counsel when the red light is on and when the yellow light is on i will advise counsel that we are ready to proceed the panel has not previously conferred about this case but we have read the and it is national mining association vs the department of labor united steel is an entertainer and the united mine workers of america is an intervenor as well steel institute a national stone sand and gravel association the georgia mining association and the georgia aggregates association can speak a little louder please i will i will try your honor i am using the handset and i will i have it turned up as loud as i can get it but i apologize if i'm a little bit hard to hear the wool that is in front of you was published just after the naga ration of the current president and it had been preceded by a number of policy document that was somewhat controversial it was challenged by the trade associations i represent and in august two thousand and seventeen m schiff said they were going to consider revising the rule that put up they allowed it to go in briefly into effect in october two thousand and seventeen and in april two thousand and eighteen they published another revised rule and changing the timing of a workplace examinations in the recording but no other issues that will was challenged by the unions and thrown out by the d c circuit in june two thousand and nineteen frankly both the two thousand seventeen will making and the two thousand and eighteen will making were seriously flawed and the court should essentially tell the agency to start over if they were if they want to change the rule will that had been a fact up until rule that applies to workplace examinations there are other rules and part fifty six in part fifty seven and thirty c f r that identify other types of examinations such as for equipment for ground control  corrective action well your honor yes that was the justification they cite the there are several interesting things about that st of all if you look at the history from and seventy seven dollars there has been a steady and very favorable of the klein and all sorts of injuries including fate out second of all if you look at the sixteen that would have been affected by the rule change i'm not even sure there were three year on or because in all of the sixteen reports they say the operator knew of the condition and i don't even think that there are three that justify it when i was looking at it i did not see three that would have been just of that would have been fixed by a rule such as th i did see one of the jumped out at me when i was looking at it there is one that's on i believe in on page three hundred and twenty five dollars of the appendix that was a situation where a  piece of a tractor truck had been lifted off the ground with a chain hoist and had been blocked and it fell what struck me about that is one of the arguments we have is the timing argument and if i walk dan and at the beginning of the shift i would not expect that truck to be above the floor but that would be something that would curb doing the work process it would not have been something that was and then a fired if it were in fact on the floor and that's not clear from the report before they started working on it that's not something that would have been addressed by this will we have said that there is a threshold leaving aside the standard it has to be the product of reason rulemaking we have said there's a threshold both in the act and based on the supreme court decision in american petroleum but actually we believe they are because while what the court looked at in american petroleum is the osha acts as the will have to be reasonably necessary or appropriate a safe workplace and that's paraphrasing the last part of that the mine safety and how facts as doesn't have the reason when necessary but it has appropriate for improved health or fifty standards for risks and that the congress expected a gent's a from time to time to as and improve so bottom line of my question it seems to me that whatever  finding that there is a deficiency in listing and i don't believe that they if there is an improvement that might imply a risk but  matter of common sense that that will be an improvement it seems to me what's wrong with my thinking was think the problem is that often times the quote to constantly be on the lookout whenever you have your exam the possibility of something happening after well the previous will which didn't ti is not really addressed in the rule in two thousand and seventeen but oftentimes shifts are twelve hours long in the metal on metal industry and if i knew that someone was going to three or four places in one of these large plants that they have and i said ok i'm going to go visit those now at the beginning of the shift and see what's there  may i ask a question though before the time expires my understanding of the of the pre rule and then the and then the current rule is that under the current rule the the examination only takes place before the shift before the miners begin working and then the in the original or in the older version it could have been a different point during the shift that is correct you could you could depending on what work was being done and what what conditions were being created during the shift you could do an exam later in the shift rather than before work began questions i'd save some time i will stop now and minute sam behalf of both units assert that the twenty seven workplace examination rule should be upheld is consistent with the my next statutory purpose and section one hundred and one a the record demonstrates overwhelming need for improvement in the workplace examination standards and shows an empty engaging result decision making developing a common sense rule to improve safety one point i'd like to make right off the bat it to address the judge's concern is the does change the timing to require the exam before the workers go into an area but there's nothing stopping a good mine operator who knows the conditions are developing over time to continue to have additional workplace exams throughout the day and in fact that's encouraging that's a good practice the main important point is that it requires a bright line test before workers go into an area and myers will not start working unless the areas and subject to this and we were hoping to highlight some of those for you in that d c circuit decision the d c circuit rejected and just attempts at flexibility back into the timing of the workplace examination that in the manner that the problem that the agency found that when a person when there is flexibility variability added into the process they were getting too many accidents because they were addressing your question judge anderson about whether there is a process for mine to get an exemption from a standard it's not quite an exemption process but section one hundred and one the of the mine act which is thirty u code eleven see under that section either mine operator or a representative of miners at a particular mine may petition the secretary of labor for a modification of that standard those are called petition for modification procedure under the secretary's regulations at that point that moves that potential forward for the secretary to make a determination about whether based on the conditions at a particular mine it would be safer to take a different approach so that's a long answer  set forth in the american petroleum case what can you tell us that convinces us that the existing standards or the standards for rule making were inadequate or insufficient to protect miners if those standards weren't forced because it seems like where there were accidents it's because the mines failed to comply with the existing standards not necessarily will note that let me ask a question just following up on that answer but does this change how does this change in any way protect the miners any further because it doesn't create any incentives or any penalties i mean what is the difference between the old rule and the current rule in terms of protecting minors from potential accidents well in addition to i think there are three shows that these accidents actually occurred as a result of something happening pre shared starting even if the timing and isolation didn't prove that i think the other two provision the notification provision and the record different from what was required and so i do think it is a it is a significant improvement the old rule only required a mine operator to keep a record that the examination was done at some point the new record keeping provision is much more it requires an explanation to do the same thing so those things are significant improvement dressing a deficiency that existed in the existing rule the notification provision to is new this was not in the old rule and the notification provision is crucial for a common enabling every one of the mine to fix have to identify problems that may be recurring and to fix any problems that are there before they're going to hurt someone i will also just note to the standards a technical matter does not require operators to mediately fix may be and certainly those are possibilities but i think there was no comment at least that it sounds to my knowledge that those were the vast majority of cases and said you know that before work begins timing the object is not is both linguistic one language in the statute but also significantly and strict one off that applies to basically all non my in this country and that is a much wider swath of industry to be regulated but as again we explained in our brief even to the extent that sunk threshold finding of and safeness as required congress made it congress found that mining is unsafe that unsafe and unhelpful practices exist and that they need to be corrected the new requirements for the final rule from those benefits attributable to conducting a workplace examination under the existing standards close quote seems like the agency cannot say that the existing data therefore you're not allowed to regulate which to me is the front of the petitioners argument on this point but don't you but don't you have to since you regulate the the the mining companies can't you then ask them for the data can't you collect i mean the agency is not well but they couldn't the reason the the accident they could investigate those and they could determine why the accident occurred and what could be done to prevent the actions from occurring justification for this rule change really the fatalities that's part of the justification but not all of it the other justifications were one inch of experience in this realm which is which is it did explain that experience and then also its review  f other studies conducted in this area that showed between a seventeen and twenty four percent reduction in injury and accident rates so this wasn't just how these were part of it but it was more than that it was also in his expert review of both the expert literature but i'm at four twenty nine pm and still be in compliance with this rule and that is really fundamentally want one of the significant bases for the timing except for the timing change at least that i'm sure made here decisions would demonstrate that so it's not really a viable or feasible option and when you're talking about examinations second when we're talking about the d c circuit case there are a number of reasons that they gave for rejecting for example the change in the record keeping that they said you can't credit i justification based on deficient compliance with the existing standard to justify now rd on the notification issue one of the things that i think we all have to recognize that in many facilities people doing the exams are the actual miners who are going to do the work they are competent people it doesn't require any special certifications or the like they are the ones going in the rd thing is it's interesting because there was the question about what data is available actually and in most fake ality investigations that i've been involved with m c i ask for the workplace exams and this preexisted the night two thousand and seventeen will it was standard practice see what what your records of exams say there are operators who have a sense for your card system they've given the employee a card and they say mark on here any hazards and it gets turned in at the end of this year there is some historic regulation skiing both chattily and state and they include descriptions of the conditions that are found and if they wanted to could go in and draw that comparison they did not i assume because they felt that it would not help them because frankly there are any number of cases where they have relied on what's in the books in the record  the notification was limited to the person actually doing work in the area that would be one thing but it's not limited it's minors in the affected area and you don't know necessarily who might come to the area later and that lack of clarity and that this is not the only provision that there's a lack of clarity is makes it difficult to figure out how to comply the end we've said you've got to clarify this further well since one thousand nine hundred and seventy seven we all know chevron happen as well as an increased emphasis on deference to an agency's interpretation where an agency's interpretation is binding on the operator we we can't have the lack of clarity that's in this will and we think that what should happen is you you should vacate it let him go back and start over and see if they can create a better role and justif recess until nine o'clock tomorrow morning thank you thank you