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United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO-CLC v. Mine Safety and Health Administration

United States Court of Appeals, District of Columbia Circuit

June 11, 2019

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

          Argued March 12, 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

          KAREN LECRAFT HENDERSON, CIRCUIT JUDGE:

         The Mine Safety and Health Administration (MSHA), housed in the United States Department of Labor (Labor), sets health and safety standards for mine operations. Its regulatory authority is subject to a unique limitation: "[n]o mandatory health or safety standard . . . shall reduce the protection afforded miners by an existing mandatory health or safety standard." 30 U.S.C. § 811(a)(9). The no-less-protection standard occupies center stage in the case before us. In 2017, MSHA promulgated a safety standard that requires mine operators to examine all areas before miners begin work and to record all "conditions that may adversely affect safety or health" discovered during the examination. Examinations of Working Places in Metal and Nonmetal Mines, 82 Fed. Reg. 7680, 7682 (Jan. 23, 2017) (2017 Standard). Fourteen months later, however, MSHA amended the requirements, allowing examinations to occur before or as miners begin work and allowing mine operators to exclude from their records adverse conditions that are promptly corrected. Examinations of Working Places in Metal and Nonmetal Mines, 83 Fed. Reg. 15, 055 (Apr. 9, 2018) (codified at 30 C.F.R. §§ 56.18002(a)- (c), 57.18002(a)-(c)) (2018 Amendment). We are called upon to decide whether MSHA explained adequately how the amendments to the 2017 Standard comply with the no-less-protection standard.

         I. Background

         The Federal Mine Safety and Health Act of 1977, Pub. L. No. 91-173, 83 Stat. 742 (codified as amended at 30 U.S.C. §§ 801 et seq.) (Mine Act), directs the Labor 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). The Secretary discharges his Mine Act responsibilities through MSHA. The Mine Act includes a no-less-protection standard, which provides that "[n]o mandatory health or safety standard . . . shall reduce the protection afforded miners by an existing mandatory health or safety standard." Id. § 811(a)(9). This unusual limitation "expressly mandates that no reductions in the level of safety below existing levels be permitted, regardless of the benefits accruing to improved efficiency." United Mine Workers of Am., Int'l Union v. Dole, 870 F.2d 662, 666 (D.C. Cir. 1989).

         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 operator" to "examine each working place at least once each shift for conditions which may adversely affect safety or health." 30 C.F.R. § 56.18-2(a) (1980); see also id. § 57.18-2(a) (same requirements for underground mines). The examination could occur anytime during the shift. Id. The standard also mandated that operators keep "[a] record that [] examinations were conducted." Id. § 56.18-2(b); see also id. § 57.18-2(b) (underground mines).

         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." 30 C.F.R. § 56.18002(a) (2017) (emphasis added) (2017 Standard); see also id. § 57.18002(a) (underground mines). It also added more detailed recordkeeping requirements, demanding for the first time that a record of an examination include (as relevant here): a "description of each condition found that may adversely affect the safety or health of miners." Id. § 56.18002(b); see also id. § 57.18002(b) (underground mines). The 2017 Standard was originally slated to take effect on May 23, 2017. MSHA twice delayed the effective date. See Examinations of Working Places in Metal and Nonmetal Mines, 82 Fed. Reg. 15, 173 (March 27, 2017); Examinations of Working Places in Metal and Nonmetal Mines, 82 Fed. Reg. 23, 139 (May 22, 2017). After a three-day period of effectiveness in October 2017, MSHA temporarily withdrew the 2017 Standard and delayed its effective date for a third time. See Examinations of Working Places in Metal and Nonmetal Mines, 82 Fed. Reg. 46, 411 (Oct. 5, 2017).

         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." 30 C.F.R. § 56.18002(a) (emphasis added); see also id. § 57.18002(a) (underground mines). Unlike the 2017 Standard, then, the 2018 Amendment gives mine operators the option to conduct examinations as miners begin work in an area. Id. The 2018 Amendment also modifies the recordkeeping requirement to mandate that a "record shall contain the . . . description of each condition found that may adversely affect the safety or health of miners and is not corrected promptly." Id. § 56.18002(b) (emphasis added); see also id. § 57.18002(b) (underground mines). The new language allows a mine operator to omit from its records promptly corrected adverse conditions. Id. The 2018 Amendment went into effect on June 2, 2018.

         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, 30 U.S.C. § 811(a)(9), and the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq.

         II. ...


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