United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 13, 2007 Decided January 11, 2008
No. 07-1026
NATIONAL MINING ASSOCIATION,
PETITIONER
v.
MINE SAFETY AND HEALTH ADMINISTRATION AND
SECRETARY OF LABOR,
RESPONDENTS
UNITED MINE WORKERS OF AMERICA,
INTERVENOR
On Petition for Review of a Final Rule of the
Federal Mine Safety and Health Administration
Daniel W. Wolff argued the cause for petitioner. With him
on the briefs were Thomas C. Means, Edward M. Green, and
Harold P. Quinn, Jr.
Jerald S. Feingold, Attorney, U.S. Department of Labor,
argued the cause for respondent. With him on the brief was W.
Christian Schumann, Counsel, Mine Safety & Health
Administration. Jack Powasnik, Counsel, entered an
appearance.
2
Judith Rivlin and Grant Crandall were on the brief for
intervenor.
Before: SENTELLE, RANDOLPH and KAVANAUGH, Circuit
Judges.
RANDOLPH, Circuit Judge: Two fatal accidents at West
Virginia coal mines in January 2006 prompted the Mine Safety
and Health Administration – MSHA – to adopt emergency
safety measures. See 71 Fed. Reg. 12,252 (Mar. 9, 2006).
MSHA, an agency within the Department of Labor, concluded
that the West Virginia miners might have survived if there had
been portable oxygen devices1 in the escapeways to protect them
from toxic fumes for at least an hour. Acting quickly, MSHA
issued an emergency temporary standard requiring mine
operators to place such rescue devices, one for each miner, in
the primary and emergency escapeways of the mine.2 This
1
These devices, known as self-contained self-rescuers, are
“closed-circuit breathing apparatus[es].” 64 Fed. Reg. 36,632 (Jul. 7,
1999). They operate by feeding fresh oxygen from a reserve tank on
the miner’s back into a breathing bag which is attached to an
inhalation tube and mouthpiece allowing the miner to inhale clean
oxygen. Instruction Manual for OCENCO, Inc. EBA 6.5 60 Minute
Self-Contained Self-Rescuer 4 (Sept. 7, 2001), http://www.msha.
gov/interactivetraining/scsr/ocenco%20eba%2065/lesson05/ocen
co%20eba%2065%20manual.pdf. The miner exhales through the
mouthpiece. The exhaled air is scrubbed to remove CO2 and then
returned to the breathing bag to be mixed with more fresh oxygen. Id.
The closed-circuit nature of these devices prevents toxins present in
the mine from being inhaled by the miner.
2
This requirement kicked in only if the rescue devices located
in the working areas of the mine would be insufficient to permit the
average miner to escape from the mine within thirty minutes. That
limitation, still present in the final rule, 30 C.F.R. § 75.1714-4(c)
3
petition for judicial review, brought by the National Mining
Association, seeks to set aside the final rule that replaced the
temporary standard.
The Mine Act authorizes MSHA to issue the temporary
rules without notice and comment in response to emergencies.
30 U.S.C. § 811(b)(1). In this case, in order to make its
temporary standard permanent, MSHA engaged in notice-and-
comment rulemaking, with the published temporary standard
serving as the proposed rule. 30 U.S.C. § 811(b)(3). The
resulting product – the final emergency mine evacuation rule, 71
Fed. Reg. 71,430 (Dec. 8, 2006) – altered the temporary
standard with respect to rescue devices. See 30 C.F.R.
§ 75.1714-4 (2006). The final rule required either that one
additional device be provided for each miner in each emergency
escapeway or that one additional device be provided in a
“hardened room” cache located between two adjacent
emergency escapeways and accessible from both. Id. § 75.1714-
4(d). A “hardened room” is a reinforced room built to the “same
explosion force criteria as seals” and serviced by an
independent, positive pressure source of ventilation from the
surface. Id. § 75.1714-4(d)(1).
I.
The National Mining Association urges us to set the final
rule aside. One of its objections is that MSHA failed to give
adequate notice of the hardened room option. The objection
rests on § 101(a)(2) of the Mine Act. 30 U.S.C. § 811(a)(2).
This section requires MSHA, in putting out proposed rules for
notice and comment, to publish “the text of such rules proposed
(2006), is not important to our analysis.
4
in their entirety” in the Federal Register. Id.3 Because MSHA
never published the hardened room option in the Federal
Register before issuing the final rule, National Mining concludes
that this aspect of the final rule is invalid.
That the final rule differed from the one MSHA proposed
is hardly unusual. An agency’s final rules are frequently
different from the ones it published as proposals. The reason is
obvious. Agencies often “adjust or abandon their proposals in
light of public comments or internal agency reconsideration.”
Kooritzky v. Reich, 17 F.3d 1509, 1513 (D.C. Cir. 1994).
Whether in such instances the agency should have issued
additional notice and received additional comment on the
revised proposal “depends, according to our precedent, on
whether the final rule is a ‘logical outgrowth’ of the proposed
rule.” Id.; see United Mine Workers of Am. v. MSHA, 407 F.3d
1250, 1259-60 (D.C. Cir. 2005). While we often apply the
doctrine simply by comparing the final rule to the one proposed,
we have also taken into account the comments, statements and
proposals made during the notice-and-comment period. See
Natural Res. Def. Council v. Thomas, 838 F.2d 1224, 1243
(D.C. Cir. 1988); Edison Elec. Inst. v. OSHA, 849 F.2d 611, 621
(D.C. Cir. 1988); United Steelworkers of Am. v. Marshall, 647
F.2d 1189, 1221 (D.C. Cir. 1980); District of Columbia v. Train,
521 F.2d 971, 997 (D.C. Cir. 1975). In South Terminal Corp. v.
EPA, the case that gave birth to the “logical outgrowth”
formulation, the court did the same. 504 F.2d 646, 659 (1st Cir.
3
In this respect § 101(a)(2) is more confining than the
Administrative Procedure Act, which allows agencies to give notice
of “either the terms or substance of the proposed rule or a description
of the subjects and issues involved.” 5 U.S.C. § 553(b)(3). Even so,
today “most agencies publish the text of the proposed rule when
commencing rulemaking.” Jeffrey S. Lubbers, A Guide to Federal
Agency Rulemaking 183 (3d ed. 1998).
5
1974). The court held that the final rule was “a logical
outgrowth” – not simply of the proposed rule – but “of the
hearing and related procedures” during the notice and comment
period. Id.
Here MSHA’s proposed rule – the emergency temporary
standard – required that a rescue device be provided for each
miner in both the primary and the alternative escapeways. That
proposal left open several questions. Where in the escapeways
should the devices be stored? How should they be made
available to the miners? When the two escapeways are close
together, will it suffice to have one common cache of devices
rather than two separate caches? Given these considerations,
interested persons must have been alerted to the possibility of a
hardened room option. And the record shows that they were so
alerted. Mine operators inquired about the potential of using a
common cache of rescue devices located between adjacent
emergency escapeways. They submitted questions to MSHA
about whether such a common cache would suffice. Four public
meetings were held as part of the rulemaking. At each, the
MSHA official’s opening statement addressed the possibility of
a hardened room alternative directly and sought comments from
interested parties. A representative of the National Mining
Association attended the Washington, D.C., meeting and
indicated that his organization would respond to the opening
statement by the end of the comment period. The Mining
Association never submitted comments, but several interested
parties did – including several of the Mining Association’s
members. MSHA later extended the comment period by thirty
days so that “interested parties could adequately address issues
contained in MSHA’s opening statements.” 71 Fed. Reg. 29,785
(May 24, 2006).
The hardened room option was thus a logical outgrowth of
the proposed rule, or put differently, the Mining Association had
6
adequate notice. Even if we were less than certain about this
conclusion, the actual notice the Mining Association received
would have cured any inadequacy. See 5 U.S.C. § 553(b); Small
Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506,
549 (D.C. Cir. 1983); Sierra Club v. Costle, 657 F.2d 298, 355,
360, 398-99 (D.C. Cir. 1981); Owensboro on the Air, Inc. v.
United States, 262 F.2d 702, 707-08 (D.C. Cir. 1958); Phillip M.
Kannan, The Logical Outgrowth Doctrine in Rulemaking, 48
ADMIN. L. REV. 213, 221 (1996).
II.
Between the time MSHA issued its temporary standard and
the time it promulgated its final rule, the Mine Improvement and
New Emergency Response Act of 2006, Pub. L. No. 109-236,
120 Stat. 493 (2006) (MINER Act), became law. The Mining
Association claims that the MINER Act precluded MSHA from
promulgating the hardened room option. It is unnecessary to
recite in detail the Association’s arguments.4 It raised none of
them before MSHA, although it had ample opportunity to do so
between the time Congress passed the MINER Act in June 2006
and December 2006 when MSHA issued the final rule. In
common with many regulatory statutes, the Mine Act states that
“no objection that has not been urged before the Secretary shall
be considered by the court, unless the failure or neglect to urge
such an objection shall be excused for good cause shown.” 30
U.S.C. § 811(d). The Mining Association contends that the
comments of several other parties mentioning the MINER Act
preserved its objections. We think not. None of those
comments came close to setting forth with any specificity the
objections the Mining Association now makes regarding the
4
Its statutory interpretation relies on a Senate Committee
Report published six months after the passage of the MINER Act. S.
Rep. No. 109-365 (2006).
7
MINER Act. See Nat’l Mining Ass’n. v. MSHA, 116 F.3d 520,
532 (D.C. Cir. 1997). We therefore will not consider the Mining
Association’s arguments about the impact of the MINER Act on
MSHA’s final rule.
III.
The Mining Association alleges that the hardened room
option – as opposed to an option allowing a common cache with
less stringent safeguards – is arbitrary and capricious because
MSHA did not sufficiently explain its decision.
The Mine Act incorporates the rulemaking requirements of
the APA. 30 U.S.C. § 811(a); United Mine Workers of Am. v.
Dole, 870 F.2d 662, 666 (D.C. Cir. 1989). Under the APA, an
agency must “incorporate in the rules adopted a concise general
statement of their basis and purpose.” 5 U.S.C. § 553(c). This
requirement is not meant to be particularly onerous. See Public
Citizen, Inc. v. FAA, 988 F.2d 186, 197 (D.C. Cir. 1993). It is
enough if the agency’s statement identifies the major policy
issues raised in the rulemaking and coherently explains why the
agency resolved the issues as it did. See U.S. Telecom Ass’n v.
FCC, 227 F.3d 450, 460 (D.C. Cir. 2000); United Mine Workers
of Am. v. Dole, 870 F.2d at 666; Indep. U.S. Tanker Owners
Comm. v. Dole, 809 F.2d 847, 852 (D.C. Cir. 1987). MSHA’s
statement did just that.
As to the hardened room option, the main controversy was
about whether less stringent common storage measures could be
used instead.5 The claim was that these less stringent
5
Several other options were suggested, including a
requirement that non-combustible stoppings be used at each end of the
common cache, a requirement that steel boxes be placed in the wall
accessible from both escapeways, a requirement that the cross-cut
8
requirements would provide incremental safety benefits over
placing the rescue devices in the escapeways and that the
options would be cheaper than the hardened room alternative,
making common caches feasible for more mines.
MSHA referred to those comments in the preamble to its
final rule. 71 Fed. Reg. 71,7430, 71,444 (Dec. 8, 2006). It
explained that its primary concern with approving a common
cache of devices was that the cache needed to be “secured
against damage from explosions in either escapeway.” Id.
Underlying MSHA’s analysis is the apparent belief that the
redundancy provided by having separate sets of devices results
in an increased likelihood that at least one set would survive an
explosion. Thus, in order to justify collapsing the two sets into
one, additional steps are required to ensure that an explosion
would not destroy the devices in a common cache. Hardened
rooms achieve this end because they are built to more rigorous
specifications. Id. While other options might be cheaper, the
hardened room meets the primary concern MSHA identified.
Though MSHA’s explanation of its decision is short, it
adequately addresses the major policy concerns raised and
demonstrates a course of reasoned decisionmaking. The final
rule, including the hardened room option, is not arbitrary and
capricious.
IV.
The Mining Association argues that MSHA failed to
comply with the Regulatory Flexibility Act, 5 U.S.C. §§ 601-12,
because it did not analyze the economic impact of the hardened
rooms be made out of concrete and use heavy steel doors, and a
requirement that airlocks between the escapeways be utilized to house
the rescue devices.
9
room option. When promulgating a rule, an agency must
perform an analysis of the impact of the rule on small
businesses, or certify, with support, that the regulation will not
have a significant economic impact on them. 5 U.S.C.
§§ 603(a), 604(a), 605(b). When it published the temporary
standard, MSHA certified that the primary method of
compliance – placing a separate set of rescue devices in each
emergency escapeway – would not have a significant economic
impact on small businesses. 71 Fed. Reg. 12,252, 12,266-67
(Mar. 9, 2006). The Mining Association does not challenge the
sufficiency of that certification. Since the primary method of
compliance did not create a significant economic burden on
small businesses, there was no reason for MSHA to undertake
an economic analysis of the alternative. If the hardened room
option is considerably more expensive, small businesses can
simply refuse to choose it. Compare Envtl. Def. Ctr., Inc. v.
EPA, 344 F.3d 832, 879 (9th Cir. 2003) (noting that the creation
of cheaper alternative methods of compliance is one way to
minimize the impact on small businesses).
For the foregoing reasons, the petition for review is denied.
So ordered.