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Senator Williams. Let us be back here in an hour.
(Whereupon, at 1:10 p.m., the subcommittee recessed, to reconvene at 2:10 p.m. of the same day.)
(The subcommittee reconvened at 2:30 p.m., Senator Harrison A. Williams, Jr., chairman of the subcommittee, presiding.)
Senator WILLIAMS. We will reconvene the hearing.
Mr. Russell, I appreciate that you might have to leave, so there are just two broad policy situations I would like to ask you about.
This was not the committee of confirmation for the Bureau, but obviously we have a great interest here in the nomination to come.
You will recall that when Dr. Lucas was before the Interior Committee, the question came up on his holdings of securities in a foreign mining company, and the Interior Committee expressed itself and thought it was unwise—I guess that would be the proper wordingunwise for a man in that position to have these securities.
Dr. Lucas wrote to the committee and said that he-in, his situation, in his financial position, did not want to divest himself of them, and I believe he quoted an opinion from the Solicitor of the Department that they felt that—the Department felt—that there was no conflict.
I just wondered if that policy conclusion is the same now as it was then.
Mr. MELICH. Senator, maybe I should answer that. Our opinion to the House committee only went to a stockholding in Union Minière, a foreign holding company, in which Dr. Lucas had some stock interest. Our opinion went to the fact that he had to dispose of all of his holdings, as I recall there were two or three corporations, domestic corporations, in which he held stock that we felt would be in conflict with his position if he were confirmed.
But we couldn't find anything in the statute which required him to dispose of a foreign holding, and this foreign holding company held no interests in the United States, from the investigation that we made, and in discussing this with the House and Senate Interior Committees, I mentioned to them that this was a discretionary matter that the committee itself could decide upon, if they wanted him to dispose of those foreign holdings.
Senator WILLIAMS. Your opinion would remain the same, and frankly I am not quite clear just what you are saying, what the policy is, the Bureau policy or Department policy, would be.
Mr. MELICH. As far as the statute with respect to the holdings of a director of the Bureau of Mines, it requires he dispose of any holdings in mines which he may inspect.
Senator Williams. Is that strictly the statutory language?
Mr. MELICH. That is the language in the statute, and we have a former Solicitor's opinion, which I forwarded to the committee, which spells this out, and we confirmed that, that in Dr. Lucas's case he had this additional holding, stockholding, in Union Miniere, which is a holding company, which I think is based in either Paris or London, and it has holdings in some mineral companies scattered throughout
the world, but it has no holdings, from our investigation, in the United States, which to us indicated that we would not be inspecting any properties of a corporation which had holdings in the United States.
Senator WILLIAMS. You limited yourself to strict statutory construction?
Mr. MELICH. Yes.
Now, on the other question of the development of regulations, rules and regulations, and the nature of the hearings and the conferences, there has been a lot of discussion here in the last 2 days about how open or closed they were.
I gather that there was an evolution here from the word that has been used is "secret," rather limited participation, and it was broadened.
Finally, I want to know where we stand now as far as new rules and regulations are concerned. What is the Department's procedure !
LE. Mr. Chairman, do you mean—are you referring to rules and regulations that are over at the Federal Register now? I am not sure that I understand the full import of the question.
Senator WILLIAMs. Here is one specific March 28th regulation, and those regulations were published, is that correct?
Mr. DOLE. That is correct.
Senator WILLIAMS. The testimony was that these were never submitted, never published for an opportunity for people to come in and be heard, register observations on them before they were effective.
I know it is not required, and you can publish on the 28th and make it effective on the 30th, which you did, and I believe the statute permits that. But it is not a general practice, as I understand it.
What is the policy now?
Mr. Dole. Well, Mr. Chairman, this probably should be answered by the Solicitor, but let me take a crack at it.
As I mentioned in my testimony today, we have republished, or published, the regulations again, and they are at the Federal Register at the present time. Two copies of these regulations were left with the committee.
I am sure that the Solicitor probably should add something to this.
Senator WILLIAMS. Was I correct when I said that the way you published, on March 28th, and the effective of the 30th, was permitted under the statute? Did the court pass on this?
Mr. Melich. Yes. In our opinion, we concluded we could do what we did without asking for comments, which we usually do. I don't think there is an instance in our practice where we do not ask for comments, but because of the time factor involved here where the act had to go into effect on April 1, we concluded that under the provisions of the Administrative Procedures Act that we could do what we did.
However, the court in Virginia, in granting the injunction, did not agree with us, and we were also criticized by members of your staff and others, and we have concluded now that in order to satisfy every: one, while we still don't believe we were wrong in our interpretation of the statute, but we are republishing, and we are asking for comments.
Senator WILLIAMS. I see. This is on regulations. Are there any
other degrees of conference, short of the development of regulations that are involved here?
As I recall it, the staff people from this committee have sought an opportunity to be in on conferences in the Department, and have been invited. I think Mr. Feder and Mr. Mittelman have gone to these. These were short of developing regulations, weren't they? These were in the area of proposed regulations?
Mr. RUSSELL. Well, these were efforts to gain information and they were efforts to gain information from every direction that it might come from, so there were a number of different witnesses. However, this was not a regulation hearing.
Mr. Gershuny was in one meeting, I think, particularly that you make reference to, and if you would like to have him describe the different witnesses who were able to give some information that was used, he will do so.
Senator WILLIAMS. I gather this was evolved to the point where the Department has a policy now of opening up more of these hearings to broader participation than you started with!
Mr. MELICH. Well, our policy has always been to hold these open hearings, but in this situation I think this would be an exception because of the time factor on the publication of the regulations.
Senator WILLIAMS. On the information gatherings, here I gather you hope to broaden your base, is that correct?
Mr. MELICH. We welcome that. Senator WILLIAMS. We interrupted you, Senator Schweiker. Senator SCHWEIKER. You go ahead. Senator WILLIAMS. We have some staff technical questions here. Senator SCHWEIKER. That is all right. Senator WILLIAMs. There is one remaining point on this question of meetings, information, or development, where the Department is meeting with industry. There was protest that the meetings were secret and the working miners could not be represented there, or were not represented.
Do you see the advantage of not going into secret meetings with the Department and industry without others being there?
Nr. MELICH. Senator, I personally know of no secret meetings that we held. Now, maybe Secretary Dole, whose Department, of course, conducted most of the meetings, but I personally know of no secret meetings or anyone excluded that requested to be at the meetings. If there are those, I would like to know of them.
Maybe Secretary Dole can add more to it.
We have a lot of people calling on us, and I will probably have a dozen people today. Now, are those meetings, or are those someone calling, or what are they?
We had many meetings with many people throughout industry. We had a meeting with Mr. Yablonski and his group. We have had meetings with representatives from the United Mine Workers, with the American Mining Conference.
I considered and construed those as the right of any citizen to call upon their Federal officials to talk with them, in the same way they write letters.
Now, when it comes to meetings, whenever we have a meeting in which there are going to be substantial things discussed or technical meetings, which we have, they are open to everyone.
Senator Williams. It is this degree, then, of importance, matters of substance, the meetings will be open, is that it?
Mr. DOLE. Yes. I think what we are dealing with here is strictly semantics.
Senator WILLIAMS. We have a little case history of one of these meetings, so we will have a little better idea. Mr. Feder was involved in one of them.
Mr. FEDER. As I understand the question, it relates to the meetings held prior to July 10, concerning proposed amendments of the Department of Interior safety regulations. As I recall the history of documents and other communications, Assistant Secretary Dole directed a panel of the Department of Interior employees to hold meetings with the representative of the United Mine Workers and representatives of the Bituminous Coal Operators Association and National Independent Coal Operators Association on proposed amendments by these organizations, that the Friday before the scheduled Monday series of meetings was to begin, somehow one Member of Congress found out about these meetings and objected to them being held privately and requested an opportunity for congressional employees to attend.
That day—as a matter of fact that evening-in response to this, I know the subcommittee was called, inviting a staff member of the subcommittee to attend, and I understand the same call went out to Members on the House side. Those meetings at that point were opened up in that sense to include representation from Congress at the request of a Member of Congress.
I understand that on that day a member of the press was invited, but counsel for the Miners for Democracy was not invited, although he requested the opportunity to attend those meetings and was told to meet with you the following week.
There were no transcripts kept at these meetings, and yet these were meetings to discuss the proposed amendments to the regulations.
This is the question to which the committee is directing itself, the question of can we be assured that this will not happen again?
Mr. Dole. Mr. Chairman, may I speak to that? I am very glad you brought this up, and I think this speaks about the way in which we are going about this information on the Coal Safety Act.
We received many requests and comments on the various rules and regulations. There are people within the Coal Mine Operators Association, who said, “We send these letters in to you and nothing happens. It is like dropping mail into the bottom of the ocean."
We received inquiries from others, in the United Mine Workers, the same way, so I established a committee to review the technical application of these suggestions and comments. I established this, and the chairman was Mr. Gershuny, with Mr. Wheeler, and Mr. Julian Fiess from my office, from my immediate staff.
Dr. Fiess had worked on the nonmetallic coal mine rules and regulations, he is a man of wide experience in metal mining, but not in coal mining
I instructed these people to meet with the technical representatives of the unions and of the coal mine operators, and with anyone else that wanted to attend to discuss these, but once again, I go back to this comment in my testimony in which I say we listen, and we talk, but decisions are made within our house.
Now, I think it might be helpful if Mr. Gershuny would care to comment on how these meetings were conducted, that they were strictly technical meetings to discuss technical subjects.
Senator Williams. Our information was that somebody wanted to come and couldn't.
Mr. Dole. We wanted the people who could contribute most from the technical standpoint, and I am talking about the real nitty-gritty of coal mining
Mr. Melich. Before Mr. Gershuny speaks, Mr. Chairman, addressing this to Senator Schweiker, I think it would be helpful for us to know what type of conferences we hold at Interior that you would like your staffs to be in, because we are constantly discussing many problems, legal and other problems, and I have never felt we should burden your staffs with having people brought down.
Senator Williams. I don't believe that is the point. We have shown an interest, and basically I think I can state that our interest was not in the technical conclusions that are arrived at, but who is invited to participate in arriving at technical conclusions.
Now, we understood that people who thought they could make a contribution on these amendments, and they all deal with safety in the coal mines, could have made a contribution, and they were not part of it, of the amendment meeting, the meeting or meetings for amendments.
Mr. Dole. Incidentally, on page 18, I refer to that, and I also submitted a list of the meetings we have had for the record, and it is right over there.
Senator WILLIAMS. Mr. Yablonski indicated to us that he or a representative of the men that he works with wanted to be at this meeting and was not permitted. Are you familiar with that?
Mr. DOLE. Yes, indeed I am. Mr. Yablonski was invited to meet with the same panel, but I don't believe it was on the same date of those meetings. Am I correct, Mr. Gershuny?
Mr. GERSHUNY. The following week.
Senator Williams. That may be equal but separate meeting time. I think the point was that it would be more meaningful from these people's point of view to be at the same meeting.
Senator SCHWEIKER. I would like to ask a little bit about the training and recruitment of inspectors. I am a little bit concerned when I see in your testimony, Secretary Dole, that even taking a shortcut through