512 F.3d 696 (D.C. Cir. 2008), 07-1026, National Mining Ass'n v. Mine Safety and Health Admin.

Docket Nº:07-1026.
Citation:512 F.3d 696
Party Name:NATIONAL MINING ASSOCIATION, Petitioner v. MINE SAFETY AND HEALTH ADMINISTRATION and Secretary of Labor, Respondents. United Mine Workers of America, Intervenor.
Case Date:January 11, 2008
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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512 F.3d 696 (D.C. Cir. 2008)



MINE SAFETY AND HEALTH ADMINISTRATION and Secretary of Labor, Respondents.

United Mine Workers of America, Intervenor.

No. 07-1026.

United States Court of Appeals, District of Columbia Circuit.

January 11, 2008

Argued Nov. 13, 2007.

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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

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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.

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 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 (December 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).


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.

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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 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...

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