UNITED STEEL, PAPER AND FORESTRY, RUBBER, MANUFACTURING, ENERGY, ALLIED INDUSTRIAL AND SERVICE WORKERS INTERNATIONAL UNION, AFL-CIO-CLC AND UNITED MINE WORKERS OF AMERICA INTERNATIONAL UNION, PETITIONERS v. MINE SAFETY AND HEALTH ADMINISTRATION AND R. ALEXANDER ACOSTA, SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR, RESPONDENTS
No. 18-1116
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 12, 2019 Decided June 11, 2019
On Petition for Review of a Final Rule of the Mine Safety & Health Administration
Laura Karr argued the cause for the petitioner United Mine Workers. Susan J. Eckert argued the cause for the petitioner United Steelworkers. Joseph M. Santarella, Jr. and Andrew D. Roth were with them on brief.
Emily Toler Scott, Attorney, Mine Safety & Health Administration, argued the cause for the respondents. Ali A. Beydoun, Counsel, Appellate Litigation, was with her on brief.
Before: HENDERSON, ROGERS and KATSAS, Circuit Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
Opinion concurring in part and dissenting in part filed by Circuit Judge KATSAS.
I. BACKGROUND
The Federal Mine Safety and Health Act of 1977, Pub. L. No. 91-173, 83 Stat. 742 (codified as amended at
MSHA has for decades required examinations of mine workplaces and imposed recordkeeping requirements on mine operators. From 1979 to 2017, MSHA required “[a] competent person designated by the
In 2017, MSHA decided to impose more stringent requirements. Examinations of Working Places in Metal and Nonmetal Mines, 82 Fed. Reg. at 7680–81. It adopted a new standard for workplace examinations: “[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.”
In April 2018, MSHA promulgated a final rule amending the requirements of the 2017 Standard. Examinations of Working Places in Metal and Nonmetal Mines, 83 Fed. Reg. at 15,055 (2018 Amendment). Under the 2018 Amendment, a competent person must “examine each working place at least once each shift before work begins or as miners begin work in that place[] for conditions that may adversely affect safety or health.”
Petitioners the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO/CLC, and the United Mine Workers of America International Union filed a timely petition for review of the 2018 Amendment. They claim that the 2018 Amendment violates both the Mine Act‘s no-less-protection standard,
II. ANALYSIS
The Mine Act requires MSHA to “state the basis for its conclusion” that a new health or safety standard satisfies the
A. EXAMINATION REQUIREMENT
The petitioners first claim that MSHA failed to explain adequately how the 2018 Amendment‘s examination requirement complies with the no-less-protection standard. As noted, the 2017 Standard required examinations to occur before miners begin work in an area.
The problem with this explanation is that the 2018 Amendment does not allow for notification before exposure. Its notification provisions state: “[t]he operator shall promptly notify miners in any affected areas of any conditions found that may adversely affect safety or health” and “[c]onditions noted by the person conducting the examination that may present an imminent danger shall be brought to the immediate attention of the operator.”
The explanation is arbitrary and capricious for a second reason: it cannot be reconciled with factual findings that MSHA made in support of the 2017 Standard. An agency is generally free to change positions so long as it can “show that there are good reasons for the new policy,” not “that the reasons for the new policy are better than the reasons for the old one.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009). This flexibility has limits. If the “new policy rests upon factual findings that contradict those which underlay its prior policy,” the agency must offer “a reasoned explanation . . . for disregarding facts and circumstances that underlay the prior policy.” Id. at 515–16. In promulgating the 2017 Standard, MSHA found that “[i]f the examination is performed after miners begin work, miners may be exposed to conditions that may adversely affect their safety and health.” Examinations of Working Places in Metal and Nonmetal Mines, 82 Fed. Reg. at 7689. For that reason, MSHA explained, the 2017 Standard “requires that a competent person conduct an examination before work begins so that conditions that may adversely affect miners’ safety and health are identified before they begin work and are potentially exposed.”
There is another unexplained departure. From 1979 to 2017, MSHA‘s safety standard allowed operators to conduct an examination anytime during a shift. See
B. RECORDKEEPING REQUIREMENT
The petitioners next argue that MSHA failed to provide a reasoned explanation why the recordkeeping requirement of the 2018 Amendment satisfies the no-less-protection standard. In the preamble to the 2017 Standard, MSHA determined that “recording all adverse conditions, even those that are corrected immediately, will be useful as a means of identifying trends,” which “should help inform mine management regarding areas or subjects that may benefit from increased safety emphasis.” See Examinations of Working Places in Metal and Nonmetal Mines, 82 Fed. Reg. at 7686 (emphasis added). MSHA acknowledged this determination in the preamble to the 2018 Amendment. Examinations of Working Places in Metal and Nonmetal Mines, 83 Fed. Reg. at 15,059. It nonetheless concluded that “a recording exception for adverse conditions that are corrected promptly,” like the one created by the 2018 Amendment, “will yield as much or more in safety benefits, because it encourages prompt correction of adverse conditions.”
MSHA‘s unsupported explanation does not withstand scrutiny. An agency must “articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.‘” State Farm Mut. Auto. Ins. Co., 463 U.S. at 43 (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)). MSHA recognized that the recordkeeping requirements of both the 2017 Standard and the 2018 Amendment provide safety benefits. Examinations of Working Places in Metal and Nonmetal Mines, 83 Fed. Reg. at 15,059. Under the no-less-protection standard, then, MSHA‘s burden was to explain why the benefits of the 2018 Amendment equal or exceed those of the 2017 Standard. See
In addition, the dissent claims that, because MSHA‘s thin explanation for its compliance with the no-less-protection standard in National Mining Association survived judicial review, MSHA‘s even thinner explanation here must do so as well. Dissent at 4–5. Our colleague overlooks two crucial points. First, the National Mining Association petitioners did not challenge the adequacy of MSHA‘s explanation for its compliance with the no-less-protection standard and therefore we did not decide whether that explanation would survive arbitrary and capriciousness review. See Nat‘l Mining Ass‘n, 116 F.3d at 535–49. Any inferences the dissent divines from National Mining Association regarding this issue are therefore dicta. Second, National Mining Association upheld many aspects of the challenged regulation, including those recited by the dissent, see Dissent at 4–5, based on the petitioners’ failure to provide evidence contradicting MSHA‘s findings or persuasive reasons for doubting its determinations. See, e.g., Nat‘l Mining Ass‘n, 116 F.3d at 539 (“The Union does not offer any evidence to dispute the Secretary‘s position.“);
In sum, MSHA failed to offer a reasoned explanation why the examination and recordkeeping requirements of the 2018 Amendment satisfy the no-less-protection standard. The 2018 Amendment is therefore ultra vires and unenforceable. See
The complicated procedural history of this case raises a question about what standard governs after vacatur. See supra at 4. We agree with the parties that vacatur of the 2018 Amendment automatically resurrects the 2017 Standard. The 2018 Amendment modifies the terms of the 2017 Standard and so vacatur of the 2018 Amendment simply undoes those modifications. Examinations of Working Places in Metal and Nonmetal Mines, 83 Fed. Reg. at 15,056 (2018 Amendment “makes changes to” Code of Federal Regulations provisions “as amended by the Agency‘s final rule on examinations of working places that was published on January 23, 2017“). To avoid any confusion, we order MSHA to reinstate the 2017 Standard upon issuance of the mandate attendant on this opinion.
For the foregoing reasons, we vacate the 2018 Amendment and order the 2017 Standard reinstated.
So ordered.
KATSAS, Circuit Judge, concurring in part and dissenting in part: The Mine Safety and Health Administration promulgated a regulation requiring mine operators to (1) “examine each working place at least once each shift before miners begin work in that place” and (2) prepare a “record” describing “each condition found that may adversely affect the safety or health of miners.” Examinations of Working Places in Metal and Nonmetal Mines, 82 Fed. Reg. 7680, 7695 (Jan. 23,
The Federal Mine Safety and Health Act of 1977 contains what has been described as a no-less-protection rule: “No mandatory health or safety standard promulgated under this subchapter shall reduce the protection afforded miners by an existing mandatory health or safety standard.”
I agree with my colleagues that, even under this deferential standard of review, MSHA failed to justify the amendment to the examination requirement. MSHA asserted that miners “will be notified” of adverse conditions “before they are potentially exposed,” regardless of whether the examination is conducted before or as they begin work. Mine Examinations II, 83 Fed. Reg. at 15,058. But the regulation itself requires only that operators “promptly notify” miners of adverse “conditions found.”
In this Court, MSHA advanced more developed and more plausible justifications for the amendment. Perhaps it would be safe to conduct the examination as work begins, if the inspector is always “just ahead” of the miners and warns them of hazards “in real time.” Respondents’ Br. at 14. Perhaps this would even improve safety, by minimizing “the risk that conditions will be so changed” between the examination and the beginning of work.
Unlike my colleagues, I would uphold the amendment limiting the recording requirement to hazards that are not promptly corrected. MSHA‘s analysis of this amendment balanced three competing safety considerations. First, MSHA recognized that “recording all adverse conditions, even those that are corrected
My colleagues object that the record lacks “any comparative analysis.” Ante at 11. But MSHA did compare the competing safety considerations. It concluded that the amended recording rule would produce “as much or more in safety benefits” by heightening incentives to correct hazards promptly, and that decluttering examination records would provide further safety benefits. Mine Examinations II, 83 Fed. Reg. at 15,059. My colleagues respond that MSHA‘s safety assessment was too “conclusory.” Ante at 12. National Mining indicates otherwise. There, we upheld various amendments to mine-safety regulations challenged as inconsistent with the no- less-protection rule. In four instances, MSHA‘s explanation was not materially different from the one at issue here.
First, we upheld an amendment permitting the use of electricity for vehicles to evacuate miners if a ventilation fan shuts down. Commenters objected that electricity would be dangerous in that circumstance, but MSHA asserted without elaboration that the amendment would facilitate evacuations. See Safety Standards for Underground Coal Mine Ventilation, 61 Fed. Reg. 9764, 9772 (Mar. 11, 1996) (Ventilation Standards). We accepted the assertion and thought ourselves “required to defer to the agency.” 116 F.3d at 537. We explained: “In this case, the agency has determined that the safety benefit gained by rapid evacuation of miners outweighs the risk of ignition. We are poorly positioned to second-guess the agency on the balancing of these two concerns.”
Second, we upheld an amendment limiting pre-shift inspections to violations of rules presenting an immediate hazard to miners. MSHA asserted that narrowing the inspections would improve safety, because “look[ing] for violations that might become a hazard could distract examiners from their primary duties.” Ventilation Standards, 61 Fed. Reg. at 9793. We accepted the explanation without plumbing the record for more. 116 F.3d at 540.
Third, we upheld an amendment permitting less frequent inspection of fans that use an automated monitoring system. MSHA asserted that the improved technology would “provide greater safety” on balance. Safety Standards for Underground Coal Mine Ventilation, 57 Fed. Reg. 20,868, 20,874 (May 15, 1992). Our response: “Where an evaluation is to be made of the net safety effects of a change in a regulation, the court properly defers to [MSHA‘s] evaluation.” 116 F.3d at 542.
Fourth, we upheld an amendment that narrowed another inspection recording rule to exclude defects “corrected by the end of th[e] shift.”
Given these holdings, we should accept MSHA‘s explanation in this case. The agency correctly understood the governing legal question—whether the amendment reduced health or safety protections for miners. It identified considerations reasonably bearing on that question. And it compared the competing considerations to make an explicit assessment of the “net safety effects of a change in a regulation.” 116 F.3d at 542. As National Mining recognized, we are “poorly positioned to second-guess the agency on the balancing” of the relevant safety risks and benefits.
My colleagues object that the petitioners in National Mining did not challenge “the adequacy of MSHA‘s explanation,” but only the “factual determinations that the new standard provided miners with as much protection as the old standard.” Ante at 12. Our opinion did not suggest that distinction. Rather, it was framed as a review of MSHA‘s explanations: we held that MSHA must “state the basis for its conclusion that the [no-less-protection] rule has been satisfied;” then, we found “[i]n each case . . . no grounds to conclude that the Secretary failed to engage in reasoned decisionmaking.” 116 F.3d at 536. Moreover, there was no reason to distinguish between MSHA‘s explanation and its factfinding. For each challenged regulation, the agency identified safety benefits to the amended rule, acknowledged countervailing costs, and concluded that the benefits outweighed the costs. Those “factual determinations,” as my colleagues describe them, were the agency‘s explanation of why each proposed amendment was consistent with the no-less-protection rule. And as shown above, they were neither different in kind from, nor more fully developed than, the determination made here by MSHA.
My colleagues further contend that MSHA failed to address “its own previous findings” regarding the 2017 recording rule. Ante at 13. But MSHA did address its key prior finding. In 2017, MSHA concluded that “recording all adverse conditions, even those that are corrected immediately, will be useful as a means of identifying trends.” Mine Examinations I, 82 Fed. Reg. at 7686. In assessing the 2018 amendment, MSHA recognized that benefit of the 2017 rule, but concluded that two competing safety considerations outweighed it. Mine Examinations II, 83 Fed. Reg. at 15,059. In that respect, the two analyses are consistent. In 2017, MSHA further stated: “a record that notes the adverse conditions prior to miners working in an area expedites the correction of these conditions notwithstanding the regularity in which the adverse conditions occur.” Mine Examinations I, 82 Fed. Reg. at 7686. That statement addressed a suggestion to exclude from the recording requirement uncorrected hazards that were “regularly recurring.” See
As for the two safety benefits noted by MSHA in 2018, my colleagues question whether the 2018 rule will incentivize mine operators to correct adverse conditions promptly, because other regulations already require them to do so. Ante at 10. But there is nothing unreasonable about providing increased incentives for compliance, by reducing the recording obligations of operators who do comply.
Finally, my colleagues conclude that “the risk of inundating miners with information” does not “appear in the administrative record.” Ante at 11 n.3 (quotation marks omitted). I read the record differently. As MSHA recounted, some commenters warned that “requiring all adverse conditions [to] be recorded in the examination record would overwhelm the record with minor housekeeping issues.” Mine Examinations II, 83 Fed. Reg. at 15,059. MSHA “agree[d] with these commenters and conclude[d] that requiring mine operators to record only those adverse conditions that are not corrected promptly is as protective as the January 2017 rule.”
My colleagues note that MSHA adopted the relevant comments “in a paragraph regarding mine operator burdens.” Ante at 11 n.3. But the surrounding discussion does not change the fact that MSHA agreed with commenters who expressed concern that cluttering the examination record would harm miner safety. Moreover, MSHA adopted these comments to make a clear safety determination: “requiring mine operators to record only those adverse conditions that are not corrected promptly is as protective as the January 2017 rule.” Mine Examinations II, 83 Fed. Reg. at 15,059. Under these circumstances, “the agency‘s path may reasonably be discerned,” so we must “uphold the decision even if it is of less than ideal clarity.” Press Commc’ns LLC v. FCC, 875 F.3d 1117, 1122 (D.C. Cir. 2017) (quotation marks omitted).
In sum, I believe that MSHA adequately explained why the 2018 amendment to the recording regulation is consistent with the no-less-protection rule. Because my colleagues conclude otherwise, I respectfully dissent from Part II.B of the Court‘s opinion.