Senator SCHWEIKER. There was something that was not discovered on this partial-but-representative inspection and that was the ventilation, the full nature of the ventilation reaching the face; there was a split of air.

Mr. WESTFIELD. That is right. One split of air is ventilating two working sections rather than one.

Senator SCHWEIKER. This he did not discover because it was a partial inspection; is that right?

Mr. WESTFIELD. That is correct.

Senator SCHWEIKER. Would he have discovered that on a full inspection?

Mr. WESTFIELD. Yes, sir.

Senator RANDOLPH. I want to pursue this just a moment, Mr. Chairman.

Senator SCHWEIKER. I just want to ask one question.

Would he have discovered that on a spot inspection or is that difficult to answer?

Mr. WESTFIELD. Well, if he made the spot inspection and made those two sections he would have picked it up. If he just made one and had not traveled the full course, he possibly would have missed it.

Senator RANDOLPH. Mr. Westfield, as I understand it, there are three types of inspections; is that correct?

Mr. WESTFIELD. Yes.

Senator RANDOLPH. The partial inspection. I am just talking now because I don't know, but I am wondering if it has any value if it is only partial.

Mr. WESTFIELD. Yes; it does, but it does not give you the picture of the entire mine and all the dangers in that mine.

The only thing that the inspector can report on is what he actually sees. If he inspects two sections, makes a complete inspection of those two sections, he can report and cite violations on those sections of

the mine.

But the other parts, if he does not see them, he cannot make a report on the conditions in them.

In other words, an inspector picks a section to inspect; he might find this section in very good order. He might walk to another one and find it in very bad shape and find a lot of hazards involved.

The complete inspection is very necessary, so far as I am concerned. Senator RANDOLPH. I understand that a thorough inspection can be made and then after that thorough inspection some force of nature can change what the inspector reports as the condition of that section of the mine; is that correct?

Mr. WESTFIELD. In coal mining, they move so fast today that you could inspect and find a section in very good condition and walk into the same section the next day and find it in very bad condition and have very unsafe conditions because they do move so fast; the ventilation can fail; they might leave out stoppings; they might not put line curtains in the place and not direct the air to the face one day and the next day it will change. It moves very fast.

Senator RANDOLPH. Mr. Westfield, I want to come back to the statement that I made by way of perhaps partial inspections.

I wonder about the effectiveness of a partial inspection. Do you think that we should attempt to move away from that type of inspection?

Mr. WESTFIELD. That is one reason why the Bureau has changed from the partial at the present time to requiring a complete inspection, primarily because many parts of the mine that we would not cover in the partial inspection such as traveling air courses, checking the rock dust back in abandoned parts of the mine that are not working. We do not have time to do that in partial inspections while we can in full inspections.

The industry is going to find a lot of impact from this law that wasn't recognized under the partial inspection when we complete our first round of complete inspections, because there will be parts of the law that were not touched under the partial inspections.

Senator RANDOLPH. Mr. Dole, I would like to come to you following the comment of Mr. Westfield.

You spoke of the need for approximately 610 inspectors to make this law effective; is that correct?

Mr. DOLE. Yes; 750.

Senator RANDOLPH. Can those 750 inspectors make what I classify as total inspections?

Mr. DOLE. Yes, sir; the four that are required each year.

Senator RANDOLPH. Or are you still thinking of them as making categories of inspections?

Mr. DOLE. No, sir, Senator Randolph. We consider at the present time the full complement necessary to make the complete inspections and all of the other inspections required by the law to be 750 inspectors plus 250 specialists.

Now, I would like to call to the committee's attention my testimony on page 10 where I mentioned that:

Faced with the impossibility of making all of the safety inspections required by the law as frequently as required by the law with its limited inspection force, the Bureau decided to begin its inspections under the new law with a round of partial-but-representative inspections.

Then on page 13, the second paragraph, we state:

The Bureau of Mines has already started to make a round of complete inspections in all underground coal mines.

Now where we note that we are making two complete safety inspections and two partials.

So, we are phasing into, as we bring more men onto the staff, we are phasing into the complete inspections.

This matter of making the partial-but-representative inspections gave us a full inspection of a certain percentage of that mine. That was a judgment. This was a judgment made under lack of manpower. But we do get full complement early in fiscal year 1972 and even before we get there we are going to phase into more and more full inspections. Senator RANDOLPH. Mr. Chairman, I think it is very important that there has been developed here in the last few minutes a fact, and that is that the total or complete inspection of a mine is to be carried out by the Bureau of Mines under the provisions of this act. I do not know that that has been generally understood.

I have not realized that there was a differentiation which has been made.

I wholly concur in the need for the complete inspection or the total inspection.

Mr. Westfield, Mr. Dole, Mr. Wheeler, and others, I believe that we cannot have the law effective with partial inspection. So your deter

mination to go to complete inspections as quickly as possible with the manpower that is available is encouraging, at least.

Mr. DOLE. Senator Randolph, I should mention, though, that in addition to the complete inspections we are also going to have spot inspections.

The purpose of the spot inspections, of course, is to make the Federal presence at all times felt within the mine.

Senator RANDOLPH. Yes; I approve of that entirely.

But you can see, Mr. Dole, how the miner watching a partial inspection would feel about the inadequacy of the inspection process. That is the reaction you would have if you were the miner.

Mr. DOLE. Senator Randolph, certainly in one area, the area of informing the miners what we are doing, in retrospect we see we have not put as much emphasis on this as perhaps we should have. It wouldn't change the safety but it would give them a better understanding.

We are discussing and thinking about going so far as to get radio spots, TV spots, so that the miner, himself, would know what we are doing. It is too bad that this communication gap occurred, but I can assure you our full attention was and our full strength was on trying to get as much health and safety as fast as we could, and perhaps we did neglect the communications a little bit.

Senator RANDOLPH. I think it is helpful for you to confess an error, a mistake, a shortcoming. We need to do that more often, perhaps, all of us.

Senator WILLIAMS. It wasn't a complete confession; it was a partial

confession.

Senator RANDOLPH. To strike a balance here as we move forward, I think is very important and to have you speak of your commitment and yet the realization that at points you haven't done the job you think you should have done. I have more respect for you, sir, when you do this.

Thank you very much.

Mr. DOLE. Thank you.

Senator WILLIAMS. Iwould entertain a motion to recess.

Senator RANDOLPH. A partial recess?

Senator SCHWEIKER. I would like to ask a question, Mr. Chairman. Going back as to the Department's intention-I guess I will direct this one to either Secretary Dole or Secretary Russell-what is the intention of the Department about inspecting 200-and-some gassy mines on a 5-day basis? What is your intention?

Granted, you don't have the manpower to do it immediately-I am not critical about that at all; I recognize the problem. I would like to know for the record, is it going to be your intention to give all the gassy mines a 1-in-5-day inspection?

Mr. DOLE. Senator Schweiker, our wholehearted intention is to enforce this law as written. That means that our intention is to go to the 200 mines on a 5-day basis as soon as we possibly can.

Senator SCHWEIKER. That is a good answer.

Senator WILLIAMS. Can you gentlemen come back after we recess for lunch?

Mr. RUSSELL. Yes, sir.

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.)

AFTER RECESS

(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.

Senator WILLIAMS. I see.

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? Mr. DOLE. Mr. Chairman, do you mean-are you referring to these 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. To be effective on the 30th of March.
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 everyone, 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