H. R. 268 should be enacted in the form proposed by the Secretary of the Interior, the Secretary would thereby be authorized to issue regulations establishing "safety standards and requirements to be observed in the operation of coal mines," and any operator willfully violating a regulation promulgated by the Secretary would be guilty of a misdemeanor and, upon conviction, would be subject to a fine of not more than $2,000 or imprisonment for not more than 6 months, or both. Moreover, if the Secretary (or his representative) should find that a violation of a regulation had resulted "in a condition that constitutes an imminent danger to the life or safety of employees in the mine," he could issue an order requiring the mine operator to withdraw all employees (other than those necessary to correct the unsafe condition) from the unsafe area until the elimination of the danger, and if the operator should willfully fail to comply with the order of withdrawal, he would be guilty of a felony and, upon conviction, would be subject to a fine of not more than $10,000 or imprisonment for a period not exceeding 2 years, or both.

The provisions of the Administrative Procedure Act relating to judicial review are contained in section 10 of that act (60 Stat. 237, 243, 5 U. S. C., 1946 edition, sec. 1009). This section provides in pertinent part as follows:

"Except so far as (1) statutes preclude judicial review or (2) agency action is by law committed to agency discretion

"(a) RIGHT OF REVIEW.-Any person suffering legal wrong because of any agency action, or adversely affected or aggrieved by such action within the meaning of any relevant statute, shall be entitled to judicial review thereof.

"(b) FORM AND VENUE OF ACTION. * * * Agency action shall be subject to judicial review in civil or criminal proceedings for judicial enforcement except to the extent that prior, adequate, and exclusive opportunity for such review is provided by law.

"(c) REVIEWABLE ACTS.-Every agency action made reviewable by statute and every final agency action for which there is no other adequate remedy in any court shall be subject to judicial review. *

*

H. R. 268, if enacted in the form recommended by the Secretary of the Interior, would not expressly "preclude judicial review," and we would not construe it as making the Secretary's powers so widely discretionary as to mean that the Secretary's actions under the statute would be "by law committed to agency discretion" in such a way as to take such actions outside the scope of section 10 of the Administrative Procedure Act.

It seems to be clear, therefore, that in a criminal prosecution instituted against a mine operator for violating a regulation promulgated under the proposed legislation, or for violating a withdrawal order issued under the proposed legislation, the defendant would have an opportunity to obtain judicial review of the validity of the regulation or order upon which the prosecution would be based.

In addition, a mine operator adversely affected by a regulation or a withdrawal order issued under the proposed legislation could presumably, without awaiting the institution of criminal proceedings, obtain judicial review of the validity of such regulation or order by seeking a declaratory judgment or injunctive relief. As to whether other types of civil proceedings to obtain judicial review of the Secretary's orders or regulations would be available to mine operators under the provisions of section 10 of the Administrative Procedure Act cannot be known with certainty at the present time, in view of the dearth of judicial decisions interpreting the scope of that section.

Sincerely yours,

MASTIN G. WHITE, Solicitor.

Mr. KELLEY. Mr. Morton?

Mr. MORTON. Mr. Secretary, on page 6 of your testimony you talked about the amendments to this bill which you suggest in regard to penalties. Unless there is some penalty for violations, it is rather meaningless. I agree with your basic philosophy there. How do you feel as to penalties as they affect the individual miner who might be smoking on the job or lax as to timbering, and so forth and so on? This problem of mine safety, as I see it, is a two-way street. You can pass all the laws you want to and close the mines down, but you have to do an educational campaign to get the cooperation of the men in the mines. Of course it is to their interest to follow the rules because theirs are the lives involved. So many of these accidents are as our chairman has pointed out, from roof falls and things of that kind. Sometimes a man will just knock out a piece of shoring because he can handle his loading machine a little better when it is not there, and sometimes he goes behind a rib to smoke a cigarette. In our talk of penalties in this bill should we approve penalties on anyone who goes in the mine and violates safety regulations as well as for the operator himself?

Secretary CHAPMAN. Let's look at it this way: In the first place, the law of self-preservation would obviously operate very strongly against the man trying to murder himself, just like a pilot flying a plane. The passengers don't have to worry about somebody being foolish with the pilot, because the pilot's life is at stake just as well as the passengers'. In this case it is only the miner's life that is at stake, not the operator's.

Mr. MORTON. The point is, though, that we know that planes have been grounded where the life of the pilot only was involved. It happened during the war repeatedly that pilots in the Air Force or Naval Air Wing were grounded for taking a foolhardy chance where no life was involved but their own.

Secretary CHAPMAN. Surely.

Mr. MORTON. The facts are, it seems to me, that to develop the teamwork that is necessary for safety we have got to be sure that one man, through repeated thoughtlessness or through lack of understanding the seriousness of what he is doing, does not jeopardize not only his own life but those of his fellow workers. I just don't know whether we can write anything into this bill pertaining to that important subject, but something must be done. It is hard to legislate safety, just as it is hard to legislate morals.

Secretary CHAPMAN. It is not easy.

Mr. MORTON. If we could sit up here and pass a law that would allow your Bureau of Mines to anticipate the development of methane gas in any given mine, we would have the problem licked.

Secretary CHAPMAN. If that was the only problem we had.

Mr. MORTON. We cannot legislate that kind of clairvoyance to any bureau. My thinking was that we do still have that problem of carelessness, if you will. The chairman has pointed out that 60 or 70 percent of our accidents that are either fatal or involve serious injury result from roof falls, not from the explosions that we read about, which of course tear at the heartstrings of all Americans and all Members of Congress. I was wondering if any thought had been given to the idea that, where we can't through educational processes

get safety cooperation from those who go into the mines, penalties would then apply.

Secretary CHAPMAN. I think you will get cooperation fully of the men in a case like this. I don't anticipate certainly any reluctance on their part to comply with the required regulations. People who have given 93,000 lives of their own people to keep this industry alive and going certainly should not at this moment have the question. raised about whether they should put a penalty on them now for being killed. I want to catch up with the other side for a while.

Mr. MORTON. The penalty is not for being killed. The penalty is to prevent a man from endangering his own life and the lives of others. Secretary CHAPMAN. Until we catch up with the other side, I would like to leave that go for a little while. Let's balance this thing off a while and then we can discuss that when we see how it works out for a few years.

Mr. MORTON. That is all, Mr. Chairman.

Mr. KELLEY. Mr. Vail.

Mr. VAIL. Mr. Secretary, the prime interest in mine safety lies in the mine workers themselves, does it not?

Secretary CHAPMAN. That is right.

Mr. VAIL. Then how do you account for the adamant opposition of the Progressive Mine Workers to this legislation?

Secretary CHAPMAN. I don't think the mine workers are opposed to this legislation.

Mr. VAIL. My understanding is that they have taken very definite issue with it.

I will have to wait until they testify to that effect at this hearing before I would believe that the miners would oppose this kind of legislation.

Mr. KELLEY. Would the gentleman yield? The mine workers themselves are for this legislation, the United Mine Workers.

Mr. VAIL. The Progressive Mine Workers.

Secretary CHAPMAN. I can't understand why they would be that way unless they have some kind of interunion political contest going

on

Mr. VAIL. You were aware of the fact that they are opposing the

measure.

Secretary CHAPMAN. No; I wasn't. I wasn't aware of the fact that they opposed it. I can't imagine anybody opposing the interests of his own men. It is inconceivable to me that a group of men like that would oppose a safety device for the safety of their own men working in the mines.

Mr. VAIL. It is also inconceivable to me, and I wondered if you had the answer to it

Secretary CHAPMAN. I don't have the answer at all. I wish I knew why they would do that.

Mr. VAIL. No further questions, Mr. Chairman.

Mr. McCONNELL. Mr. Secretary, you have stated some recommendations that were made by the Federal inspectors in the case of Orient and Carpentertown mines.

Secretary CHAPMAN. That is right.

Mr. McCONNELL. Are all those recommendations included in your testimony?

Secretary CHAPMAN. I am going to submit the report, as I said. I will submit it for the record.

Mr. KELLEY. Without objection, that will be received.

Secretary CHAPMAN. I will be happy to put that full report in the record on both of them.

(The reports referred to are not printed here but were filed with the committee and are available for reference.)

Mr. McCONNELL. I would like to ask you one more question. What caused the explosion in the Orient mine? What set it off; do you know?

Secretary CHAPMAN. No. I only know what the report gave me from my technical people. They thought it was caused probably by an arc, some spark from the electrically operated equipment in an area where there was too much methane gas.

Mr. McCONNELL. In other words, no one knows what caused it?
Secretary CHAPMAN. Yes; they think they know.

Mr. McCONNELL. They think.

Secretary CHAPMAN. I say they think. They state it. They state it in the report.

Mr. McCONNELL. Do they state that it was so-and-so as a fact, or do they say they think it?

Secretary CHAPMAN. They didn't say, "I think." They just make a statement of facts as to the cause.

Mr. McCONNELL. I don't know. I haven't read it.

Secretary CHAPMAN. That is the way they present it, in those terms.
Mr. McCONNELL. That is all, Mr. Chairman.

Mr. LUCAS. Mr. Chairman, I have a question.

Mr. Secretary, if this bill is enacted into law how much do you estimate it will cost the taxpayers of the United States the first year?

Secretary CHAPMAN. I don't happen to have those figures available with me, but we do have those figures. I would like to put it in the record for you, if you don't mind.

Mr. LUCAS. Do you know approximately how much it will cost. Secretary CHAPMAN. No, I don't. Mr. Forbes, do you have those figures?

Mr. FORBES. About $6 million more than is now being spent for Federal coal-mine inspection activities.

Secretary CHAPMAN. About $6 million more than at present.

Mr. LUCAS. That is the first year. Do you know how much it will cost the second year, or do you have any estimate of how much it will cost? Is it estimated that cost will increase as more mines are opened? Secretary CHAPMAN. They have an estimate, Mr. Chairman, on this, and I would like to submit that for the record. They have a prepared estimate on the cost of this. I don't happen to have it in my mind.

(The estimate referred to is as follows:)