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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 4, 2010 Decided March 19, 2010

No. 08-1241

NATIONAL MINING ASSOCIATION,

PETITIONER

v.

MINE SAFETY AND HEALTH ADMINISTRATION AND

SECRETARY OF LABOR,

RESPONDENTS

UNITED STEEL, PAPER AND FORESTRY, RUBBER,

MANUFACTURING, ENERGY, ALLIED INDUSTRIAL AND

SERVICE WORKERS INTERNATIONAL UNION,

INTERVENOR

Consolidated with No. 09-1087

On Petitions for Review of an Order 

of the Federal Mine Safety & Health Administration
2

Daniel W. Wolff argued the cause for petitioner National

Mining Association. With him on the briefs were Thomas C.

Means and Edward M. Green.

Henry Chajet argued the cause and filed the briefs for

petitioner Methane Awareness Resources Group.

Edward D. Sieger, Senior Appellate Attorney, U.S.

Department of Labor, argued the cause for respondents the

Secretary of Labor and Mine Safety and Health Administration.

With him on the brief were Deborah Greenfield, Acting Deputy

Solicitor of Labor, and W. Christian Schumann, Counsel.

Benjamin M. Shultz, Attorney, U.S. Department of Justice,

argued the cause for respondent National Institute for Secretary

of Health and Human Services and National Institute for

Occupational Safety and Health. With him on the brief was

Mark B. Stern, Attorney. Dana J. Martin, Attorney, entered an

appearance

Before: ROGERS and TATEL, Circuit Judges, and WILLIAMS,

Senior Circuit Judge.

Opinion for the Court by Circuit Judge ROGERS.

ROGERS, Circuit Judge: The National Mining Association

(“NMA”) and the Methane Awareness Resources Group

(“MARG”) (hereinafter, together “industry”) petition for review

of the Mine Safety and Health Administration’s (“MSHA’s”)

decision to enforce a final exposure limit standard addressing

health risks presented by exposure of miners in metal and nonmetal underground mines to diesel particulate matter (“DPM”)

in diesel exhaust. The decision, announced May 20, 2008,

represented a change in MSHA’s earlier expressed intent to

issue a proposed rule to convert the final DPM exposure
3

standard from a total carbon (“TC”) to an elemental carbon

(“EC”) measurement. See Diesel Particulate Matter Exposure,

Notice of Enforcement of DPM Final Limit and Withdrawal of

Intent to Issue Proposed Rule, 73 Fed. Reg. 29,058 (May 20,

2008) (“2008 Notice”). On the same date, MSHA issued

Program Policy Letter P08-IV-01 (“2008 Policy Letter”)

describing how it intended to enforce the DPM standard.

Industry contends MSHA’s decision was arbitrary and

capricious because inadequately explained and unsupported by

scientific data, contrary to a 2002 settlement and to MSHA’s

statements to this court, and without public notice or opportunity

to comment. MARG individually challenges the failure of the

National Institute of Occupational Safety and Health (“NIOSH”)

to release a study on DPM. For the reasons that follow, we deny

the industry petitions and dismiss MARG’s individual

challenges for lack of jurisdiction. 

I.

The Mine Act provides that MSHA shall “develop,

promulgate, and revise as may be appropriate, improved

mandatory health or safety standards for the protection of life

and prevention of injuries in coal or other mines.” 30 U.S.C.

§ 811(a). For “toxic materials or harmful physical agents,”

MSHA “shall set standards which most adequately assure on the

basis of the best available evidence that no miner will suffer

material impairment of health or functional capacity” and, “[i]n

addition to the attainment of the highest degree of health and

safety protection for the miner, other considerations shall be the

latest available scientific data in the field, the feasibility of the

standards, and experience gained under this and other health and

safety laws.” Id. § 811(a)(6)(A). A new mandatory health or

safety standard may not provide less protection to miners than

an existing mandatory standard. Id. § 811(a)(9). A person

adversely affected by a mandatory health or safety standard
4

promulgated under section 811 may petition for judicial review

of the standard within 60 days after the standard is promulgated.

Id. § 811(d).

Based on an assessment of the risk to miners of adverse

health effects from DPM, MSHA promulgated a rule in January

2001 limiting the airborne concentration of DPM in

underground metal and non-metal mines. See Diesel Particulate

Matter Exposure, 66 Fed. Reg. 5706 (Jan. 19, 2001) (“2001

Rule”). The 2001 Rule set both interim and final DPM

concentration standards, using TC measurements as a surrogate

for measuring DPM; the interim DPM standard was to take

effect in July 2002. Id. at 5706–07, 5726–27. The concentration

limits were expressed as the number of micrograms of TC per

cubic meter of air. After several petitions for review of the 2001

Rule were filed (including petitions by NMA and MARG),

MSHA entered into a settlement agreement in July 2002

postponing the effective date of the interim DPM standard of

400 TC from July 2002 to July 2003, and requiring MSHA to

propose an expedited rulemaking to change the DPM surrogate

from TC to EC; the pending petitions for review were to be

dismissed upon completion of the expedited rulemaking. See

Diesel Particulate Matter Exposure, 67 Fed. Reg. 47,296,

47,297–99 (July 18, 2002) (“2002 Settlement”). 

Thereafter MSHA revised the 2001 Rule twice. In 2005,

based on scientific data showing a TC:EC ratio of 1.3:1 for

converting EC measurements to TC measurements at certain TC

concentrations, MSHA converted the interim DPM standard

from 400 TC to 308 EC. See Diesel Particulate Matter

Exposure, 70 Fed. Reg. 32,868, 32,870 (June 6, 2005) (“2005

Rule”). MSHA explained that although the scientific data

indicated this single, constant conversion factor was appropriate

at 400 TC, the data were not adequate to convert the final DPM

standard of 160 TC to an EC measurement. Id.; see also Diesel
5

Particulate Matter Exposure, Proposed Rule, 70 Fed. Reg.

53,280, 53,287 (Sept. 7, 2005) (“2005 Proposed Rule”). In

2006, MSHA postponed the effective date of the final DPM

standard of 160 TC from January 2006 to May 20, 2008, and set

an interim standard of 350 TC to become effective in January

2007. See Diesel Particulate Matter Exposure, 71 Fed. Reg.

28,924, 28,978 (May 18, 2006) (“2006 Rule”). MSHA

reiterated that the scientific data were not adequate for

converting the final DPM standard of 160 TC to EC and stated

that it intended to consider the TC-to-EC conversion in a

separate rulemaking. Id. at 28,976, 28,983. 

In February 2007, this court upheld the 2001, 2005, and

2006 Rules setting DPM standards. In Kennecott Greens Creek

Mining Co. v. MSHA, 476 F.3d 946 (D.C. Cir. 2007), the court

rejected challenges to the sufficiency of evidence of health risk

for miners from DPM and to compliance feasibility for mine

operators, and concluded MSHA reasonably chose TC as a

surrogate for measuring DPM in view of evidence of their tight

correlation and the fact that MSHA has a reliable method for

determining the amount of TC in a sample. Id. at 955. The

court also rejected claims that MSHA was arbitrary and

capricious in not converting to EC the interim DPM standard of

350 TC and the final DPM standard of 160 TC, as MSHA had

done in 2005 for the interim DPM standard of 400 TC. The

court observed that “MSHA has clearly stated in its rules that

TC can still serve as a consistent and reliable surrogate for DPM

as long as samples are taken in areas away from tobacco smoke

and oil mist.” Id. at 956. The court noted MSHA had stated it

would initiate a new rulemaking regarding conversion of the

final standard from TC to EC. The court concluded:

In sum, MSHA has concluded that EC is a better proxy

for DPM than TC, but this does not automatically

render the use of TC to be arbitrary and capricious.
6

Even though TC sampling is more difficult than EC

sampling, MSHA has reasonably determined that TC

can still be a reliable proxy for DPM as long as

samples are taken in the proper manner. In any event,

MSHA’s rulemaking suggests that it has no intention

of using TC as a stand alone proxy.

Id.

On May 20, 2008, MSHA gave public notice of its decision

to enforce the final DPM standard of 160 TC and to withdraw its

intent to propose a rule converting 160 TC to EC. 2008 Notice,

73 Fed. Reg. at 29,058–59. In the 2008 Notice, MSHA

explained that the latest available scientific evidence did not

identify a single, constant conversion factor for EC below 230

TC. Id. at 29,059. It referenced an article about a study of four

underground mines (two stone mines and two metal mines),

which stated that the correlation between TC and EC varies

below 230 TC and that the TC:EC ratio is highly variable below

160 TC. J.D. Noll et al., Relationship between Elemental

Carbon, Total Carbon, and Diesel Particulate Matter in Several

Underground Metal/Non-metal Mines, 41 Envtl. Sci. & Tech.

710, 715 (2007) (“Noll-Bugarski Study”); see 2008 Notice, 73

Fed. Reg. at 29,059. It also referenced a consultant’s report

advising that because the Noll-Bugarski Study showed that the

variability of the TC:EC ratio increases as DPM levels decrease,

EC measurements would not be an appropriate surrogate for

DPM at 160 TC; the report discussed four sampling strategies

for enforcing the 160 TC standard. J. Kogut, Alternative

Strategies for Enforcing a DPM Exposure Limit 1 (Sept. 2007)

(“Kogut Report”); see 2008 Notice, 73 Fed. Reg. at 29,059–60.

The 2008 Notice stated that MSHA would provide a “protocol

for calculating a location specific adjustment” to a miner’s

personal sample based on TC and EC measurements. 73 Fed.

Reg. at 29,059. On the same date, May 20, 2008, MSHA also
7

issued the 2008 Policy Letter describing how it intended to use

a miner’s personal TC sample and samples from areas of a mine

to validate whether the miner’s DPM exposure had exceeded the

160 TC standard. Industry filed petitions for review; NMA filed

a petition in this court and MARG then filed a petition in the

Fifth Circuit, which granted MSHA’s motion to transfer

MARG’s petition to this court.

II.

Industry contends that in withdrawing the promised

rulemaking and simultaneously issuing its enforcement strategy,

MSHA failed to provide an adequate explanation, relied on a

scientific article and a consultant’s report that do not address

whether identifying a TC:EC conversion factor is too difficult,

and directly contradicted what MSHA had told this court in

2007. Further, industry notes, MSHA had agreed as part of the

2002 Settlement to propose a final DPM standard that used EC

instead of TC as a DPM surrogate. In these circumstances,

industry contends that MSHA should be required to provide

notice and afford the public an opportunity to comment on the

basis for its change of position, and seeks a stay of the 160 TC

standard and a remand of MSHA’s rulemaking withdrawal and

enforcement strategy publication with instructions to MSHA to

engage in further notice-and-comment rulemaking.

This court has jurisdiction under the All Writs Act, 28

U.S.C. § 1651, to review industry’s challenge to the 2008 Notice

on the ground that MSHA was arbitrary and capricious in

deciding not to propose a rule to convert the final DPM standard

of 160 TC to EC. The All Writs Act provides that federal courts

“may issue all writs necessary or appropriate in aid of their

respective jurisdictions.” Id. § 1651(a). As this court explained

in the context of MSHA’s withdrawal of a proposed rule in

International Union, United Mine Workers of America v. U.S.
8

Department of Labor, 358 F.3d 40, 43 (D.C. Cir. 2004), “the

withdrawal of a proposed rule defeats this [c]ourt’s prospective

jurisdiction” because such withdrawal is similar to unreasonable

delay of agency action. This court’s authority to review the

withdrawal of MSHA’s published intention to propose a rule to

convert the final DPM standard of 160 TC to EC is a similar

“necessary implication” of the court’s jurisdiction to address

claims of unreasonable agency delay in order to protect the

court’s prospective jurisdiction over the final rule resulting from

the promised proposed rule. Id. Upon applying the arbitrary

and capricious standard of review, see id., we conclude MSHA

was not arbitrary and capricious in issuing the 2008 Notice.

“‘[A]n agency’s refusal to institute rulemaking proceedings

is at the high end of the range’ of levels of deference we give to

agency action under our ‘arbitrary and capricious’ review.”

Defenders of Wildlife v. Gutierrez, 532 F.3d 913, 919 (D.C. Cir.

2008) (quoting Am. Horse Prot. Ass’n, Inc. v. Lyng, 812 F.2d 1,

4–5 (D.C. Cir. 1987)). The 2008 Notice advised that MSHA

would enforce the final DPM standard of 160 TC and not

convert it to EC because MSHA “could not identify a single,

constant conversion factor for EC at any level below 230 TC.”

2008 Notice, 73 Fed. Reg. at 29,059. MSHA’s decision has

ample support in the record. MSHA explains that, consistent

with the efficiency requirements for instituting a rulemaking, see

Exec. Order No. 12,866, 58 Fed. Reg. 51,735 (Sept. 30, 1993),

and the Mine Act’s requirement that a new mandatory health or

safety standard may not provide less protection to miners than

an existing mandatory standard, see 30 U.S.C. § 811(a)(9), it did

not institute a rulemaking to convert the DPM standard of 160

TC to EC because it lacked scientific data necessary to identify

a single, constant EC conversion factor that would ensure no

impairment of the miner protection achieved under the DPM

standard of 160 TC. In the 2005 Proposed Rule MSHA alerted

industry (and others) generally that the TC:EC conversion ratio
9

1

 The comments included NMA’s statement that “NMA must

insist that . . . the final outcome of the rulemaking to be conducted by

MSHA on a TC to EC conversion factor will result in an accurate,

scientifically supportable conversion factor.” The Stillwater Mining

Company commented that “Stillwater believes that additional research

is needed in order to determine an appropriate conversion factor.” So

too, the FMC Corporation commented that it “respectfully suggests

that MSHA wait for the NIOSH . . . study report to be issued so that

NIOSH can share their scientific determination of the potential risks

and feasibility related to DPM.” And Kennecott Greens Creek Mining

Company and its parent Kennecott Minerals Holding Company

(“KMC”) commented that they “agree with MSHA that more work is

required to develop an appropriate conversion factor from TC to EC

for the proposed phased-in final limits. . . . [I]dentifying an accurate,

scientifically supportable, and peer-reviewed conversion factor is

absolutely fundamental to KMC’s acceptance of any staggered

effective date schedule.” MARG stated that “the proposed conversion

of TC limits to EC limits is not feasible” and that it “is hopeful that

MSHA will finally correct its flawed rules, by deleting the 160 limit.”

of 1.3 might not apply at DPM concentrations lower than 400

TC and requested comments on how to make the conversion.

See 2005 Proposed Rule, 70 Fed. Reg. at 53,287. In response,

NMA and several mine operators agreed more scientific

research was needed, while MARG argued the DPM standard of

160 TC could not be converted to EC and should be deleted

from the DPM rule.1

 The year after this court’s 2007 decision

in Kennecott, MSHA concluded that the latest available

scientific evidence appeared in the February 2007 Noll-Bugarski

Study, whose authors had found that the variability of the

TC:EC ratio increases below 230 TC. See 2008 Notice, 73 Fed.

Reg at 29,059. In the absence of other data MSHA thus

concluded it could not identify a single, constant TC:EC

conversion factor below 230 TC. See id. NIOSH agreed that

MSHA’s evidence did not allow identification of a constant

TC:EC conversion factor below 230 TC. In these
10

circumstances, MSHA could reasonably conclude it lacked a

way to convert the TC standard to EC at the 160 TC level using

a constant conversion factor.

Industry properly acknowledges that MSHA can abandon

a prior contemplated course of action if it offered an adequate

explanation. See Int’l Union, UMWA, 358 F.3d at 45. But

industry contends MSHA’s explanation was superficial,

implausible, and contrary to facts of record. Specifically NMA

maintains that neither the Noll-Bugarski Study nor the Kogut

Report support MSHA’s May 20, 2008 decision. The NollBugarski Study, as NMA suggests, was limited to the actual inmine data of only four mines, which the authors acknowledged

did not necessarily provide a good representation of all

metal/non-metal mines. See Noll-Bugarski Study, 41 Envtl. Sci.

& Tech. at 715. True enough, but this does not meet MSHA’s

point that the Noll-Bugarski Study was the latest scientific

evidence. See 2008 Notice, 73 Fed. Reg. at 29,059. 

Contrary to industry’s view, there was no inconsistency

between MSHA’s position in Kennecott that it could enforce the

DPM standard of 160 TC and its statement in 2006 that to

enforce the standard it needed “to validate a TC sample result,

which cannot be done without an appropriate conversion factor

for EC at that level,” 2006 Rule, 71 Fed. Reg. at 28,976. As

MSHA states in its brief, “[i]n context, the statement addressed

MSHA’s inability to identify a practical sampling strategy that

would adequately remove organic carbon interferences,” MSHA

Resp’t Br. 21, and was not, as industry asserts, a statement that

MSHA could not enforce the DPM standard of 160 TC without

converting it to EC. The Kogut Report provided MSHA with

practical sampling strategies to enforce the DPM standard of

160 TC and thus supported MSHA’s decision to enforce this

standard. NMA misses the mark when objecting that the Kogut

Report provided no support for MSHA’s decision to enforce the
11

DPM standard of 160 TC because it did not address the

feasibility of finding a TC:EC conversion factor. Although

NMA claims that MSHA should have done further work on the

EC conversion instead, it was within MSHA’s discretion, given

the data available, simply to allow the 160 TC standard to take

effect under the previously promulgated rule rather than to

embark on a conversion of that standard to EC. See Prof’l

Drivers Council v. Bureau of Motor Carrier Safety, 706 F.2d

1216, 1222 (D.C. Cir. 1983).

Industry also contends that MSHA acted arbitrarily because

its decision not to proceed with a rulemaking on converting the

160 TC standard to EC flies in the face of the rulemaking

promise MSHA made in its brief to this court in Kennecott.

However, MSHA’s brief to the court addressed several options

open to the court in disposing of the petitions in Kennecott, one

of which was to uphold the DPM standard of 160 TC, see

Kennecott, Resp’ts Br. 32–36, 2006 WL 3622119, which is what

the court did. This hardly indicates MSHA misled the court into

thinking the validity of the DPM standard of 160 TC was

contingent on its conversion to EC. To the extent NMA

suggests the court in Kennecott took “some comfort,” Pet’r

NMA Br. 21, that upholding the reasonableness of the final TC

standard would be of limited consequence in the long run

because MSHA had “no intention of using TC as a stand alone

proxy,” Kennecott, 476 F.3d at 956, NMA reads into the court’s

holding a qualification that is not there. The court simply

recognized that the DPM standard of 160 TC could have a

limited impact if MSHA made the EC conversion or, if MSHA

did not make the conversion, that it could be enforced with

additional sampling strategies. And the fact that MSHA

offered—and the court in Kennecott rejected—the option of

declining to rule on the final TC standard because of the

likelihood that it would be converted to EC does not render the

2008 Notice an arbitrary and capricious “withdraw[al] from a
12

promised action without notice and comment.” Pet’r NMA Br.

23. The analogy NMA suggests to Weaver v. U.S. Information

Agency, 87 F.3d 1429, 1437 (D.C. Cir. 1996), where an agency

adopted an interpretation of a rule that it urged upon the court

and the opposing party, and so was bound by that position in the

future unless it explained the basis for a contrary position, is

inapt.

MSHA’s “pledge” to convert 160 TC to EC, Pet’r NMA Br.

23, was conditioned on having scientific data to support a

conversion for EC at low TC levels. See 2005 Rule, 70 Fed.

Reg. at 32,870 (converting the 400 TC interim DPM standard to

308 EC but stating “evidence in the record is inadequate for

MSHA to make determinations regarding revisions to the final

DPM limit” standard of 160 TC); 2005 Proposed Rule, 70 Fed.

Reg. at 53,287 (suggesting the 1.3 TC:EC conversion factor may

not be appropriate for 160 TC and requesting comments on

using EC and TC measurements); 2006 Rule, 71 Fed. Reg. at

28,983 (concluding the DPM rulemaking record was inadequate

for converting 160 TC to EC, and stating MSHA’s intent to

consider TC and EC conversion comments in a separate 160 TC

conversion rulemaking). The record indicates that MSHA did

not have the needed data to identify a TC:EC conversion

constant at 160 TC before the final DPM standard of 160 TC

was to take effect in May 2008. Thus, in the 2008 Notice,

MSHA stated it had concluded “insufficient data exist to

proceed with further rulemaking to convert the DPM final limit

using a single, constant conversion factor” based on the “latest

scientific evidence” in the Noll-Bugarski Study that the TC:EC

ratio varies below 230 TC, but indicated that MSHA “will

continue to monitor and encourage research in this field.” 73

Fed. Reg. at 29,059–60.

NMA’s suggestion that MSHA’s “misrepresentations,”

Pet’r NMA Br. 22, albeit unintentional, cast a cloud over the
13

legitimacy of the DPM standard of 160 TC does not advance its

position. In Kennecott the court upheld the DPM standard, and

MSHA’s options for its effective enforcement improved with the

Kogut Report. Contrary to NMA’s view, MSHA in May 2008

was thus not “exactly where it was in 2006,” Pet’r NMA Br. 23,

with respect to reliable enforcement of the DPM standard of 160

TC in the absence of an EC conversion factor. Instead, what

NMA mistakenly characterizes as MSHA’s prior “commit[ment]

to an EC standard rulemaking for the final [DPM standard] as a

matter of necessity,” id. at 22, had evolved upon receipt of the

latest scientific data. 

Industry is on no firmer ground in contending that the 2008

Notice’s withdrawal of MSHA’s rulemaking intent violated the

terms of the 2002 Settlement arising from challenges to the 2001

Rule. It is true that MSHA agreed in the 2002 Settlement to

propose a final DPM exposure limit that used EC as the DPM

surrogate. However, industry repudiated the 2002 Settlement

when it petitioned for review of the 2001 Rule in Kennecott.

See Village of Kaktovik v. Watt, 689 F.2d 222, 231 (D.C. Cir.

1982). NMA retreats from this contention in its reply,

presumably recognizing it is not in a position to bind MSHA to

a settlement NMA repudiated. MARG considers MSHA to be

still bound by the 2002 Settlement’s provision requiring

completion of the EC rulemaking before dismissal of the

pending DPM petitions, but the issues in the pending petitions

were litigated in Kennecott; even if MSHA had completed the

contemplated EC rulemaking there would be no pending

petitions to dismiss. As the court noted in Village of Kaktovik,

689 F.2d at 231, “[a] live and enforceable settlement simply

cannot coexist with a party’s efforts to acquire a court

determination of the very issues the settlement was supposed to

resolve without litigation.” MSHA was no longer bound by the

2002 Settlement when it issued the 2008 Notice.
14

NMA is mistaken when it suggests that on the basis of the

Noll-Bugarski Study, MSHA effectively “repromulgated the 160

TC standard.” Pet’r NMA Br. 19. The DPM standard of 160

TC was set to take effect on May 20, 2008 pursuant to the 2006

Rule upheld in Kennecott. See 30 C.F.R. § 57.5060(b)(3); 2006

Rule, 71 Fed. Reg. at 29,012. Absent a stay or amendment to

the 2006 Rule, the final DPM standard of 160 TC would take

effect by operation of law irrespective of the 2008 Notice and so

the 2008 Notice was not a repromulgation requiring notice and

comment under the Administrative Procedure Act (“APA”), 5

U.S.C. § 553. As the court observed in ICORE, Inc. v. FCC,

985 F.2d 1075, 1082 (D.C. Cir. 1993), an agency does not enact

a new rule when a transition rule expires or when the agency

decides not to modify a rule, states that additional study is

needed, or concludes that no new transition rule is needed.

Finally, industry contends the 2008 Notice’s withdrawal of

MSHA’s rulemaking intent was unlawful because MSHA did

not provide notice of or opportunity for comment on its action

as required by the Mine Act, 30 U.S.C. § 811(a), and the APA,

5 U.S.C. § 553. In industry’s view MSHA substituted for the

promised EC standard the 2008 Notice’s enforcement strategy,

without giving prior public notice or opportunity for comment

on either its intent to do so or the data on which it relied. NMA

contrasts this circumstance with what would have happened if

the Noll-Bugarski Study and the Kogut Report had been part of

the rulemaking record in Kennecott. It cites American Radio

Relay League, Inc. v. FCC, 524 F.3d 227, 239 (D.C. Cir. 2008),

where the court held the agency had to make public and

available for comment those studies on which it relied, including

the redacted pages on which the agency claimed not to have

relied. This contention, as framed by NMA, does not challenge

MSHA’s failure to afford notice of and opportunity to comment

on the 2008 enforcement strategy itself, but rather MSHA’s

failure to afford notice of and opportunity to comment on the
15

Noll-Bugarski Study and the Kogut Report before dropping the

idea of issuing a notice of proposed rulemaking. See Pet’r NMA

Br. 1-2, 8, 28, 30. (Although NMA states in a footnote in its

principal brief that MSHA “also promulgated, again with no

opportunity for notice and comment, a complex six-page

program policy letter,” Pet’r NMA Br. 29 n.7, this footnote

statement is not sufficient to preserve the issue. See Wash.

Legal Clinic for the Homeless v. Barry, 107 F.3d 32, 39 (D.C.

Cir. 1997).)

NMA contends that MSHA failed to comply with required

notice and comment procedures by withdrawing its intent to

propose a TC to EC conversion rulemaking and simultaneously

issuing an enforcement strategy for the DPM standard of 160 TC

“without giving prior notice of, and an opportunity to comment

on, their intent to do so or the data that informed that decision.”

Pet’r NMA Br. 2. However, the 2008 Notice was not subject to

APA notice and comment procedures. It neither enacted a new

rule, since the 160 TC standard would have replaced the interim

DPM standard on May 20, 2008 regardless of the 2008 Notice,

nor modified the 160 TC standard, and “[n]ot modifying a rule

is not the same as ‘formulating, amending, or repealing a rule,’

the APA definition of ‘rule making’” provided by 5 U.S.C.

§ 551(5). See ICORE, 985 F.2d at 1082. In addition, MSHA’s

statement in the 2006 Rule that it intended to propose a

rulemaking to convert the 160 TC standard to EC is similar to

the comment in a rulemaking by the agency in ICORE that

further study was needed. The court in ICORE held that “[a]n

agency statement in one rulemaking, that a pending study may

generate need for another, neither initiates a second rulemaking

nor cancels the timetable adopted in the first rulemaking.” Id.

Nor did MSHA adopt a new rule when it concluded in the 2008

Notice that no EC conversion was needed for the 160 TC

standard. Id. NMA’s reliance on rulemaking precedent such as

American Radio Relay League, 524 F.3d 227, in maintaining
16

that MSHA had to disclose critical factual data, is thus

inapposite. Moreover MSHA, while claiming on appeal that it

was not legally obligated to disclose the data, notes that the

Noll-Bugarski Study was published and made available on

NIOSH’s website, and that in April 2009 MSHA released the

unredacted Kogut Report as well. See Resp’t MSHA Br. 13 n.2

& 26 n.3; Pet’r NMA Br. 9 n.3.

III.

MARG individually contends this court should order

NIOSH to comply with the Federal Advisory Committee Act

(“FACA”), 5 U.S.C. app. 2, and prior court orders by providing

Congress, MARG, and intervenor union with information

involving NIOSH’s study. It also individually contends this

court should order NIOSH to release its study to MSHA and the

public, and should remand the instant case to MSHA with

instructions to reopen the DPM rulemaking, add the NIOSH

study to the rulemaking record, and consider this study in

promulgating final DPM rules. To accomplish this goal, MARG

has joined NIOSH and its parent the U.S. Department of Health

and Human Services (“HHS”) as respondents. We must dismiss

these requests for lack of jurisdiction.

First, NIOSH and HHS are not proper respondents for two

reasons. Under the Mine Act, petitions for review are

authorized to the extent they challenge the validity of a U.S.

Department of Labor mandatory health or safety standard

promulgated pursuant to the Mine Act. 30 U.S.C. § 811(d).

Although NIOSH is authorized by 29 U.S.C. § 671(c)(1) to

“develop and establish recommended occupational safety and

health standards,” this provision is not part of the Mine Act.

The Mine Act references NIOSH and HHS as providers of

information to MSHA, see 30 U.S.C. § 811(a)(1), but it does not

provide a basis for naming respondents other than the agency
17

that promulgated the challenged standard. Under section 811(d),

a petition challenging a MSHA standard may be filed only if the

petitioner is adversely affected by a mandatory Department of

Labor health or safety standard promulgated pursuant to section

811 and the petition is challenging the validity of that standard.

In a similar situation, the court held in Bangor HydroElectric Co. v. FERC, 78 F.3d 659, 661–62 (D.C. Cir. 1996),

that although the U.S. Department of the Interior was authorized

to participate in and have its views made part of a FERC order,

only FERC was a proper respondent where the Federal Power

Act, 16 U.S.C. § 825l(b), provided for review of a petition filed

by a person aggrieved by the order issued by FERC and asking

that the FERC order be modified or set aside. Similarly, as

NIOSH suggests, only Department of Labor entities can be

proper respondents to a petition filed pursuant to the Mine Act,

30 U.S.C. § 811(d). Cf. Oil, Chem. & Atomic Workers Local

Union No. 6-418 v. NLRB, 694 F.2d 1289, 1298 (D.C. Cir.

1982). Although MARG asserts NIOSH is a proper respondent

because the validity of MSHA’s DPM rule depends on the

information MSHA considered, the contents of the rulemaking

record must be resolved in litigation with MSHA itself. Statutes

such as the Mine Act and the Federal Power Act authorizing

rulemaking contributions by other agencies do not thereby make

the other agencies parties in a subsequent judicial challenge.

See, e.g., Bangor Hydro-Elec., 78 F.3d at 662. If MARG

prevailed here, the result would be a remand to MSHA. Thus,

consistent with our precedent, only MSHA and its parent, the

Department of Labor, are proper respondents. NIOSH and HHS

are powerless to rescind a mandatory health or safety standard

promulgated by MSHA, and their participation as respondents

serves no meaningful purpose.
18

2

 Federal Rule of Appellate Procedure 15(a)(2) provides that

a petition for review of an agency order “must: . . . (B) name the

agency as a respondent . . .; and (C) specify the order or part thereof

to be reviewed.” 

Additionally, pursuant to Federal Rule of Appellate

Procedure 15,2 the agency to be named as a respondent to a

petition challenging an agency order is the parent agency and its

subparts that promulgated the challenged action. See Ingalls

Shipbuilding, Inc. v. Dir., Office of Workers’ Compensation

Programs, 519 U.S. 248, 267 (1997). MARG’s individual

petition challenges MSHA’s 2008 Notice and 2008 Policy

Letter, which MARG styles as a “final rule.” Pet’r MARG Br.

ii. But as Ingalls Shipbuilding makes clear, MARG properly

named only MSHA and its parent the Department of Labor as

respondents. Therefore, we dismiss NIOSH and HHS as

respondents. 

Second, regarding the FACA claim, insofar as MARG seeks

enforcement of the order issued by the U.S. District Court for

the Western District of Louisiana, see MARG v. United States,

No. 96-2430 (W.D. La. June 5, 2001), its request must be

directed to that court. See Baker ex rel. Thomas v. General

Motors Corp., 522 U.S. 222, 236 (1998); Peters v. Nat’l R.R.

Passenger Corp., 966 F.2d 1483, 1487–88 (D.C. Cir. 1992).

This court lacks jurisdiction. 

 Third, to the extent MARG maintains NIOSH has

unreasonably delayed publication of its DPM study and seeks to

compel agency action unreasonably delayed, its claim must be

brought initially in a district court (assuming it can be brought).

See Moms Against Mercury v. FDA, 483 F.3d 824, 827 (D.C.

Cir. 2007); see also Weber v. United States, 209 F.3d 756,

758–59 (D.C. Cir. 2000). The APA contains no grant of

jurisdiction. See Int’l Union, UMWA, 358 F.3d at 42. Although
19

a court may exercise authority under the All Writs Act, 28

U.S.C. § 1651, to issue writs of mandamus necessary to protect

its prospective jurisdiction, see Telecomms. Research & Action

Ctr. v. FCC, 750 F.2d 70, 76 (D.C. Cir. 1984) (“TRAC”), this

court’s interest in protecting its future jurisdiction “does not

arise if the final agency action is not reviewable” in this court,

Moms Against Mercury, 483 F.3d at 827. MARG points to no

statute that would authorize this court to review NIOSH’s study

upon its completion. See Weber, 209 F.3d at 758–59; see also

Bennett v. Spear, 520 U.S. 154, 178 (1997). Mandamus is an

extraordinary remedy unavailable where the right to relief is not

clear or where another adequate remedy is available. See Ass’n

Flight Attendants-CWA v. Chao, 493 F.3d 155, 159 (D.C. Cir.

2007); Cmty. Nutrition Inst. v. Young, 773 F.2d 1356, 1361

(D.C. Cir. 1985). In any event, MARG’s petition did not

indicate it sought mandamus relief from NIOSH and HHS, and

MARG has not filed a separate petition for mandamus. See FED.

R. APP. P. 21(a). MARG invokes no other statute that would

allow this court to exercise jurisdiction. 

MARG’s effort to have this court exercise its ancillary

jurisdiction fails. MARG points to no precedent suggesting this

court should exercise ancillary jurisdiction as to another agency

when it is exercising jurisdiction under the All Writs Act to

address MSHA’s withdrawal of its intent to issue a proposed

rule. These circumstances do not suggest this is an occasion

where “substantial considerations of fairness or efficiency

demand” the exercise of auxiliary jurisdiction. Public Citizen,

Inc. v. Nat’l Highway Traffic Safety Admin., 489 F.3d 1279,

1288 (D.C. Cir. 2007) (quotation marks omitted). Moreover, in

In re Tennant, 359 F.3d 523, 529 (D.C. Cir. 2004), this court

cautioned that it was inappropriate to invoke mandamus “solely

on the basis that events might lead to a filing before an agency

or lower court, which might lead to an appeal to this court.” Cf.

Am. Iron & Steel Inst. v. EPA, 115 F.3d 979, 985–86 (D.C. Cir.
20

1997); Shell Oil Co. v. FERC, 47 F.3d 1186, 1194–95 (D.C. Cir.

1995). 

Accordingly, we deny the industry petitions, and with

regard to MARG’s individual challenges, we dismiss NIOSH

and HHS as respondents, decline to exercise ancillary

jurisdiction, and dismiss for lack of jurisdiction.