decreases the safety protections guaranteed to minors under the prior twenty seventeen rule in violation of section one a one a nine of the minor second the amendments represent unlawfully arbitrary and capricious rule making  understanding and just section one a one a nine violation first the twenty eighteen rule amendments decrease minor safety protection and second m should claim to the contrary are not entitled to deference because they are not based on factual find and it's also important to understand what is not at issue here and that is the applicability of section one a one a nine to the case that's you provide that no mandatory health or safety standard promulgated under the miner act sever dues the protection afforded to minors extent possible and she has conceded that that you can build both in the agency brief and in the administrative record for the twenty eighteen rule amendment yet ensure reduced minor safety protections the of those investments in violation affection want to one day nine the agency did this through two important and then actual changes to the protections in the twenty seventeen rule there is tension remove the requirement for mine operator through inspect all working areas of their mind before work begins on each shift and gave operators her mission to wait to start inspections until the same time the miners are beginning work and that sounds problematic on its face but if you look at the federal register explanation the agency makes clear that they expect that this will be implemented in a way that no miners or exposed to first and whatever there's not a lot of detail about the nature of the risks but the inspector goes first and is the eyes and ears and it's looking for hazards and the workers begins right and if the inspector is beginning the inspection at the same time that matters begin work matters working crews in several people are spread throughout the working area when they go into the mine the inspector can only look at what's right in front of him at a time he can only a his field of vision as he moves through the working area but if the crew is going to work their thread throughout the working area if it takes the inspector a half hour to get through the entire area and look at everything and that means that at least the miners would have been working exposed to any unexpected hazards for twenty five minutes almost thirty years there's no question that the as work begins standard could be implemented in a way that puts miners is at risk as you just said but if it could be implemented i mean suppose they're all working in one area on a given day and they go in together and the inspector goes first and is looking around us as the miners are turning the machines on or whatever it is they do when they start work well the problem with thinking about i think that we're getting toward the best practice that's in that and so that made in their administrative record no problem a risk if the inspectors in the miners go in at the same time and that doesn't seem facially unreasonable well even if it were possible under certain circumstances to back to write a floor beneath which unscrupulous careful operators can fall those are the people you have to be concerned about and if it's possible to follow the letter of the regulation and to provide less protection to miners than they had in twenty seventeen then that in in the mind looking for problems at the time the workers are going in if you have a mine is not twenty four seven right it runs in one shift and the inspectors go in as the miners are starting work suppose the house or only manifests itself once the miners turn on the machine and start working they might not they might miss that if they go in before when the min to note in response to that hypothetical but if you're having miners go in to begin work in an area that has not been completely inspected before they get there they have access only to piecemeal bits of information about hazards that the inspector collects as he moves  working area if the inspection is done before miners begin work they have a complete picture of everything that the inspector found throughout the work area the difference between being given a fairly comprehensive report of what kind of potentially fatal hazards you might encounter in your work day am not aware of any notation in the record of the average length of inspections but i do know from experience in representing miners that working areas can be quite large and it can take a considerable amount of time for any one individual to make their way through the entirety of it and look at everything and the concern that we have is for what happens to people who are kind of working at the end right the last place that the inspector gets to they've been there for fifteen twenty twenty five however many minutes it is and you find it evident in the administrative record of people suffering fatal injuries in accidents from unexpected how they were than ten twelve thirteen minutes of the nuff to kill someone i mean is this do we go from the record if to i have my house cleaned it is thoroughly cleaned but it is also in dust it is also mop so when we're talking about this type of inspection are we talking about what specially that we're talking about is much more similar to the comprehensive inspection that you described the responsible competent person under the regulations is supposed to go through the entire working area of the mine and look for any hazards that have the potential to endanger miners under the twenty seven thousand rule that person was supposed to make a record of every hasn't that they found under the twenty eighth amendment they were able to avoid recording certain hazards of their corrected with them quick period of time but the goal of the inspection in any case is to get a comprehensive picture of what are the conditions underground or on the surface depending on what type of mine it is and the nature of mining is that the physical environment is constantly changing it's not like going into work in an office through even in a warehouse or a factory where things stay put equipment tend to do the same thing day in and day out you have a constantly shifting physical environment you have constantly moving people and what it meant and so at the inspector is doing is taking a look at everything to their cave based on the conditions that we have today versus what they were on the last shift yesterday what are the dangers that miners might encounter so that they can be aware of those in avoid being interger possibly killed good morning my name is susan eckard i'm here on behalf of united steel workers i'm going to address the second part of the argument which is the arbitrary and capricious challenge which is of course tied into the section one o one a nine argument as well since the statute an arbitrary capricious decision making work together to create a backstop for how the agency must review what is more protective or as protective under the language we have a twenty eight hundred rule is not the product of reasoned decision making because i'm just not provided in the record adequate reasons for the changes they've instituted and their unexplained inconsistency is between the twenty seven and the twenty eight hundred more the record for the twenty eighteen rule does not support those changes and in fact at times contradicts the much more comprehensive than the straight record that the agency put together for the twenty seventeen rule secondly hundreds policy you have an arbitrary and capricious decision making this is particularly problematic here because i'm sure previously relied on its expertise and experience in developing the twenty seventeen war and so you see a contradiction because in twenty seventeen of course they're asking for deference to their expertise and experience and and now yet again they're asking for deference and we don't believe it can be so wide open that we just give them  sort of a blank check to make changes as they believe with a change in a new administration which is with changes in priorities another he might be able to make those kind of changes more new rule could be implemented in a way that is as protective of minors or not why wouldn't we give some w the agency's clear statement in the federal register that they want it implemented in a way that protects minors and we can and i can imagine ways in which that might work right the inspector goes in my mind with the workers right behind him why would we give the agency the benefit of the doubt in bad sense whether it's it's our task france or crediting their explanation for state farm purposes that doesn't seem unusual right i mean i think in general if he does get a certain level deference of course but here in effect we have mc taking on i'm sure in twenty seventeen we had findings that were made that said the safest way to conduct the exam is as before so i see a problem in that we do have this record from twenty seventeen with studies and model  war and rely on their own evidence and their own findings that are far more detailed and once you look at that and buy into that then it's very difficult to get to where we're at in twenty eight  or analysis information something that says we understand that level protectively that we need and here's what we hear is why we think we it meets this new standard instead we've got a sort of wishful thinking about that we believe this will work but we don't have to go there because they already created a war that addresses it so so why go to go to this new place where we already know the answer and both the record keeping and the timing of the workplace examination given the record given the a lot of testimony that we received in the twenty seventeen and if you're going to go to a new direction and not say that agency can go in a new direction and that especially when you have a change ministration going to have different priorities and policies but first of all you've got to develop that record very very thoroughly to do that when you've already developed a record that goes in a different direction so i think we're at a different place than we're starting with a blank slate creating a new rule what what's good what's bad we have we've already set the floor and so why are we going to go back to a place where there's more discretion and more opportunities for problems given what we've already seen from mention and deferring to its expertise that from twenty seven team so in that regard we would ask that  please the court illegal or scott for the secretary there are more than eleven thousand metal and nonmetal mines in the united states some of them resemble i can suffer the popular conception of a mind fast networks of underground tunnels or more than ninety percent of all metal nonmetal mines employ fewer than twenty people and more than half employ fewer than five needless to say developing standards that not only are workable at such diverse operations but also that will protect miners at such diverse operations is i don't see any explanation of why the new rule will will necessarily be as protective as the old rule in this is very common sense notion where you need to finish the inspection to find out what the hazards are to tell the miners before they go in and expose  themselves and there's a finding in two thousand and seventeen that that's the way to make inspections as safe as you can and if you've come along and what will water that down and the only explanation is some whang wage in the federal register that maybe you can do this in a way that's safe but maybe you can't i have a few points in response i think first i don't think it's necessarily accurate to characterize that as work begins option is watering down the standard i mean the standard does retain the before work begins options as well and explained that in minds that do  conditions this will enable operators to choose which works best at their minds as you pointed out in this car there may be mines where it makes sense to do with or not make sense but is safer in fact to do the examination as miners begin work and the language of the standard itself in fact if you look at it as a whole makes it clear that there is not the center does not permit a situation where an entire crew of miners is coming into a workplace that has not been examined this wondered why not because the standard requires right that's not going to help miners if they're going into five different places of lawns on the inspectors simultaneously going into one of those five places to start the inspection but the critical language is promptly notify miners and in the preamble and six lanes that promptly means before miners are exposed and so yes the language of the standard is as we're against but that does not mean that that requires some distance as some distance in time between when a competent person is inspecting the working area and when other miners are coming in if it's not because it is not possible for a competent person to find hazards to notify miners about them and less there is some in some distance and time there and so to comply with the other pieces of the standard i mean but i either the notice requirement you're saying the notice of the proper notice requirement solves this problem either it doesn't because there will be hazards that are not found in time or there's just this very strange operation of the regulation that you would you express lee change the before work begins standard to one as work begins standard but that can never become effective because there's no way to give sufficiently prompt notice i think that might be i'm not totally sure i understand your point of i i mean all let me try it let me try it again if if the notice if you can't send minors into an area from ma and unless and until they are informed of hazards found by an inspector right then walk your rule of before or as minors begin would seem to come up just collapse into the old rule of before before work began i understand your point i think and this goes to the realities of how mining is that is so i think if you read the clock to conduct the examination before the next ship comes in this is different because it does permit for example miners to travel together on the same vehicle and maybe it seems absurd that a competent person would bend inspect the working place before other miners are exposed to hazards that is went into them visiting in this case so it may seem like an academic distinction but in practice it really does work it makes sense and yeah i mean i understand how it could work problem is solved the detail seemed to be in the sub regulatory statements that don't have the force and effect of law and as as your friends point out the point of the safety rule is to have a  floor but i think i would respectfully i guess i can't really disagree because the standard does say promptly and should it not say before minors are supposed to know in the standard that's that's true but i also think this goes to an important point which is the one or the other again standard can't be considered in a vacuum this standard works or that as work begins exception works in tandem with the promptly corrected hazards of recordkeeping exception as well to for purposes of want to want to not and ultimate determination that this standard as a whole satisfies and i want to night let me ask you to envision this what would be the difference if the inspection is done before a shift begins work and there's a danger that is as obvious as flammable right near too close to something or the fact that some equipment has to be so many feet the inspector goes in first and season's flammable rights as opposed to bringing in the miners that's something that has to be fixed immediately separate provision of the standard itself right is that the difference between an inspector seeing the these rags and flammable near something they shouldn't be near when he when the miners haven't begun work and he says get somebody in here get those some section eight two of the new standard which states that it should be brought to the immediate attention of the operator and all persons are withdrawn so if there is a severe hazard that would immediately have to be addressed that might be in imminent danger then there is a separate procedure under the regulations that are under the standard that does take that into account but probably correct at hazard but again the standard requires a competent person to notify miners about a hazard so let's say instead of  important but it is not only protection that ensure has and place for minors there is there are numerous numerous or a whopping safety standards that also has separate obligations on operators to keep these hazards from existing in the first place or to correct them when they find them and so i don't think it makes sense to take this standard in a vacuum either and assume that the only way that an operator or miners may know about hazards or the only reason that they're obligated to correct hazards and even some standards that require every shift miners to examine equipment they're going to be using during that shift so in reality there are all these overlapping protections but also keep my  and we haven't talked much about the athlete corrected hazards exception but i did want to make just one point about the idea that it reduces safety because it reduces miners ability to identify trends  the twenty seventeen year old makes it clear that the benefit of identifying trends was primarily for mine operators benefit was not the primary safety focus of the rule is obviously safety related being able to identify recurrent or significant hazards acknowledge that yes this is a benefit we did in twenty seventeen identify this as a benefit and she still thinks this is a benefit but determined overall that incentivizing operators to correct more hazards promptly so that there will be fewer hazards that allowing operators to protective as the one in place i also just want quickly to make a note about remember this wasn't briefed extensively or in any depth but the unions that argue that the rule should be vacated rather than remanded so if if the court is concerned that if you did not adequately explain its safety determinations or bed rest it's not adequately explain its determinations that was not the kind of fundamental deficiency it was not so abrupt a departure from prior practice without explanation that would justify vacating the rule as a whole if we do vacate what is your position on what would then apply the twenty seventeen or the nineteen seventy nine the one nine hundred seventy nine standards were the last one that that were in effect i think what would go into effect would depend on the scope of the court's order and whether the court vacated only pieces of the standard or the standard itself i think that is a more complicated question that might and i think i prefer to answer after seeing an order why we were in the preamble the t wenty seventeen was stayed until june second of twenty eight and then this new rule came along if we vacate the new rule then why would that resurrect twenty seventeen that was only stayed until june second you know i think i think that's right i may have misspoke and i thank you i mean my standards were briefly reinstated until the twenty seventeen standards came back into effect so i  it is so just one more question on the remedy do you we have two different provisions we've been talking about do you view them as several i think that's a question that would better be answered in briefing it's a little complicated because i mean let me just put my cards on the table suppose suppose i think that the before work there is no indication in the agency record that insurer would not have undertaken or not have adopted one and in the absence of the other i'm into analyze them and the indication to the contr incentives to fix hazards and you don't want to overwhelm records with on helpful information i had thought that stands on its own bottom and indicates non severability did touch briefly on a couple of points to wrap up today the first is the record keeping portion of the rule that you are just the thing with and should come full this safety change is just as significant in the petitioner's minds as the inspection timing change was when operators declined to record all hazards to can't record those that are promptly corrected it is much more difficult for them to recognize patterns of recurring hazards in the mines and to take that they are necessary to interrupt those patterns recurring small hazards not only in danger miners on a repeat regular basis but they can indicate that more serious hazards are likely to develop the operators the it records of all of these hazards that they can take appropriate action and just as importantly min representative need access to complete records so that they can hold the operators accountable for taking the right steps to correct these issues now in twenty seventeen emson made the reason in fact a finding that recording all hazards was the only way for readers to adequately protect their workforce and that reducing recordkeeping burdens would not incentivize operators to correct issues more quickly than twenty eighteen and share reversed course without any factual finding new data studies the nation of any kind think precisely the opposite that now in twenty eighteen allowing operators to refrain from recording all hazards would in fact incentivize quicker corrections this is just like the unsupported change to inspection timing is not a factual text and we need to look at what are the minimum requirements here what does this rule at bottom require operators to do and not do in the fact that i'm sure i've made precisely the opposite determinations in twenty seventeen