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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-11207
________________________
Agency No. MSHA-2014-0030
NATIONAL MINING ASSOCIATION,
NATIONAL STONE, SAND & GRAVEL ASSOCIATION,
et al.,
Petitioners,
versus
UNITED STEEL WORKERS,
UNITED MINE WORKERS OF AMERICA, INTERNATIONAL UNION,
Intervenors,
U.S. DEPARTMENT OF LABOR,
MINE SAFETY AND HEALTH ADMINISTRATION,
Respondents.
________________________
Petition for Review of a Decision of the
Federal Mine Safety and Health Administration
________________________
(January 22, 2021)
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Before WILSON, LAGOA, and ANDERSON, Circuit Judges.
ANDERSON, Circuit Judge:
Petitioners National Mining Association, National Stone, Sand & Gravel
Association, Portland Cement Association, American Iron & Steel Institute,
Georgia Mining Association, and Georgia Construction Aggregate Association
(collectively, “petitioners”) have filed a petition for review of Respondents United
States Secretary of Labor and Mine Safety and Health Administration’s (“MSHA”
or the “Agency”) final rule entitled “Examinations of Working Places in Metal and
Nonmetal Mines” (the “Final Rule”). 82 Fed. Reg. 7680-95 (Jan. 23, 2017) (to be
codified in 30 C.F.R. pts. 56 & 57). Petitioners raise a number of challenges to the
Final Rule under the Administrative Procedure Act (5 U.S.C. § 551 et seq.) and the
Constitution. After careful review, we deny the petition for review.
I. BACKGROUND
The Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq.
(the “Mine Act”), regulates the nation’s metal and nonmetal mines and promotes
miner health and safety. The 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.” 30 U.S.C. § 811(a). The Secretary administers the Act through MSHA.
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In 1969, MSHA’s predecessor agency, the Mining Enforcement and Safety
Administration, promulgated advisory standards pursuant to the Mine Act’s
predecessor statutes, the Federal Coal Mine Health and Safety Act of 1969 and the
Federal Metal and Nonmetallic Mine Safety Act of 1966. The Mine Act gave the
Secretary the option to either revoke or make mandatory the then-existing advisory
standards. 30 U.S.C. § 961(b). MSHA made the standards mandatory. Until the
Final Rule was promulgated, those standards’ language had remained unchanged
since 1979.
The relevant 1979 standards required that:
• a competent person designated by a mine’s operator examine each working
place at least once each shift for conditions that may adversely affect safety
or health;
• the mine operator promptly initiate appropriate action to correct such
conditions; and
• the operator keep records of such examinations for one year and make them
available for review by the Secretary or his authorized representative.
30 C.F.R. §§ 56.18002, 57.18002. 1
1
Section 56 applies to surface metal and nonmetal mines, while Section 57 applies to
underground metal and nonmetal mines.
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In June 2016, MSHA published a proposal to revise the above standards. 82
Fed. Reg. at 7681. After six months, during which MSHA held four public
hearings and received 73 written comments, MSHA promulgated the Final Rule.
The Final Rule requires that:
• an examination of working places be conducted at least once per shift before
miners begin work in an area (the “examination requirement”);
• the operator promptly notify miners in any affected areas of any conditions
found that may adversely affect their safety and health and promptly initiate
appropriate action to correct such conditions (the “notification
requirement”); and
• a record of the examination be made before the end of the shift that includes
the examiners’ name, date of examination, areas examined, conditions found
that may adversely affect miners’ health and safety, and date of corrective
action taken (the “recording requirement”).
82 Fed. Reg. at 7695.
The Final Rule plainly enhances mine operators’ obligations with an aim
toward augmenting miner safety. The 1979 standard required one examination of
each working place per shift; the more stringent Final Rule requires that the
examination occur before each shift. The 1979 standard required prompt
corrective action; the Final Rule requires that mine operators notify miners of any
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adverse conditions as well. And the 1979 standard required records of mine
examinations; the Final Rule requires more thorough records.2
The petitioners are various non-profit mining trade associations. They
timely filed a petition for review of the Final Rule in this Court under 30 U.S.C.
§ 811(d), which vests jurisdiction over a challenge to mandatory health or safety
standards promulgated by MSHA in the United States Court of Appeals for the
District of Columbia Circuit or the circuit where the petitioner resides or has its
principal place of business. Petitioners raised a number of challenges to the Final
Rule under the Administrative Procedure Act, principally contending (1) that it
was not issued in accordance with applicable law because MSHA failed to make
the necessary finding of significant risk that would be eliminated or lessened by the
2
The Final Rule had an initial effective date of May 23, 2017. MSHA twice delayed
implementation of the Rule, see Examinations of Working Places in Metal and Nonmetal Mines,
82 Fed. Reg. 15,173 (Mar. 27, 2017); Examinations of Working Places in Metal and Nonmetal
Mines, 82 Fed. Reg. 23,139 (May 22, 2017), and, after three days of effectiveness in October
2017, withdrew the new standards and delayed the effective date yet again, see Examinations of
Working Places in Metal and Nonmetal Mines, 82 Fed. Reg. 46,411 (Oct. 5, 2017).
In April 2018, while petition for review in this case was pending, MSHA initiated a new
rulemaking and amended the Final Rule. 83 Fed. Reg. 15,055 (April 9, 2018) (codified at 30
C.F.R. §§ 56.18002(a)-(c), 57.18002(a)-(c)). The 2018 Amendment walked back the
examination requirement, which required a competent person to examine each working place “at
least once each shift before work begins or as miners begin work in that place.” 83 Fed. Reg. at
15,057. It also modified the recording requirement to only require records of adverse conditions
that have not been corrected promptly. Id. The D.C. Circuit struck down this amended rule
under the Mine Act’s “no-less-protection” standard, which requires that “[n]o mandatory health
or safety standard . . . shall reduce the protection afforded miners by an existing mandatory
health or safety standard.” See United Steel v. Mine Safety & Health Admin., 925 F.3d 1279,
1287 (D.C. Cir. 2019); 30 U.S.C. § 811(a)(9). The amended rule having been struck down, the
D.C. Circuit reinstated the Final Rule, thus clearing the way for petitioners’ petition for review of
the Final Rule in this Court.
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Final Rule; (2) that MSHA failed to demonstrate that the Final Rule constituted an
improvement over the preexisting standards; and (3) that the Final Rule was
arbitrary and capricious. 5 U.S.C. § 706(2)(A), (C). We address these arguments
in turn in Parts II, III and IV, and then address in Part V several other arguments of
petitioners.3
II. PETITIONERS’ ARGUMENT THAT THE MINE
ACT, LIKE THE OSH ACT, REQUIRES A THRESHOLD
FINDING OF SIGNIFICANT RISK OF INJURIES
UNDER THE PREEXISTING STANDARDS
Petitioners first argue that MSHA failed to make the necessary threshold
finding of significant risk under the preexisting standards, and that, therefore, the
Final Rule was not issued in accordance with applicable law, as required by the
APA. 5 U.S.C. § 706(2)(A); see, e.g., Nat’l Mining Ass’n v. Sec’y of Labor, 153
F.3d 1264, 1269 (11th Cir. 1998) (vacating an MSHA rule because the Agency did
not make the required finding of feasibility necessary to promulgate the rule). The
Mine Act authorizes the Secretary 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.” 30 U.S.C. § 811(a).
Petitioners specifically argue that the Mine Act’s language requires a threshold
3
Before oral argument, we granted the motion for leave to intervene on the side of the
Department of Labor and MSHA by the United Mine Workers of America International Union
and the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and
Service Workers International Union, AFL-CIO/CLC.
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finding that a current standard presents a “significant risk” to miners that will be
eliminated or lessened by the new standard.
Petitioners analogize the Mine Act to the Occupational Safety and Health
Act of 1970 (“OSH Act”), 29 U.S.C. § 651 et seq. The OSH Act authorizes
promulgation of “occupational safety and health standards,” which it defines as “a
standard which requires conditions, or the adoption or use of one or more practices,
means, methods, operations, or processes, reasonably necessary or appropriate to
provide safe or healthful employment and places of employment.” 29 U.S.C.
§§ 652(8), 655(b) (emphasis added). In Industrial Union Department, AFL-CIO v.
American Petroleum Institute, commonly referred to as the Benzene case, the
Supreme Court interpreted this language as requiring the Secretary to “make a
threshold finding that a place of employment is unsafe—in the sense that
significant risks are present and can be eliminated or lessened by a change in
practices.” 448 U.S. 607, 642, 100 S. Ct. 2844, 2864 (1980) (plurality opinion).
Petitioners contend that the Mine Act ought to be interpreted in the same
way, arguing that the Act imposes a requirement on MSHA to find (1) that
“significant risks” are present under existing rules and (2) that new standards are
necessary to eliminate those risks. Neither of these requirements have been met,
say petitioners. They argue that because the mining industry is perhaps the safest it
has ever been, and because MSHA has not shown that the dangers still present in
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mining are associated with the 1979 examination standards, MSHA cannot show
that its changes to those standards will eliminate any existing risks.
We do not agree that the Mine Act imposes a requirement that MSHA makes
a threshold finding that such a “significant risk” exists before regulating a
particular aspect of mine operations. A review of the Supreme Court’s decision in
the Benzene case is instructive. There, the Court reviewed the OSH Act’s
requirement that Occupational Safety and Health Administration (“OSHA”)-
promulgated standards be “reasonably necessary or appropriate to provide safe or
healthful employment and places of employment.” 29 U.S.C. § 652(8) (emphasis
added). OSHA had promulgated a standard designating the maximum exposure
limit to the toxic substance benzene. The previous standard had been 10 parts per
million. Construing its mandate as authorizing standards to produce a virtually
risk-free workplace to the extent possible, OSHA proposed a rule reducing the
maximum exposure limit to 1 part per million. The Court held that, while OSHA’s
10 parts per million limit was amply justified, there was little direct support for the
reduction from 10 to 1 part per million. 448 U.S. at 631-34, 100 S. Ct. at 2859-60.
The Court concluded that before regulating a toxic substance, OSHA was
required to determine that that substance posed a “significant risk” to employees
under the OSH Act’s standard. The Court derived its requirement of a threshold
finding of “significant risk” from the term “safe,” which it reasoned did not mean
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“risk-free.” Id. at 642, 100 S. Ct. at 2864. Plenty of activities, the Court stated,
entail some risk of accident or material health impairment—driving a car,
breathing city air, etc.—but we would not linguistically deem these activities
“unsafe.” Therefore, a workplace cannot be considered “unsafe” unless it
“threatens the workers with a significant risk of harm.” Id.
In addition to its primary focus on rejecting OSHA’s understanding of the
statute as authorizing the agency to promulgate standards to create a risk-free
workplace, the Court also found support for a requirement of such threshold
finding in the combination of the government’s concession that a cost-benefit
analysis was required and the explicit provisions of the OSH Act “requiring the
elimination of the most serious hazards first.” Id. at 644, 100 S. Ct. at 2865. “If
such an analysis must precede the promulgation of any standard, it seems manifest
that Congress intended, at a bare minimum, that the Secretary find a significant
risk of harm and therefore a probability of significant benefits before establishing a
new standard.” Id.
For several reasons, we reject petitioners’ invitation to import into the Mine
Act the OSH Act’s requirement of a threshold finding of significant risk. First, the
two statutes have different language: the Mine Act is concerned with the
“protection of life and prevention of injuries,” and not merely “safe” workplaces.
Petitioners argue that the phrase “protection of life and prevention of injuries” is
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the functional equivalent of the word “safe.” We disagree. Congress knows how
to employ the word “safe” in a regulatory statute; the fact that it did not use the
word in the Mine Act suggests it intended some materially different standard. And
“protection of life and prevention of injuries” is both stronger and more specific
than “safe.” One could reasonably say that a hypothetical situation entails a small
enough risk of harm that one could not deem a workplace “unsafe,” but still would
pose some risk of injuries that could be appropriately lessened with an improved
standard that would impose little or no burden on industry.
Petitioners contend that the two statutes have similar language because both
contain the word “appropriate.” But the focus of the Benzene opinion was not on
the meaning of “appropriate.” Rather, the focus was on its determination that the
statutory phrase—“reasonably necessary or appropriate to provide safe or healthful
. . . places of employment”—did not mean risk-free workplaces. The Court held:
But “safe” is not the equivalent of “risk-free.” There are many activities
that we engage in every day—such as driving a car or even breathing
city air—that entail some risk of accident or material health
impairment; nevertheless, few people would consider these activities
“unsafe.” Similarly, a workplace can hardly be considered “unsafe”
unless it threatens the workers with a significant risk of harm.
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448 U.S. at 642, 100 S. Ct. at 2864. We also think the word “appropriate” is too
capacious to justify importing into the Mine Act the OSH Act’s requirement of a
threshold finding of a significant safety risk. 4
Second, there is no indication that the Mine Act itself requires MSHA to
conduct a cost-benefit analysis before promulgating a regulation. As the D.C.
Circuit has noted, the Mine Act requires that regulations be “appropriate,” and this
requirement does not require a full cost-benefit analysis. See Kennecott Greens
Creek Mining Co. v. Mine Safety & Health Admin., 476 F.3d 946, 960-61 (D.C.
Cir. 2007). Moreover, there is no provision of the Mine Act requiring MSHA to
establish priorities to ensure that the most serious hazards are addressed first. It
was that provision, more than the ordinary cost-benefit analysis, on which the
Benzene Court relied in finding some support for its inference that a finding of
significant risk was required before the agency established a new standard. See
Benzene, 448 U.S. at 644 & n.49, 100 S. Ct. at 2865 & n.49. This is yet another
difference between the Mine Act and the OSH Act as discussed in the Benzene
case.
Significantly, the context of this case is far different from the Benzene case.
There, the agency was proposing a new standard that attempted to create as near a
4
In any event, the MSHA findings in the Final Rule amply indicate that the new
requirements in the Final Rule are “appropriate.”
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risk-free workplace as was “economically and technologically feasible.” 448 U.S. at
655, 100 S. Ct. at 2870; see also id. at 637, 100 S. Ct. at 2861. By contrast, the
Agency here is not attempting to create risk-free mines, but has instead proposed
modest changes to preexisting standards: requiring examinations to begin before
work, thus preventing miners from beginning shifts in hazardous workplaces;
requiring notice of hazards to miners, thus facilitating their avoidance of danger
until corrective action is taken; and enhancing recording requirements to improve
operator compliance.
The context of the workplaces affected by the Mine Act is also very different
from the workplaces affected by the OSH Act. The Benzene opinion emphasized
the fact that the OSH Act had a pervasive impact on workplaces all across
American industry, whereas the Mine Act affects only workplaces in coal and
other mines, which Congress recognized as being especially vulnerable to safety
and health risks. And there is some evidence in the statute that Congress has made
a legislative judgment that mines are inherently unsafe. The statute states that
“there is an urgent need to provide more effective means and measures for
improving the working conditions and practices in the Nation’s coal or other mines
in order to prevent death and serious physical harm,” 30 U.S.C. § 801(c), while
§ 801(d) notes that “the existence of unsafe and unhealthful conditions and
practices in the Nation’s coal or other mines is a serious impediment to the future
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growth of the coal or other mining industry and cannot be tolerated.” Of course,
these congressional findings were made in 1977, and conditions in our nation’s
mines have assuredly changed, as petitioners note. But they are indicative of
Congress’ belief that mines are by their nature very dangerous. 5 This conclusion is
in accord with our previous conclusion that “the Mine Act evinces a clear bias in
favor of miner health and safety.” Nat’l Mining Ass’n v. Sec’y, U.S. Dep’t of
Labor, 812 F.3d 843, 866 (11th Cir. 2016).
We also think it notable that the statute expressly authorizes the Agency to
“revise as may be appropriate, improved mandatory health or safety standards.” 30
U.S.C. § 811(a) (emphasis added). This indicates a congressional contemplation of
periodic revisions to improve safety in mines, which Congress clearly thought
particularly vulnerable to safety risks, as the congressional findings discussed
above show.
Importantly, MSHA cites no case—in this or any court of appeals—holding
that the Mine Act has the same threshold finding requirement as the OSH Act.
Were we to hold that the Act contains a “significant risk” requirement, therefore,
we would be the first since the Act’s enactment, and would substantially alter the
5
Hence Congress’ cordoning off of its mine safety regulation into a separate statute. As
the Department of Labor noted at oral argument, the Mine Act regulates the nation’s above-and
below-ground metal and nonmetal mines. The OSH Act regulates, essentially, all other
workplaces.
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courts’ review of MSHA’s promulgations. Such a holding would also run counter
to the D.C. Circuit’s conclusion that the Mine Act “[a]rguably . . . does not
mandate the same risk-finding requirement as OSHA.” Nat’l Mining Ass’n v.
Mine Safety & Health Admin., 116 F.3d 520, 527 (D.C. Cir. 1997).
We therefore hold that the Mine Act does not contain the “significant risk”
threshold requirement that petitioners would import from the OSH Act.
III. PETITIONERS’ ARGUMENT THAT MSHA FAILED TO
DEMONSTRATE THAT THE FINAL RULE CONSTITUTES
AN IMPROVEMENT OVER THE PREEXISTING STANDARD
Petitioners also contend that MSHA failed to make the requisite showing
that the new standard constitutes an improvement over the existing 1979
standards.6 A review of the Final Rule indicates that this argument is wholly
without merit. The Agency has made explicit findings that the several new
requirements constitute improvements. After careful review, we readily conclude
that its findings are sufficient. The new requirements plainly improve on the 1979
standards with respect to each new requirement that petitioners challenge: (1) the
new pre-shift inspection requirement plainly avoids risks of miners’ exposure to
hazards not discovered until later in the shift under the prior rule where the
inspection could occur any time during the shift; (2) the new requirement that
6
The parties agree that this requirement is present in the statute.
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miners be notified promptly of any such hazard obviously avoids risks to miners,
enabling them to take protective measures to avoid the risk; and (3) the new
recordkeeping requirement will facilitate prompt remedial action, monitoring and
follow-up by management, and incentivize prompt remedial action.
With respect to the new pre-shift inspection requirement and the new
requirement of prompt notification to affected miners, the Final Rule included,
inter alia, the following findings. The Final Rule notes that examinations under the
1979 standards “are not always done at a point during the shift when the results of
the examination would provide the necessary protections,” and concludes that the
pre-shift examination requirement helps prevent miners from being “exposed to
conditions that may adversely affect their safety and health.” 82 Fed. Reg. at 7689.
The Final Rule, MSHA stated, would “reduce the variability in how operators
conduct examinations of working places and thereby improve miners’ safety and
health.” Id. The requirement that miners in the affected area be notified promptly
of adverse conditions enables them to “take protective measures or avoid the
adverse conditions altogether.” Id. at 7684-85; see also id. at 7686 (noting that
notification lets miners “take the necessary precautions to avoid an accident or
injury”). We conclude that these new requirements do constitute improvements
over the preexisting standards, and that the Agency’s findings are sufficient. Just
as the 2018 Amendment, “[o]n its face . . . increase[d] miners’ exposure to health
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and safety risks” by rolling back the Final Rule’s pre-shift examination
requirement, United Steel, 925 F.3d at 1283, so too does the Final Rule decrease
that exposure by mandating that examinations occur before work begins. Thus,
MSHA properly found that the pre-shift inspection requirement and the prompt
notification requirement would improve miners’ safety and health. 82 Fed. Reg. at
7689. We conclude that those findings are amply supported.
The new recording requirements provide that examination records include
names, dates, and descriptions of the location and adverse condition. 7 These
requirements would serve a number of functions, including making clarification or
follow up easier, identifying trends in mine conditions, and ensuring that mine
operators are aware of all locations that have been examined. Id. at 7686. The
recordkeeping requirement will also incentivize mine operators to become more
“proactive” in remedying hazardous conditions. Id. at 7681, 7686, 7689. The
notification requirement and the more fleshed-out recording requirements would
work together to “result in more effective and consistent workplace examinations
and ensure that adverse conditions will be timely identified, communicated to
miners, and corrected.” Id. at 7689. These agency findings are adequately
7
These requirements are not onerous. Obviously, the name and date requirements are not.
With respect to the requirement that the record contain a description of the location and adverse
condition, the Final Rule expressly allows the use of checklists or any other formats and, with
respect to the description of adverse condition, the Final Rule requires only sufficient
information to allow the mine operator to notify the miners and take prompt corrective action.
Id. at 7686.
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supported and demonstrate that the Final Rule’s revisions to the 1979 standards
constitute improvements. 8
Petitioners emphasize the Final Rule’s statement that the Agency is “unable
to separate the benefits of the new requirements under the final rule from those
benefits attributable to conducting a workplace examination under the existing
standard.” 82 Fed. Reg. at 7689. Read in isolation, this language could suggest
some support for petitioners’ argument that if mine operators merely complied
more rigorously with respect to the examinations under the 1979 standards, they
could achieve all of the safety benefits of the Final Rule. But read in context, it is
clear that MSHA is simply acknowledging that exact cost-benefit analysis in this
area is difficult, and that it is unable to precisely quantify the benefits of the new
standard. Earlier in the Final Rule, MSHA did make the explicit finding that the
Rule would lead to benefits. Id. at 7682.
8
We also note that there is a separate source of statutory authority for the Final Rule’s
recordkeeping requirements. 30 U.S.C. § 813(h) provides that “every operator of a coal or other
mine shall establish and maintain such records, make such reports, and provide such information,
as the Secretary . . . may reasonably require from time to time to enable him to perform his
functions under this chapter.” This is a clear grant of statutory authority to set the parameters
and requirements of mine operators’ records, subject only to the mandate that the requirements
be “reasonabl[e].” The Final Rule easily satisfies this reasonableness standard; as discussed
above, the Rule explains why the new recordkeeping requirements are not onerous, see 82 Fed.
Reg. at 7690-91, require important information for mine regulators, and will incentivize mine
operators to be more proactive in fixing adverse conditions.
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We agree with MSHA that the combined effect of the requirements “will
improve miners’ safety and health.” Id. at 7689. We therefore hold that the Final
Rule here satisfies the requirement that any rule “improve” upon the prior standard.
IV. PETITIONERS’ ARGUMENT THAT THE FINAL RULE
IS ARBITRARY AND CAPRICIOUS
Petitioners next argue that the Final Rule is arbitrary and capricious. See 5
U.S.C. § 706(2)(A). To survive arbitrary and capricious review, an agency must
“examine the relevant data and articulate a satisfactory explanation for its action
including a ‘rational connection between the facts found and the choice made.’”
Nat’l Min. Ass’n, 812 F.3d at 865 (quoting Motor Vehicle Mfrs. Ass’n of U.S.,
Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S. Ct. 2856, 2866
(1983)). Courts must uphold rules that are “rational, based on consideration of the
relevant factors and within the scope of the authority delegated to the agency by
the statute.” Id. (quoting State Farm, 463 U.S. at 42, 103 S. Ct. at 2866). “The
scope of review . . . is narrow and a court is not to substitute its judgment for that
of the agency.” Id. (quoting State Farm, 463 U.S. at 43, 103 S. Ct. at 2866).
Arbitrary and capricious review is “highly deferential and presumes the validity of
agency action,” its goal being to ensure that MSHA engaged in reasoned
decisionmaking. United Steel, 925 F.3d at 1283.
Petitioners argue that three aspects of the Final Rule are arbitrary and
capricious. We address each in turn.
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A. Petitioners’ Argument that the New Examination Requirement is
Arbitrary and Capricious
First, petitioners claim that the examination requirement is arbitrary and
capricious. This aspect of the Final Rule alters the 1979 standards by directing that
the mandatory once-per-shift working place inspection or examination occur
before miners begin to work in a given area. Petitioners argue that there is no
evidence in the administrative record that examinations were occurring too late to
protect miners from adverse conditions, and that most of the evidence cited by
MSHA to justify this rule involved adverse conditions that existed for extended
periods of time, such that they should have been detected under the 1979
standards.9
MSHA responds by noting that the Final Rule states that “[i]n the Agency’s
experience, despite MSHA guidance and best practices, under the existing standard
working place examinations are not always done at a point during the shift when
the results of the examination would provide the necessary protections as intended
9
Petitioners also argue that MSHA’s rationale for promulgating the Final Rule lacks a
rational connection to its asserted basis because MSHA erroneously relied on 16 accidents that
resulted in fatalities. In at least 12 of these accidents, MSHA contends, the operator of the mine
already had knowledge of the hazardous condition that led to the fatality. They therefore could
not have lacked knowledge because of a deficiency in the existing rule. This argument reads the
Final Rule too narrowly and thus misunderstands its purpose. The Rule is not only concerned
with alerting operators of adverse conditions. Knowledge of adverse conditions is entirely
pointless if mine operators do not act on that knowledge. And the Final Rule is designed to
incentivize mine operators to fix adverse conditions promptly, both by informing miners of those
conditions and by creating a contemporaneous record of them. MSHA thus expects that the
revised rules will incentivize remedial action by operators with knowledge of adverse conditions.
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by the Mine Act and the existing standard.” 82 Fed. Reg. at 7689. The Agency
also noted that in its experience, “there is a significant degree of variability in how
safety programs are operationalized,” and that reducing this variability will
improve miner safety. Id.; see also id. at 7692.
We think that this is a permissible factual basis for a rule that, upon review,
is not particularly burdensome on mine operators. Agencies are permitted to rely
on their experience in the regulated field, so long as they explain what their
experience is and how that experience informs the agency’s conclusion. For
example, in National Mining Ass’n v. Mine Safety & Health Administration, 116
F.3d 520, 546-47 (D.C. Cir. 1997), the Secretary cited his “experience” in support
of a rule eliminating a superintendent’s signature requirement on pre-shift
examinations; the Secretary noted that, in MSHA’s experience, mine
superintendents were not intimately familiar with the working places being
examined in the mines, and so eliminating the need for their signatures on
examination records would not lead to a decrease in safety. Courts have not
permitted agencies to rely on their “experience” only when the agency fails to
actually explain what that experience was and how that experience supports the
promulgated regulation. See Int’l Union, United Mine Workers of Am. v. Mine
Safety & Health Admin., 626 F.3d 84, 94 (D.C. Cir. 2010).
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We think MSHA adequately supported its citation to its experience. MSHA
concluded that mine operators were often conducting their mandatory
examinations after shifts had begun. This trend was problematic, given that it
would naturally mean miners are beginning work in an area that may contain
hazardous conditions. As noted at one of the hearings MSHA held during the
rulemaking process, one could analogize the situation to climbing a ladder:
climbers check the stability of their ladders before they begin climbing, not
halfway up. Of course, the administrative record would have been stronger had
there been citations to specific instances of miner safety being impaired by
examinations occurring too late in a shift. But such painstaking factual support
was not necessary in National Mining Ass’n, 116 F.3d at 527, and MSHA’s factual
findings based on its experience here are similar to its findings in that case. 10
Moreover, the Agency’s experience noted above was not the full extent of
MSHA’s reasoned explanation for requiring the shift inspection before the shift
begins. MSHA also relied upon the need to “notify miners in affected areas of any
conditions found that may adversely affect their safety or health.” 82 Fed. Reg. at
7689. Only a pre-shift inspection can provide the basis for notifying miners of any
10
We also acknowledge difficulty in understanding petitioners’ challenge to MSHA’s
reliance on its experience that the shift inspections under the preexisting law were often
conducted after the shift had begun. If that experience were not accurate, then the new
requirement effects no change, and petitioners’ argument is therefore moot. Only if the
Agency’s experience is accurate is there a new requirement, as a practical matter, which might
be subject to an arguable challenge by the petitioners.
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adverse condition “so that miners can take the necessary precautions to avoid an
accident or injury.” Id. at 7686.
For these reasons, we conclude that the pre-shift examination requirement is
not arbitrary and capricious.11
B. Petitioners’ Argument that the New Notification Requirement is
Arbitrary and Capricious
Petitioners next challenge the notification requirement, which mandates that
mine operators notify miners of adverse conditions in their work areas. Petitioners
claim that MSHA does not provide any instances where miners were not notified
of adverse conditions and therefore suffered harm. Petitioners also cite to
11
Notwithstanding the suggestion within the dissent, we note that we have recognized and
cited the “more recent[]” D.C. Circuit decision—International Union, United Mine Workers of
America v. Mine Safety & Health Administration, 626 F.3d 84 (D.C. Cir. 2010)—upon which
the dissent relies. Indeed, we have attempted to apply its standard—i.e., ensuring that MSHA
explained “what the ‘[a]gency experience’ was and how it informed the determination.” Id. at 94
(quoting Nat’l Mining Ass’n, 116 F.3d at 546–47). But we clarify. The “what” was its
experience that the examinations were not always being conducted at a time to provide the
necessary protections. The “how” was that conducting the examination before the shift and
notifying miners of any hazards would enable miners to take the necessary precautions to avoid
an accident or an injury. Moreover, as noted in Parts IV.A and B, the Agency’s experience was
not the full extent of MSHA’s reasoned explanation. The Agency repeatedly emphasized the
obvious fact that only an examination and notice to miners before work begins could alert miners
to hazards so they can take protective measures. 82 Fed. Reg. at 7682 et seq. We readily
conclude that the record adequately supports the requirements for an examination before work
begins and notice to miners—especially in light of the fact that the Agency’s reasoned
explanations for these requirements are so firmly rooted in common sense and common
experience. See, e.g., Gen. Instrument Corp. v. FCC, 213 F.3d 724, 734–35 (D.C. Cir. 2000)
(holding Federal Communications Commission order treating differently certain cable box
devices was not arbitrary and capricious because “[w]hile the Commission’s order [wa]s hardly a
model of comprehensiveness on this point,” the record included a supporting argument from a
coalition of retailers in the industry and “the Commission’s concern” prompting the order
“appear[ed] well-grounded in common sense”).
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comments made during the rulemaking process arguing that the existing 1979
standards already required prompt action to remedy adverse conditions,
eliminating the need for notification to miners of those conditions.
MSHA responds that the administrative record supports this notification
requirement. The Final Rule cites 16 fatal accidents; 12 of these are conceded by
petitioners as involving adverse conditions that mine operators knew of but failed
to correct. MSHA contends that it is obvious that, if miners had been notified of
these conditions, they would be able to take their own precautions.
We conclude that the Final Rule amply supports the notification
requirement. The Rule specifically states that “[m]iners need to know about
adverse conditions in their working place so that they can take protective measures
or avoid the adverse conditions altogether.” 82 Fed. Reg. at 7684-85. The Notice
of Proposed Rulemaking supports this conclusion with a discussion of three
particular fatal accidents in which miners were not warned or notified of the
adverse conditions that caused the fatalities.
Moreover, petitioners place unwarranted reliance on comments during the
rulemaking process arguing that the existing standards require prompt action to
remedy adverse conditions, thus eliminating the need for notification of those
conditions. The Final Rule “recognizes that if adverse conditions are corrected
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before miners begin work, notification is not required because there are no
‘affected areas.’” Id. at 7685.
Petitioners concede that in 12 of the 16 fatal accidents cited by MSHA in
support of the Final Rule, the mine operators knew of but did not correct the
condition. Notifying the miners would, of course, enable them to take their own
precautions. Id. at 7684-85, 7686, 7689. And it would also provide an incentive
for the operator to be more proactive about correcting hazards. In other words, an
operator, knowing that the miners are aware of both the hazard and the operator’s
failure to correct them, will have an additional incentive to correct the problem
promptly.
We conclude that there is ample support for the Agency’s findings, and that
the notification requirement is not arbitrary or capricious.
C. Petitioners’ Argument that the New Recording Requirements are
Arbitrary and Capricious
Finally, petitioners challenge the expanded requirements for examination
records. The Final Rule requires operators to record the name of the person
conducting the examination, the date of the examination, a description of the
adverse conditions, and the date of any corrective actions taken. MSHA justifies
the rule by arguing that in the 16 fatal accidents discussed in the administrative
record, if this information had been promptly recorded, the records may have
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alerted mine operators to take prompt corrective action.12 This is insufficient, say
petitioners; they argue that there is no evidence that recording names and dates
would bring any safety benefits, and, moreover, the 16 fatalities involved operators
who already had knowledge of the adverse conditions, so recording those
conditions would have been fruitless.
MSHA responds that more stringent recording requirements would lead to
adverse conditions being corrected more often. A more rigorous recording
requirement incentivizes prompt corrective action, and noting who recorded the
condition, and when they did so, incentivizes individual compliance.
We think the recording requirement is abundantly justified by the Final
Rule. The requirement that the examiner’s name be included adds no substantive
duties whatsoever. MSHA found that the examiner’s identity is important in case
the condition needs to be clarified, or if follow-up is necessary or appropriate. 82
12
The dissent discounts MSHA’s reliance on its experience based in part on its study of
accident investigation reports from January 2010 through mid-December 2015, including the 16
fatal accidents, because, the dissent says, the Agency did not reference any of those accidents in
the Rule’s section-by-section analysis. We respectfully disagree. In the background section of
the Final Rule, MSHA expressly referenced its study of these accident reports and expressly
concluded: “MSHA believes that for these 16 accidents, had the person making the examination
recorded these adverse conditions, the records may have alerted operators to take prompt
corrective action thus preventing the accidents.” 82 Fed. Reg. at 7682. We doubt that such
express reference need be repeated in the section-by-section analysis. In any event, in the
section-by-section analysis relating to records, MSHA expressly invoked the very conclusion it
derives from its accident history study. See id. at 7686 (“MSHA believes that, by making a
record of adverse conditions, mine operators and miners will become more proactive in their
approach to correcting the conditions and avoiding recurrence, thereby improving protections for
miners. The Agency believes that a record that notes the adverse conditions prior to miners
working in an area expedites the correction of these conditions.”).
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Fed. Reg. at 7686. The date requirement is justified because dating the record is
important both for record management and for identifying trends in mine
conditions. Id. The requirement that operators record the locations that have been
examined is justified as ensuring that operators are aware that all locations in the
working place have been examined. Id.
More generally, the enhanced recordkeeping requirements will lead to more
proactive mine operators. Id. at 7681, 7686, 7689. If conditions are not recorded,
they “may exist for more than one shift, causing or contributing to an accident,
injury, or fatality.” Id. at 7687. A record will expedite correction and can be used
to identify trends. If mine operators are required to include more detail about
conditions identified during examinations, and are required to include their names
alongside that detail, they will naturally be more incentivized to correct those
conditions, in case management or MSHA representatives come inspecting.13
We reject petitioners’ argument that the 16 accidents referenced by MSHA
do not support the enhanced recordkeeping requirement. In the “majority” of these
accidents, petitioners argue, “the operator already had knowledge of the [adverse]
condition.” Even if this is true, we do not see how it renders the requirements
arbitrary and capricious. When conditions are recorded, others on site could learn
13
We do not understand petitioners’ argument that this “proactive mine operator”
justification is not in the administrative record and is therefore a post hoc rationalization; it
appears in the Final Rule multiple times. 82 Fed. Reg. at 7681, 7686, 7689.
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about those conditions. And the more persons on site who are aware of an adverse
condition (or could become aware), the likelier it is that the condition will be dealt
with promptly.
We conclude that the Agency’s findings are sufficient, and that the
challenged recording requirements are not arbitrary and capricious.
D. Cumulative Effect of the New Requirements
While we have analyzed the three challenged aspects of the Final Rule
individually, it is worth noting that MSHA clearly does not view these aspects as
operating individually. MSHA’s main impetus for the Final Rule were 16
accidents resulting in 18 fatalities. These fatalities, in MSHA’s view, were caused
by mine operators’ failure to take prompt corrective action. It is apparent from
reading the administrative record that MSHA sees the examination requirement,
the notification requirement, and the recordkeeping requirement as operating
collectively to spur more timely corrections of hazardous conditions. The pre-shift
examination requirement forces operators to learn of hazards earlier than they
might otherwise, and helps prevent miners from beginning work in dangerous
areas. The notification requirement then informs the miners of any hazards found
before they began work, thus letting them tailor their work to those conditions or
avoid working in dangerous areas entirely. And the recordkeeping requirement
ties everything together, creating a thorough documentation of what working
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places were examined and by whom, when those examinations occurred, and what
will be done about conditions found during those examinations. While each
challenged aspect of the rule is amply justified when viewed in isolation, a holistic
review of the Final Rule reveals that each aspect is really just one interlocking part
of the overall improvement of the safety standard. We readily conclude that the
new requirements of the Final Rule easily satisfy our arbitrary and capricious
scope of review.
V. PETITIONERS’ OTHER ARGUMENTS
Petitioners raise a handful of other arguments. We reject them all as wholly
without merit. First, they contend that three terms in the Final Rule are
unconstitutionally vague: (1) the term “adversely” in the phrase “conditions that
may adversely affect safety or health”; (2) the term “working place,” which the
Final Rule’s Preamble states now includes “roads traveled to and from a work
area”; and (3) the term “affected area” in the phrase “promptly notify miners in any
affected areas of any [adverse] conditions found.” Petitioners appear to argue that
these terms are so vague as to be prohibited by both the Fifth and Fourteenth
Amendment’s due process clauses.
We have no difficulty in rejecting this challenge. Petitioners have not
demonstrated that the challenged terms and phrases are so “substantially
incomprehensible” as to violate the Constitution. Exxon Corp. v. Busbee, 644 F.2d
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1030, 1033 (5th Cir. Unit B May 1981) (for a regulatory provision not within First
Amendment protection to be unconstitutionally vague, “it must be so vague and
indefinite as really to be no rule or standard at all”; in other words, “it must be
substantially incomprehensible” (internal quotations omitted)). 14 Moreover, in this
regulatory context the void for vagueness doctrine applies only rarely, and only if
the challenged phrase is impermissibly vague in all of its applications. Am. Iron &
Steel v. Occupational Safety & Health Admin., 182 F.3d 1261, 1277 (11th Cir.
1999). None of the challenged phrases ever approach that standard. We thus
reject petitioners’ void-for-vagueness argument. 15
Next, petitioners argue that the Final Rule violates Executive Orders 12,866
and 13,563, which direct agencies to conduct cost-benefit analyses of regulatory
actions and alternatives to regulation, and to ensure that the regulations impose the
“least burden on society, consistent with obtaining regulatory objectives.”
Petitioners argue that the cost-benefit analysis underlying the Final Rule is lacking,
14
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this Court
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
October 1, 1981.
15
Petitioners’ initial brief refers in cursory manner to an argument that, because the
challenged terms are grievously ambiguous, the Final Rule is rendered arbitrary and capricious.
We do not think this argument is fairly raised; petitioners cite no case law supporting the claim
that ambiguous provisions in a regulation can render that regulation arbitrary and capricious.
“We have long held that an appellant abandons a claim when he either makes only passing
references to it or raises it in a perfunctory manner without supporting arguments and authority.”
Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014). While petitioners
expand on this argument in their reply brief, “[t]hose arguments come too late,” and we do not
consider arguments fairly raised for the first time in reply briefs. Id. at 682-83.
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and fails to satisfy the standards set forth in the Executive Orders. In particular,
petitioners contend that MSHA’s estimation of the costs resulting from the rule are
unrealistic, underestimate the number of persons required to conduct regular
workplace examinations, underestimate the time burdens resulting from the new
recording requirements, and fail to account for training, updated procedures, new
documentation, storage systems, and lost work hours.
But in order to bring this challenge, petitioners must demonstrate that the
APA permits judicial review of agency action that violates these two Executive
Orders. They have not made this demonstration, and appear merely to assume in
their principal brief that judicial review exists. Other circuits have held that there
is judicial review of agency action that purportedly conflicts with an executive
order only when (1) the Executive Order has a “specific statutory foundation,” (2)
the statute and the Executive Order do not preclude judicial review, and (3) there is
an objective standard by which the court can judge the agency’s actions. See City
of Albuquerque v. U.S. Dep’t of Interior, 379 F.3d 901, 913 (10th Cir. 2004); City
of Carmel-By-The-Sea v. U.S. Dep’t of Transp., 123 F.3d 1142, 1166 (9th Cir.
1997).
We conclude that neither Executive Order at issue here permits judicial
review of inconsistent agency action. Both Executive Orders state that they do not
“create any right or benefit, substantive or procedural, enforceable by any party”
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against agencies. See Exec. Order No. 13,563 § 7(d), 76 Fed. Reg. 3821, 3823
(Jan. 18, 2011), reprinted as amended in 5 U.S.C. § 601 at 101-02; Exec. Order No.
12,866 § 10, 58 Fed. Reg. 51,735, 51,744 (Sept. 30, 1993), reprinted as amended in
5 U.S.C. § 601 at 86-91. And at least one other circuit has held that Executive
Order 12,866 creates no private rights and an agency’s failure to comply with it is
not subject to judicial review. See Helicopter Ass’n Int’l, Inc. v. FAA, 722 F.3d
430, 439 (D.C. Cir. 2013); see also Meyer v. Bush, 981 F.2d 1288, 1296 n.8 (D.C.
Cir. 1993) (“An Executive Order devoted solely to the internal management of the
executive branch—and one which does not create any private rights—is not, for
instance, subject to judicial review.”). We thus hold that we cannot review
whether the Final Rule is inconsistent with either Executive Order. 16
VI. CONCLUSION
The Mine Act does not impose a stringent “significant risk” requirement, as
petitioners contend. The Final Rule’s impact on miner safety plainly improves on
16
Petitioners make passing reference to an argument that the Final Rule is not economically
feasible and an argument that the Agency’s cost-benefit analysis was arbitrary and capricious.
But petitioners do not support these arguments with sufficient detail; their contention is
conclusory and unsupported by citations to authority or significant discussion. We consider
these arguments abandoned and do not consider them. See supra note 15.
Petitioners also argue that MSHA improperly failed to comply with the Regulatory
Flexibility Act as amended by the Small Business Regulatory Enforcement Fairness Act, 5
U.S.C. § 601. While petitioners included this contention in their statement of issues, they raise it
only in a footnote in a perfunctory and conclusory manner. We do not consider arguments raised
only in such manner. SEC v. Big Apple Consulting USA, Inc., 783 F.3d 786, 811-12 (11th Cir.
2015). So we will not consider petitioners’ Regulatory Flexibility Act argument.
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the 1979 standards. The Final Rule is not arbitrary and capricious. And we reject
petitioners’ other challenges. Accordingly, we deny the petition for review.
PETITION DENIED.
LAGOA, Circuit Judge, dissenting:
In this petition for review, Petitioners National Mining Association, National
Stone, Sand & Gravel Association, Portland Cement Association, American Iron &
Steel Institute, Georgia Mining Association, and Georgia Construction Aggregate
Association (collectively, “Petitioners”) challenge the final rule entitled
“Examinations of Working Places in Metal and Nonmetal Mines” (“Final Rule”)
promulgated by the United States Secretary of Labor (“Secretary”) and the Mine
Safety and Health Administration (“MSHA”). 82 Fed. Reg. 7680–95 (Jan. 23, 2017)
(to be codified at 30 C.F.R. §§ 56.18002, 57.18002). I respectfully disagree with the
majority’s conclusion that the promulgation of the Final Rule was not arbitrary and
capricious. In my view, MSHA has failed to articulate a satisfactory explanation for
the Final Rule by not establishing a rational connection between the facts found in
the rulemaking record and the new working place examination standards it
promulgated. See Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto
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Ins. Co., 463 U.S. 29, 42–43 (1983). Rather, MSHA’s offered explanation for the
standards in the Final Rule “runs counter to the evidence before the agency.” See
id. at 43. For the reasons stated below, I would therefore find that the Final Rule
was arbitrary and capricious and vacate the Final Rule without addressing the other
arguments presented to us.
I. RELEVANT FACTUAL AND PROCEDURAL HISTORY
Under the Federal Mine Safety and Health Act of 1977 (the “Mine Act”),
§ 101(a), 30 U.S.C. § 811(a), the Secretary is directed to, by rule, “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.”
On August 17, 1979, “MSHA revised, renumbered, and made mandatory the
Agency’s advisory standards regarding working place examinations” of metal and
nonmetal (“MNM”) mines. 82 Fed. Reg. at 7681. Of relevance here, the 1979
working place examination standards for MNM mines required: (1) “[a] competent
person designated by the [mine] operator [to] examine each working place at least
once each shift for conditions which may adversely affect safety or health;” (2) the
operator to “promptly initiate appropriate action to correct such conditions;” and (3)
the operator to keep records of “such examinations” for a period of one year and to
make those records available for review by the Secretary. 30 C.F.R. §§ 56.18002,
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57.18002 (2016). “Working place” is defined as “any place in or about a mine where
work is being performed.” 30 C.F.R. §§ 56.2, 57.2 (2017).
On June 8, 2016, MSHA published a proposed rule titled “Examinations of
Working Places in Metal and Nonmetal Mines” (“Proposed Rule”). 81 Fed. Reg.
36818-01 (June 8, 2016). Following publication of the Proposed Rule, MSHA
received comments and held four public hearings on the Proposed Rule. 82 Fed.
Reg. at 7681–82. Then, on January 23, 2017, MSHA promulgated the Final Rule,
amending the prior iteration of 30 C.F.R. §§ 56.18002 and 57.18002 (2016) to
provide:
(a) A competent person designated by the operator shall examine each
working place at least once each shift before miners begin work in that
place, for conditions that may adversely affect safety or health.
(1) The operator shall promptly notify miners in any
affected areas of any conditions found that may adversely
affect safety or health and promptly initiate appropriate
action to correct such conditions.
(2) Conditions noted by the person conducting the
examination that may present an imminent danger shall be
brought to the immediate attention of the operator who
shall withdraw all persons from the area affected (except
persons referred to in section 104(c) of the Federal Mine
Safety and Health Act of 1977) until the danger is abated.
(b) A record of each examination shall be made before the end of the
shift for which the examination was conducted. The record shall
contain the name of the person conducting the examination; date of the
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examination; location of all areas examined; and description of each
condition found that may adversely affect the safety or health of miners.
(c) When a condition that may adversely affect safety or health
is corrected, the examination record shall include, or be supplemented
to include, the date of the corrective action.
(d) The operator shall maintain the examination records for at least one
year, make the records available for inspection by authorized
representatives of the Secretary and the representatives of miners, and
provide these representatives a copy on request.
30 C.F.R §§ 56.18002, 57.18002 (2017).
In the Final Rule, MSHA stated that it had reviewed accident investigation
reports from January 2010 through mid-December 2015 and that, during this period,
122 miners were killed in 110 accidents at MNM mines. 82 Fed. Reg. at 7682.
MSHA explained that it had conducted investigations into each of those fatal
accidents, “of which 16 accidents (18 fatalities) citations were issued to mine
operators for unwarrantable failure to comply for purposes of Section 104(d) of the
Mine Act,”1 and it was the agency’s belief that “had the person making the
examination recorded these adverse conditions, the records may have alerted
operators to take prompt corrective action thus preventing the accidents.” Id.
1
Section 104(d) of the Mine Act authorizes a representative of the Secretary to issue a
citation where a violation of a mandatory health or safety standard “could significantly and
substantially contribute to the cause and effect of a . . . mine safety or health hazard” and that
violation is “caused by an unwarrantable failure of such operator to comply with such mandatory
health or safety standards.” 30 U.S.C. § 814(d)(1).
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In changing the timing of working place examinations during a shift to be
conducted “before miners begin work in that place,” MSHA noted that the purpose
of this requirement was “to ensure that for each shift the examinations occur at a
time that is sufficiently close to when miners begin their work” in order to “minimize
potential exposure to conditions that may adversely affect their safety or health,” as
“conditions at mines can change.” Id. at 7683. In support of this new standard,
MSHA stated that it was “the Agency’s experience” that, under the existing standard,
“working place examinations are not always done at a point during the shift when
the results of the examination would provide the necessary protections as intended
by the Mine Act and the existing standard.” Id. at 7689. Regarding the new
notification requirement, MSHA stated that “[m]iners need to know about adverse
conditions in their working place so that they can take protective measures or avoid
the adverse conditions altogether.” Id. at 7684–85. As to the new examination
recording requirements, MSHA stated it was its “experience” that “if adverse
conditions are not recorded, these conditions may exist for more than one shift,
causing or contributing to an accident, injury, or fatality.” Id. at 7687. MSHA
further noted it believed that “by making a record of adverse conditions, mine
operators and miners will become more proactive in their approach to correcting the
conditions and avoiding recurrence, thereby improving protections for miners.” Id.
at 7686. MSHA, however, did not discuss how the sixteen accidents it investigated
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informed its decision to promulgate the new standards in the Final Rule nor reference
any of those accidents in the rule’s section-by-section analysis. See id. at 7682–88.
MSHA did include the investigation reports of the sixteen accidents
referenced in the background of the Final Rule in the rulemaking record. However,
a review of these reports does not suggest that any of the sixteen accidents occurred
despite mine operators’ compliance with the 1979 working place examination
standards. Rather, the reports indicate that those accidents occurred where: (1) the
mine operators or management were aware of the adverse conditions present and did
not correct those conditions or otherwise comply with the existing 1979 working
place examination standards; (2) the adverse conditions existed for multiple shifts;
or (3) the operators failed to comply with separate regulations that required
examination of ground conditions prior to commencing work in the area. 2
II. ANALYSIS
Petitioners challenge the Final Rule on the basis that the new working place
examination requirements are arbitrary and capricious. Specifically, Petitioners
argue that MSHA’s rationale for the new standards in the Final Rule lacks any
rational connection to the evidence offered as the basis for the Final Rule, i.e., the
2
See 30 C.F.R. § 56.3401 (“Appropriate supervisors or other designated persons shall
examine and, where applicable, test ground conditions in areas where work is to be performed
prior to work commencing, after blasting, and as ground conditions warrant during the work
shift.” (emphasis added)); id. § 57.3401 (same); see also id. § 56.9304(a) (requiring “[d]umping
locations [to] be visually inspected prior to work commencing and as ground conditions warrant”
(emphasis added)).
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sixteen accidents. Petitioners assert that for those sixteen accidents, the mine
operators were already aware of the adverse conditions, the adverse conditions had
existed for multiple shifts, or the adverse conditions at issue were governed by
different regulations requiring examination of ground conditions before work began.
Thus, according to Petitioners, those accidents demonstrate violations of the existing
standards, not the need for the new standards promulgated by the Final Rule.
The Mine Act directs the Secretary to “by rule . . . 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.” 30 U.S.C.
§ 811(a). This Court reviews a challenge to an agency’s promulgated regulation
under the Administrative Procedure Act, which requires us to “hold unlawful and set
aside agency action, findings, and conclusions” that are “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(a);
accord FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009); Ryder Truck
Lines, Inc. v. United States, 716 F.2d 1369, 1378 (11th Cir. 1983). Under the
arbitrary and capricious standard,
a reviewing court may not set aside an agency rule that is rational, based
on consideration of the relevant factors and within the scope of the
authority delegated to the agency by the statute. . . . The scope of review
under the “arbitrary and capricious” standard is narrow and a court is
not to substitute its judgment for that of the agency.
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Nat’l Mining Ass’n v. Sec’y, U.S. Dep’t of Labor, 812 F.3d 843, 865 (11th Cir. 2016)
(alteration in original) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29, 42–43 (1983)); accord Miami–Dade County v. EPA, 529 F.3d
1049, 1064–65 (11th Cir. 2008).
While this Court’s review under the arbitrary and capricious standard is highly
deferential, see Miccosukee Tribe of Indians of Florida v. United States, 566 F.3d
1257, 1264 (11th Cir. 2009), the deference afforded to an agency rule is not absolute.
“[T]he agency must examine the relevant data and articulate a satisfactory
explanation for its action including a ‘rational connection between the facts found
and the choice made.’” Motor Vehicle Mfrs., 463 U.S. at 43 (emphasis added)
(quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)). An
agency rule is also arbitrary and capricious “if the agency has . . . offered an
explanation for its decision that runs counter to the evidence before the agency.” Id.
When reviewing the agency’s explanation for its action, this Court considers
“whether the decision was based on a consideration of the relevant factors and
whether there has been a clear error of judgment.” Id. (quoting Bowman Transp.,
Inc. v. Arkansas-Best Freight Sys., 419 U.S. 281, 285 (1974)). And, “[t]he reviewing
court should not attempt itself to make up for . . . deficiencies” in the agency’s
explanation of its rule and “may not supply a reasoned basis for the agency’s action
that the agency itself has not given.” Id. (quoting SEC v. Chenery Corp., 332 U.S.
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194, 196 (1947)); accord Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of
Eng’rs, 833 F.3d 1274, 1285 (11th Cir. 2016).
After reviewing the Final Rule and the rulemaking record, I conclude that
MSHA failed to provide a “rational connection between the facts found and the
choice made” to promulgate the new working place examination standards. Motor
Vehicle Mfrs., 463 U.S. at 43 (quoting Burlington, 371 U.S. at 168). MSHA has not
explained the basis for these new standards other than to refer and rely upon its own
“experience” in a conclusory manner. Indeed, the accidents referred to by the Final
Rule and contained in the rulemaking record do not support MSHA’s conclusory
statement of its “experience.” Thus, these new standards in the Final Rule are
arbitrary and capricious. I address each of the new standards in turn.
A. Working Place Examination Timing Requirement
As to the new examination timing requirement, MSHA stated it was its
“experience” that, “under the existing standard[,] working place examinations are
not always done at a point during the shift when the results of the examination would
provide the necessary protections intended by the Mine Act and the existing
standard.” 82 Fed. Reg. at 7689. Yet, the evidence offered by MSHA only
demonstrates the failures of mine operators to comply with existing working place
examination standards. Specifically, as detailed in the investigation reports, the
mine operators or management in the sixteen accidents were (1) aware of the adverse
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conditions that caused the accident but failed to correct the conditions; (2) aware that
the adverse conditions existed for multiple shifts, demonstrating the mine operator’s
failure to conduct a working place examination at all; or (3) failed to comply with
separate ground condition examination requirements. MSHA did not explain
whether the new examination timing requirement would have prevented any of those
accidents, and, similarly, there is no indication in any of the investigation reports
that this new requirement would have done so. Therefore, there is no rational
connection between MSHA’s decision to require working examinations to occur
before work starts at the beginning of a shift and the evidence offered by MSHA in
the rulemaking record as the basis for the timing requirement.
In determining that the new examination timing requirement is not arbitrary
and capricious, the majority points to MSHA’s citation of its “experience” as the
basis for promulgating the new standard, noting that “[a]gencies are permitted to
rely on their experience in the regulated field, so long as they explain what their
experience is and how that experience informs the agency’s conclusion.” Maj. Op.
at 20. In support of this proposition, the majority relies upon the D.C. Circuit’s
decision in National Mining Association v. Mine Safety and Health Administration,
116 F.3d 520 (D.C. Cir. 1997). In that case, MSHA promulgated a set of safety rules
that included eliminating the requirement of “second-level countersigning” by mine
superintendents of certain examination reports, which a labor union challenged
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under the “no-less protection rule” in section 101(a)(9) of the Mine Act. See Nat’l
Mining Ass’n, 116 F. 3d at 525, 535–36, 544–546. In explaining the deletion of
second-level countersigning rule, the Secretary stated in the rule’s preamble that
“[a]gency experience ha[d] demonstrated that higher level mine officials commonly
lack hands-on involvement or in-depth knowledge of the specific conditions
underground or how . . . ventilation rules impact[ed] upon those conditions” and that,
thus, “countersigning by a mine official at a higher level does not assure any
additional level of safety and imposes an unnecessary burden.” Id. at 546–47
(emphasis in original) (quoting 61 Fed. Reg. 9764, 9767 (Mar. 11, 1996)). The D.C.
Circuit found that the Secretary had provided a “reasoned explanation” for why the
new rule would not cause a reduction in safety. Id. at 547. Notably, the D.C.
Circuit’s decision was silent as to whether MSHA’s experience was supported by
the rulemaking record in that case.
However, more recently in International Union, United Mine Workers of
America v. Mine Safety and Health Administration, 626 F.3d 84 (D.C. Cir. 2010)
(“International Union”), the D.C. Circuit found that MSHA could not rely on “its
knowledge and experience” to justify a training provision where MSHA failed to
explain “what the ‘[a]gency experience was and how it informed the determination.”
Id. at 93–94 (alteration and emphasis in original) (quoting Nat’l Mining Ass’n, 116
F.3d at 546–47). In International Union, MSHA promulgated a final rule “requiring
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‘hands-on’ training only annually rather than quarterly.” Id. at 86. The D.C. Circuit
subsequently found the training requirement “arbitrary and capricious” because
MSHA had not “explained the basis for [the new training requirement] other than to
state it relied upon its ‘knowledge and expertise.’” Id. at 87. The D.C. Circuit noted
that MSHA had not identified what that knowledge and expertise was, had not
pointed to studies or comparisons of types of training, and had not responded to—
or, at most, had addressed in a conclusory manner—the commentators’ objections
about the training provision. Id. at 87, 93–94. The court further explained that
MSHA was incorrect to rely on the National Mining decision “for the proposition
that a rule may be supported solely by the agency’s expertise,” as National Mining
did “not absolve MSHA from providing a reasoned explanation for its decision only
to require annual hands-on training.” Id. at 94. As the D.C. Court noted, unlike in
International Union, the Secretary in National Mining “provided a ‘reasoned
explanation’ by explaining “what the ‘[a]gency experience’ was and how it informed
the determination.” Id. (alteration and emphasis in original) (quoting Nat’l Mining
Ass’n, 116 F.3d at 546–47).
Similarly, this Court has explained that, when promulgating a policy shift
due to changed circumstances, “an agency is entitled to rely to some extent on the
experience and expertise it has acquired during the course of its existence, as long
as this reliance on agency experience is documented and made a part of the record
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so that the courts can determine whether the agency’s action is facially rational.”
Ryder Truck Lines, 716 F.2d at 1385 (citations omitted).
Here, as in International Union, MSHA has provided no reasoned explanation
for its decision. MSHA has not explained what its “experience” is beyond a
conclusory statement in the Final Rule that working place examinations under the
existing standards were not “always done at a point during the shift when the results
of the examination would provide the necessary protections as intended by the Mine
Act,” nor has MSHA explained how that “experience” informed its determination.
See 82 Fed. Reg. at 7689; cf. Int’l Union, 626 F.3d at 94. Additionally, the
rulemaking record does not contain any evidence in support of this “experience.”
See Ryder Truck Lines, 716 F.2d at 1385. Rather, the investigation reports of the
sixteen accidents demonstrate that mine operators and managers failed to comply
with existing working place examination standards, not that accidents are occurring
despite compliance with the existing standards.
The majority acknowledges the lack of record support for MSHA’s
“experience,” stating that “the administrative record would have been stronger had
there been citations to specific instances of miner safety being impaired by
examinations occurring too late in a shift,” but concludes that because “such
painstaking factual support” was not necessary in the D.C. Circuit’s National Mining
Association decision, it is likewise not necessary in this case. Maj. Op. at 21.
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However, the D.C. Circuit did not discuss the extent of the rulemaking record in
determining that MSHA had given a reasoned explanation for its elimination of the
“second-level countersigning” rule, see Nat’l Mining Ass’n, 116 F.3d at 545–47, and
later clarified in International Union that an agency’s conclusory reliance on
“experience” in support of a rule alone was not a “reasoned explanation,” see 626
F.3d at 93–94. And, even if such “factual support” was not required by the D.C.
Circuit in National Mining Association, this Court’s precedent in Ryder Truck Lines
mandates an agency to document and include as part of the rulemaking record its
experience when it relies on that experience for promulgating a rule or policy
change. See 716 F.2d at 1385. MSHA did not do so here.
Moreover, requiring an agency to support its experience with factual
documentation in the record should not be the “painstaking” task the majority
suggests. Maj. Op. at 21. Indeed, if MSHA’s experience is as it claims, then
documentation of accidents that have occurred in MNM mines following a properly
conducted working place examination on the same shift should be readily available
for the agency to include in the rulemaking record. Such evidence would likewise
demonstrate a rational connection to the choice MSHA made in promulgating this
new standard. See Motor Vehicle Mfrs., 463 U.S. at 43. Because such evidence is
not in the rulemaking record, MSHA has failed to provide a reasoned explanation
for the new timing requirement.
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The majority also relies upon MSHA’s “need to ‘notify miners in affected
areas of any conditions found that may adversely affect their safety or health’” in
finding that MSHA has provided a “reasoned explanation” for the new timing
requirement. Maj. Op. at 21 (quoting 82 Fed. Reg. at 7689). In doing so, the
majority reasons that “[o]nly a pre-shift inspection can provide the basis for
notifying miners of any adverse condition ‘so that miners can take the necessary
precautions to avoid an accident or injury.’” Maj. Op. at 21–22 (quoting 82 Fed.
Reg. at 7686). MSHA makes a similar argument it its brief, arguing that “[t]he most
effective time for the examination would be before miners begin working in order
to protect miners against entering a work area without knowledge of any hazards
there.” MSHA, however, did not explicitly offer this reasoning—i.e., that the new
timing requirement is the only way that miners can be notified of adverse conditions
in their working places—as its justification for the new timing requirement in the
Final Rule. And where Congress delegates a policy or judgment determination to
an agency, this Court “may not accept appellate counsel’s post hoc rationalizations
for agency action.” Motor Vehicle Mfrs., 463 U.S. at 50; accord Chenery Corp., 332
U.S. at 196; Int’l Union, 626 F.3d at 94. As the Supreme Court has cautioned, a
court reviewing agency action “may not supply a reasoned basis for the agency’s
action that the agency itself has not given.” Motor Vehicle Mfrs., 463 U.S. at 43.
Indeed, “[i]t is well-established that an agency’s action must be upheld, if at all, on
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the basis articulated by the agency itself.” Id. at 50. While this Court may “uphold
a decision of less than ideal clarity if the agency’s path may reasonably be
discerned,” see id. at 43 (quoting Bowman Transp., 419 U.S. at 286), I would not do
so here where the choice made by MSHA lacks a rational connection to the evidence
actually offered in the rulemaking record. Instead, I would conclude that the new
examination timing requirement in the Final Rule is arbitrary and capricious.
B. Miner Notification Requirement
Turning to the new notification requirement, MSHA explained its rationale
for the rule as “[m]iners need to know about adverse conditions in their working
place so that they can take protective measures or avoid the adverse conditions
altogether.” 82 Fed. Reg. at 7684–85. Unlike the examination timing and
recordkeeping requirements in the Final Rule, MSHA did not even cite to its own
“experience” as a basis for promulgating the notification requirement. And, in
reviewing the reports of the accidents that MSHA cited to as the basis for
promulgating the Final Rule, there is no indication of whether the miners were aware
of the adverse conditions that ultimately caused the accidents.
In its discussion of the notification requirement, the majority points to the
“Notice of Proposed Rulemaking” that discussed “three particular fatal accidents in
which miners were not warned or notified of the adverse conditions that caused the
fatalities.” Maj. Op. at 23. While MSHA discussed these three accidents in the
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background information section of its Proposed Rule, see 81 Fed. Reg. at 36,820,
the agency dropped all reference to those three accidents in the Final Rule, see 82
Fed. Reg. at 7682, following commentary suggesting that those accidents did not
support the new standards.3 Whatever its reasons, MSHA ultimately chose not to
use those three specific accidents as its rationale for the Final Rule.
I also disagree with the majority’s assertion that the notification requirement
is amply supported. MSHA offers a bare assertion in support of the notification
requirement, i.e., that miners need to be notified about adverse conditions so that
they can protect themselves. See 82 Fed. Reg. at 7684–85. But MSHA does not
explain how any of the accidents, including the three accidents referenced by the
Proposed Rule, in the rulemaking record—the evidence that MSHA offered in
support of the Final Rule—informed its decision in promulgating the notification
requirement, including whether any of those accidents might have been prevented
with this new standard. The majority offers an additional rationale for upholding the
requirement that mine operators would be incentivized to correct adverse conditions
promptly once the miners know of those conditions. Maj. Op. at 24. MSHA,
however, did not offer this rationale as a basis for the notification requirement. It is
the duty of the agency to “articulate a satisfactory explanation for its action,” and
3
Indeed, reviewing the investigation reports of those three accidents, all seem to have
occurred at least in part because mine operators failed to comply with existing standards.
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this Court should not make up for deficiencies in MSHA’s explanation. Motor
Vehicle Mfrs., 463 U.S. at 43. While the notification requirement might ultimately
improve safety in MNM mines, MSHA has not met its burden in articulating a
rational connection between the facts found and this new requirement. I therefore
conclude that the notification requirement is also arbitrary and capricious.
C. Examination Recordkeeping Requirements
Turning to the new recordkeeping requirements, MSHA stated that it was its
belief that the recordkeeping requirements would result in mine operators and miners
becoming “more proactive in their approach to correcting the [adverse] conditions”
and “expedite[] the correction of these conditions.” 82 Fed. Reg. at 7686.
Additionally, MSHA stated that recording the identity of the examiner is “important”
for the purposes of “clarifying the [adverse] condition noted or following up with
the examiner regarding areas examined or conditions noted.” Id. In support of the
new recordkeeping requirements, MSHA stated that it was the agency’s
“experience” that “if adverse conditions are not recorded, these conditions may exist
for more than one shift, causing or contributing to an accident, injury, or fatality.”
Id. at 7687. However, MSHA did not cite to any of the accidents in the rulemaking
record as a basis for its experience. Indeed, there is no evidentiary support in the
rulemaking record demonstrating that any of the sixteen accidents could have been
prevented by any of the increased recordkeeping requirements. Rather, in many of
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those accidents, the mine operator was already aware of the adverse condition
present and had not corrected it, again showing a lack of compliance with the existing
working place examination standards. Thus, as with the examination timing
requirements, MSHA has merely asserted its “experience” in a conclusory manner
as the basis for the new recordkeeping requirements in the Final Rule.
As explained above, in my view, for MSHA to rely on its “experience” as a
basis for promulgating a new standard, the agency was required to include
evidentiary support in the rulemaking record documenting its “experience” in order
to show a rational connection between the facts found in the rulemaking record and
the choice made—here, the recordkeeping requirements. See Ryder Truck Lines,
716 F.2d at 1385; see also Motor Vehicle Mfrs., 463 U.S. at 43. If it is, in fact,
MSHA’s experience that accidents are occurring due to inadequate recording of
adverse conditions, then the agency should have evidence in support of that
experience. However, because MSHA did not put that supporting documentation in
the rulemaking record, MSHA has not shown a rational connection between the facts
found and the recordkeeping requirements. As such, I conclude that the
recordkeeping requirements are similarly arbitrary and capricious.
D. The “Cumulative Effect of the New Requirements”
Finally, the majority concludes that under “a holistic review of the Final
Rule,” the standards therein are not arbitrary and capricious. Maj. Op. at 27–28.
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The majority recognizes that “MSHA’s main impetus for the Final Rule were 16
accidents resulting in 18 fatalities,” which, “in MSHA’s view, were caused by mine
operators’ failure to take prompt corrective action.” Maj. Op. at 27. However, even
reviewing the requirements as operating collectively, as the majority suggests we
should do, MSHA does not reference its “main impetus”—the sixteen accidents—in
its explanation of the new standards. And, as explained above, a review of the
investigation reports only reveals mine operators’ failures to comply with the
existing working place standards or other regulations concerning ground conditions.
Even if each standard is “just one interlocking part of the overall improvement of
the safety standard” and should be reviewed together, see Maj. Op. at 28, MSHA
has not articulated a satisfactory explanation for the Final Rule based on the evidence
the agency has offered in support of the new standards.
Based on the rulemaking record before this Court, MSHA’s offered
explanation for the standards in the Final Rule—its “experience”—runs counter to
the evidence before the agency. See Motor Vehicle Mfrs., 463 U.S. at 43. Indeed,
the evidence in the record consists of accidents caused by mine operators failing to
comply with the existing working place standards (e.g., by failing to correct known
adverse conditions or by failing to conduct working place examinations at all for
multiple shifts), not accidents occurring despite those operators’ faithful compliance
with the existing standards. If such accidents do exist, then MSHA should have
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included them in the rulemaking record for this Court’s review and offered some
form of explanation as to how those accidents informed its decision. MSHA,
however, did not include such accident reports in the record and thus has not
provided any support for its experience-based rationale for the Final Rule.
Furthermore, MSHA did not explain in the Final Rule how any of those accidents
included in the record may have been prevented or mitigated by the new
requirements. Without any such explanation, there is no rational connection
between the evidence in the record (mine operators failing to correct known adverse
conditions that lead to accidents) and MSHA’s chosen action in addressing those
accidents (new timing, notification, and recordkeeping requirements that, based on
the rulemaking record and MSHA’s lack of explanation, would not have prevented
the referenced accidents). Id.
III. CONCLUSION
While this Court’s review of agency action is highly deferential, that
deference is not absolute. An agency cannot simply assert its “experience” in a
conclusory manner as a basis for its action to satisfy arbitrary and capricious review.
Instead, the agency must explain what that experience is, how that experience
informed its decision, and should include documentation of that experience in the
rulemaking record so that a reviewing court can determine if the action is facially
rational. See International Union, 626 F.3d at 94; Ryder Truck Lines, 716 F.2d at
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1385. And, where an agency’s action does not have a rational connection to the facts
found, the agency’s action is unlawful as arbitrary and capricious.
Here, MSHA failed to adequately explain or support, with documentation in
the record, its experience and failed to show a rational connection between the facts
found in the record and the standards it chose to promulgate in the Final Rule.
Because I conclude the Final Rule promulgated by MSHA is arbitrary and capricious
and should be vacated, I respectfully dissent.
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