PUBLISH

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ------------------------------------------- No. 98-6159 FILED -------------------------------------------- U.S. COURT OF APPEALS Rule No. 68372 ELEVENTH CIRCUIT 09/04/98 THOMAS K. KAHN CLERK NATIONAL MINING ASSOCIATION, ALABAMA COAL ASSOCIATION, Petitioners, versus

SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR, et al., Respondents.

---------------------------------------------------------------- Petition for Review of an Order of the Mining Safety and Health Administration ---------------------------------------------------------------- (September 4, 1998)

Before EDMONDSON and BIRCH, Circuit Judges, and STAFFORD*, Senior District Judge.

_______________ * Honorable William Stafford, Senior U.S. District Judge for the Northern District of Florida, sitting by designation.

EDMONDSON, Circuit Judge: The National Mining Association and

the Alabama Coal Association (“NMA”)

dispute a finding of the Mining Safety

and Health Administration (“MSHA”) that

allows testing the amount of coal dust in

mines by using measurements taken

over a single shift, rather than

traditional multi-shift measurements.

NMA challenges the new sampling method

on substantive and procedural grounds.

We vacate the finding.

Background

One of the reasons Congress passed the

Federal Coal Mine and Safety Act (“the Coal

Act”) in 1969 was to reduce the amount of

coal dust inhaled by coal miners. The dust

was known to cause Black Lung Disease. The

Coal Act provided interim standards for

the maximum amount of coal dust

permitted in coal mines as well as

guidance on how to measure the level of

coal dust in a mine’s atmosphere. The

interim standards were effective until the Secretaries created improved health

standards. Relevant provisions of the Coal

Act were re-enacted in the Federal Mine

Safety and Health Act of 1977 (“the Mine

Act”). See 30 U.S.C. §§ 801-962 (1994).

Throughout this opinion, “the Secretary” normally means the Secretary of Labor.

MSHA is part of the Department of Labor. Under the Coal Act, however, the Secretaries meant the Secretary of the Interior and Secretary of Health, Education, and Welfare.

This dispute revolves around several

provisions of the Mine Act. Under 30 U.S.C.

§ 841(a) the Secretary has authority to

supersede the “interim mandatory health

and safety standards” of the Mine Act

with “improved mandatory health and

safety standards.” But the Secretary must

enact the new standards according to the

provisions of Section 811. See 30 U.S.C. §

811(a). Section 811(a)(6) is at the heart of the

current controversy. It states the

Secretary “shall set standards” that adequately assure, on the basis of the “best

available evidence” that no miner will

suffer “material impairment of health”

under the new standard and that the

Secretary shall also consider the “latest

available scientific data in the field, the

feasibility of the standards, and

experience gained under this and other

health and safety laws.”

Other pertinent provisions of the

Mine Act include Section 842(b)(2) which

requires that the “average concentration” of coal dust to which a miner is exposed

during each shift not exceed 2.0

milligrams per cubic meter of air (2.0

mg/m ). Average concentration is defined

as a concentration that

accurately represents the atmospheric conditions with regard to respirable dust to which each miner . . . is exposed . . . over a single shift only, unless [the Secretary] finds in accordance with . . . Section 811 . . . that such single shift measurement will not, after applying valid statistical techniques to such measurement, accurately represent such atmospheric conditions during such shift.

30 U.S.C. § 842(f).

In 1971, MSHA’s predecessor, the Bureau

of Mines, proposed a finding that single-

shift sampling would not accurately

represent the atmospheric conditions of a

mine. See 36 Fed. Reg. 13286 (1971). The

proposed finding was made final in 1972.

See 37 Fed. Reg. 3833 (1972). MSHA now

wishes to rescind the 1971/72 finding and

to begin single-shift sampling.

In attempting to rescind the 1971/72

finding, MSHA published two notices in the Federal Register. The first, published in

February 1994, stated MSHA’s plan to

rescind the 1971/72 finding and replace it

with a single, full-shift measurement of the

atmospheric conditions. See 59 Fed. Reg.

8357 (1994). The second, published

simultaneously, stated that citations would

be issued based on single-shift sampling.

See 59 Fed. Reg. 8356 (1994).

Single-shift sampling -- in part -- grew

out of MSHA’s Spot Inspection Program

(“SIP”), itself designed to defeat suspected tampering of dust samples by mine

operators. See 63 Fed. Reg. 5664, 5667 (1998).

After the SIP, MSHA concluded that multi-

shift sampling was inaccurate because

multi-shift sampling did not lead to

citations in places where the SIP had

shown miners to be overexposed. See id. at

5668. The Federal Mine Safety and Health

Review Commission, however, vacated

citations issued under the SIP because of

MSHA’s failure to comply with the

rulemaking procedures in Section 811. See Secretary of Labor v. Keystone Coal

Mining Corp., 16 FMSHRC 6 (1994).

Another reason given by MSHA for

rescinding the 1971/72 finding is the

improvement in air sampling technology.

See 63 Fed. Reg. 5664, 5666 (1998). Since 1971,

significant improvements have been

made to calibration procedures, weighing

accuracy, and sampling pumps. See id.

The accuracy of single-shift sampling is

hotly debated by the parties. NMA argues

that single-shift sampling is so inaccurate

that a large number of citations will be

erroneously issued to coal mine operators.

MSHA counters that single-shift

measurements are more accurate because

they tend to expose spatial or temporal

peaks in dust levels that would, under a

multi-shift measurement, be masked by

some measurements below the 2.0 mg/m

threshold when averaged with the peak

values. See id. at 5689. MSHA supports this

conclusion by pointing out that multi-shift

measurements were always highest during

the first measured shift: it was only

after the first shift, says MSHA, that

operators had time to affect dust

production. See id. at 5668.

Because of this debate, the period for

public comment was extended several

months, and two public hearings were held

about the notices. See, e.g., 61 Fed. Reg. 18158

(1996). As a result of the comments, MSHA

defined “accurately represent[]” (as used in

30 U.S.C. § 842(f)), re-opened the comment

period, and held a public hearing on the new

definition. See 61 Fed. Reg. 10012, 10013 (1996).

In February 1998, MSHA issued the subject

of our review, the Joint Finding and

Noncompliance Determination Notice

(“the Joint Finding”) which rescinded the

1971/72 finding. See 63 Fed. Reg. 5664 (1998).

Discussion

NMA raises procedural objections

under the Mine Act, the Administrative

Procedure Act (“APA”), and the Regulatory

Flexibility Act (“RFA”), and substantive

objections to the Joint Finding. We will

address only the procedural objections.

A. The Mine Act

NMA says that the procedural

requirements of the Mine Act, in 30 U.S.C.

§ 811, were not met by MSHA’s Joint

Finding. MSHA makes two arguments in

response. First, the use of single-shift

measurements is no mandatory health

and safety standard and, therefore, does

not need to comply with Section 811. Second,

if the Joint Finding is a mandatory health

and safety standard, MSHA argues, the

Joint Finding complied with the procedural

requirements of Section 811. In arguing

that the Joint Notice complied with

Section 811, however, MSHA insists that

portions of Section 811 do not contain

procedural requirements.

An agency’s interpretation of its

governing statute is often given

significant deference. See Chevron, U.S.A.,

Inc. v. Natural Resources Defense Council,

467 U.S. 837, 842-43 (1984). But, when

applying Chevron’s first step, we do not

need to defer when the issue is a “pure

question of statutory construction.” See

INS v. Cardoza-Fonseca, 480 U.S. 421, 446

(1987). Likewise, we need not defer to issues

beyond the agency’s expertise. See Morris

v. CFTC, 980 F.2d 1289, 1293 (9th Cir. 1992);

see also Colorado Public Utils. Comm’n v.

Harmon, 951 F.2d 1571, 1579 (10th Cir. 1991)

(not deferring on issue of preemption);

Lynch v. Lyng, 872 F.2d 718, 724 (6th Cir.

1989) (not deferring on issue of statute’s

effective date).

Because deciding if MSHA must address

the requirements of Section 811(a)(6) is a

question of pure statutory construction,

we need not defer to MSHA’s

interpretation. We conclude that MSHA’s

various interpretations of Section

811(a)(6) -- as we shall explain -- are

incorrect.

Use of single-shift measurements by

MSHA is a health and safety standard.

Mandatory health and safety standard is

defined, in Section 802(l) as “the interim

mandatory health or safety standards”

between Section 841 and Section 846.

Section 842(f) is the basis for single-shift

sampling. Furthermore, Section 841(a)

refers to Sections 842-846 as “interim

mandatory health standards.” At a

minimum, therefore, Section 842(f) is an

interim mandatory health standard.

Section 841(a) continues, however, to say

that the interim mandatory health

standards of Sections 842-846 are

effective “until superseded in whole or in

part by improved mandatory health

standards.” Single-shift sampling

supersedes multi-shift sampling, which was

based on Section 842(f). Single-shift

sampling, therefore, is an “improved

mandatory health standard.” See United

Mine Workers v. Dole, 870 F.2d 662, 671

(D.C. Cir. 1989) (the term “mandatory

standard” includes standards adopted to

replace an existing mandatory standard);

id. at 672 (concluding Section 811(a)(9) is a

mandatory standard). According to

Section 841(a), any new standard must be

“promulgated . . . under the provisions of Section 811.”

MSHA argues that not all the provisions of Sections 842-846 can require rulemaking in accordance with Section 811. But, Section 841 makes no distinction between the provisions in The reasoning of the Federal Mine

Safety and Health Review Commission (“the

Commission”) in Secretary of Labor v.

Keystone Coal Mining Corp., 16 FMSHRC 6, 13

(1994) supports our conclusion that MSHA’s

new sampling method is a mandatory

Sections 842-846 when it requires the Secretary to comply with Section 811 requirements. Also, Section 842(f) is distinct from the other provisions in that it contains an explicit requirement for the Secretary to comply with Section 811 procedures. See 30 U.S.C. § 842(f). Still, these provisions are not at issue today, and we do not decide if Section 811 requirements apply to them. health standard. In Keystone, the

Commission rejected MSHA’s argument

that single-shift measurements did not

require following Section 811 procedures.

Section 842(f), said the Commission,

explicitly requires MSHA to follow Section

811 procedures if the Secretary decides not

to use single-shift measurements. This

intent -- to use Section 811 procedures if

rejecting single-shift measurements --

“bespeaks an equal intent that, once such a

finding is made, it may be rescinded only”

by following Section 811 procedures. Id.

MSHA next argues that it did comply

with Section 811, but that MSHA must only

comply with the procedure-setting portions

of Section 811. MSHA says Section 811(a)(6) contains no procedure-setting provisions.

In the alternative, MSHA argues that the 2.0 mg/m standard encompasses the

Section 811(a)(6) requirements. In other words, MSHA argues that, so long as they do not alter the 2.0 mg/m standard,

then the improved mandatory health standard is automatically feasible, does not materially impair miners’ health, and is based on the best available We think MSHA’s interpretation is

incorrect.

The plain language of Sections 842(f)

and 841(a) requires mandatory health or

safety standards to be made “under” or “in

accordance with” the “provisions of section

811.” No restriction suggests that MSHA

must comply only with the procedures in

Section 811. Where Congress sought to refer

scientific evidence. The plain language of Section 841(a), however, states that Section 811 standards apply to Sections “842 through 846.” 30 U.S.C. § 841(a) (emphasis added). only to the procedural aspects of Section 811,

it did so clearly. See 29 U.S.C. § 811(b)(2) (“A

temporary mandatory health or safety

standard shall be effective until superseded

by a mandatory standard promulgated in

accordance with the procedures prescribed

in [Section 811(a)(3)].”) (emphasis added).

Our conclusion using the statute’s plain

meaning is supported by three additional

points. First, Section 811(a)(6) says that

MSHA shall consider the feasibility of the

standards. The language is not

discretionary. Second, MSHA, in more

recent rulemakings, recognizes the

requirement to address feasibility. See 63

Fed. Reg. 17492, 17558 (1998) (addressing

feasibility of proposed rule on diesel engine exhaust in mines). Third, MSHA is We fail to understand MSHA’s argument that the diesel rulemaking is inapplicable because it applies to operators, whereas single-shift sampling applies to MSHA inspectors. Section 811 makes no such distinction. In addition, MSHA uses inspector sampling to cite and fine mine operators so, in this respect, changes to the inspector reversing its prior policy on sampling.

Proper procedures are particularly

important where, as here, MSHA’s

predecessor studied and rejected single-shift

sampling.

To use single-shift measurements, then,

MSHA must follow all the provisions of

Section 811. We conclude MSHA has not done

so.

Section 811 requires notice, the

opportunity for public comment, public

sampling program do apply to operators. hearings if requested, and final publication

in the Federal Register. There can be little

doubt, as detailed in the facts above, that

MSHA satisfied these requirements. But as

we have explained, MSHA must also satisfy

the requirements of Section 811(a)(6).

Therefore, MSHA must demonstrate that

the new standard (a) adequately assures

that no miner will suffer a material

impairment of health, on the basis of the

best available evidence; (b) uses the latest

available scientific data in the field; (c) is feasible; and (d) is based on experience

gained under the Mine Act and other

health and safety laws. See 30 U.S.C. §

811(a)(6)(A).

After a review of the record, we

conclude that the record contains no

finding of economic feasibility. The "Feasibility” under OSHA means technological and economic feasibility.

See Color Pigments Mfrs. Ass’n v. OSHA, 16 F.3d 1157, 1161 (11th Cir. 1994). We believe the Mine Act term “feasibility” includes these concepts as well, but we do not otherwise address the applicability of OSHA. absence of a showing of economic

feasibility is not surprising because MSHA

insisted, in the Joint Finding, that “there

is no need to address feasibility.” 63 Fed. 6 Reg. 5664, 5669 (1998).

At oral argument, MSHA’s counsel suggested that the Regulatory Flexibility Analysis (discussed in note 7) contained a study of economic feasibility. But, “[b]urdened by the view that [Section 811(a)(6)] was advisory, MSHA neither explored for itself nor elicited comments” regarding the economic feasibility of single-shift sampling.

United Mine Workers, 870 F.2d at 674.

Determining if a regulation will have a “significant economic impact on a substantial number of small [or large] We conclude, therefore, that MSHA failed

to comply with Section 811(a)(6) of the Mine

entities,” under the RFA, is not the same as deciding if the rule is economically feasible.

Act. So we must vacate the Joint Finding.

We will address NMA’s other procedural objections. NMA makes two challenges under the Administrative Procedure Act.

We reject NMA’s first argument that MSHA failed to provide notice of its plan to apply the Joint Finding to surface mines. MSHA’s inspector sampling program -- the program altered by single- shift sampling -- has applied to surface mines since the program’s inception.

Also, MSHA referred to 30 C.F.R. § 71 -- regulating surface mines but not underground mines -- several times during the rulemaking. We note that NMA submitted comments referencing 30 C.F.R. § 71. We also reject NMA’s second argument, that MSHA relied on undisclosed material for the Joint Finding. The information used by MSHA after the record closed was not new or critical to the Joint Finding.

VACATED.

NMA also challenges the Joint Finding under the Regulatory Flexibility Act, 5 U.S.C.A. § 603 (West Supp. 1998) (“RFA”).

We reject this argument. We find the Secretary’s certification that single- shift sampling will not have a “significant economic impact on a substantial number of small entities” meets the requirements of Section 605(b), but -- as discussed in note 6 -- does not demonstrate the rule’s economic feasibility.