United Mine Workers of America, Intern. Union v. Dole

• Citation: 870 F.2d 662
• Decision Date: 10 March 1989
• Docket Number: No. 88-1238,88-1238
• Parties: , 1989 O.S.H.D. (CCH) P 28,462 UNITED MINE WORKERS OF AMERICA, INTERNATIONAL UNION, Petitioner, v. Elizabeth H. DOLE, in her capacity as Secretary of Labor, et al., Respondents, American Mining Congress, Intervenor.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 662

870 F.2d 662 276 U.S.App.D.C. 248, 1989 O.S.H.D. (CCH) P 28,462 UNITED MINE WORKERS OF AMERICA, INTERNATIONAL UNION, Petitioner,
v.
Elizabeth H. DOLE, in her capacity as Secretary of Labor, et
al., Respondents,
American Mining Congress, Intervenor. No. 88-1238. United States Court of Appeals,
District of Columbia Circuit. Argued Dec. 12, 1988.
Decided March 10, 1989.
As Amended March 10, 1989.

Michael Dinnerstein, with whom Michael H. Holland, Washington, D.C., was on the brief, for petitioner. Mary Lu Jordan, Washington, D.C., also entered an appearance for petitioner.

M. Peter Garcia, Atty., Dept. of Labor, with whom George R. Salem, Sol., Dennis D. Clark, Counsel, Appellate Litigation, Washington, D.C., and Linda L. Leasure, Atty., Dept. of Labor, Arlington, Va., were on the brief, for respondents.

Colleen A. Geraghty also entered an appearance for respondents.

Page 664

Timothy M. Biddle and Thomas C. Means, Washington, D.C., were on the brief, for intervenor. Luther Zeilger, Washington, D.C., also entered an appearance for intervenor.

Before WALD, Chief Judge, and EDWARDS and D.H. GINSBURG, Circuit Judges.

Opinion for the Court filed by Chief Judge WALD.

WALD, Chief Judge:

In this case we review new regulations on roof support in underground coal mines. Roof cave-ins due to a lack of adequate support are the leading cause of fatalities and injuries in underground mining: roof falls account for almost half of all underground coal-mining deaths. Injuries from roof falls are over eight times as likely to be fatal as injuries from other causes. Safety Standards for Roof, Fall and Rib Support, 53 Fed.Reg. 2,354 (1988) (final rule) ("Roof Support Standards "). Roof falls also exacerbate the number of injuries and fatalities attributable to other causes, such as underground fires, by blocking escapeways or hampering ventilation.

In 1988 the Secretary of Labor ("Secretary"), acting through the Mine Safety and Health Administration ("MSHA"), promulgated new standards, some of which replaced existing standards governing the use of bolts for roof support and the procedures to be followed in removing roof supports, and others of which established original standards for a new type of "longwall" mining. Under the Mine Safety and Health Act of 1977 ("Mine Act"), 30 U.S.C.A. Secs. 801-962 (1986), the Secretary is authorized to replace existing mandatory health and safety standards only if the new standards provide at least the same level of protection to miners as the old ones (the "no-less protection rule," 30 U.S.C.A. Sec. 811(a)(9)). There is no similar constraint on original standards.

In this appeal, the United Mine Workers of America ("Union") first challenges the new roof bolt and support removal standards on the ground that they do not satisfy the no-less protection rule. We find that the existing regulations do establish mandatory standards, and consequently the Secretary was required to ensure that the new regulations did not reduce miner protection. The statement of basis and purpose, however, makes no mention whatsoever of this requirement. The statement of basis and purpose is therefore inadequate and the challenged regulations are invalid. ¹

I. JURISDICTION

The remaining challenge by petitioner Union concerns the safety procedures for longwall mining, not previously addressed in MSHA's standards. We find the longwall standards to be consistent with the statute and uphold them as valid products of the informal rulemaking process.

At the outset we deal with the Secretary's contention that the Union's petition for judicial review is jurisdictionally defective because it was filed too late with this court.

The Mine Act requires that a petition challenging a new standard be filed "prior to the sixtieth day after such standard is promulgated." 30 U.S.C.A. Sec. 811(d). The standards at issue here were promulgated on January 27, 1988. The Union's petition for review was recorded as filed by the clerk of this court on March 28, 1988--the "sixty-first day" after promulgation. If read literally to require filing prior to the sixtieth day, the statute would have required the petition to be filed on Saturday, March 26. Although the court is not open on Saturdays, the Secretary contends nonetheless that the filing recorded on Monday was out of time, thereby depriving the court of any jurisdiction over the appeal.

We disagree. We believe Fed.R.App.P. 26(a) provides the rule for computing time periods here:

Page 665

(a) Computation of Times. In computing any period of time prescribed by these rules, by an order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period extends until the end of the next day which is not a Saturday, a Sunday, or a legal holiday.

(Emphasis added.) The Mine Act is such an "applicable statute." It makes no separate provision for the computation of time and was enacted subsequent to the adoption of Rule 26(a); we conclude therefore that Congress intended its time periods to be computed in accordance with the federal rule. The Supreme Court has held, for analogous reasons, that the nearly identical time-computation provision in Fed.R.Civ.P. 6(a) is properly used to interpret the time period for taking appeals to that Court, 28 U.S.C.A. Sec. 2101 (1982). Union National Bank v. Lamb, 337 U.S. 38, 40-41, 69 S.Ct. 911, 912-13, 93 L.Ed. 1190 (1949). ² In addition, this circuit has a long-established rule, based in the common-law, that statutory time periods are to be construed so as to exclude Sundays. Sherwood Brothers, Inc. v. District of Columbia, 113 F.2d 162 (D.C.Cir.1940).

We therefore confirm our circuit's rule that time periods, including jurisdictional time periods, are to be construed in accordance with Fed.R.App.P. 26(a), excluding final weekend days and holidays unless a specific statutory provision requires otherwise. ³ In so doing we decline to follow the analysis of the Sixth Circuit, urged on us by the Secretary, which reasons that applications of the federal rules to statutory time periods unjustifiably enlarge the jurisdiction of the federal courts. ⁴ See, e.g., In re Butcher, 829 F.2d 596 (6th Cir.1987), cert. denied sub nom. Martin v. First National Bank, --- U.S. ----, 108 S.Ct. 1058, 98 L.Ed.2d 1020 (1988) (and cases cited therein). We agree instead with the Third Circuit that "this contention ... is [ ] frivolous." Frey v. Woodard, supra note 2, at 175. Statutory provisions laying down time periods for taking appeals, like any other enactments, must be interpreted and applied by courts; in so doing we use the federal rules as guides. Surely "the jurisdiction of the federal

Page 666

courts to construe the [jurisdictional provisions of a] statute cannot be a matter of serious dispute." Id. The Union's petition is properly before us.

II. THE NO-LESS PROTECTION RULE

A. Standard of Review

The Secretary of Labor, acting through MSHA, is empowered by the Federal Mine Safety and Health Act of 1977, 30 U.S.C.A. Secs. 801-962 (1986), to promulgate and enforce safety and health standards with which coal mine operators must comply. ⁵ Congress itself established interim standards in the Act to remain in force until superseded by the exercise of this rulemaking authority.

Congress also placed an explicit constraint on the Secretary's authority to alter the level of protection afforded miners. In particular, regulations promulgated initially to replace Congress's own interim standards or subsequently to replace existing mandatory standards must comport with the "no-less protection rule", Sec. 101(a)(9) of the Act, which provides that "No mandatory health or safety standard promulgated under this subchapter shall reduce the protection afforded miners by an existing mandatory health or safety standard." 30 U.S.C.A. Sec. 811(a)(9) (1986).

Thus when new standards replace existing mandatory health or safety standards it is not sufficient that the new standards demonstrate a reasonable accommodation of the competing goals of safety and efficient coal mine operation. The statute expressly mandates that no reductions in the level of safety below existing levels be permitted, regardless of the benefits accruing to improved efficiency.

As always, our review of an agency's exercise of its rulemaking authority is limited in nature. The Mine Act is explicit in Sec. 101, 30 U.S.C.A. Sec. 811(a), in providing that rulemaking procedures under the Act must comply with the notice and comment procedures set out in Sec. 553 of the Administrative Procedure Act, 5 U.S.C.A. Secs. 551, et seq., and Secs. 701, et seq. (1977) ("APA"); failure to comply with required Sec. 553 procedures renders agency action arbitrary and capricious and therefore invalid. See Motor Vehicle Manufacturers Association v. Ruckelshaus, 719 F.2d 1159, 1164 (D.C.Cir.1983). These procedures require, among other things, that the Secretary "incorporate in the rules adopted a concise general statement of their basis and purpose." 5 U.S.C.A. Sec. 553(c). We have recently explained how this circuit interprets the requirement:

This statement need not be an exhaustive, detailed account of every aspect of the rulemaking proceedings; it is not meant to be the more elaborate document, complete with findings of fact and conclusions of law, that is required in an on-the-record rulemaking. On the other hand, this Court has cautioned against "an overly literal reading of the statutory terms 'concise' and 'general' ... [which] must be accommodated to the realities of judicial scrutiny." At the least, such a statement should indicate the major issues of policy that were raised in the proceedings and explain why the agency decided to respond to these issues as it did, particularly in light of the statutory...