[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 17-11207

________________________

Agency No. MSHA-2014-0030

NATIONAL MINING ASSOCIATION,

NATIONAL STONE, SAND & GRAVEL ASSOCIATION,

et al.,

 Petitioners,

 versus

UNITED STEEL WORKERS,

UNITED MINE WORKERS OF AMERICA, INTERNATIONAL UNION,

Intervenors,

U.S. DEPARTMENT OF LABOR,

MINE SAFETY AND HEALTH ADMINISTRATION,

 Respondents.

________________________

Petition for Review of a Decision of the

Federal Mine Safety and Health Administration

________________________

(January 22, 2021)

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Before WILSON, LAGOA, and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge:

Petitioners National Mining Association, National Stone, Sand & Gravel 

Association, Portland Cement Association, American Iron & Steel Institute, 

Georgia Mining Association, and Georgia Construction Aggregate Association 

(collectively, “petitioners”) have filed a petition for review of Respondents United 

States Secretary of Labor and Mine Safety and Health Administration’s (“MSHA”

or the “Agency”) final rule entitled “Examinations of Working Places in Metal and 

Nonmetal Mines” (the “Final Rule”). 82 Fed. Reg. 7680-95 (Jan. 23, 2017) (to be 

codified in 30 C.F.R. pts. 56 & 57). Petitioners raise a number of challenges to the 

Final Rule under the Administrative Procedure Act (5 U.S.C. § 551 et seq.) and the 

Constitution. After careful review, we deny the petition for review.

I. BACKGROUND

The Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq.

(the “Mine Act”), regulates the nation’s metal and nonmetal mines and promotes 

miner health and safety. The Act directs the Secretary of Labor to “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). The Secretary administers the Act through MSHA.

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In 1969, MSHA’s predecessor agency, the Mining Enforcement and Safety 

Administration, promulgated advisory standards pursuant to the Mine Act’s 

predecessor statutes, the Federal Coal Mine Health and Safety Act of 1969 and the 

Federal Metal and Nonmetallic Mine Safety Act of 1966. The Mine Act gave the 

Secretary the option to either revoke or make mandatory the then-existing advisory 

standards. 30 U.S.C. § 961(b). MSHA made the standards mandatory. Until the 

Final Rule was promulgated, those standards’ language had remained unchanged 

since 1979.

The relevant 1979 standards required that:

• a competent person designated by a mine’s operator examine each working 

place at least once each shift for conditions that may adversely affect safety 

or health;

• the mine operator promptly initiate appropriate action to correct such 

conditions; and

• the operator keep records of such examinations for one year and make them 

available for review by the Secretary or his authorized representative.

30 C.F.R. §§ 56.18002, 57.18002.1

1 Section 56 applies to surface metal and nonmetal mines, while Section 57 applies to 

underground metal and nonmetal mines.

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In June 2016, MSHA published a proposal to revise the above standards. 82 

Fed. Reg. at 7681. After six months, during which MSHA held four public 

hearings and received 73 written comments, MSHA promulgated the Final Rule. 

The Final Rule requires that:

• an examination of working places be conducted at least once per shift before

miners begin work in an area (the “examination requirement”);

• the operator promptly notify miners in any affected areas of any conditions 

found that may adversely affect their safety and health and promptly initiate 

appropriate action to correct such conditions (the “notification 

requirement”); and

• a record of the examination be made before the end of the shift that includes 

the examiners’ name, date of examination, areas examined, conditions found 

that may adversely affect miners’ health and safety, and date of corrective 

action taken (the “recording requirement”).

82 Fed. Reg. at 7695.

The Final Rule plainly enhances mine operators’ obligations with an aim 

toward augmenting miner safety. The 1979 standard required one examination of 

each working place per shift; the more stringent Final Rule requires that the 

examination occur before each shift. The 1979 standard required prompt 

corrective action; the Final Rule requires that mine operators notify miners of any 

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adverse conditions as well. And the 1979 standard required records of mine 

examinations; the Final Rule requires more thorough records.

2

The petitioners are various non-profit mining trade associations. They 

timely filed a petition for review of the Final Rule in this Court under 30 U.S.C. 

§ 811(d), which vests jurisdiction over a challenge to mandatory health or safety 

standards promulgated by MSHA in the United States Court of Appeals for the 

District of Columbia Circuit or the circuit where the petitioner resides or has its 

principal place of business. Petitioners raised a number of challenges to the Final 

Rule under the Administrative Procedure Act, principally contending (1) that it 

was not issued in accordance with applicable law because MSHA failed to make 

the necessary finding of significant risk that would be eliminated or lessened by the 

2 The Final Rule had an initial effective date of May 23, 2017. MSHA twice delayed 

implementation of the Rule, see Examinations of Working Places in Metal and Nonmetal Mines, 

82 Fed. Reg. 15,173 (Mar. 27, 2017); Examinations of Working Places in Metal and Nonmetal 

Mines, 82 Fed. Reg. 23,139 (May 22, 2017), and, after three days of effectiveness in October 

2017, withdrew the new standards and delayed the effective date yet again, see Examinations of 

Working Places in Metal and Nonmetal Mines, 82 Fed. Reg. 46,411 (Oct. 5, 2017).

In April 2018, while petition for review in this case was pending, MSHA initiated a new 

rulemaking and amended the Final Rule. 83 Fed. Reg. 15,055 (April 9, 2018) (codified at 30 

C.F.R. §§ 56.18002(a)-(c), 57.18002(a)-(c)). The 2018 Amendment walked back the 

examination requirement, which required a competent person to examine each working place “at 

least once each shift before work begins or as miners begin work in that place.” 83 Fed. Reg. at 

15,057. It also modified the recording requirement to only require records of adverse conditions 

that have not been corrected promptly. Id. The D.C. Circuit struck down this amended rule 

under the Mine Act’s “no-less-protection” standard, which requires that “[n]o mandatory health 

or safety standard . . . shall reduce the protection afforded miners by an existing mandatory 

health or safety standard.” See United Steel v. Mine Safety & Health Admin., 925 F.3d 1279, 

1287 (D.C. Cir. 2019); 30 U.S.C. § 811(a)(9). The amended rule having been struck down, the 

D.C. Circuit reinstated the Final Rule, thus clearing the way for petitioners’ petition for review of 

the Final Rule in this Court.

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Final Rule; (2) that MSHA failed to demonstrate that the Final Rule constituted an 

improvement over the preexisting standards; and (3) that the Final Rule was 

arbitrary and capricious. 5 U.S.C. § 706(2)(A), (C). We address these arguments 

in turn in Parts II, III and IV, and then address in Part V several other arguments of 

petitioners.3

II. PETITIONERS’ ARGUMENT THAT THE MINE

ACT, LIKE THE OSH ACT, REQUIRES A THRESHOLD

FINDING OF SIGNIFICANT RISK OF INJURIES 

UNDER THE PREEXISTING STANDARDS

Petitioners first argue that MSHA failed to make the necessary threshold 

finding of significant risk under the preexisting standards, and that, therefore, the 

Final Rule was not issued in accordance with applicable law, as required by the 

APA. 5 U.S.C. § 706(2)(A); see, e.g., Nat’l Mining Ass’n v. Sec’y of Labor, 153 

F.3d 1264, 1269 (11th Cir. 1998) (vacating an MSHA rule because the Agency did 

not make the required finding of feasibility necessary to promulgate the rule). The 

Mine Act authorizes the Secretary to “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). 

Petitioners specifically argue that the Mine Act’s language requires a threshold 

3 Before oral argument, we granted the motion for leave to intervene on the side of the 

Department of Labor and MSHA by the United Mine Workers of America International Union 

and the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and 

Service Workers International Union, AFL-CIO/CLC.

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finding that a current standard presents a “significant risk” to miners that will be 

eliminated or lessened by the new standard. 

Petitioners analogize the Mine Act to the Occupational Safety and Health 

Act of 1970 (“OSH Act”), 29 U.S.C. § 651 et seq. The OSH Act authorizes 

promulgation of “occupational safety and health standards,” which it defines as “a 

standard which requires conditions, or the adoption or use of one or more practices, 

means, methods, operations, or processes, reasonably necessary or appropriate to 

provide safe or healthful employment and places of employment.” 29 U.S.C. 

§§ 652(8), 655(b) (emphasis added). In Industrial Union Department, AFL-CIO v. 

American Petroleum Institute, commonly referred to as the Benzene case, the

Supreme Court interpreted this language as requiring the Secretary to “make a 

threshold finding that a place of employment is unsafe—in the sense that 

significant risks are present and can be eliminated or lessened by a change in 

practices.” 448 U.S. 607, 642, 100 S. Ct. 2844, 2864 (1980) (plurality opinion).

Petitioners contend that the Mine Act ought to be interpreted in the same 

way, arguing that the Act imposes a requirement on MSHA to find (1) that 

“significant risks” are present under existing rules and (2) that new standards are 

necessary to eliminate those risks. Neither of these requirements have been met, 

say petitioners. They argue that because the mining industry is perhaps the safest it 

has ever been, and because MSHA has not shown that the dangers still present in 

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mining are associated with the 1979 examination standards, MSHA cannot show 

that its changes to those standards will eliminate any existing risks.

We do not agree that the Mine Act imposes a requirement that MSHA makes 

a threshold finding that such a “significant risk” exists before regulating a 

particular aspect of mine operations. A review of the Supreme Court’s decision in

the Benzene case is instructive. There, the Court reviewed the OSH Act’s 

requirement that Occupational Safety and Health Administration (“OSHA”)-

promulgated standards be “reasonably necessary or appropriate to provide safe or 

healthful employment and places of employment.” 29 U.S.C. § 652(8) (emphasis 

added). OSHA had promulgated a standard designating the maximum exposure 

limit to the toxic substance benzene. The previous standard had been 10 parts per 

million. Construing its mandate as authorizing standards to produce a virtually 

risk-free workplace to the extent possible, OSHA proposed a rule reducing the 

maximum exposure limit to 1 part per million. The Court held that, while OSHA’s 

10 parts per million limit was amply justified, there was little direct support for the 

reduction from 10 to 1 part per million. 448 U.S. at 631-34, 100 S. Ct. at 2859-60.

The Court concluded that before regulating a toxic substance, OSHA was 

required to determine that that substance posed a “significant risk” to employees

under the OSH Act’s standard. The Court derived its requirement of a threshold 

finding of “significant risk” from the term “safe,” which it reasoned did not mean 

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“risk-free.” Id. at 642, 100 S. Ct. at 2864. Plenty of activities, the Court stated, 

entail some risk of accident or material health impairment—driving a car, 

breathing city air, etc.—but we would not linguistically deem these activities 

“unsafe.” Therefore, a workplace cannot be considered “unsafe” unless it 

“threatens the workers with a significant risk of harm.” Id.

In addition to its primary focus on rejecting OSHA’s understanding of the 

statute as authorizing the agency to promulgate standards to create a risk-free 

workplace, the Court also found support for a requirement of such threshold 

finding in the combination of the government’s concession that a cost-benefit 

analysis was required and the explicit provisions of the OSH Act “requiring the 

elimination of the most serious hazards first.” Id. at 644, 100 S. Ct. at 2865. “If 

such an analysis must precede the promulgation of any standard, it seems manifest 

that Congress intended, at a bare minimum, that the Secretary find a significant 

risk of harm and therefore a probability of significant benefits before establishing a 

new standard.” Id.

For several reasons, we reject petitioners’ invitation to import into the Mine 

Act the OSH Act’s requirement of a threshold finding of significant risk. First, the 

two statutes have different language: the Mine Act is concerned with the 

“protection of life and prevention of injuries,” and not merely “safe” workplaces. 

Petitioners argue that the phrase “protection of life and prevention of injuries” is 

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the functional equivalent of the word “safe.” We disagree. Congress knows how 

to employ the word “safe” in a regulatory statute; the fact that it did not use the 

word in the Mine Act suggests it intended some materially different standard. And 

“protection of life and prevention of injuries” is both stronger and more specific 

than “safe.” One could reasonably say that a hypothetical situation entails a small 

enough risk of harm that one could not deem a workplace “unsafe,” but still would 

pose some risk of injuries that could be appropriately lessened with an improved 

standard that would impose little or no burden on industry.

Petitioners contend that the two statutes have similar language because both 

contain the word “appropriate.” But the focus of the Benzene opinion was not on 

the meaning of “appropriate.” Rather, the focus was on its determination that the 

statutory phrase—“reasonably necessary or appropriate to provide safe or healthful 

. . . places of employment”—did not mean risk-free workplaces. The Court held:

But “safe” is not the equivalent of “risk-free.” There are many activities 

that we engage in every day—such as driving a car or even breathing 

city air—that entail some risk of accident or material health 

impairment; nevertheless, few people would consider these activities 

“unsafe.” Similarly, a workplace can hardly be considered “unsafe” 

unless it threatens the workers with a significant risk of harm.

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448 U.S. at 642, 100 S. Ct. at 2864. We also think the word “appropriate” is too 

capacious to justify importing into the Mine Act the OSH Act’s requirement of a 

threshold finding of a significant safety risk.4

Second, there is no indication that the Mine Act itself requires MSHA to 

conduct a cost-benefit analysis before promulgating a regulation. As the D.C. 

Circuit has noted, the Mine Act requires that regulations be “appropriate,” and this 

requirement does not require a full cost-benefit analysis. See Kennecott Greens 

Creek Mining Co. v. Mine Safety & Health Admin., 476 F.3d 946, 960-61 (D.C. 

Cir. 2007). Moreover, there is no provision of the Mine Act requiring MSHA to 

establish priorities to ensure that the most serious hazards are addressed first. It 

was that provision, more than the ordinary cost-benefit analysis, on which the 

Benzene Court relied in finding some support for its inference that a finding of 

significant risk was required before the agency established a new standard. See 

Benzene, 448 U.S. at 644 & n.49, 100 S. Ct. at 2865 & n.49. This is yet another 

difference between the Mine Act and the OSH Act as discussed in the Benzene

case.

Significantly, the context of this case is far different from the Benzene case. 

There, the agency was proposing a new standard that attempted to create as near a 

4 In any event, the MSHA findings in the Final Rule amply indicate that the new 

requirements in the Final Rule are “appropriate.” 

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risk-free workplace as was “economically and technologically feasible.” 448 U.S. at 

655, 100 S. Ct. at 2870; see also id. at 637, 100 S. Ct. at 2861. By contrast, the 

Agency here is not attempting to create risk-free mines, but has instead proposed 

modest changes to preexisting standards: requiring examinations to begin before 

work, thus preventing miners from beginning shifts in hazardous workplaces; 

requiring notice of hazards to miners, thus facilitating their avoidance of danger 

until corrective action is taken; and enhancing recording requirements to improve 

operator compliance.

The context of the workplaces affected by the Mine Act is also very different 

from the workplaces affected by the OSH Act. The Benzene opinion emphasized 

the fact that the OSH Act had a pervasive impact on workplaces all across 

American industry, whereas the Mine Act affects only workplaces in coal and 

other mines, which Congress recognized as being especially vulnerable to safety 

and health risks. And there is some evidence in the statute that Congress has made 

a legislative judgment that mines are inherently unsafe. The statute states that 

“there is an urgent need to provide more effective means and measures for 

improving the working conditions and practices in the Nation’s coal or other mines 

in order to prevent death and serious physical harm,” 30 U.S.C. § 801(c), while 

§ 801(d) notes that “the existence of unsafe and unhealthful conditions and 

practices in the Nation’s coal or other mines is a serious impediment to the future 

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growth of the coal or other mining industry and cannot be tolerated.” Of course, 

these congressional findings were made in 1977, and conditions in our nation’s 

mines have assuredly changed, as petitioners note. But they are indicative of 

Congress’ belief that mines are by their nature very dangerous.5

 This conclusion is 

in accord with our previous conclusion that “the Mine Act evinces a clear bias in 

favor of miner health and safety.” Nat’l Mining Ass’n v. Sec’y, U.S. Dep’t of 

Labor, 812 F.3d 843, 866 (11th Cir. 2016).

We also think it notable that the statute expressly authorizes the Agency to 

“revise as may be appropriate, improved mandatory health or safety standards.” 30 

U.S.C. § 811(a) (emphasis added). This indicates a congressional contemplation of 

periodic revisions to improve safety in mines, which Congress clearly thought 

particularly vulnerable to safety risks, as the congressional findings discussed 

above show.

Importantly, MSHA cites no case—in this or any court of appeals—holding 

that the Mine Act has the same threshold finding requirement as the OSH Act. 

Were we to hold that the Act contains a “significant risk” requirement, therefore, 

we would be the first since the Act’s enactment, and would substantially alter the 

5 Hence Congress’ cordoning off of its mine safety regulation into a separate statute. As 

the Department of Labor noted at oral argument, the Mine Act regulates the nation’s above-and 

below-ground metal and nonmetal mines. The OSH Act regulates, essentially, all other 

workplaces.

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courts’ review of MSHA’s promulgations. Such a holding would also run counter 

to the D.C. Circuit’s conclusion that the Mine Act “[a]rguably . . . does not 

mandate the same risk-finding requirement as OSHA.” Nat’l Mining Ass’n v. 

Mine Safety & Health Admin., 116 F.3d 520, 527 (D.C. Cir. 1997).

We therefore hold that the Mine Act does not contain the “significant risk” 

threshold requirement that petitioners would import from the OSH Act.

III. PETITIONERS’ ARGUMENT THAT MSHA FAILED TO

DEMONSTRATE THAT THE FINAL RULE CONSTITUTES

AN IMPROVEMENT OVER THE PREEXISTING STANDARD

Petitioners also contend that MSHA failed to make the requisite showing 

that the new standard constitutes an improvement over the existing 1979 

standards.6 A review of the Final Rule indicates that this argument is wholly 

without merit. The Agency has made explicit findings that the several new 

requirements constitute improvements. After careful review, we readily conclude 

that its findings are sufficient. The new requirements plainly improve on the 1979 

standards with respect to each new requirement that petitioners challenge: (1) the 

new pre-shift inspection requirement plainly avoids risks of miners’ exposure to 

hazards not discovered until later in the shift under the prior rule where the 

inspection could occur any time during the shift; (2) the new requirement that 

6 The parties agree that this requirement is present in the statute.

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miners be notified promptly of any such hazard obviously avoids risks to miners, 

enabling them to take protective measures to avoid the risk; and (3) the new 

recordkeeping requirement will facilitate prompt remedial action, monitoring and 

follow-up by management, and incentivize prompt remedial action.

With respect to the new pre-shift inspection requirement and the new 

requirement of prompt notification to affected miners, the Final Rule included, 

inter alia, the following findings. The Final Rule notes that examinations under the 

1979 standards “are not always done at a point during the shift when the results of 

the examination would provide the necessary protections,” and concludes that the 

pre-shift examination requirement helps prevent miners from being “exposed to 

conditions that may adversely affect their safety and health.” 82 Fed. Reg. at 7689. 

The Final Rule, MSHA stated, would “reduce the variability in how operators 

conduct examinations of working places and thereby improve miners’ safety and 

health.” Id. The requirement that miners in the affected area be notified promptly 

of adverse conditions enables them to “take protective measures or avoid the 

adverse conditions altogether.” Id. at 7684-85; see also id. at 7686 (noting that 

notification lets miners “take the necessary precautions to avoid an accident or 

injury”). We conclude that these new requirements do constitute improvements 

over the preexisting standards, and that the Agency’s findings are sufficient. Just 

as the 2018 Amendment, “[o]n its face . . . increase[d] miners’ exposure to health 

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and safety risks” by rolling back the Final Rule’s pre-shift examination 

requirement, United Steel, 925 F.3d at 1283, so too does the Final Rule decrease 

that exposure by mandating that examinations occur before work begins. Thus, 

MSHA properly found that the pre-shift inspection requirement and the prompt 

notification requirement would improve miners’ safety and health. 82 Fed. Reg. at 

7689. We conclude that those findings are amply supported. 

The new recording requirements provide that examination records include 

names, dates, and descriptions of the location and adverse condition.7 These 

requirements would serve a number of functions, including making clarification or 

follow up easier, identifying trends in mine conditions, and ensuring that mine 

operators are aware of all locations that have been examined. Id. at 7686. The 

recordkeeping requirement will also incentivize mine operators to become more 

“proactive” in remedying hazardous conditions. Id. at 7681, 7686, 7689. The 

notification requirement and the more fleshed-out recording requirements would 

work together to “result in more effective and consistent workplace examinations 

and ensure that adverse conditions will be timely identified, communicated to 

miners, and corrected.” Id. at 7689. These agency findings are adequately 

7 These requirements are not onerous. Obviously, the name and date requirements are not. 

With respect to the requirement that the record contain a description of the location and adverse 

condition, the Final Rule expressly allows the use of checklists or any other formats and, with 

respect to the description of adverse condition, the Final Rule requires only sufficient 

information to allow the mine operator to notify the miners and take prompt corrective action. 

Id. at 7686.

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supported and demonstrate that the Final Rule’s revisions to the 1979 standards 

constitute improvements.8

Petitioners emphasize the Final Rule’s statement that the Agency is “unable 

to separate the benefits of the new requirements under the final rule from those 

benefits attributable to conducting a workplace examination under the existing 

standard.” 82 Fed. Reg. at 7689. Read in isolation, this language could suggest 

some support for petitioners’ argument that if mine operators merely complied

more rigorously with respect to the examinations under the 1979 standards, they 

could achieve all of the safety benefits of the Final Rule. But read in context, it is 

clear that MSHA is simply acknowledging that exact cost-benefit analysis in this 

area is difficult, and that it is unable to precisely quantify the benefits of the new 

standard. Earlier in the Final Rule, MSHA did make the explicit finding that the 

Rule would lead to benefits. Id. at 7682.

8 We also note that there is a separate source of statutory authority for the Final Rule’s 

recordkeeping requirements. 30 U.S.C. § 813(h) provides that “every operator of a coal or other 

mine shall establish and maintain such records, make such reports, and provide such information, 

as the Secretary . . . may reasonably require from time to time to enable him to perform his 

functions under this chapter.” This is a clear grant of statutory authority to set the parameters 

and requirements of mine operators’ records, subject only to the mandate that the requirements 

be “reasonabl[e].” The Final Rule easily satisfies this reasonableness standard; as discussed 

above, the Rule explains why the new recordkeeping requirements are not onerous, see 82 Fed. 

Reg. at 7690-91, require important information for mine regulators, and will incentivize mine 

operators to be more proactive in fixing adverse conditions.

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We agree with MSHA that the combined effect of the requirements “will 

improve miners’ safety and health.” Id. at 7689. We therefore hold that the Final 

Rule here satisfies the requirement that any rule “improve” upon the prior standard.

IV. PETITIONERS’ ARGUMENT THAT THE FINAL RULE 

IS ARBITRARY AND CAPRICIOUS

Petitioners next argue that the Final Rule is arbitrary and capricious. See 5 

U.S.C. § 706(2)(A). To survive arbitrary and capricious review, an agency must 

“examine the relevant data and articulate a satisfactory explanation for its action 

including a ‘rational connection between the facts found and the choice made.’” 

Nat’l Min. Ass’n, 812 F.3d at 865 (quoting Motor Vehicle Mfrs. Ass’n of U.S., 

Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S. Ct. 2856, 2866

(1983)). Courts must uphold rules that are “rational, based on consideration of the 

relevant factors and within the scope of the authority delegated to the agency by 

the statute.” Id. (quoting State Farm, 463 U.S. at 42, 103 S. Ct. at 2866). “The 

scope of review . . . is narrow and a court is not to substitute its judgment for that 

of the agency.” Id. (quoting State Farm, 463 U.S. at 43, 103 S. Ct. at 2866). 

Arbitrary and capricious review is “highly deferential and presumes the validity of 

agency action,” its goal being to ensure that MSHA engaged in reasoned 

decisionmaking. United Steel, 925 F.3d at 1283.

Petitioners argue that three aspects of the Final Rule are arbitrary and 

capricious. We address each in turn.

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A. Petitioners’ Argument that the New Examination Requirement is 

Arbitrary and Capricious

First, petitioners claim that the examination requirement is arbitrary and 

capricious. This aspect of the Final Rule alters the 1979 standards by directing that 

the mandatory once-per-shift working place inspection or examination occur 

before miners begin to work in a given area. Petitioners argue that there is no 

evidence in the administrative record that examinations were occurring too late to 

protect miners from adverse conditions, and that most of the evidence cited by 

MSHA to justify this rule involved adverse conditions that existed for extended 

periods of time, such that they should have been detected under the 1979 

standards.9

MSHA responds by noting that the Final Rule states that “[i]n the Agency’s 

experience, despite MSHA guidance and best practices, under the existing standard 

working place examinations are not always done at a point during the shift when

the results of the examination would provide the necessary protections as intended 

9 Petitioners also argue that MSHA’s rationale for promulgating the Final Rule lacks a 

rational connection to its asserted basis because MSHA erroneously relied on 16 accidents that 

resulted in fatalities. In at least 12 of these accidents, MSHA contends, the operator of the mine 

already had knowledge of the hazardous condition that led to the fatality. They therefore could 

not have lacked knowledge because of a deficiency in the existing rule. This argument reads the 

Final Rule too narrowly and thus misunderstands its purpose. The Rule is not only concerned 

with alerting operators of adverse conditions. Knowledge of adverse conditions is entirely 

pointless if mine operators do not act on that knowledge. And the Final Rule is designed to 

incentivize mine operators to fix adverse conditions promptly, both by informing miners of those 

conditions and by creating a contemporaneous record of them. MSHA thus expects that the 

revised rules will incentivize remedial action by operators with knowledge of adverse conditions. 

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by the Mine Act and the existing standard.” 82 Fed. Reg. at 7689. The Agency 

also noted that in its experience, “there is a significant degree of variability in how 

safety programs are operationalized,” and that reducing this variability will 

improve miner safety. Id.; see also id. at 7692.

We think that this is a permissible factual basis for a rule that, upon review, 

is not particularly burdensome on mine operators. Agencies are permitted to rely 

on their experience in the regulated field, so long as they explain what their 

experience is and how that experience informs the agency’s conclusion. For 

example, in National Mining Ass’n v. Mine Safety & Health Administration, 116 

F.3d 520, 546-47 (D.C. Cir. 1997), the Secretary cited his “experience” in support 

of a rule eliminating a superintendent’s signature requirement on pre-shift 

examinations; the Secretary noted that, in MSHA’s experience, mine 

superintendents were not intimately familiar with the working places being 

examined in the mines, and so eliminating the need for their signatures on 

examination records would not lead to a decrease in safety. Courts have not 

permitted agencies to rely on their “experience” only when the agency fails to 

actually explain what that experience was and how that experience supports the 

promulgated regulation. See Int’l Union, United Mine Workers of Am. v. Mine 

Safety & Health Admin., 626 F.3d 84, 94 (D.C. Cir. 2010).

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We think MSHA adequately supported its citation to its experience. MSHA 

concluded that mine operators were often conducting their mandatory 

examinations after shifts had begun. This trend was problematic, given that it

would naturally mean miners are beginning work in an area that may contain 

hazardous conditions. As noted at one of the hearings MSHA held during the 

rulemaking process, one could analogize the situation to climbing a ladder: 

climbers check the stability of their ladders before they begin climbing, not 

halfway up. Of course, the administrative record would have been stronger had 

there been citations to specific instances of miner safety being impaired by 

examinations occurring too late in a shift. But such painstaking factual support 

was not necessary in National Mining Ass’n, 116 F.3d at 527, and MSHA’s factual 

findings based on its experience here are similar to its findings in that case.10 

Moreover, the Agency’s experience noted above was not the full extent of 

MSHA’s reasoned explanation for requiring the shift inspection before the shift 

begins. MSHA also relied upon the need to “notify miners in affected areas of any 

conditions found that may adversely affect their safety or health.” 82 Fed. Reg. at 

7689. Only a pre-shift inspection can provide the basis for notifying miners of any 

10 We also acknowledge difficulty in understanding petitioners’ challenge to MSHA’s 

reliance on its experience that the shift inspections under the preexisting law were often 

conducted after the shift had begun. If that experience were not accurate, then the new 

requirement effects no change, and petitioners’ argument is therefore moot. Only if the 

Agency’s experience is accurate is there a new requirement, as a practical matter, which might 

be subject to an arguable challenge by the petitioners.

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adverse condition “so that miners can take the necessary precautions to avoid an 

accident or injury.” Id. at 7686. 

For these reasons, we conclude that the pre-shift examination requirement is 

not arbitrary and capricious.11

B. Petitioners’ Argument that the New Notification Requirement is 

Arbitrary and Capricious

Petitioners next challenge the notification requirement, which mandates that 

mine operators notify miners of adverse conditions in their work areas. Petitioners 

claim that MSHA does not provide any instances where miners were not notified 

of adverse conditions and therefore suffered harm. Petitioners also cite to 

11 Notwithstanding the suggestion within the dissent, we note that we have recognized and 

cited the “more recent[]” D.C. Circuit decision—International Union, United Mine Workers of 

America v. Mine Safety & Health Administration, 626 F.3d 84 (D.C. Cir. 2010)—upon which 

the dissent relies. Indeed, we have attempted to apply its standard—i.e., ensuring that MSHA 

explained “what the ‘[a]gency experience’ was and how it informed the determination.” Id. at 94

(quoting Nat’l Mining Ass’n, 116 F.3d at 546–47). But we clarify. The “what” was its 

experience that the examinations were not always being conducted at a time to provide the 

necessary protections. The “how” was that conducting the examination before the shift and 

notifying miners of any hazards would enable miners to take the necessary precautions to avoid 

an accident or an injury. Moreover, as noted in Parts IV.A and B, the Agency’s experience was 

not the full extent of MSHA’s reasoned explanation. The Agency repeatedly emphasized the 

obvious fact that only an examination and notice to miners before work begins could alert miners 

to hazards so they can take protective measures. 82 Fed. Reg. at 7682 et seq. We readily 

conclude that the record adequately supports the requirements for an examination before work 

begins and notice to miners—especially in light of the fact that the Agency’s reasoned 

explanations for these requirements are so firmly rooted in common sense and common 

experience. See, e.g., Gen. Instrument Corp. v. FCC, 213 F.3d 724, 734–35 (D.C. Cir. 2000) 

(holding Federal Communications Commission order treating differently certain cable box 

devices was not arbitrary and capricious because “[w]hile the Commission’s order [wa]s hardly a 

model of comprehensiveness on this point,” the record included a supporting argument from a 

coalition of retailers in the industry and “the Commission’s concern” prompting the order 

“appear[ed] well-grounded in common sense”).

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comments made during the rulemaking process arguing that the existing 1979 

standards already required prompt action to remedy adverse conditions, 

eliminating the need for notification to miners of those conditions.

MSHA responds that the administrative record supports this notification 

requirement. The Final Rule cites 16 fatal accidents; 12 of these are conceded by 

petitioners as involving adverse conditions that mine operators knew of but failed 

to correct. MSHA contends that it is obvious that, if miners had been notified of 

these conditions, they would be able to take their own precautions.

We conclude that the Final Rule amply supports the notification 

requirement. The Rule specifically states that “[m]iners need to know about 

adverse conditions in their working place so that they can take protective measures 

or avoid the adverse conditions altogether.” 82 Fed. Reg. at 7684-85. The Notice 

of Proposed Rulemaking supports this conclusion with a discussion of three 

particular fatal accidents in which miners were not warned or notified of the 

adverse conditions that caused the fatalities.

Moreover, petitioners place unwarranted reliance on comments during the 

rulemaking process arguing that the existing standards require prompt action to 

remedy adverse conditions, thus eliminating the need for notification of those 

conditions. The Final Rule “recognizes that if adverse conditions are corrected 

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before miners begin work, notification is not required because there are no 

‘affected areas.’” Id. at 7685.

Petitioners concede that in 12 of the 16 fatal accidents cited by MSHA in 

support of the Final Rule, the mine operators knew of but did not correct the 

condition. Notifying the miners would, of course, enable them to take their own 

precautions. Id. at 7684-85, 7686, 7689. And it would also provide an incentive 

for the operator to be more proactive about correcting hazards. In other words, an 

operator, knowing that the miners are aware of both the hazard and the operator’s 

failure to correct them, will have an additional incentive to correct the problem 

promptly. 

We conclude that there is ample support for the Agency’s findings, and that 

the notification requirement is not arbitrary or capricious.

C. Petitioners’ Argument that the New Recording Requirements are 

Arbitrary and Capricious

Finally, petitioners challenge the expanded requirements for examination 

records. The Final Rule requires operators to record the name of the person 

conducting the examination, the date of the examination, a description of the 

adverse conditions, and the date of any corrective actions taken. MSHA justifies 

the rule by arguing that in the 16 fatal accidents discussed in the administrative 

record, if this information had been promptly recorded, the records may have 

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alerted mine operators to take prompt corrective action.12 This is insufficient, say 

petitioners; they argue that there is no evidence that recording names and dates 

would bring any safety benefits, and, moreover, the 16 fatalities involved operators 

who already had knowledge of the adverse conditions, so recording those 

conditions would have been fruitless.

MSHA responds that more stringent recording requirements would lead to 

adverse conditions being corrected more often. A more rigorous recording 

requirement incentivizes prompt corrective action, and noting who recorded the 

condition, and when they did so, incentivizes individual compliance.

We think the recording requirement is abundantly justified by the Final 

Rule. The requirement that the examiner’s name be included adds no substantive 

duties whatsoever. MSHA found that the examiner’s identity is important in case 

the condition needs to be clarified, or if follow-up is necessary or appropriate. 82 

12 The dissent discounts MSHA’s reliance on its experience based in part on its study of 

accident investigation reports from January 2010 through mid-December 2015, including the 16 

fatal accidents, because, the dissent says, the Agency did not reference any of those accidents in 

the Rule’s section-by-section analysis. We respectfully disagree. In the background section of 

the Final Rule, MSHA expressly referenced its study of these accident reports and expressly 

concluded: “MSHA believes that for these 16 accidents, had the person making the examination 

recorded these adverse conditions, the records may have alerted operators to take prompt 

corrective action thus preventing the accidents.” 82 Fed. Reg. at 7682. We doubt that such 

express reference need be repeated in the section-by-section analysis. In any event, in the 

section-by-section analysis relating to records, MSHA expressly invoked the very conclusion it 

derives from its accident history study. See id. at 7686 (“MSHA believes that, by making a 

record of adverse conditions, mine operators and miners will become more proactive in their 

approach to correcting the conditions and avoiding recurrence, thereby improving protections for 

miners. The Agency believes that a record that notes the adverse conditions prior to miners 

working in an area expedites the correction of these conditions.”).

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Fed. Reg. at 7686. The date requirement is justified because dating the record is 

important both for record management and for identifying trends in mine 

conditions. Id. The requirement that operators record the locations that have been 

examined is justified as ensuring that operators are aware that all locations in the 

working place have been examined. Id.

More generally, the enhanced recordkeeping requirements will lead to more 

proactive mine operators. Id. at 7681, 7686, 7689. If conditions are not recorded, 

they “may exist for more than one shift, causing or contributing to an accident, 

injury, or fatality.” Id. at 7687. A record will expedite correction and can be used 

to identify trends. If mine operators are required to include more detail about 

conditions identified during examinations, and are required to include their names 

alongside that detail, they will naturally be more incentivized to correct those 

conditions, in case management or MSHA representatives come inspecting.13

We reject petitioners’ argument that the 16 accidents referenced by MSHA 

do not support the enhanced recordkeeping requirement. In the “majority” of these 

accidents, petitioners argue, “the operator already had knowledge of the [adverse] 

condition.” Even if this is true, we do not see how it renders the requirements 

arbitrary and capricious. When conditions are recorded, others on site could learn 

13 We do not understand petitioners’ argument that this “proactive mine operator” 

justification is not in the administrative record and is therefore a post hoc rationalization; it 

appears in the Final Rule multiple times. 82 Fed. Reg. at 7681, 7686, 7689.

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about those conditions. And the more persons on site who are aware of an adverse 

condition (or could become aware), the likelier it is that the condition will be dealt 

with promptly.

We conclude that the Agency’s findings are sufficient, and that the 

challenged recording requirements are not arbitrary and capricious.

D. Cumulative Effect of the New Requirements

While we have analyzed the three challenged aspects of the Final Rule 

individually, it is worth noting that MSHA clearly does not view these aspects as 

operating individually. MSHA’s main impetus for the Final Rule were 16 

accidents resulting in 18 fatalities. These fatalities, in MSHA’s view, were caused 

by mine operators’ failure to take prompt corrective action. It is apparent from 

reading the administrative record that MSHA sees the examination requirement, 

the notification requirement, and the recordkeeping requirement as operating 

collectively to spur more timely corrections of hazardous conditions. The pre-shift 

examination requirement forces operators to learn of hazards earlier than they 

might otherwise, and helps prevent miners from beginning work in dangerous 

areas. The notification requirement then informs the miners of any hazards found 

before they began work, thus letting them tailor their work to those conditions or 

avoid working in dangerous areas entirely. And the recordkeeping requirement 

ties everything together, creating a thorough documentation of what working 

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places were examined and by whom, when those examinations occurred, and what 

will be done about conditions found during those examinations. While each 

challenged aspect of the rule is amply justified when viewed in isolation, a holistic 

review of the Final Rule reveals that each aspect is really just one interlocking part 

of the overall improvement of the safety standard. We readily conclude that the 

new requirements of the Final Rule easily satisfy our arbitrary and capricious 

scope of review.

V. PETITIONERS’ OTHER ARGUMENTS 

Petitioners raise a handful of other arguments. We reject them all as wholly 

without merit. First, they contend that three terms in the Final Rule are 

unconstitutionally vague: (1) the term “adversely” in the phrase “conditions that 

may adversely affect safety or health”; (2) the term “working place,” which the 

Final Rule’s Preamble states now includes “roads traveled to and from a work 

area”; and (3) the term “affected area” in the phrase “promptly notify miners in any 

affected areas of any [adverse] conditions found.” Petitioners appear to argue that 

these terms are so vague as to be prohibited by both the Fifth and Fourteenth 

Amendment’s due process clauses.

We have no difficulty in rejecting this challenge. Petitioners have not 

demonstrated that the challenged terms and phrases are so “substantially 

incomprehensible” as to violate the Constitution. Exxon Corp. v. Busbee, 644 F.2d 

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1030, 1033 (5th Cir. Unit B May 1981) (for a regulatory provision not within First 

Amendment protection to be unconstitutionally vague, “it must be so vague and 

indefinite as really to be no rule or standard at all”; in other words, “it must be 

substantially incomprehensible” (internal quotations omitted)).

14 Moreover, in this 

regulatory context the void for vagueness doctrine applies only rarely, and only if 

the challenged phrase is impermissibly vague in all of its applications. Am. Iron & 

Steel v. Occupational Safety & Health Admin., 182 F.3d 1261, 1277 (11th Cir. 

1999). None of the challenged phrases ever approach that standard. We thus 

reject petitioners’ void-for-vagueness argument.15

Next, petitioners argue that the Final Rule violates Executive Orders 12,866 

and 13,563, which direct agencies to conduct cost-benefit analyses of regulatory 

actions and alternatives to regulation, and to ensure that the regulations impose the 

“least burden on society, consistent with obtaining regulatory objectives.” 

Petitioners argue that the cost-benefit analysis underlying the Final Rule is lacking, 

14 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this Court 

adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to 

October 1, 1981.

15 Petitioners’ initial brief refers in cursory manner to an argument that, because the 

challenged terms are grievously ambiguous, the Final Rule is rendered arbitrary and capricious. 

We do not think this argument is fairly raised; petitioners cite no case law supporting the claim 

that ambiguous provisions in a regulation can render that regulation arbitrary and capricious. 

“We have long held that an appellant abandons a claim when he either makes only passing 

references to it or raises it in a perfunctory manner without supporting arguments and authority.” 

Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014). While petitioners 

expand on this argument in their reply brief, “[t]hose arguments come too late,” and we do not 

consider arguments fairly raised for the first time in reply briefs. Id. at 682-83.

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and fails to satisfy the standards set forth in the Executive Orders. In particular, 

petitioners contend that MSHA’s estimation of the costs resulting from the rule are 

unrealistic, underestimate the number of persons required to conduct regular 

workplace examinations, underestimate the time burdens resulting from the new 

recording requirements, and fail to account for training, updated procedures, new 

documentation, storage systems, and lost work hours.

But in order to bring this challenge, petitioners must demonstrate that the 

APA permits judicial review of agency action that violates these two Executive 

Orders. They have not made this demonstration, and appear merely to assume in 

their principal brief that judicial review exists. Other circuits have held that there 

is judicial review of agency action that purportedly conflicts with an executive 

order only when (1) the Executive Order has a “specific statutory foundation,” (2) 

the statute and the Executive Order do not preclude judicial review, and (3) there is 

an objective standard by which the court can judge the agency’s actions. See City 

of Albuquerque v. U.S. Dep’t of Interior, 379 F.3d 901, 913 (10th Cir. 2004); City 

of Carmel-By-The-Sea v. U.S. Dep’t of Transp., 123 F.3d 1142, 1166 (9th Cir. 

1997).

We conclude that neither Executive Order at issue here permits judicial 

review of inconsistent agency action. Both Executive Orders state that they do not 

“create any right or benefit, substantive or procedural, enforceable by any party” 

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against agencies. See Exec. Order No. 13,563 § 7(d), 76 Fed. Reg. 3821, 3823 

(Jan. 18, 2011), reprinted as amended in 5 U.S.C. § 601 at 101-02; Exec. Order No. 

12,866 § 10, 58 Fed. Reg. 51,735, 51,744 (Sept. 30, 1993), reprinted as amended in

5 U.S.C. § 601 at 86-91. And at least one other circuit has held that Executive

Order 12,866 creates no private rights and an agency’s failure to comply with it is 

not subject to judicial review. See Helicopter Ass’n Int’l, Inc. v. FAA, 722 F.3d 

430, 439 (D.C. Cir. 2013); see also Meyer v. Bush, 981 F.2d 1288, 1296 n.8 (D.C. 

Cir. 1993) (“An Executive Order devoted solely to the internal management of the 

executive branch—and one which does not create any private rights—is not, for 

instance, subject to judicial review.”). We thus hold that we cannot review 

whether the Final Rule is inconsistent with either Executive Order.16

VI. CONCLUSION

The Mine Act does not impose a stringent “significant risk” requirement, as 

petitioners contend. The Final Rule’s impact on miner safety plainly improves on 

16 Petitioners make passing reference to an argument that the Final Rule is not economically 

feasible and an argument that the Agency’s cost-benefit analysis was arbitrary and capricious. 

But petitioners do not support these arguments with sufficient detail; their contention is 

conclusory and unsupported by citations to authority or significant discussion. We consider

these arguments abandoned and do not consider them. See supra note 15.

Petitioners also argue that MSHA improperly failed to comply with the Regulatory 

Flexibility Act as amended by the Small Business Regulatory Enforcement Fairness Act, 5 

U.S.C. § 601. While petitioners included this contention in their statement of issues, they raise it 

only in a footnote in a perfunctory and conclusory manner. We do not consider arguments raised 

only in such manner. SEC v. Big Apple Consulting USA, Inc., 783 F.3d 786, 811-12 (11th Cir. 

2015). So we will not consider petitioners’ Regulatory Flexibility Act argument.

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the 1979 standards. The Final Rule is not arbitrary and capricious. And we reject 

petitioners’ other challenges. Accordingly, we deny the petition for review.

PETITION DENIED.

LAGOA, Circuit Judge, dissenting:

In this petition for review, Petitioners National Mining Association, National 

Stone, Sand & Gravel Association, Portland Cement Association, American Iron & 

Steel Institute, Georgia Mining Association, and Georgia Construction Aggregate 

Association (collectively, “Petitioners”) challenge the final rule entitled 

“Examinations of Working Places in Metal and Nonmetal Mines” (“Final Rule”) 

promulgated by the United States Secretary of Labor (“Secretary”) and the Mine 

Safety and Health Administration (“MSHA”). 82 Fed. Reg. 7680–95 (Jan. 23, 2017) 

(to be codified at 30 C.F.R. §§ 56.18002, 57.18002). I respectfully disagree with the 

majority’s conclusion that the promulgation of the Final Rule was not arbitrary and 

capricious. In my view, MSHA has failed to articulate a satisfactory explanation for 

the Final Rule by not establishing a rational connection between the facts found in 

the rulemaking record and the new working place examination standards it 

promulgated. See Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto 

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33

Ins. Co., 463 U.S. 29, 42–43 (1983). Rather, MSHA’s offered explanation for the 

standards in the Final Rule “runs counter to the evidence before the agency.” See 

id. at 43. For the reasons stated below, I would therefore find that the Final Rule 

was arbitrary and capricious and vacate the Final Rule without addressing the other 

arguments presented to us. 

I. RELEVANT FACTUAL AND PROCEDURAL HISTORY

Under the Federal Mine Safety and Health Act of 1977 (the “Mine Act”), 

§ 101(a), 30 U.S.C. § 811(a), the Secretary is directed to, by rule, “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.” 

On August 17, 1979, “MSHA revised, renumbered, and made mandatory the 

Agency’s advisory standards regarding working place examinations” of metal and 

nonmetal (“MNM”) mines. 82 Fed. Reg. at 7681. Of relevance here, the 1979 

working place examination standards for MNM mines required: (1) “[a] competent 

person designated by the [mine] operator [to] examine each working place at least 

once each shift for conditions which may adversely affect safety or health;” (2) the 

operator to “promptly initiate appropriate action to correct such conditions;” and (3) 

the operator to keep records of “such examinations” for a period of one year and to 

make those records available for review by the Secretary. 30 C.F.R. §§ 56.18002, 

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34

57.18002 (2016). “Working place” is defined as “any place in or about a mine where 

work is being performed.” 30 C.F.R. §§ 56.2, 57.2 (2017).

On June 8, 2016, MSHA published a proposed rule titled “Examinations of 

Working Places in Metal and Nonmetal Mines” (“Proposed Rule”). 81 Fed. Reg. 

36818-01 (June 8, 2016). Following publication of the Proposed Rule, MSHA 

received comments and held four public hearings on the Proposed Rule. 82 Fed. 

Reg. at 7681–82. Then, on January 23, 2017, MSHA promulgated the Final Rule, 

amending the prior iteration of 30 C.F.R. §§ 56.18002 and 57.18002 (2016) to 

provide:

(a) A competent person designated by the operator shall examine each 

working place at least once each shift before miners begin work in that 

place, for conditions that may adversely affect safety or health.

(1) The operator shall promptly notify miners in any 

affected areas of any conditions found that may adversely 

affect safety or health and promptly initiate appropriate 

action to correct such conditions.

(2) Conditions noted by the person conducting the 

examination that may present an imminent danger shall be 

brought to the immediate attention of the operator who 

shall withdraw all persons from the area affected (except 

persons referred to in section 104(c) of the Federal Mine 

Safety and Health Act of 1977) until the danger is abated.

(b) A record of each examination shall be made before the end of the 

shift for which the examination was conducted. The record shall 

contain the name of the person conducting the examination; date of the 

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35

examination; location of all areas examined; and description of each 

condition found that may adversely affect the safety or health of miners.

(c) When a condition that may adversely affect safety or health 

is corrected, the examination record shall include, or be supplemented 

to include, the date of the corrective action.

(d) The operator shall maintain the examination records for at least one 

year, make the records available for inspection by authorized 

representatives of the Secretary and the representatives of miners, and 

provide these representatives a copy on request.

30 C.F.R §§ 56.18002, 57.18002 (2017).

In the Final Rule, MSHA stated that it had reviewed accident investigation 

reports from January 2010 through mid-December 2015 and that, during this period, 

122 miners were killed in 110 accidents at MNM mines. 82 Fed. Reg. at 7682. 

MSHA explained that it had conducted investigations into each of those fatal 

accidents, “of which 16 accidents (18 fatalities) citations were issued to mine 

operators for unwarrantable failure to comply for purposes of Section 104(d) of the 

Mine Act,”1 and it was the agency’s belief that “had the person making the 

examination recorded these adverse conditions, the records may have alerted 

operators to take prompt corrective action thus preventing the accidents.” Id.

1 Section 104(d) of the Mine Act authorizes a representative of the Secretary to issue a 

citation where a violation of a mandatory health or safety standard “could significantly and 

substantially contribute to the cause and effect of a . . . mine safety or health hazard” and that 

violation is “caused by an unwarrantable failure of such operator to comply with such mandatory 

health or safety standards.” 30 U.S.C. § 814(d)(1). 

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36

In changing the timing of working place examinations during a shift to be 

conducted “before miners begin work in that place,” MSHA noted that the purpose 

of this requirement was “to ensure that for each shift the examinations occur at a 

time that is sufficiently close to when miners begin their work” in order to “minimize 

potential exposure to conditions that may adversely affect their safety or health,” as 

“conditions at mines can change.” Id. at 7683. In support of this new standard, 

MSHA stated that it was “the Agency’s experience” that, under the existing standard, 

“working place examinations are not always done at a point during the shift when 

the results of the examination would provide the necessary protections as intended 

by the Mine Act and the existing standard.” Id. at 7689. Regarding the new 

notification requirement, MSHA stated that “[m]iners need to know about adverse 

conditions in their working place so that they can take protective measures or avoid 

the adverse conditions altogether.” Id. at 7684–85. As to the new examination 

recording requirements, MSHA stated it was its “experience” that “if adverse 

conditions are not recorded, these conditions may exist for more than one shift,

causing or contributing to an accident, injury, or fatality.” Id. at 7687. MSHA 

further noted it believed that “by making a record of adverse conditions, mine 

operators and miners will become more proactive in their approach to correcting the 

conditions and avoiding recurrence, thereby improving protections for miners.” Id.

at 7686. MSHA, however, did not discuss how the sixteen accidents it investigated 

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37

informed its decision to promulgate the new standards in the Final Rule nor reference 

any of those accidents in the rule’s section-by-section analysis. See id. at 7682–88.

MSHA did include the investigation reports of the sixteen accidents 

referenced in the background of the Final Rule in the rulemaking record. However, 

a review of these reports does not suggest that any of the sixteen accidents occurred 

despite mine operators’ compliance with the 1979 working place examination 

standards. Rather, the reports indicate that those accidents occurred where: (1) the 

mine operators or management were aware of the adverse conditions present and did 

not correct those conditions or otherwise comply with the existing 1979 working 

place examination standards; (2) the adverse conditions existed for multiple shifts; 

or (3) the operators failed to comply with separate regulations that required 

examination of ground conditions prior to commencing work in the area.2

II. ANALYSIS

Petitioners challenge the Final Rule on the basis that the new working place 

examination requirements are arbitrary and capricious. Specifically, Petitioners 

argue that MSHA’s rationale for the new standards in the Final Rule lacks any 

rational connection to the evidence offered as the basis for the Final Rule, i.e., the 

2 See 30 C.F.R. § 56.3401 (“Appropriate supervisors or other designated persons shall 

examine and, where applicable, test ground conditions in areas where work is to be performed 

prior to work commencing, after blasting, and as ground conditions warrant during the work 

shift.” (emphasis added)); id. § 57.3401 (same); see also id. § 56.9304(a) (requiring “[d]umping 

locations [to] be visually inspected prior to work commencing and as ground conditions warrant”

(emphasis added)).

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sixteen accidents. Petitioners assert that for those sixteen accidents, the mine 

operators were already aware of the adverse conditions, the adverse conditions had 

existed for multiple shifts, or the adverse conditions at issue were governed by 

different regulations requiring examination of ground conditions before work began. 

Thus, according to Petitioners, those accidents demonstrate violations of the existing 

standards, not the need for the new standards promulgated by the Final Rule.

The Mine Act directs the Secretary to “by rule . . . 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). This Court reviews a challenge to an agency’s promulgated regulation 

under the Administrative Procedure Act, which requires us to “hold unlawful and set 

aside agency action, findings, and conclusions” that are “arbitrary, capricious, an 

abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(a); 

accord FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009); Ryder Truck 

Lines, Inc. v. United States, 716 F.2d 1369, 1378 (11th Cir. 1983). Under the 

arbitrary and capricious standard, 

a reviewing court may not set aside an agency rule that is rational, based 

on consideration of the relevant factors and within the scope of the 

authority delegated to the agency by the statute. . . . The scope of review 

under the “arbitrary and capricious” standard is narrow and a court is 

not to substitute its judgment for that of the agency.

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Nat’l Mining Ass’n v. Sec’y, U.S. Dep’t of Labor, 812 F.3d 843, 865 (11th Cir. 2016) 

(alteration in original) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. 

Ins. Co., 463 U.S. 29, 42–43 (1983)); accord Miami–Dade County v. EPA, 529 F.3d 

1049, 1064–65 (11th Cir. 2008). 

While this Court’s review under the arbitrary and capricious standard is highly 

deferential, see Miccosukee Tribe of Indians of Florida v. United States, 566 F.3d 

1257, 1264 (11th Cir. 2009), the deference afforded to an agency rule is not absolute. 

“[T]he agency must examine the relevant data and articulate a satisfactory 

explanation for its action including a ‘rational connection between the facts found 

and the choice made.’” Motor Vehicle Mfrs., 463 U.S. at 43 (emphasis added) 

(quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)). An 

agency rule is also arbitrary and capricious “if the agency has . . . offered an 

explanation for its decision that runs counter to the evidence before the agency.” Id. 

When reviewing the agency’s explanation for its action, this Court considers 

“whether the decision was based on a consideration of the relevant factors and 

whether there has been a clear error of judgment.” Id. (quoting Bowman Transp., 

Inc. v. Arkansas-Best Freight Sys., 419 U.S. 281, 285 (1974)). And, “[t]he reviewing 

court should not attempt itself to make up for . . . deficiencies” in the agency’s 

explanation of its rule and “may not supply a reasoned basis for the agency’s action 

that the agency itself has not given.” Id. (quoting SEC v. Chenery Corp., 332 U.S. 

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194, 196 (1947)); accord Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of 

Eng’rs, 833 F.3d 1274, 1285 (11th Cir. 2016).

After reviewing the Final Rule and the rulemaking record, I conclude that 

MSHA failed to provide a “rational connection between the facts found and the 

choice made” to promulgate the new working place examination standards. Motor 

Vehicle Mfrs., 463 U.S. at 43 (quoting Burlington, 371 U.S. at 168). MSHA has not 

explained the basis for these new standards other than to refer and rely upon its own 

“experience” in a conclusory manner. Indeed, the accidents referred to by the Final 

Rule and contained in the rulemaking record do not support MSHA’s conclusory 

statement of its “experience.” Thus, these new standards in the Final Rule are 

arbitrary and capricious. I address each of the new standards in turn.

A. Working Place Examination Timing Requirement

As to the new examination timing requirement, MSHA stated it was its 

“experience” that, “under the existing standard[,] working place examinations are 

not always done at a point during the shift when the results of the examination would 

provide the necessary protections intended by the Mine Act and the existing 

standard.” 82 Fed. Reg. at 7689. Yet, the evidence offered by MSHA only 

demonstrates the failures of mine operators to comply with existing working place 

examination standards. Specifically, as detailed in the investigation reports, the 

mine operators or management in the sixteen accidents were (1) aware of the adverse 

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conditions that caused the accident but failed to correct the conditions; (2) aware that 

the adverse conditions existed for multiple shifts, demonstrating the mine operator’s 

failure to conduct a working place examination at all; or (3) failed to comply with 

separate ground condition examination requirements. MSHA did not explain 

whether the new examination timing requirement would have prevented any of those 

accidents, and, similarly, there is no indication in any of the investigation reports 

that this new requirement would have done so. Therefore, there is no rational 

connection between MSHA’s decision to require working examinations to occur 

before work starts at the beginning of a shift and the evidence offered by MSHA in 

the rulemaking record as the basis for the timing requirement.

In determining that the new examination timing requirement is not arbitrary 

and capricious, the majority points to MSHA’s citation of its “experience” as the 

basis for promulgating the new standard, noting that “[a]gencies are permitted to 

rely on their experience in the regulated field, so long as they explain what their 

experience is and how that experience informs the agency’s conclusion.” Maj. Op. 

at 20. In support of this proposition, the majority relies upon the D.C. Circuit’s 

decision in National Mining Association v. Mine Safety and Health Administration, 

116 F.3d 520 (D.C. Cir. 1997). In that case, MSHA promulgated a set of safety rules 

that included eliminating the requirement of “second-level countersigning” by mine 

superintendents of certain examination reports, which a labor union challenged 

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under the “no-less protection rule” in section 101(a)(9) of the Mine Act. See Nat’l 

Mining Ass’n, 116 F. 3d at 525, 535–36, 544–546. In explaining the deletion of 

second-level countersigning rule, the Secretary stated in the rule’s preamble that 

“[a]gency experience ha[d] demonstrated that higher level mine officials commonly 

lack hands-on involvement or in-depth knowledge of the specific conditions 

underground or how . . . ventilation rules impact[ed] upon those conditions” and that, 

thus, “countersigning by a mine official at a higher level does not assure any

additional level of safety and imposes an unnecessary burden.” Id. at 546–47 

(emphasis in original) (quoting 61 Fed. Reg. 9764, 9767 (Mar. 11, 1996)). The D.C. 

Circuit found that the Secretary had provided a “reasoned explanation” for why the

new rule would not cause a reduction in safety. Id. at 547. Notably, the D.C. 

Circuit’s decision was silent as to whether MSHA’s experience was supported by 

the rulemaking record in that case.

However, more recently in International Union, United Mine Workers of 

America v. Mine Safety and Health Administration, 626 F.3d 84 (D.C. Cir. 2010) 

(“International Union”), the D.C. Circuit found that MSHA could not rely on “its 

knowledge and experience” to justify a training provision where MSHA failed to 

explain “what the ‘[a]gency experience was and how it informed the determination.” 

Id. at 93–94 (alteration and emphasis in original) (quoting Nat’l Mining Ass’n, 116 

F.3d at 546–47). In International Union, MSHA promulgated a final rule “requiring 

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‘hands-on’ training only annually rather than quarterly.” Id. at 86. The D.C. Circuit 

subsequently found the training requirement “arbitrary and capricious” because 

MSHA had not “explained the basis for [the new training requirement] other than to 

state it relied upon its ‘knowledge and expertise.’” Id. at 87. The D.C. Circuit noted 

that MSHA had not identified what that knowledge and expertise was, had not 

pointed to studies or comparisons of types of training, and had not responded to—

or, at most, had addressed in a conclusory manner—the commentators’ objections 

about the training provision. Id. at 87, 93–94. The court further explained that 

MSHA was incorrect to rely on the National Mining decision “for the proposition 

that a rule may be supported solely by the agency’s expertise,” as National Mining

did “not absolve MSHA from providing a reasoned explanation for its decision only 

to require annual hands-on training.” Id. at 94. As the D.C. Court noted, unlike in 

International Union, the Secretary in National Mining “provided a ‘reasoned 

explanation’ by explaining “what the ‘[a]gency experience’ was and how it informed 

the determination.” Id. (alteration and emphasis in original) (quoting Nat’l Mining 

Ass’n, 116 F.3d at 546–47). 

Similarly, this Court has explained that, when promulgating a policy shift 

due to changed circumstances, “an agency is entitled to rely to some extent on the 

experience and expertise it has acquired during the course of its existence, as long 

as this reliance on agency experience is documented and made a part of the record 

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so that the courts can determine whether the agency’s action is facially rational.” 

Ryder Truck Lines, 716 F.2d at 1385 (citations omitted).

Here, as in International Union, MSHA has provided no reasoned explanation 

for its decision. MSHA has not explained what its “experience” is beyond a 

conclusory statement in the Final Rule that working place examinations under the 

existing standards were not “always done at a point during the shift when the results 

of the examination would provide the necessary protections as intended by the Mine 

Act,” nor has MSHA explained how that “experience” informed its determination. 

See 82 Fed. Reg. at 7689; cf. Int’l Union, 626 F.3d at 94. Additionally, the 

rulemaking record does not contain any evidence in support of this “experience.” 

See Ryder Truck Lines, 716 F.2d at 1385. Rather, the investigation reports of the 

sixteen accidents demonstrate that mine operators and managers failed to comply 

with existing working place examination standards, not that accidents are occurring 

despite compliance with the existing standards. 

The majority acknowledges the lack of record support for MSHA’s 

“experience,” stating that “the administrative record would have been stronger had 

there been citations to specific instances of miner safety being impaired by 

examinations occurring too late in a shift,” but concludes that because “such 

painstaking factual support” was not necessary in the D.C. Circuit’s National Mining 

Association decision, it is likewise not necessary in this case. Maj. Op. at 21. 

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However, the D.C. Circuit did not discuss the extent of the rulemaking record in 

determining that MSHA had given a reasoned explanation for its elimination of the 

“second-level countersigning” rule, see Nat’l Mining Ass’n, 116 F.3d at 545–47, and 

later clarified in International Union that an agency’s conclusory reliance on 

“experience” in support of a rule alone was not a “reasoned explanation,” see 626 

F.3d at 93–94. And, even if such “factual support” was not required by the D.C. 

Circuit in National Mining Association, this Court’s precedent in Ryder Truck Lines

mandates an agency to document and include as part of the rulemaking record its 

experience when it relies on that experience for promulgating a rule or policy 

change. See 716 F.2d at 1385. MSHA did not do so here. 

Moreover, requiring an agency to support its experience with factual 

documentation in the record should not be the “painstaking” task the majority 

suggests. Maj. Op. at 21. Indeed, if MSHA’s experience is as it claims, then 

documentation of accidents that have occurred in MNM mines following a properly 

conducted working place examination on the same shift should be readily available 

for the agency to include in the rulemaking record. Such evidence would likewise 

demonstrate a rational connection to the choice MSHA made in promulgating this 

new standard. See Motor Vehicle Mfrs., 463 U.S. at 43. Because such evidence is 

not in the rulemaking record, MSHA has failed to provide a reasoned explanation 

for the new timing requirement.

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The majority also relies upon MSHA’s “need to ‘notify miners in affected 

areas of any conditions found that may adversely affect their safety or health’” in 

finding that MSHA has provided a “reasoned explanation” for the new timing 

requirement. Maj. Op. at 21 (quoting 82 Fed. Reg. at 7689). In doing so, the 

majority reasons that “[o]nly a pre-shift inspection can provide the basis for 

notifying miners of any adverse condition ‘so that miners can take the necessary 

precautions to avoid an accident or injury.’” Maj. Op. at 21–22 (quoting 82 Fed. 

Reg. at 7686). MSHA makes a similar argument it its brief, arguing that “[t]he most 

effective time for the examination would be before miners begin working in order 

to protect miners against entering a work area without knowledge of any hazards 

there.” MSHA, however, did not explicitly offer this reasoning—i.e., that the new 

timing requirement is the only way that miners can be notified of adverse conditions 

in their working places—as its justification for the new timing requirement in the

Final Rule. And where Congress delegates a policy or judgment determination to 

an agency, this Court “may not accept appellate counsel’s post hoc rationalizations 

for agency action.” Motor Vehicle Mfrs., 463 U.S. at 50; accord Chenery Corp., 332 

U.S. at 196; Int’l Union, 626 F.3d at 94. As the Supreme Court has cautioned, a 

court reviewing agency action “may not supply a reasoned basis for the agency’s 

action that the agency itself has not given.” Motor Vehicle Mfrs., 463 U.S. at 43. 

Indeed, “[i]t is well-established that an agency’s action must be upheld, if at all, on 

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the basis articulated by the agency itself.” Id. at 50. While this Court may “uphold 

a decision of less than ideal clarity if the agency’s path may reasonably be 

discerned,” see id. at 43 (quoting Bowman Transp., 419 U.S. at 286), I would not do 

so here where the choice made by MSHA lacks a rational connection to the evidence 

actually offered in the rulemaking record. Instead, I would conclude that the new 

examination timing requirement in the Final Rule is arbitrary and capricious.

B. Miner Notification Requirement

Turning to the new notification requirement, MSHA explained its rationale 

for the rule as “[m]iners need to know about adverse conditions in their working 

place so that they can take protective measures or avoid the adverse conditions 

altogether.” 82 Fed. Reg. at 7684–85. Unlike the examination timing and 

recordkeeping requirements in the Final Rule, MSHA did not even cite to its own 

“experience” as a basis for promulgating the notification requirement. And, in 

reviewing the reports of the accidents that MSHA cited to as the basis for 

promulgating the Final Rule, there is no indication of whether the miners were aware 

of the adverse conditions that ultimately caused the accidents. 

In its discussion of the notification requirement, the majority points to the 

“Notice of Proposed Rulemaking” that discussed “three particular fatal accidents in 

which miners were not warned or notified of the adverse conditions that caused the 

fatalities.” Maj. Op. at 23. While MSHA discussed these three accidents in the 

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background information section of its Proposed Rule, see 81 Fed. Reg. at 36,820, 

the agency dropped all reference to those three accidents in the Final Rule, see 82 

Fed. Reg. at 7682, following commentary suggesting that those accidents did not 

support the new standards.3

 Whatever its reasons, MSHA ultimately chose not to 

use those three specific accidents as its rationale for the Final Rule.

I also disagree with the majority’s assertion that the notification requirement 

is amply supported. MSHA offers a bare assertion in support of the notification 

requirement, i.e., that miners need to be notified about adverse conditions so that 

they can protect themselves. See 82 Fed. Reg. at 7684–85. But MSHA does not 

explain how any of the accidents, including the three accidents referenced by the 

Proposed Rule, in the rulemaking record—the evidence that MSHA offered in 

support of the Final Rule—informed its decision in promulgating the notification 

requirement, including whether any of those accidents might have been prevented 

with this new standard. The majority offers an additional rationale for upholding the 

requirement that mine operators would be incentivized to correct adverse conditions 

promptly once the miners know of those conditions. Maj. Op. at 24. MSHA, 

however, did not offer this rationale as a basis for the notification requirement. It is 

the duty of the agency to “articulate a satisfactory explanation for its action,” and 

3 Indeed, reviewing the investigation reports of those three accidents, all seem to have 

occurred at least in part because mine operators failed to comply with existing standards.

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this Court should not make up for deficiencies in MSHA’s explanation. Motor 

Vehicle Mfrs., 463 U.S. at 43. While the notification requirement might ultimately 

improve safety in MNM mines, MSHA has not met its burden in articulating a 

rational connection between the facts found and this new requirement. I therefore 

conclude that the notification requirement is also arbitrary and capricious. 

C. Examination Recordkeeping Requirements

Turning to the new recordkeeping requirements, MSHA stated that it was its 

belief that the recordkeeping requirements would result in mine operators and miners 

becoming “more proactive in their approach to correcting the [adverse] conditions” 

and “expedite[] the correction of these conditions.” 82 Fed. Reg. at 7686. 

Additionally, MSHA stated that recording the identity of the examiner is “important” 

for the purposes of “clarifying the [adverse] condition noted or following up with 

the examiner regarding areas examined or conditions noted.” Id. In support of the 

new recordkeeping requirements, MSHA stated that it was the agency’s 

“experience” that “if adverse conditions are not recorded, these conditions may exist 

for more than one shift, causing or contributing to an accident, injury, or fatality.” 

Id. at 7687. However, MSHA did not cite to any of the accidents in the rulemaking 

record as a basis for its experience. Indeed, there is no evidentiary support in the 

rulemaking record demonstrating that any of the sixteen accidents could have been 

prevented by any of the increased recordkeeping requirements. Rather, in many of 

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those accidents, the mine operator was already aware of the adverse condition 

present and had not corrected it, again showing a lack of compliance with the existing

working place examination standards. Thus, as with the examination timing 

requirements, MSHA has merely asserted its “experience” in a conclusory manner 

as the basis for the new recordkeeping requirements in the Final Rule.

As explained above, in my view, for MSHA to rely on its “experience” as a 

basis for promulgating a new standard, the agency was required to include 

evidentiary support in the rulemaking record documenting its “experience” in order 

to show a rational connection between the facts found in the rulemaking record and 

the choice made—here, the recordkeeping requirements. See Ryder Truck Lines, 

716 F.2d at 1385; see also Motor Vehicle Mfrs., 463 U.S. at 43. If it is, in fact, 

MSHA’s experience that accidents are occurring due to inadequate recording of 

adverse conditions, then the agency should have evidence in support of that 

experience. However, because MSHA did not put that supporting documentation in 

the rulemaking record, MSHA has not shown a rational connection between the facts 

found and the recordkeeping requirements. As such, I conclude that the 

recordkeeping requirements are similarly arbitrary and capricious.

D. The “Cumulative Effect of the New Requirements”

Finally, the majority concludes that under “a holistic review of the Final 

Rule,” the standards therein are not arbitrary and capricious. Maj. Op. at 27–28. 

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The majority recognizes that “MSHA’s main impetus for the Final Rule were 16 

accidents resulting in 18 fatalities,” which, “in MSHA’s view, were caused by mine 

operators’ failure to take prompt corrective action.” Maj. Op. at 27. However, even 

reviewing the requirements as operating collectively, as the majority suggests we 

should do, MSHA does not reference its “main impetus”—the sixteen accidents—in 

its explanation of the new standards. And, as explained above, a review of the 

investigation reports only reveals mine operators’ failures to comply with the 

existing working place standards or other regulations concerning ground conditions. 

Even if each standard is “just one interlocking part of the overall improvement of 

the safety standard” and should be reviewed together, see Maj. Op. at 28, MSHA 

has not articulated a satisfactory explanation for the Final Rule based on the evidence 

the agency has offered in support of the new standards. 

Based on the rulemaking record before this Court, MSHA’s offered 

explanation for the standards in the Final Rule—its “experience”—runs counter to 

the evidence before the agency. See Motor Vehicle Mfrs., 463 U.S. at 43. Indeed, 

the evidence in the record consists of accidents caused by mine operators failing to 

comply with the existing working place standards (e.g., by failing to correct known 

adverse conditions or by failing to conduct working place examinations at all for 

multiple shifts), not accidents occurring despite those operators’ faithful compliance 

with the existing standards. If such accidents do exist, then MSHA should have 

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included them in the rulemaking record for this Court’s review and offered some 

form of explanation as to how those accidents informed its decision. MSHA, 

however, did not include such accident reports in the record and thus has not 

provided any support for its experience-based rationale for the Final Rule. 

Furthermore, MSHA did not explain in the Final Rule how any of those accidents 

included in the record may have been prevented or mitigated by the new 

requirements. Without any such explanation, there is no rational connection 

between the evidence in the record (mine operators failing to correct known adverse 

conditions that lead to accidents) and MSHA’s chosen action in addressing those 

accidents (new timing, notification, and recordkeeping requirements that, based on 

the rulemaking record and MSHA’s lack of explanation, would not have prevented 

the referenced accidents). Id.

III. CONCLUSION

While this Court’s review of agency action is highly deferential, that 

deference is not absolute. An agency cannot simply assert its “experience” in a 

conclusory manner as a basis for its action to satisfy arbitrary and capricious review. 

Instead, the agency must explain what that experience is, how that experience 

informed its decision, and should include documentation of that experience in the 

rulemaking record so that a reviewing court can determine if the action is facially 

rational. See International Union, 626 F.3d at 94; Ryder Truck Lines, 716 F.2d at 

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1385. And, where an agency’s action does not have a rational connection to the facts 

found, the agency’s action is unlawful as arbitrary and capricious. 

Here, MSHA failed to adequately explain or support, with documentation in 

the record, its experience and failed to show a rational connection between the facts 

found in the record and the standards it chose to promulgate in the Final Rule. 

Because I conclude the Final Rule promulgated by MSHA is arbitrary and capricious 

and should be vacated, I respectfully dissent.

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