International Union, United Mine Workers v. Mine Safety & Health Administration

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 11, 2005 Decided May 24, 2005

No. 04-1164

INTERNATIONAL UNION, UNITED MINE WORKERS OF
AMERICA,
PETITIONER

v.

MINE SAFETY AND HEALTH ADMINISTRATION AND
ELAINE CHAO, SECRETARY OF LABOR,
RESPONDENTS

Consolidated with
No. 04-1165

On Petitions for Review of an Order of the
Federal Mine Safety and Health Administration

Judith E. Rivlin argued the cause for petitioner
International Union, United Mine Workers of America. With
her on the briefs was Grant F. Crandall.
 2

Guy W. Hensley argued the cause and filed the briefs for
petitioner Jim Walter Resources, Inc.

Harold P. Quinn, Jr., Ralph H. Moore, Karen L.
Johnston, and Trisha L. Culp were on the brief for amicus
curiae National Mining Association in support of petitioner.

Jerald S. Feingold, Attorney, Mine Safety & Health
Administration, argued the cause for respondents. With him
on the brief was W. Christian Schumann, Counsel.

Before: SENTELLE, HENDERSON and ROGERS, Circuit
Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge: Two petitions for review
challenge the Secretary of Labor’s promulgation of the final
rule entitled “Underground Coal Mine Ventilation Safety
Standards for the Use of a Belt Entry as an Intake Air Course
to Ventilate Working Sections and Areas Where Mechanized
Mining Equipment is Being Installed or Removed,” 69 Fed.
Reg. 17,480-530 (Apr. 2, 2004) (codified at 30 C.F.R. pt. 75)
(“Belt Air Rule”). In No. 04-1164, the International Union,
United Mine Workers of America (“the Union”) contends that
the Secretary, by failing to grandfather existing mine-specific
health and safety protections, has promulgated a belt air
standard that is contrary to the “no-less protection”
requirement of section 101(a)(9) of the Federal Mine Safety
and Health Act of 1977 (“Mine Act”), 30 U.S.C. §§ 801-962
(2000). It maintains this failure compromises the Secretary’s
“net effects” analysis, and because some miners will lose
enhanced protections they previously enjoyed, the Secretary
acted arbitrarily and capriciously. Although the Union’s
interpretation is compatible with the Mine Act’s purpose to
 3

protect the health and safety of miners, the Secretary’s “net
effects” analysis is consistent with the purpose, the statutory
text, and the statutory scheme enacted by Congress.
Accordingly, we deny the Union’s petition for review.

In No. 04-1165, Jim Walter Resources, Inc. (“JWR”), a
coal mining company, challenges the Secretary’s
promulgation of 30 C.F.R. § 75.350(a)(2), which sets a
velocity cap of 500 feet per minute (“fpm”). It contends the
cap is invalid because the Secretary failed to comply with the
notice-and-comment requirements of the Mine Act, 30 U.S.C.
§ 811(a), and the Administrative Procedure Act (“APA”), 5
U.S.C. § 553(b) (2000). While the Secretary purports to rely
on the “logical outgrowth” doctrine, that doctrine cannot be
stretched as far as the Secretary suggests. In the notice of
proposed rulemaking, the Secretary stated that she was not
proposing a velocity cap because empirical research indicated
a cap would increase safety problems, 68 Fed. Reg. 3,936,
3,950 (Jan. 27, 2003) (“NOPR”), and she failed to give notice,
with an opportunity for comment, prior to promulgating the
final rule, that she was considering imposing a cap, much less
a cap of 500 fpm. Accordingly, we grant JWR’s petition,
vacate section 75.350(a)(2) of the Belt Air Rule, and remand
the matter to the Secretary.

I.
Subchapter I of the Mine Act sets forth the procedures for
the Secretary to follow in developing a proposed rule for
establishing a new mandatory national health and safety
standard, and establishes various standards that are to be met
based upon the consideration of certain factors. 30 U.S.C. §
811(a)(1)-(4). The term “mandatory health or safety
standard” is defined in the Mine Act as the “interim
mandatory health or safety standards established by
subchapters II and III of this chapter, and the standards
 4

promulgated pursuant to subchapter I of this chapter.” Id. §
802(l). In enacting the Mine Act, Congress addressed certain
mine safety concerns by establishing interim mandatory
national health and safety standards, to remain in effect until
replaced or superceded by the Secretary. See id. §§ 841, 862-
78. Section 101(a) of the Mine Act directs the Secretary of
Labor to “develop, promulgate, and revise as may be
appropriate, improved mandatory health or safety standards
for the protection of life and prevention of injuries in coal or
other mines.” Id. § 811(a). Section 101(a)(9), the “no-less
protection” rule, provides that “[n]o mandatory health or
safety standard promulgated under this subtitle shall reduce
the protection afforded miners by an existing mandatory
health or safety standard.” Id. § 811(a)(9).

Under appropriate circumstances, the Secretary may
exempt a mine from the mandatory national health and safety
standards. Section 101(c) authorizes the Secretary to modify
the application of any mandatory safety standard to a
particular mine upon finding that:

an alternative method of achieving the result of such
standard exists which will at all times guarantee no less
than the same measure of protection afforded the miners
of such mine by such standard, or that the application of
such standard to such mine will result in a diminution of
safety to the miners of such mine [and mine-specific
conditions are required to ensure miner health and safety
equivalent to the national standard].

Id. § 811(c).

The relevant interim belt air mandatory national standard
enacted by Congress provides that:
 5

In any coal mine opened after the operative date of this
subchapter, the entries used as intake and return
aircourses shall be separated from belt haulage entries,
and each operator of such mine shall limit the velocity of
the air coursed through belt haulage entries to the amount
necessary to provide an adequate supply of oxygen in
such entries, and to insure that the air therein shall
contain less than 1.0 volume per centum of methane, and
such air shall not be used to ventilate active working
places. . . .

Id. § 863(y)(1). While barring use of belt air ventilation of
working areas, the interim standard permitted existing mines,
opened on or before March 30, 1970, that were using belt air
to continue doing so upon petition for modification of the
interim standard. 30 C.F.R. § 75.326 (1991). During the
fifteen-year period prior to 2003, the Secretary, acting through
the Mine Safety and Health Administration (“MSHA”), 29
U.S.C. § 557a (2000), had granted approximately 90 such
petitions, finding, after on site inspections, that the
modifications provide “the same measure of safety protection
as the existing standard,” 68 Fed. Reg. at 3,937, by use of “the
proper installation, operation, examination, and maintenance
of [atmospheric monitoring systems (“AMS”)] as part of a
comprehensive safety program that contains other
requirements,” id. Generally, MSHA noted, mine operators
have requested “the use of belt air to ventilate working places
dependent upon the installation of an AMS with [carbon
monoxide (“CO”)] sensors for early-warning fire detection in
the belt entry,” id. at 3,938, to comply with MSHA’s
regulatory requirements on automatic fire warning devices, 30
C.F.R. § 75.1103, and as a regulatory option for monitoring
methane, CO, and smoke, 68 Fed. Reg. at 3,938.

In January 1988, MSHA first proposed to revise the
 6

interim air belt standard to allow air coursed through the belt
entry to ventilate working places where mine operators had
installed CO sensors in the belt entry. Id. at 3,937. After a
series of public hearings, the Assistant Secretary for Mine
Safety and Health called for a review of the safety factors
associated with the use of such belt air. Id. The review
culminated in the Belt Entry Ventilation Review (“BEVR”) of
August 1989, which concluded that “. . . directing belt entry
air to the face can be at least as safe as other ventilation
methods provided carbon monoxide monitors or smoke
detectors are installed in the belt entry.” Id. However, in
light of the divergent views of industry and academia
compared to those of labor representatives in response to
publication of the report, 54 Fed. Reg. 35,356 (Aug. 25,
1989), no revisions were made to the interim standard. 68
Fed. Reg. at 3,937.

MSHA continued to be of the view that the interim belt
air standard should be revised, and in January 1992, the
Secretary appointed an Advisory Committee to make
recommendations concerning the necessary conditions under
which air in the belt entry could be safely used in the working
areas of underground mines. Id. The Advisory Committee,
following public meetings, issued a final report concluding
that air in the belt entry could be safely used to ventilate
working places in underground coal mines provided certain
conditions are met. Id. MSHA also published this report. 57
Fed. Reg. 57,078 (Dec. 2, 1992).

Then, in January 2003, MSHA issued a NOPR, 68 Fed.
Reg. at 3,936, to “allow the use of intake air passing through
belt air coursers (belt air) to ventilate working sections and
areas where mechanized mining equipment is being installed
or removed in underground coal mines,” id. According to
MSHA, under the conditions set forth in the proposed rule,
 7

use of belt air “would maintain the level of safety in
underground mines while implementing advances in mining
technology.” Id. After public hearings and receipt of
comments, MSHA promulgated the final rule, permitting
mines using three or more entries to use air coursed through
belt entries to ventilate working areas, when used with CO
monitors and AMSs for fire detection, and conforming with
new mandatory safety standards as well as existing standards
regarding mine-specific ventilation plans in light of the actual
safety needs created by the specific circumstances at
individual mines. 69 Fed. Reg. at 17,482. The preamble
stated:

New technology has proven safe and effective in quickly
and reliably detecting the products of combustion and
providing early warning to miners. The use of belt air
under this final rule will increase protection compared to
mines that use only point-type heat sensors by quickly
detecting products of combustion in the belt entry at an
early stage of fire development and by rapidly providing
warning . . . .

. . . Advances in computer-operated atmospheric
monitoring systems (AMS) have led to the acceptance of
AMSs as an effective tool to monitor conditions in mine
entries and detect the products of combustion at an early
stage of fire development.

Id. at 17,481. The final rule, for example, prescribes specific
requirements necessary for a mine operator to use the belt air
course to ventilate working sections, including: (1)
monitoring the air current passing through a point-feed
regulator, see 68 Fed. Reg. at 17,526, for carbon monoxide or
smoke; (2) monitoring the air with sensors in the belt air
course for carbon monoxide or smoke; (3) installing a
 8

mechanism by which the point-feed regulator may be closed
from the intake air course without requiring a person to enter
the crosscut where the point-feed regulator is located, and also
with a means to close the regulator from a location in the belt
air course immediately upwind of the crosscut containing the
regulator; (4) maintaining a minimum air velocity of 300 fpm
through the point-feed regulator; (5) obtaining approval of the
locations of point-feed regulator(s), and; (6) installing an
AMS as specified in section 75.351. 69 Fed. Reg. at 17,527.
MSHA also addressed specific mine safety issues, such as
separation of the primary escapeway from the belt entry, the
average concentration of respirable dust in the intake airways,
and stopping construction and maintenance, by noting the
interrelationship between the various standards, and citing
specific regulations addressing each of these concerns. E.g.,
69 Fed. Reg. at 17,494, 17,496-97 (citing 30 C.F.R. §§
70.100(b), 75.380(g), 75.333, 75.383, 75.1502).

II.
In No. 04-1164, the Union contends that the Secretary’s
revision of section § 75.350 in the Belt Air Rule violates the
“no-less protection” provision of section 101(a)(9) of the
Mine Act because it fails to grandfather each of the safety and
health protections that had been included in mine-specific
petitions approved under the interim standard. It cites several
opinions of the court as suggesting that the Secretary’s new
regulation must achieve both the “general results” of the
previously applicable standard and produce “a net gain” in the
miners’ overall safety and health. See Int’l Union, United
Mine Workers of Am. v. MSHA, 920 F.2d 960, 964 (D.C. Cir.
1990) (“Int’l Union”). It then interprets the phrase “existing
mandatory health or safety standard[s]” in section 101(a)(9) to
require an analysis comparing the new rule against both
Congress’s interim standard barring the use of the belt air in
working areas as well as the mine-specific conditions
 9

previously in place affording miners “additional mine-specific
protections.” Br. of Pet’r at 8. Because the Secretary failed to
consider mine specific modifications, the Union contends the
Secretary was arbitrary and capricious, and abused her
discretion in revising section 75.350 in the final rule.

In the final rule MSHA stated that:

[S]ection 101(a)(9) requires that, in promulgating a new
rule permitting the use of belt air, the Secretary weigh the
net effect on safety under the new rule against the net
effect on safety under the existing standard limiting the
use of belt air. In promulgating this final rule, MSHA
has done just that. MSHA has compared the protections
provided by this final rule with the protections afforded
by the existing standard and has concluded that . . . the
final rule does not reduce the protection afforded by the
existing standard.

69 Fed. Reg. at 17,485. Responding to objections that the
“final rule did not address mine-specific concerns which were
better addressed in petitions for modification,” id., MSHA
noted that “petition language is proposed by mine operators . .
. . [T]he ‘alternative method’ . . . need only . . . achieve[] the
result of the [national] standard and guarantee[] a net
‘equivalence’ in mine safety, taking all effects on mine safety
into account,” id., and further explained that mine-specific
modifications “have never been held to constitute a
mandatory safety standard of general application,” id. MSHA
also noted that it had determined that other safety and health
provisions that may have been included in the petition as a
result of negotiations between miner operators and miners’
representatives “are not germane to the safe use of belt air,”
id., and hence it is neither appropriate nor legally required to
include them in the final rule, id.
 10

On appeal, the Secretary maintains her interpretation of
section 101(a)(9) as requiring a weighing of the net effect on
safety under the new rule against the net effect on safety
under the existing standard limiting use of belt air is
consistent with its plain language and placement within
section 101(a). She further maintains that, in any event, were
she required to weigh previous modifications against the new
rule, she adequately did so by comparing the differences
between requirements under the final rule and requirements
found in either granted petitions for modification of the
interim standard or previously approved ventilation plans.

In addressing the Union’s challenge to the Secretary’s
interpretation of section 101(a)(9), the court applies the
familiar two-step analysis established in Chevron U.S.A. Inc.
v. Natural Resources Defense Council, Inc., 467 U.S. 837
(1984). The court first must ask “whether Congress has
directly spoken to the precise question at issue,” and if it has,
“give effect to the unambiguously expressed intent of
Congress.” Id. at 842-43. If Congress has not clearly spoken,
the question for the court is whether the Secretary’s
interpretation is “a permissible construction of the statute.”
Id. at 843; see Sec’y of Labor, MSHA v. Excel Mining, LLC,
334 F.3d 1, 6 (D.C. Cir. 2003).

The plain language of the no-less protection provision
requires only that “[n]o [new] mandatory health or safety
standard . . . reduce the protection afforded miners by an
existing mandatory health or safety standard.” 30 U.S.C. §
811(a)(9). By its terms, section 101(a)(9) applies only to
mandatory standards, not to mine-specific modifications. The
structure of the Mine Act is consistent with this interpretation,
for section 101(a) addresses the promulgation, enforcement
and applicability of mandatory health and safety standards.
The language of section 101(a)(9) is also consistent with
 11

Congress’s intent in the Mine Act to establish a regulatory
program that would be uniform nationwide. S. REP . N O . 95-
181, at 13l (1977); see United Mine Workers of Am., Int’l
Union v. Dole, 870 F.2d 662, 672 (D.C. Cir. 1989)
(“UMWA”). Section 101(c), by contrast, provides the
mechanism to enable the Secretary, consistent with the
purpose of the Mine Act to protect the health and safety of
miners, 30 U.S.C. § 801(a), to grant modifications from the
national health and safety standard upon petition by a mine
operator to implement an “alternative method,” 30 U.S.C. §
811(c), that achieves “net [safety] ‘equivalence,’” 69 Fed.
Reg. at 17,485, with the existing national standard, or by
petition of a miner or the miner’s representative to prevent
diminution of pre-existing levels of mine safety, 30 U.S.C. §
811(c).

Thus, a literal reading of the statute would appear to
support the Secretary’s view that section 101(c) modifications
are not a mandatory safety standard and she therefore is not
required under section 101(a)(9) to compare new mandatory
standards against mine-specific modifications. Accordingly,
the Secretary compared the safety of the work environment
created by compliance with the new Belt Air Rule with the
previous interim standard. Calling attention to the advances
in mining technology, allowing reliable and quick detection of
products of combustion, MSHA followed with a section-by-
section analysis to demonstrate that through new
technological advances and the interrelationship between the
various existing and new standards under the new Belt Air
Rule, the new rule maintained or improved miner safety.

However, the court need not rely on “a strict literal
reading” of the Mine Act, Zeigler Coal Co. v. Kleppe, 536
F.2d 398, 405 (D.C. Cir. 1976), to conclude that the
Secretary’s interpretation does not impair “the statute’s
 12

effectiveness as a tool for bringing about improvements in
mine health and safety conditions,” id. The court has
previously deferred to the Secretary’s “net effects” approach
in the context of section 101(c), see Int’l Union, 920 F.2d at
963-64, and we conclude that approach is reasonable in this
context as well. Under the “net effects” approach, the
Secretary compares, for purposes of evaluating a petition
under section 101(c), “all safety benefits resulting from the
standard and all the safety benefits resulting from the
alternative method,” based, in part, on the “interrelationship
of the various standards with one another.” Id. at 963. The
Secretary invoked the “net effects” analysis here, evaluating
whether the net safety and health effects of the new Belt Air
Rule are equivalent or better than the protection afforded
under the interim belt air standard and the mine-specific
modifications. In the preamble to the proposed rule, which
included a table comparing the proposed rule to the conditions
contained in the twenty most recently granted petitions for
modifications, 68 Fed. Reg. at 3,937, 3,945-48, 3,962, and in
the preamble to the final rule, which explained that MSHA
“reviewed nearly all of the petitions granted since 1978,”
MSHA compared the “net effects” of the new belt air standard
relative to the interim standard and the mine-specific
conditions set forth in previously granted petitions for
modification of the application of the interim standard, 69
Fed. Reg. at 17,485, 17,486-95, 17,498, 17,508. For example,
in addition to a condition-by-condition “net effects analysis”
of twenty previously granted mine-specific conditions, id. at
17,486-92, MSHA also addressed mine-specific conditions
raised by commentators throughout the preamble to the final
rule, such as the mine-specific requirement for an intake
travelway on a longwall tailgate, by noting that existing
standard 30 C.F.R. § 75.384 already required travelways, id.
at 17,485.
 13

The Union challenges the Secretary’s “net effects”
analysis on the ground that “[w]ithout considering each and
every one of those pre-existing mine-specific modifications,
[the Secretary] cannot resolve if any miner suffered a
diminution when the new rule eliminated the mine-specific
modifications.” Reply Br. of Pet’r UMWA at 5. For
example, the Union maintains that miners at the Cumberland
Mine in Pennsylvania now enjoy less protection than before
the Belt Air Rule took effect, pointing to a 1999 modification
to the interim standard that allowed Cumberland to use belt
air to ventilate the working places subject to, inter alia, a
velocity cap, audible and visual alarms, a maximum
concentration of respirable dust at or below 1.0 milligrams per
cubic meter of air within 15 feet of the working section belt
tailpiece, and maintenance of the belt entry, to the extent
practical, at the lowest pressure of all intake air courses.

However, the Union’s challenge to the “net effects”
approach is based on a flawed interpretation of mine-specific
modifications under section 101(c) as involving health and
safety protections that exceed the mandatory national
standard, something the plain language of section 101(c) does
not require and thus does not underlie our deference to the
“net effects” approach. The “net effects” analysis is a means
to assess “whether the modification achieves a net gain in
mine safety (or at least equivalence), taking all effects into
account.” Int’l Union, 920 F.2d at 963. As a matter of “a
strict literal reading” of the language of the Mine Act, Zeigler
Coal Co., 536 F.2d at 405, then, because modifications under
section 101(c) need only be equivalent to the existing
mandatory standard in terms of net health and safety, it could
be said that it was permissible for the Secretary to invoke her
“net effects” analysis simply to compare the new mandatory
standard against the protection afforded by the interim
standard. However, the Secretary in fact addressed mine-
 14

specific conditions, as, for example, each of the conditions in
the modification allowing the Cumberland Mine to use belt air
to ventilate working areas to ensure there was no diminution
in health or safety for the miners provided under the existing
national standard. E.g., 69 Fed. Reg. at 17,494-97. MSHA
thus pointed to modern technology, including advances in
computer-operated AMSs that enable early warning of fires
and combustion levels as achieving net equivalence in health
and safety through the reduction of false alarms and whistles
and detection failures. 69 Fed. Reg. at 17,481, 17,483. While
acknowledging that some mine-specific modifications
contained conditions that exceeded what was required to
achieve net health and safety equivalence with the previously
existing interim standard, the Secretary determined that such
measures are not required to achieve health and safety levels
deemed adequate under the existing standard and the new
rule. 60 Fed. Reg. at 17,485.

Under the circumstances, the Union fails to explain how,
under a “net effects” approach, allowing belt air ventilation of
working areas under certain conditions diminishes the safety
and health conditions of the miners at the Cumberland mine.
To the extent the Union takes issue with the ultimate
conclusion of what is necessary to ensure equivalent safety,
the Union invades an area within the Secretary’s expertise.
Nat’l Mining Ass’n v. MSHA, 116 F.3d 520, 543 (D.C. Cir.
1997) (citing Int’l Union, 920 F.2d at 963-64). To the extent
the Union relies on statements in the court’s opinions that the
mine-specific conditions established by a petition have the
same effect as a mandatory standard, it fails to acknowledge
the enforcement context. MSHA regulations provide that “[a]
modification, together with any conditions, [has] the same
effect as a mandatory safety standard.” 30 C.F.R. § 44.4(c).
For example, in Energy West Mining Co. v. MSHA, 16
F.M.S.H.R.C. 1414, 1994 WL 380387, *2 (1994), a mine
 15

operator was cited by MSHA for failing to abide by the
mine’s approved petition for an “alternative method” to
satisfy the requirements of 30 C.F.R. § 75.326, by using
unapproved diesel-powered trucks in the mine, contravening
the condition requiring that MSHA approve all diesel-
powered equipment operated at particular sites within that
mine. Id. at *2. In other words, a modification is mine-
specific, and with respect to that mine it has the same effect
on a mine operator as a mandatory standard for purposes of
required compliance with safety standards. Int’l Union,
United Mine Workers of Am. v. MSHA (Jim Walter Res., Inc),
931 F.2d 908, 909 (D.C. Cir. 1991); Int’l Union, United Mine
Workers of Am. v. MSHA (Emerald Mine Corp.), 830 F.2d
289, 290-91 (D.C. Cir. 1987); Int’l Union, United Mine
Workers of Am. v. MSHA (Kaiser Coal Corp.), 823 F.2d 608,
610 (D.C. Cir. 1987); MSHA v. Peabody Coal Co., 1994 WL
395108 (F.M.S.H.R.C.), *5 (1993).

For these reasons, the Secretary could reasonably
conclude under a “net effects” approach that previous mine-
specific modifications were adequately addressed by the final
rule or existing standards under which appropriate mine-
specific requirements are adopted through the ventilation plan
process, or were the result of negotiations between the union
and mine operator, and extended beyond what was required to
provide the same degree of safety as the previous standard.
See 69 Fed. Reg. at 17,494, 17,496-97; see also UMWA, 870
F.2d at 672. Although the Union’s interpretation of section
101(a)(9) requiring enhanced mine specific modifications to
be grandfathered in any new mandatory national standard is
consistent with the purpose of the Mine Act to protect the
safety and health of miners, 30 U.S.C. § 801(a), the
Secretary’s “net effects” interpretation also is consistent with
the statutory scheme. Instead of requiring the grandfathering
of enhanced mine-specific protections, the statutory scheme
 16

enacted by Congress contemplates that the Secretary will
promulgate mandatory national health and safety standards
while mine-specific protections will be established through a
petitioning process. Under section 101(c), Congress placed
the burden on the mine operator to comply with the
Secretary’s mandatory national standards or seek a net
equivalent modification, and on the miner or the miner’s
representative to petition for the imposition of mine-specific
conditions to ensure those miners are not subject to
diminution of their safety and health by a new national
standard. While some miners also may enjoy enhanced safety
conditions, either as a result of a modification or a collective
bargaining agreement or otherwise, Congress did not require
that they receive protections above and beyond those set by
the national standards and left to the Secretary to determine
the appropriate adjustments to the interim standards. See 30
U.S.C. § 811(c). Even if, as the Union implies, Congress
might have better achieved its purpose to protect the safety
and health of miners by adopting the Union’s interpretation of
section 101(a)(9), the statutory language indicates that
Congress has chosen a different path that does not leave
miners who enjoyed enhanced protections without recourse.

Accordingly, we deny the petition for review in No. 04-
1164.

III.
Jim Walter Resources, Inc., (“JWR”), challenges the
Secretary’s decision to include a maximum air velocity cap in
its Final Rule, 30 C.F.R. § 75.350(a)(2), contending that the
Secretary failed to provide notice and the opportunity to be
heard before including the cap in its final rule. The proposed
rule provided that “[a] minimum air velocity of 300 feet per
minute must be maintained through the point-feed regulator.”
68 Fed. Reg. at 3,965 (emphasis added). The final rule
 17

provides that “[t]he maximum air velocity in the belt entry
must be no greater than 500 feet per minute, unless otherwise
approved in the mine ventilation plan.” 69 Fed. Reg. at
17,526 (emphasis added). On appeal, the Secretary
recognizes the differences but maintains the notice
requirements were nonetheless satisfied because the final rule
is a “logical outgrowth” of the proposed rule. Whether
governed by the more stringent requirement under section
101(a)(2) of the Mine Act, 30 U.S.C. § 811(a)(2), or section 4
of the APA, 5 U.S.C. § 553(b), see Zeigler Coal Co., 536 F.2d
at 404, we hold that the maximum cap provision of the final
rule was not a “logical outgrowth” of the proposed rule.

Notice requirements are designed (1) to ensure that
agency regulations are tested via exposure to diverse public
comment, (2) to ensure fairness to affected parties, and (3) to
give affected parties an opportunity to develop evidence in the
record to support their objections to the rule and thereby
enhance the quality of judicial review. Small Refiner Lead
Phase-Down Task Force v. EPA, 705 F.2d 506, 547 (D.C. Cir.
1983). While an agency may promulgate final rules that
differ from the proposed rule, Shell Oil Co. v. EPA, 950 F.2d
741, 750 (D.C. Cir. 1991), a final rule is a “logical outgrowth”
of a proposed rule only if interested parties “‘should have
anticipated’ that the change was possible, and thus reasonably
should have filed their comments on the subject during the
notice-and-comment period,” Northeast Md. Waste Disposal
Auth. v. EPA, 358 F.3d 936, 952 (D.C. Cir. 2004) (citing City
of Waukesha v. EPA, 320 F.3d 228, 245 (D.C. Cir. 2003)).
The “logical outgrowth” doctrine does not extend to a final
rule that is a brand new rule, since “[s]omething is not a
logical outgrowth of nothing,” Kooritzky v. Reich, 17 F.3d
1509, 1513 (D.C. Cir. 1994), nor does it apply where
interested parties would have had to “divine [the Agency’s]
unspoken thoughts,” Ariz. Pub. Serv. Co. v. EPA, 211 F.3d
 18

1280, 1299 (D.C. Cir. 2000) (quoting Shell Oil Co., 950 F.2d
at 751) because the final rule was “surprisingly distant” from
the proposed rule, cf. id.

The Secretary acknowledges that the premise of the
“logical outgrowth” doctrine is that “the agency has alerted
interested parties to the possibility of the agency’s adopting a
rule different than the one proposed.” Br. of Resp’t at 29-30
(quoting Kooritzky v. Reich, 17 F.3d at 1513). Yet the
preamble to the proposed rule stated that it did not include a
maximum velocity air cap. MSHA referred to the Advisory
Committee’s Recommendation that “Velocities, both
minimum and maximum, should provide air that is capable of
containing methane and dust levels at or below the levels
specified in the standards,” 68 Fed. Reg. at 3,944, but
determined it would “not include language to require limits on
the air quantity carried in the belt entry or air course,” id. at
3,946. MSHA proposed to eliminate, rather than include a
maximum velocity air cap, explaining that:

Existing § 75.350 requires that the air velocity in the belt
entries be limited to the amount necessary to provide an
adequate supply of oxygen in these entries and to assure
that the air contains less than 1.0 percent methane. We
have not included in the proposed rule the provision in
existing § 75.350 that limits the air velocity in the belt
entry. . . . Research has shown that higher velocities have
a cooling effect on developing fires, and higher quantities
reduce concentrations of volatile gases. In effect, the
restriction of velocity creates additional potential hazards
of smoke rollback, methane and hydrogen layering, and
development of fuel-rich fires.

Id. at 3,950. Other references in the preamble to a velocity
cap did not indicate the possibility of a maximum cap much
 19

less one set at 500 fpm. See, e.g., id. at 3,946. Neither of the
two reports on belt air previously published by MSHA
indicated the possibility of a maximum velocity cap of 500
fpm: The BEVR stated that “[t]est data do not support
limiting belt entry air velocity” and concluded that “there is
no reason to limit the velocity of air in the belt entry provided
that the belt entry does not become the primary intake
aircourse,” Joint Appendix at 70, while the Advisory
Committee Report addressed only maximum air velocities of
1200, 1500, and 2000 fpm, id. at 66, velocities more than
twice the cap in the final rule.

In Shell Oil Co., 950 F.2d at 751, the proposed rule
included a provision for listing hazardous waste where the
agency had data indicating the waste met identified
characteristics, with listing to play a supplementary function
to increase certainty of the process. Id. at 751-52. The final
rule, by contrast, placed a heavy emphasis on listing,
rendering the final rule more expansive, more specific, and
having a different emphasis in the regulatory structure. Id. at
752. The court invalidated the rule for lack of actual notice or
satisfaction of the “logical outgrowth” test, observing that “an
unexpressed intention cannot convert a final rule into a
‘logical outgrowth’ that the public should have anticipated.”
Id. at 751. The inclusion of a maximum velocity cap here
represents a similar “unexpressed intention,” id., and the
Secretary could not have expected interested parties to realize
that she would consider abandoning her proposed regulatory
approach based on empirical research indicating such a cap
was potentially dangerous to miners, simply because she
invited commentary on a proposed rule that included a
minimum air velocity, see Nat’l Mining Ass’n, 116 F.3d at
531.

In terms presaging the Secretary’s argument that JWR
 20

received notice through its participation in the rulemaking, the
court in Shell Oil explained that while parties involved in
public hearings might have anticipated the potential for
avoiding regulation, “it was the business of the [Agency], and
not the public, to foresee that possibility and to address it in
its proposed regulations.” Shell Oil, 950 F.2d at 751. The
court also rejected the notion, suggested by the Secretary here,
that comment evidencing recognition of a problem can inform
the public “of how, or even whether, the agency will choose
to address it.” Id. There were some comments during the
hearings urging the Secretary to set a maximum velocity cap,
but no indication by the Secretary that she was intending to do
so. As the court observed in Shell Oil, “ambiguous comments
and weak signals from the agency gave petitioners no such
opportunity to anticipate and criticize the rules or to offer
alternatives. Under these circumstances, the . . . rules exceed
the limits of a ‘logical outgrowth.’” Id. While there are
circumstances when public comments may raise a foreseeable
possibility of agency action, NRDC v. Thomas, 838 F.2d
1224, 1243 (D.C. Cir. 1988), cert. denied sub nom, Ala.
Power Co. v. Thomas, 488 U.S. 888 (1988), illustrates the
outer limits of the “logical outgrowth” doctrine. In that case,
which the court acknowledged “stretche[d] the concept of
‘logical outgrowth’ to its limits,” a comment on a proposed
rule suggested a regulatory approach similar to the approach
ultimately adopted by the agency. The agency issued a public
notice advising of the new approach two weeks prior to final
promulgation of the rule, and the interested parties were
afforded the opportunity to file objections prior to final
promulgation of the rule. By contrast, here no comments
suggested a maximum velocity cap of 500 fpm, and more
importantly, MSHA did not afford a comparable public notice
of its intent to adopt, much less an opportunity to comment
on, such a cap. See also Am. Fed’n of Labor & Cong. of
Indus. Orgs. v. Donovan, 757 F.2d 330, 340 (D.C. Cir. 1985).
 21

The Secretary suggests that any error is harmless, see 5
U.S.C. § 706, because JWR has obtained a modification to the
final rule, allowing it to operate with a ventilation plan that
exceeds the maximum air velocity cap. However, according
to the Secretary’s brief, MSHA cited JWR for exceeding the
500 fpm velocity cap at its belt entries without an approved
plan, and required JWR to submit a ventilation plan if it
wanted to continue mining in excess of 500 fpm. JWR, in
turn, states in its brief that the plan is subject to six month
review, and approval could be revoked upon subsequent
review, and points to other evidence of prejudice, including
the loss of an opportunity to offer comments, in light of its
experience, on the cap set at 500 fpm.

Because the maximum velocity cap of 500 fpm was not a
“logical outgrowth” of the proposed rule, we grant the petition
in No. 04-1165, vacate section 75.350(a)(2) of the Belt Air
Rule, and remand the matter to the Secretary. See
Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 988
F.2d 146, 150 (D.C. Cir. 1993).