[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Dec. 15, 2009
No. 08-14309 THOMAS K. KAHN
________________________ CLERK
Agency No. 108-V-03
NATIONAL MINING ASSOCIATION,
ALABAMA COAL ASSOCIATION,
Petitioners,
versus
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH ADMINISTRATION,
Respondents.
________________________
Petition for Review of a Decision of the
Federal Mine Safety & Health Administration
_________________________
Before DUBINA, Chief Judge, BIRCH and SILER,* Circuit Judges.
BIRCH, Circuit Judge:
*
Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting
by designation.
The National Mining Association and Alabama Coal Association (together
“NMA”) dispute Procedure Instruction Letter I08-V-03 (“PIL”) promulgated by
the Secretary of Labor’s Mine Safety and Health Administration (“MSHA”).
NMA challenges the PIL on substantive and procedural grounds. After careful
review, we find the PIL to be a general statement of policy and DISMISS for lack
of subject-matter jurisdiction.
I. BACKGROUND
The Federal Coal Mine Health and Safety Act of 1969, redesignated the
Federal Mine Safety and Health Act of 1977 (“Mine Act”), governs and regulates
coal mines throughout the United States. See 30 U.S.C. § 801(g). The Mine Act
itself established certain “interim” mandatory health and safety standards, but also
authorized MSHA, originally through its predecessor, the Bureau of Mines, to
promulgate new or revised standards. See id. §§ 801(g)(1), 811(a), 841(a); Nat’l
Mining Ass’n v. Sec’y of Labor, 153 F.3d 1264, 1266 (11th Cir. 1998).
Since the Mine Act, MSHA has promulgated mandatory health standards
governing the exposure of coal miners to respirable dust in underground coal
mines as part of its mandatory health standards for underground mines. See 30
C.F.R. 70.100. MSHA regulations require mine operators to conform operations to
certain standards, such as “maintain[ing] the average concentration of respirable
dust in the mine atmosphere . . . at or below 2.0 milligrams of respirable dust per
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cubic meter of air” and “maintain[ing] the average concentration of respirable dust
within 200 feet outby the working faces of each section in the intake airways at or
below 1.0 milligrams of respirable dust.” Id. at § 70.100(a),(b). The regulations
further require mine operators to take respirable dust samples and to develop and
follow a ventilation plan approved by the district manager. Id. at §§ 70.207(a),
75.370; see also United Mine Workers of Am., Int’l Union v. Dole, 870 F.2d 662,
667-68 (D.C. Cir. 1989) (describing how federal regulations require mine operators
to develop plans to address specific safety issues like roof control and ventilation
and explaining that the specific content of any individual mine plan is determined
through consultation between the mine operator and district manager and may
incorporate requirements to supplement or supplant standards set out in the
enumerated criteria so long as these alternative requirements protect miners at least
as much as the enumerated criteria).
During the course of coal mining, mine operators penetrate (dig) into the
earth, support the underground shafts (penetrated holes) through permanent roof
supports, and extract coal from the point of deepest penetration known as the
“working face” of the mine. When the working face extends beyond the last row
of permanent roof supports by more than twenty feet, the operator is said to be
making an “extended cut.” PIL No. I08-V-03 at 1 (“An extended cut (deep cut) is
defined as any cut in which the on-board manual controls of the continuous mining
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machine are advanced inby the last row of permanent roof supports . . . more than
20 feet . . .”). Although not specifically addressed by codified regulations, the
extended cut practice does relate to two highly regulated areas of coal mining:
ventilation and roof control.
Current regulations require ventilation control devices be installed at a
distance no more than ten feet from the working face unless MSHA (through a
district manager) approves a greater distance in the ventilation plan. See 30 C.F.R.
§§ 75.330(b)(2). Regulations also require roof supports within so many feet of the
working face unless district managers approve greater distances in roof control
plans. See id. §§ 75.202-75.220 (prescribing distance requirements for temporary
and permanent roof supports and procedures for roof control plan submission and
approval). In practice, after evaluating a particular mine, district managers
regularly approve working face distances that exceed those specified in the
regulations to accommodate the needs of mine operators.
To help MSHA enforcement personnel, like district managers, with uniform
regulation practices, the Administrator for Coal Mine Safety and Health
periodically issues Procedure Instruction and Program Policy Letters. See United
States Department of Labor Mine Safety & Health Administration, Frequently
Asked Questions: What is a PIL? (Nov. 30 2009), available at
http://www.msha.gov/faq/faqhome.htm. These letters “state agency policy,
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meaning an interpretation or clarification of a regulation . . . [and] are intended for
the mining community as well as MSHA enforcement personnel.” Id. The PIL at
issue in this case states that its purpose is to give “direction” to MSHA
enforcement officials (district managers) for evaluating and approving extended
cut plans. PIL No. I08-V-03 at 1. It states further:
These procedures provide a systematic approach for evaluating new
extended-cut approval requests. An on-site evaluation will be made to
assess the adequacy of a proposed plan to determine if extended cuts
can be made without adversely affecting the health and safety of
miners . . . District managers are strongly encouraged to consider
whether approval of an extended cut plan is appropriate if MSHA
collected respirable dust samples indicate a dust concentration of
greater than the applicable standard or quartz concentration that
exceeds 100 ug/m3.”
Id. at 2, 6. In short, the PIL describes a standard policy procedure, and standard
factors – with objective measurement ranges – for district managers to consider
when they evaluate a mine operator’s extended cut plan. NMA argues that the new
standards described in the PIL function as a de facto mandatory standard
promulgated without adherence to the procedural notice and comment
requirements of the Mine Act and the Administrative Procedures Act (“APA”), 5
U.S.C. § 551 et seq.
II. DISCUSSION
The Mine Act authorizes MSHA to promulgate new or revised “improved”
standards, as appropriate, in accordance with the rulemaking procedures of the
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APA as well as the specific rulemaking procedures of the Mine Act itself. See 30
U.S.C. §§ 811(a), 841(a). When MSHA promulgates a new or revised mandatory
standard, it is obligated to publish the proposed rule in its entirety in the Federal
Register, give the public and the regulated community an opportunity to comment
and raise objections, and hold a public hearing on any objections to the standard if
one is requested. See id. at § 811(a)(2), (3). The courts of appeals have exclusive
jurisdiction over challenges to the validity of a mandatory standard. See id. at §
811(d).
The PIL in question here was issued directly as a letter from the
Administrator for Coal Mine Safety and Health. MSHA admits that the letter did
not go through formal notice and comment procedures. Therefore, if the PIL is
found to be a mandatory standard, MSHA would have violated the APA and Mine
Act by not following the prescribed notice and comment requirements.
Conversely, if the PIL is not a mandatory standard, but instead a general statement
of policy, we would lack subject-matter jurisdiction to hear any challenge.
We have previously delineated the difference between a legislative rule, to
which notice and comment requirements apply, and a general statement of policy,
to which they do not:
Generally, whether a particular agency proceeding announces a rule or
a general policy statement depends upon whether the agency action
establishes a binding norm. The key inquiry, therefore, is the extent
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to which the challenged policy leaves the agency free to exercise its
discretion to follow or not to follow that general policy in an
individual case, or on the other hand, whether the policy so fills out
the statutory scheme that upon application one need only determine
whether a given case is within the rule’s criterion. As long as the
agency remains free to consider the individual facts in the various
cases that arise, then the agency in question has not established a
binding norm.
Ryder Truck Lines, Inc. v. United States, 716 F.2d 1369, 1377 (11th Cir. 1983)
(quotation marks and internal citations omitted). Additionally, in determining
whether an agency has issued a binding norm or a policy statement, courts have
looked at: (1) the agency’s expressed intentions as reflected by its characterization
of the statement, (2) whether the statement was published in the Federal Register or
the Code of Federal Regulations, and (3) whether the action has binding effects on
private parties. Center for Auto Safety v. Nat’l Highway Traffic Safety Admin.,
452 F.3d 798, 806 (D.C. Cir. 2006).
NMA cites Nat’l Mining Ass’n, 153 F.3d at 1266 for the conclusion “that if
MSHA intends to change the existing mandatory respirable dust program, it must
do so by . . . notice and comment rule making.” Petr.’s Resp. to Juris. Ques. 14. In
that case, however, there was no dispute that MSHA had already engaged in
rulemaking per se. Rather, the central question was whether that rulemaking was
procedurally sound. Nat’l Mining Ass’n, 153 F.3d at 1267-69. While the court did
speak to procedures changing dust sampling measurements as requiring notice and
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comment rulemaking, the court’s language was in the context of new formal
procedures published in Federal Register notices controlling every coal mine air
sampling procedure. Id. at 1266-68. The novel concern in the procedures
described in that case were more technologically advanced and accurate air
sampling equipment necessitating fewer air samples be taken for every air
sampling procedure involved in coal mines. Id. In contrast, the PIL procedures at
issue in this case only speak to air sampling in the context of extended cut plans – a
territory far narrower than a broad published rule regarding every coal mine air
sample taken. See PIL No. I08-V-03 at 1.
The distinguishing issue in this case is that the PIL relates only to extended
cut plans, which are by their very nature an exception to the general federal
regulations in place. Current regulations require mine operators to take mine shaft
infrastructure measures within a few feet of the working face. See, e.g., 30 C.F.R.
§ 75.330(b)(2) (requiring ventilation devices within ten feet of the working face).
The exception to this rule is that district managers may, on a case-by-case basis,
approve ventilation plans that exempt mine operators from the normally-required
infrastructure measures. Id. Accordingly, the PIL adjustments to the case-by-case
extended cut regulation exceptions are by their very nature contingent on the
“individual facts in the various cases that arise” and thus not “a binding norm.”
Ryder Truck Lines, Inc., 716 F.2d at 1377.
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Moreover, supporting the conclusion that the PIL is merely a general
statement of policy one need only look at the advisory and permissive language of
the PIL itself. When MSHA speaks in rule-making form, it speaks directly.
See, e.g., 30 C.F.R. 70.100(b) (“Each operator shall continuously maintain . . .
respirable dust within 200 feet outby the working faces . . . at or below 1.0
milligrams of respirable dust per cubic meter of air . . .”) (emphasis added). The
PIL, on the other hand, states general considerations, such as, “[d]istrict managers
are strongly encouraged to consider whether approval of an extended cut plan is
appropriate.” PIL No. I08-V-03 at 6 (emphasis added). The PIL also states that
certain information, like mine history, cut sequence limitations, and what is
included in a ventilation plan, “should” be considered. Id. at 1-7. By its terms, the
PIL thus addresses the general procedures district managers are to consider when
evaluating a discretionary extended cut plan. The agency, through district
managers, is therefore “free to consider the individual facts” when evaluating each
specific mine. Ryder Truck Lines, Inc., 716 F.2d at 1377.
In summary, mine operators are required to follow certain operating
procedures. Within practice, however, district managers can – and regularly do –
grant exceptions so that operators can make extended cuts. To create more
uniformity during the course of granting these exceptions, MSHA – through the
PIL – issued a general policy procedure for district mangers to follow. NMA
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challenged this procedure arguing that it creates new across-the-board rules for
mine operators to follow. This is not the case. Operators have been given a
proverbial “inch” with discretionary grants by district managers. Now that MSHA
has attempted to create a more uniform policy with the exceptions to the rules,
mine operators, through NMA, attempt to take a proverbial “mile” by limiting the
discretion of district mangers. Given that the whole context of the PIL is in a
subject area controlled by individual case-by-case discretion, the PIL is by its very
nature not a binding rule.
III. CONCLUSION
NMA challenges PIL I08-V-03 as being a de facto mandatory standard
promulgated without the procedural notice and comment requirements of the Mine
Act and APA. As we have explained, we find the PIL to be a general statement of
policy. Accordingly, we DISMISS for lack of subject-matter jurisdiction.
DISMISSED.
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