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. §§ 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. § 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.
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. § 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:
(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. § 2101 (1982). Union National Bank v. Lamb, 337 U.S. 38, 40-41, 69 S.Ct. 911, 912-13, 93 L.Ed. 1190 (1949).
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.
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. §§ 801-962 (1986), to promulgate and enforce safety and health standards with which coal mine operators must comply.
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", § 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. § 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 § 101, 30 U.S.C.A. § 811(a), in providing that rulemaking procedures under the Act must comply with the notice and comment procedures set out in § 553 of the Administrative Procedure Act, 5 U.S.C.A. §§ 551, et seq., and §§ 701, et seq. (1977) ("APA"); failure to comply with required § 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. § 553(c). We have recently explained how this circuit interprets the requirement:
Independent U.S. Tanker Owners Committee v. Dole, 809 F.2d 847, 852 (D.C.Cir.), cert. denied sub nom. Atlantic Richfield Co. v. Independent U.S. Tanker Owners Committee, ___ U.S. ___, 108 S.Ct. 76, 98 L.Ed.2d 39 (1987) (emphasis added; citations omitted).
The dictates of the no-less protection rule are plainly among the objectives of the Act; more importantly, the rule represents an explicit constraint on the Secretary's authority. While the arbitrary and capricious standard of review is "highly deferential and presumes the validity of agency action," Motor Vehicle Manufacturers, supra, 719 F.2d at 1164, meaningful and properly deferential judicial review of whether the Secretary's action is "in
B. Mandatory Safety and Health Standards
Initially, then, we face the threshold question of whether and to what extent the roof standards in this case are "mandatory health or safety standards" as that term is used in § 101(a)(9), since only such mandatory standards are included within the "no-less protection" directive of the Act. A brief account of MSHA's regulatory scheme is necessary to answer that question.
MSHA regulates mine operation in two ways. First, it promulgates pursuant to § 101 regulations that establish general and mandatory standards with which all mine operators must comply. Second, it requires mine operators to compile comprehensive plans addressing specific subjects such as roof control and ventilation. 30 U.S.C.A. §§ 862(a) and 863(a). (We are here concerned with the roof control plans.) These plans are then submitted to an MSHA district manager for approval. Once approved, the plans are mandatory in the sense that a violation of the requirements in the plans constitutes a violation of the Act.
The specific contents of any individual mine operation plan are determined through consultation between the mine operator and the district manager. To guide this process, MSHA has promulgated "criteria" which "should" be met in all plans. For example, one roof bolt criterion which was superseded by the new regulations stated: "All components of the roof bolt assembly should comply with the American National Standards Institute, `Specifications for Roof Bolting Materials in Coal Mines'." 30 C.F.R. § 75.200-7(a)(1) (1986). Plan components may be taken directly from the criteria; alternatively, the mine operator and/or district manager may suggest requirements that do not appear in the criteria. District managers, however, were explicitly prohibited by the old regulations from approving any plan requirements
30 C.F.R. § 75.200-6 (1986). Individual plans could, therefore, incorporate requirements to supplement or supplant standards set out in the criteria, but these alternative requirements had to protect miners at least as much as the criteria standards.
Prior to the new rules under review, a roof control plan usually included both a core of generally-applicable protections (derived from either the criteria regulations or MSHA policy), and other mine-specific standards designed to address particularized safety and health concerns in the individual mine. One of the stated objectives of the new rulemaking was to simplify these roof plans by putting the more generally-applicable standards into universal mandatory standard form, thereby allowing the plans to focus on predominantly mine-specific requirements. Roof Support Standards, 53 Fed.Reg. 2,354 (1988) (final rule).
Against this background, we now turn to the critical question of whether the pre-existing regulations, establishing a scheme in which roof control plans were approved by MSHA according to a set of criteria, amounted to a "mandatory" standard, as that term is used in § 101(a)(9), so as to invoke the no-less protection rule. The question raises some rather intricate issues of statutory interpretation.
First, the term "mandatory health or safety standards" is defined in the Act as "the interim mandatory health or safety standards established by subchapters II and III of this chapter, and the standards promulgated pursuant to subchapter I of this chapter." 30 U.S.C.A. § 802(l). "Subchapter I of this chapter" contains, in § 101, the basic grant of authority to the Secretary to promulgate such standards:
30 U.S.C.A. § 811(a). The only other source of rulemaking authority appears in subchapter V of the Act, § 508: "The Secretary ... [is] authorized to issue such regulations as [she] deems appropriate to carry out any provision of this chapter." 30 U.S.C.A. § 957. Regulations promulgated pursuant to § 508 alone do not establish "mandatory health or safety standards" for the purposes of § 101(a)(9)'s no-less protection rule.
Since MSHA did not specifically identify the source of the roof plan regulations, see Mandatory Safety Standards, Underground Coal Mines, 35 Fed.Reg. 17,890, 17,893 (1970),
Congress itself established the basic requirement that mine operators adopt approved roof control plans as an interim mandatory standard in the Mine Act:
30 U.S.C.A. § 862(a). The statutory standard obviously did not specify all of the requirements that had to be included in the plan. Congress established a limited number of explicit requirements for roof support, such as the requirement that adequate supplies of roof support materials be provided in all working areas of the mine, 30 U.S.C.A. § 862(c), and that safety inspections be conducted prior to the commencement of any work, 30 U.S.C.A. § 862(f). But the vast bulk of requirements for achieving a roof control plan "suitable to the roof conditions and mining system of each coal mine" were left to be developed by the mine operator and MSHA.
Congress explicitly stated its reasons for relying on mandatory roof control plans in the 1977 Mine Act: "Such individually tailored plans, with a nucleus of commonly accepted practices, are the best method of regulating such complex and potentially multifaceted problems as ventilation, roof control and the like." S.Rep. No. 95-181, 95th Cong., 1st Sess. 25 (1977), U.S.Code Cong. & Admin.News 1977, p. 3425. Congress obviously intended these roof control plans to afford comprehensive protection against roof collapse — the "leading cause of injuries and death in underground coal mines," Roof Support Standards, 53 Fed.Reg. 2,354 (1988). Indeed, these plans were intended to be more comprehensive than uniform mandatory standards because in addition to a "nucleus," id., of practices that are necessary to prevent roof collapse in any mine, they were to include whatever unique measures were necessary to address the unique attributes of a particular mine. This is undoubtedly the virtue that Congress saw in requiring comprehensive individually tailored roof control plans.
In this respect we point out our disagreement with intervenor American Mining Congress' ("AMC") argument that these roof control plans were intended to contain only provisions tailored to mine-specific conditions. AMC argues that roof control plans could legitimately be used to impose only "those requirements necessary to address unique conditions peculiar to each mine." Brief for Intervenor at 6. As a consequence, AMC argues that "any coerced incorporation of [the] nationally applicable criteria [found in MSHA's roof support regulations] was itself a violation of the Mine Act," id. at 12, n. 8, any generally-applicable criteria were not legitimate components of the approved roof control plan required by the mandatory standard and so the no-less protection rule does not require that the new regulations be as protective as the old criteria.
The criteria that the Secretary promulgated to guide the approval of roof control plans identified measures which MSHA deemed necessary to achieve safety goals in many or most mines; the regulations however recognized that these measures might be inappropriate or subject to substitution under certain mine conditions. That fact alone does not support AMC's contention that those criteria were wholly "advisory"
While mine operators were not per se required to comply with each and every criterion so that the criteria were not themselves mandatory standards, if the criteria were actually incorporated into an approved plan, the operator was bound to comply with them. Plans, on the other hand, could be approved by MSHA only if they either conformed to the criteria or "provide[d] no less than the same measure of protection to the miners" as the criteria. 30 C.F.R. § 75-200-6 (1986). Therefore, if MSHA disagreed that a mine operator's alternative "mine-specific" measure protected as well as a generally-applicable criterion, MSHA was not only empowered but required to withhold approval of the plan until the mine operator incorporated the criterion.
To be sure, the Secretary may, as she has in fact done here, promulgate generally-applicable requirements on roof control as explicit mandatory standards under § 101, thereby changing the focus of the roof control plan from establishing comprehensive protection to providing a supplementary set of regulations for individual mines. We do not agree with AMC, however, that the Secretary was, immediately upon passage of the Act, required to pursue the § 101 notice and comment route for all generally-applicable mandatory standards and was prohibited from setting any general criteria as mandatory standards for approval of mine operators' plans pending adoption of particularized mandatory
In Zeigler Coal Co. v. Kleppe, 536 F.2d 398 (D.C.Cir.1976), we held that violations of requirements in ventilation plans that were not themselves promulgated as mandatory standards nevertheless were enforceable as such under the 1969 Coal Act, which "require[d] violation of a mandatory health or safety standard to bring [relevant enforcement provisions] into play." 536 F.2d at 403.
Id. We read this caution in Zeigler to say only that the Secretary could abuse her discretion by utilizing plans rather than explicit mandatory standards to impose general requirements if by so doing she circumvented procedural requirements for establishing mandatory standards laid down in the Mine Act. Zeigler did not purport to ignore the considerable authority of the Secretary to determine what "should more properly have been formulated as a mandatory standard under the provisions of § 101," id., and to determine what is "subject matter which could have been readily dealt with in mandatory standards of universal application," id.
In this case the roof plan approval criteria were promulgated according to notice and comment procedures to supplement the Act's mandatory interim standard that mine operators adopt an approved roof control plan. The level of miner protection provided by each plan, moreover, was calibrated to the criteria themselves, although they were not required to be implemented in each plan. The Secretary conducted the rulemaking under review precisely because she had made the determination that many of the criteria were the proper subject of separate mandatory standards.
The FMSHRC decision in Carbon County Coal Corp., 1984-1985 O.S.H. (CCH) ¶ 27,385 (1985), is consistent with our interpretation of Zeigler. Carbon County involved a mine operator who proposed an alternative to a procedure (again not a criterion in the regulations) that the MSHA district manager had suggested be included in a ventilation plan. The district manager refused to allow the alternative and an administrative law judge upheld this decision. The Commission reversed on the ground that the district manager's rejection of Carbon County's alternative procedure "was the result of a rote application" of the MSHA guideline. Id. at 35,466. (The district manager had refused even to consider the alternative and to determine whether it was equivalent to the guideline in light of the particular conditions of Carbon County's mine.)
We read Carbon County to make the narrow point that mine operators are entitled to have alternative procedures evaluated by the district manager to determine if they achieve the safety objectives set out in MSHA regulations and policy; the Commission there "conclude[d] that the uncontroverted material facts establishe[d] that MSHA's decision to impose the [disputed] provision was not based upon particular circumstances at the Carbon No. 1 Mine, but rather was imposed as a general rule applicable to all mines," and that as a consequence MSHA's insistence on the provision was "not in accord with applicable Mine Act procedure." Id. at 35,467. Citing Zeigler, the Commission emphasized that
Id. We decline to read into Carbon County anything more than we found in Zeigler, i.e., a warning that the Secretary should utilize mandatory standards for requirements of universal application. We reject the AMC's argument that under either decision the Secretary was in a plan precluded from requiring mine operators to incorporate measures necessary to achieve an overall level of miner protection on all pertinent aspects of roof control.
Thus we conclude, finally, that MSHA's implementing regulations including criteria for roof plan approval constituted a mandatory standard which required mine operators to adopt roof control plans and prohibited MSHA from approving these plans unless they protected at least as well as did the criteria. The criteria established a mandatory level of protection for the purposes of § 101(a)(9)'s no-less protection rule. Accordingly, the Secretary was required to ensure that the new regulations she promulgated to replace the old criteria provisions did not reduce miner protection.
III. ROOF BOLT AND SUPPORT REMOVAL REGULATIONS
A. Statement of Basis and Purpose
It is now a fairly simple matter to conclude that the Secretary has failed in this instance to adequately comply with the procedural and substantive requirements of the Mine Act and that her new regulations
The pre-existing regulation on roof bolts was one of the plan-approval criteria for roof control plans. 30 C.F.R. § 75.200-7 (1986). As we have explained, since district managers were not authorized to approve plans which did not provide as much protection as the criterion, 30 C.F.R. § 75.200-6 (1986), the criterion established a mandatory level of protection that the new regulations had to meet or improve upon under the no-less protection rule. The prior regulations governing the removal of roof support were also styled as plan-approval criteria, 30 C.F.R. § 75.200-14 (1986), and again the MSHA district manager was precluded from approving plans providing less protection than the criteria. In addition, in the case of removal of roof bolts (as opposed to other types of support), a specific regulation made the criteria themselves mandatory. 30 C.F.R. § 75.204-1 (1986). Thus the new roof bolt regulations and the new roof support removal regulations replaced existing mandatory standards; the Secretary was therefore required to ensure that the new regulations did not reduce miner protection below the level afforded by that mandatory standard.
The Secretary's statement of basis and purpose, however, is virtually silent on this issue. While she did discuss the general safety features of the new regulations, she did not discuss how protective the old regulations were nor how the new regulations maintain or improve upon this level of protection.
The inadequacy of the Secretary's statement of basis and purpose leaves us with the question of an appropriate remedy. This court has recently set out the remedial options available in a case such as this:
Independent U.S. Tanker Owners Committee v. Dole, 809 F.2d 847, 854 (D.C.Cir.), cert. denied sub nom. Atlantic Richfield Co. v. Independent U.S. Tanker Owners Committee, ___ U.S. ___, 108 S.Ct. 76, 98 L.Ed.2d 39 (1987). In choosing the appropriate course of action, we consider both the seriousness of the deficiencies in the completed rulemaking and the doubts the deficiencies raise about whether the agency chose properly from the various alternatives open to it in light of statutory objectives. Id. at 855.
Our review of the rulemaking record suggests that the deficiencies in the rulemaking were fundamental and may well have affected the Secretary's choices. This is not a case in which the court is easily able to find a lawful basis for the regulations but unable to uphold the regulations because the agency itself has rested on other, unreasonable, grounds. Cf. National
We are inclined to the view that, due to her past misinterpretation that the plan-approval criteria did not establish any mandatory level of protection for § 101(a)(9)'s purposes,
In order to minimize disruption to the mining industry
IV. LONGWALL MINING
We turn now to the Union's remaining challenge to MSHA's new regulations on longwall mining which provide as follows:
30 C.F.R. § 75.215 (1988). Additional regulations set out in greater detail the criteria which will govern plan approval in this regard; "[r]oof control plans that do not conform to the applicable criteria ... may be approved by the District Manager, provided that effective control of roof, face and ribs can be maintained."
Unlike the challenges to the roof bolt and support removal regulations, we find no error in the Secretary's promulgation of these new standards to address the roof support concerns raised by longwall mining. To begin with, the standard of review here is quite different: the new longwall mining regulations do not replace
To put the debate over the new longwall mining regulations in perspective, we begin with a brief description of the nature of "two-entry" longwall mining. In this type of mining, two parallel tunnels (entries) are created. At the end of these entries another tunnel is established perpendicularly to join the two parallel tunnels, thus creating three sides of a rectangle called a longwall section. The joining tunnel, the longwall itself, exposes the face of rock from which coal will be extracted by a shearer moving back and forth across the face. The longwall is progressively mined so that the longwall advances towards the start of the two parallel entries and the sides of the rectangle shorten. The two parallel entries are called the headgate entry and the tailgate entry. Coal extracted from the face of the longwall is normally carried out of the mine on conveyors which travel through the headgate entry.
Other tunnels or entries may connect with the longwall section. For example, there may be other entries on the tailgate side (that is, next to the tailgate entry but outside the three-sided rectangle formed by the headgate, tailgate and longwall) which are themselves connected to the longwall by other tunnels. There may also be other entries which go deeper into the mine in the mined-out area behind the longwall.
Obvious dangers arise for miners working on the longwall from the possibility that their ventilation and escape may be restricted because of the limited number of entries. (Entries serve not only as potential escape routes but also as "aircourses" through which fresh air reaches the miners.) These dangers are heightened by the risk of fire arising from the operation of equipment located in the headgate entry. If such a fire occurs, escape on the headgate side of the longwall may become impossible because of heat and smoke. Hence the understandable concern about the feasibility of escape and ventilation through the tailgate side.
Two reports commissioned by MSHA have emphasized the importance of maintaining escape routes on the tailgate side of the longwall. Indeed, MSHA's Task Force on Longwall Mining specifically recommended that "a safe travelway, under supported roof through tailgate entries or bleeders to a mine exit, be provided off the face on the tailgate side for emergency purposes at all times while personnel are present." J.A. 240. And MSHA's investigative report on a 1985 disaster at the Wilberg Mine in Orangeville, Utah, in which 27 miners died after a fire blocked the headgate, also stressed the dangers of inadequate escapeways on the tailgate side. See J.A. 343.
B. Conflict with Statute
The Union first contends that the new longwall regulations are unlawful because they conflict with an existing regulation. This regulation, drawn directly from the interim standards established in the Act, provides in relevant part:
30 C.F.R. § 75.305 (1988); 30 U.S.C.A. § 863(f) (interim standard) (emphasis added).
Relying on the language highlighted, supra, the Union argues that this weekly examination regulation requires that tailgate entries (which are either "intake or
The complaint is oddly framed. The weekly examination regulation is still in effect. Whatever it requires in terms of maintaining travel through the tailgate is still required. The new regulations merely supplement that regulation with details on emergency procedures to be followed once a blockage in the tailgate is discovered.
Admittedly, the precise effect of the weekly examination regulation is somewhat ambiguous, and MSHA has not provided us with a definitive interpretation of how it is being implemented. As we read the regulation, however, it requires that the tailgate entry be capable of travel each week in order to test for hazardous conditions.
Were MSHA urging the court to accept an interpretation of the new regulations which did not require "immediate correction" of any hazardous condition or withdrawal of miners in the face of "imminent danger" created by a blockage of the tailgate, the Union would be on stronger ground. We do not, however, understand MSHA to be urging any such interpretation and consequently we reject the Union's challenge that the new regulations are inconsistent with the weekly examination regulation.
C. "Arbitrary and Capricious" Challenge
The Union's contention that the new longwall mining regulations are arbitrary and capricious must also fail. Essentially the Union argues that because MSHA's reports on Two-Entry Longwall Mining and the Wilberg Mine Disaster conclude that it is critical to miner safety to keep open routes out of the mine on the tailgate side of the longwall, it is unreasonable for MSHA to promulgate regulations which assume mining will continue despite blockage.
But the longwall regulations challenged here are only part of the total regulatory regime for longwall mining: they pertain to "Roof Support."
The Union's concern, echoed in MSHA's task force report, is that the requirement of two escapeways is inadequate to protect miners because if both escapeways are on the headgate side, a fire in the headgate would make them both impassable, thereby trapping miners in the longwall section. MSHA is, however, addressing this problem in ongoing rulemaking to revise those portions of its regulations that directly address ventilation and escape standards. For example, the following regulations have been proposed by MSHA:
Safety Standards for Underground Coal Mine Ventilation, 53 Fed.Reg. 2,382, 2,423 and 2,420 (1988) (proposed rule). These proposed regulations indicate that MSHA is simultaneously addressing escape and ventilation concerns in areas distinct from the roof support regulations. MSHA is entitled to administer the Mine Act by addressing different parts of its safety problems in different regulations; the agency need not adopt, nor explain its rejection of, all task force recommendations on the subject whenever it promulgates regulations pertaining to one aspect of overall safety. We therefore find the new longwall regulations to be neither arbitrary nor capricious.
We conclude that the new regulations on longwall mining, 30 C.F.R. 75.215 and 30 C.F.R. 75.222 (1988), neither contravene existing regulations nor evidence arbitrary or capricious agency action. We uphold these regulations as valid.
We also conclude that, because the pre-existing plan-approval criteria established a mandatory level of protection for the purposes of 30 U.S.C.A. § 811(a)(9), new regulations on roof bolts and support removal must not reduce miner protection below that level. The Secretary's required statement of basis and purpose does not explain how the new regulations comport with this strict statutory limitation on her rulemaking authority; the Union has raised serious questions suggesting that her failure to provide an explanation stemmed from a failure to consider the constraints of the no-less protection rule during the rulemaking. We therefore find the new regulations on roof bolts and roof support removal invalid and order supplemental briefing on the issue of whether the court should vacate the new regulations pending further proceedings by the Secretary consistent with this opinion.