Elaine L. CHAO, Secretary of Labor; United States Department of Labor v. Randy ROTHERMEL, Jr.; Cindy Rothermel; D & F Deep Mine Coal Company Randy Rothermel, Jr. and Cindy Rothermel, individually and d/b/a D & F Deep Mine Coal Company, Appellants.
No. 02-2721.
United States Court of Appeals, Third Circuit.
Argued Jan. 22, 2003. May 2, 2003.
223
The judgment of the District Court will be affirmed.
Jack Powasnik, (Argued), United States Department of Labor, Office of the Solicitor, Arlington, VA, for Appellees.
Before BECKER, Chief Judge, NYGAARD and AMBRO, Circuit Judges.
NYGAARD, Circuit Judge.
I.
Appellants Randy Rothermel, Jr. and Cindy Rothermel own and operate the D & F Deep Mine Coal Company, an anthracite coal mine in Schuylkill County, Pennsylvania. After Randy Rothermel prevented a Mine Safety and Health Administration (MSHA) inspector from conducting respirable dust sampling, the District Court issued a temporary restraining order and a prеliminary injunction prohibiting Rothermel from interfering with the MSHA in carrying out the provisions of the Federal Mine Safety and Health Act of 1977 (“the Mine Act“),
II.
Appellants’ first contention, that the MSHA‘s conducting bi-monthly respirable dust samplings under the Guidelines is “unsupported by legal authority,” is far from the truth. Section 103(a) gives the government ample authority. In Consolidation Coal Co. v. Federal Mine Safety and Health Review Comm‘n, we explicitly interpreted § 103 of the Act, and specifically the “expansive language” of § 103(a). 740 F.2d 271, 272-73 (3d Cir.1984).1 We stated that,
[a]s part of the overall plan, section 103 of the Act provides that the Secretary should make frequent inspections each year for the purpose of:
“(1) obtaining, utilizing, and disseminating information relating to health and safety conditions, the causes of accidents, and the causes of diseases and physical impairments originating in such mines;”
(2) gathering information with respect to mandatory health or safety standards;
(3) determining whether an imminent danger exists; and
(4) determining whether there is compliance with the mandatory health or safety standards.”
30 U.S.C. § 813(a) .
Id. We further explained:
[A]lthough subsection 103(a) mandates only the “regular” inspection, it also directs the Secretary to develop “guidelines for additional inspections.” In addition to the subjects to be covered by
the mandatory regular inspections, the Secretary is required to make frequent inspections to obtain information about “health and safety conditions,” as well as “mandatory health or safety standards.”
Id. at 273. We explicitly held in Consolidation Coal that “spot inspections of the type challenged here are authorized by and made ‘pursuant to subsection 103(a).’ The narrow reading urged by the company is inconsistent with the declared intent of Congress to promote safety in the mines and encourage miner participation in that effort.” Id.
Here, we continue to read
Appellants nеxt argue that § 202 only allows “mine operators” - not the MSHA - to conduct dust samplings. Appellants assert that the MSHA‘s authority is limited to inspections for “obtaining compliance” where a mine operator is no longer complying with the standards in the Mine Act and the regulations. Brief for Appellants at 7. We disаgree.
Section 202(g) states: “The Secretary shall cause to be made such frequent spot inspections as he deems appropriate of the active workings of coal mines for the purpose of obtaining compliance with the provisions of [Title II].”
According to this argument, since the mine never fell out of compliance, the MSHA would not have the authority to “obtain” compliance. This is semantic nonsense. Appellants’ argument goes nowhere for several reasons. First, the language of
Appellants also argue that § 103(e) precludes these inspections because the MSHA cannot develop guidelines “duplicative” of those already provided. Brief for Appеllants at 8. Section 103(e) states:
Any information obtained by the Secretary ... under this chapter shall be obtained in such a manner as not to impose an unreasonable burden upon operators, especially those operating small businesses.... Unnecessary duplication of effort in obtаining information shall be reduced to the maximum extent possible.
Appellants’ own dust sampling gives only the operator‘s recording of the dust levels to which miners are exposed. The MSHA‘s inspections serve as a check against inaccurate or unreliable sampling by the mine operators. The MSHA‘s inspections also determine whether othеr areas need to be monitored by the operator.
Appellants next contend that the guidelines at issue in this case “are invalid because they were not properly promulgated by publication in The Federal Register.” Brief for Appellants at 8. At the close of the preliminary injunction hearing, the District Court found the Guidelines did not require publication because they “do not alter or affect the existing respirable dust standards, and they do not place additional substantive burdens on mine operators to comply with those standards.” Dist. Court. memorandum, p.6. The issue is therefore whether these Guidelines are exempt from the requirement of notice-аnd-comment rulemaking.
“Legislative” rules that impose new duties upon the regulated party have the force and effect of law and must be promulgated in accordance with the proper procedures under the Administrative Procedures Act (APA). Beazer East, Inc. v. EPA, 963 F.2d 603, 606 (3d Cir.1992). The APA requires also that general notice of the proposed regulation be published in the Federal Register and interested persons be given an opportunity to comment on the proposed rule. Id. “Interpretive” rules, on the other hand, seek only to interpret language already in properly issued regulations. Id. If the agency is not adding or amending language to the regulation, the rules are interpretive. Id. Interpretive, or “procedural,” rules do not themselves shift the rights or interests of the parties, although they may change the way in which the parties present themselves to the agency. Chamber of Commerce of the United States v. U.S. Dep‘t of Labor, 174 F.3d 206, 211 (D.C.Cir.1999). Interpretive or procedural rules and statements of policy are exempted from the notice and comment requirement.
The Coal Mine Health Inspection Procedures Handbook sets forth inspection procedures developed by the MSHA under
If the Guidelines have a substantive adverse impact on the challenging party, they are “legislative.” FLRA v. U.S. Dep‘t of the Navy, 966 F.2d 747, 763 (3d Cir.1992). Here, however, there is no such
In addition, the Guidelines are not intended to be used by anyone other than agency employees. In Gatter v. Veteran‘s Administration, one of the elements we used to determine whether guidelines were “interpretive” was whether they were intended to be used by anyone other than the agency employees. 672 F.2d 343, 347 (3d Cir.1982) (holding agency‘s internal manuals to be non-substantive rules). Therefore, this weighs in favor of the Guidelines as “interpretive.”
The Government argues that the fact that Congress used the word “guidelines” provides evidencе that Congress did not intend to require notice-and-comment rulemaking. It is true that, by using the term “guidelines,” Congress did not mandate notice-and-comment rulemaking, as we might have concluded it had done had it directed the Secretary to issue regulations or promulgate standards. But by using the word “guidelines,” Congress does not nеcessarily indicate its intent to exempt the agency from notice-and-comment rulemaking requirements. In some instances, guidelines must be promulgated using notice-and-comment rulemaking; in other instances, notice-and-comment rulemaking is not required. Compare
Therefore, because the MSHA‘s respirable dust sampling policy is a rule of agency procedure which does not impose a new substantive burden on mine operators, and was not intended by Congress to comprise new standards or regulations, we hold that the Guidelines are interpretive rules, and thus exempt from the requirements of notice-аnd-comment rulemaking.
We reject Appellants’ final attempt to prevent the MSHA inspectors from entering their mine by concluding that the MSHA satisfied the requirements for a permanent injunction. A court may issue a permanent injunction where the moving party has demonstrated that: (1) the exercise of jurisdiction is appropriate; (2) the moving party has actually succeeded on the merits of its claim; and (3) the “balance of equities” favors granting injunctive relief. Ciba-Geigy Corp. v. Bolar Pharmaceutical Co., 747 F.2d 844 (3d Cir. 1984). Appellants assert that the Government failed to establish the merits underlying its claim or to demonstrate that the equities favored the granting оf an injunction. Appellants lose both of these arguments.
First, as explained above, the Government did show that it has actually succeeded on the merits of its claim. Second, Appellants’ argument that the Government
In fact, none of Appellants’ arguments are germane to the issue of whether the “balance of equities” favors injunctive relief. Rather, the District Court was correct in finding that the balance of equities favored injunctivе relief because not only does the MSHA‘s respirable dust inspections not interfere with Appellants’ activities, but the danger resulting from Appellants’ denial of entry to the MSHA inspectors could be significant. Appellants’ denial of entry to the agency inspectors results in a drain on the agency‘s resources and, more importantly, elevated dust levels would present a danger to miners.
In sum, and for the foregoing reasons, we will affirm.
NYGAARD
CIRCUIT JUDGE