                                                                                 PUBLISH



                  IN THE UNITED STATES COURT OF APPEALS
                         FOR THE ELEVENTH CIRCUIT

                             -------------------------------------------
                                          No. 98-6159                                FILED
                            --------------------------------------------
                                             U.S. COURT OF APPEALS
                           Rule No. 68372      ELEVENTH CIRCUIT
                                                    09/04/98
                                                THOMAS K. KAHN
                                                     CLERK
NATIONAL MINING ASSOCIATION, ALABAMA COAL ASSOCIATION,

                                                               Petitioners,

     versus


SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR, et al.,

                                                               Respondents.


                  ----------------------------------------------------------------

                          Petition for Review of an Order
                  of the Mining Safety and Health Administration

                  ----------------------------------------------------------------

                                   (September 4, 1998)


Before EDMONDSON and BIRCH, Circuit Judges, and STAFFORD*, Senior
District Judge.


_______________
*    Honorable William Stafford, Senior U.S. District Judge for the
     Northern District of Florida, sitting by designation.
EDMONDSON, Circuit Judge:

    The National Mining Association and


the Alabama Coal Association (“NMA”)


dispute a finding of the Mining Safety


and Health Administration (“MSHA”) that


allows testing the amount of coal dust in


mines by using measurements taken


over a single shift, rather than


traditional multi-shift measurements.


NMA challenges the new sampling method


on substantive and procedural grounds.


We vacate the finding.

                            2
                   Background




      One of the reasons Congress passed the


Federal Coal Mine and Safety Act (“the Coal


Act”) in 1969 was to reduce the amount of


coal dust inhaled by coal miners.           The dust


was known to cause Black Lung Disease. The


Coal Act provided interim standards for


the    maximum       amount       of    coal       dust


permitted     in   coal       mines    as   well    as


guidance on how to measure the level of



                          3
coal dust in a mine’s atmosphere.           The


interim standards were effective until

                   1
the Secretaries        created improved health


standards. Relevant provisions of the Coal


Act were re-enacted in the Federal Mine


Safety and Health Act of 1977 (“the Mine


Act”).   See 30 U.S.C. §§ 801-962 (1994).




 1
  Throughout this opinion, “the Secretary”
normally means the Secretary of Labor.
MSHA is part of the Department of
Labor. Under the Coal Act, however, the
Secretaries meant the Secretary of the
Interior and Secretary of Health,
Education, and Welfare.
                          4
   This dispute revolves around several


provisions of the Mine Act. Under 30 U.S.C.


§ 841(a) the Secretary has authority to


supersede the “interim mandatory health


and safety standards” of the Mine Act


with   “improved       mandatory    health   and


safety standards.” But the Secretary must


enact the new standards according to the


provisions of Section 811.       See 30 U.S.C. §


811(a). Section 811(a)(6) is at the heart of the


current     controversy.       It   states    the


Secretary     “shall    set   standards”     that
                         5
adequately assure, on the basis of the “best


available evidence” that no miner will


suffer “material impairment of health”


under   the    new   standard   and   that     the


Secretary shall also consider the “latest


available scientific data in the field, the


feasibility     of    the    standards,        and


experience gained under this and other


health and safety laws.”


   Other      pertinent     provisions    of   the


Mine Act include Section 842(b)(2) which


requires that the “average concentration”
                        6
of coal dust to which a miner is exposed


during        each     shift      not       exceed   2.0


milligrams per cubic meter of air (2.0


mg/m ). Average concentration is defined
        3




as a concentration that


   accurately               represents            the
   atmospheric conditions with regard
   to       respirable     dust     to    which   each
   miner . . . is exposed . . . over a
   single          shift    only,        unless   [the
   Secretary] finds in accordance with
   . . . Section 811 . . . that such single
   shift measurement will not, after
   applying valid statistical techniques
   to       such   measurement,            accurately
   represent               such     atmospheric
   conditions during such shift.


                             7
30 U.S.C. § 842(f).


   In 1971, MSHA’s predecessor, the Bureau


of Mines, proposed a finding that single-


shift   sampling      would   not   accurately


represent the atmospheric conditions of a


mine.    See 36 Fed. Reg. 13286 (1971).    The


proposed finding was made final in 1972.


See 37 Fed. Reg. 3833 (1972).       MSHA now


wishes to rescind the 1971/72 finding and


to begin single-shift sampling.


   In attempting to rescind the 1971/72


finding, MSHA published two notices in the
                        8
Federal Register.     The first, published in


February    1994,   stated   MSHA’s    plan   to


rescind the 1971/72 finding and replace it


with a single, full-shift measurement of the


atmospheric conditions.         See 59 Fed. Reg.


8357    (1994).       The    second,   published


simultaneously, stated that citations would


be issued based on single-shift sampling.


See 59 Fed. Reg. 8356 (1994).


   Single-shift sampling -- in part -- grew


out of MSHA’s Spot Inspection Program


(“SIP”), itself designed to defeat suspected
                        9
tampering      of    dust    samples       by    mine


operators. See 63 Fed. Reg. 5664, 5667 (1998).


After the SIP, MSHA concluded that multi-


shift   sampling     was     inaccurate         because


multi-shift    sampling       did    not    lead    to


citations     in   places    where   the    SIP    had


shown miners to be overexposed. See id. at


5668.   The Federal Mine Safety and Health


Review    Commission,         however,      vacated


citations issued under the SIP because of


MSHA’s    failure     to     comply        with     the


rulemaking procedures in Section 811.               See
                        10
Secretary     of    Labor    v.   Keystone        Coal


Mining Corp., 16 FMSHRC 6 (1994).


   Another reason given by MSHA for


rescinding    the   1971/72       finding    is   the


improvement in air sampling technology.


See 63 Fed. Reg. 5664, 5666 (1998).    Since 1971,


significant    improvements           have    been


made to calibration procedures, weighing


accuracy, and sampling pumps.          See id.


   The accuracy of single-shift sampling is


hotly debated by the parties.       NMA argues




                        11
that single-shift sampling is so inaccurate


that a large number of citations will be


erroneously issued to coal mine operators.


MSHA        counters        that     single-shift


measurements are more accurate because


they tend to expose spatial or temporal


peaks in dust levels that would, under a


multi-shift   measurement,         be   masked    by


some measurements below the 2.0 mg/m
                                                   3




threshold   when   averaged        with   the   peak


values. See id. at 5689. MSHA supports this




                       12
conclusion by pointing out that multi-shift


measurements were always highest during


the first measured shift:               it was only


after     the   first   shift,   says   MSHA,    that


operators       had     time     to     affect   dust


production.     See id. at 5668.


    Because of this debate, the period for


public    comment       was      extended   several


months, and two public hearings were held


about the notices.       See, e.g., 61 Fed. Reg. 18158


(1996).   As a result of the comments, MSHA




                          13
defined “accurately represent[]” (as used in


30 U.S.C. § 842(f)), re-opened the comment


period, and held a public hearing on the new


definition. See 61 Fed. Reg. 10012, 10013 (1996).


In February 1998, MSHA issued the subject


of   our   review,   the        Joint   Finding   and


Noncompliance        Determination           Notice


(“the Joint Finding”) which rescinded the


1971/72 finding. See 63 Fed. Reg. 5664 (1998).




                           14
                Discussion




     NMA raises procedural objections


under the Mine Act, the Administrative


Procedure Act (“APA”), and the Regulatory


Flexibility Act (“RFA”), and substantive


objections to the Joint Finding.   We will


address only the procedural objections.




A.   The Mine Act




                     15
     NMA           says      that     the      procedural


requirements of the Mine Act, in 30 U.S.C.


§   811,    were    not      met    by    MSHA’s    Joint


Finding.       MSHA makes two arguments in


response.           First,   the    use   of   single-shift


measurements is no mandatory health


and safety standard and, therefore, does


not need to comply with Section 811. Second,


if the Joint Finding is a mandatory health


and        safety    standard,      MSHA       argues,   the


Joint Finding complied with the procedural




                              16
requirements of Section 811.       In arguing


that   the   Joint   Notice      complied     with


Section 811, however, MSHA insists that


portions of Section 811 do not contain


procedural requirements.


   An   agency’s     interpretation      of    its


governing     statute       is   often      given


significant deference.      See Chevron, U.S.A.,


Inc. v. Natural Resources Defense Council,


467 U.S. 837, 842-43 (1984).         But, when


applying Chevron’s first step, we do not




                       17
need to defer when the issue is a “pure


question of statutory construction.”     See


INS v. Cardoza-Fonseca, 480 U.S. 421, 446


(1987). Likewise, we need not defer to issues


beyond the agency’s expertise. See Morris


v. CFTC, 980 F.2d 1289, 1293 (9th Cir. 1992);


see also Colorado Public Utils. Comm’n v.


Harmon, 951 F.2d 1571, 1579 (10th Cir. 1991)


(not deferring on issue of preemption);


Lynch v. Lyng, 872 F.2d 718, 724 (6th Cir.




                     18
1989) (not deferring on issue of statute’s


effective date).


     Because deciding if MSHA must address


the requirements of Section 811(a)(6) is a


question of pure statutory construction,


we     need        not      defer     to      MSHA’s


interpretation.          We conclude that MSHA’s


various          interpretations       of     Section


811(a)(6)   --    as   we   shall   explain   --   are


incorrect.




                            19
   Use of single-shift measurements by


MSHA is a health and safety standard.


Mandatory health and safety standard is


defined, in Section 802(l) as “the interim


mandatory health or safety standards”


between     Section   841    and    Section    846.


Section 842(f) is the basis for single-shift


sampling.     Furthermore,         Section    841(a)


refers to Sections 842-846 as “interim


mandatory      health    standards.”         At   a


minimum, therefore, Section 842(f) is an




                        20
interim       mandatory       health    standard.


Section 841(a) continues, however, to say


that    the   interim        mandatory      health


standards      of   Sections      842-846      are


effective “until superseded in whole or in


part    by    improved       mandatory      health


standards.”         Single-shift        sampling


supersedes multi-shift sampling, which was


based   on    Section   842(f).        Single-shift


sampling,     therefore,     is   an    “improved


mandatory health standard.”            See United




                        21
Mine Workers v. Dole, 870 F.2d 662, 671


(D.C.   Cir.   1989)   (the    term    “mandatory


standard” includes standards adopted to


replace an existing mandatory standard);


id. at 672 (concluding Section 811(a)(9) is a


mandatory           standard).        According   to


Section 841(a), any new standard must be


“promulgated . . . under the provisions of

                2
Section 811.”

 2
  MSHA argues that not all the
provisions of Sections 842-846 can
require rulemaking in accordance with
Section 811.    But, Section 841 makes no
distinction between the provisions in
                          22
   The   reasoning   of   the   Federal   Mine


Safety and Health Review Commission (“the


Commission”) in Secretary of Labor v.


Keystone Coal Mining Corp., 16 FMSHRC 6, 13


(1994) supports our conclusion that MSHA’s


new sampling method is a mandatory




Sections 842-846 when it requires the
Secretary to comply with Section 811
requirements.   Also, Section 842(f) is
distinct from the other provisions in
that it contains an explicit
requirement for the Secretary to comply
with Section 811 procedures.    See 30 U.S.C. §
842(f). Still, these provisions are not at
issue today, and we do not decide if
Section 811 requirements apply to them.
                     23
health    standard.          In     Keystone,   the


Commission      rejected     MSHA’s     argument


that single-shift measurements did not


require following Section 811 procedures.


Section     842(f),   said    the    Commission,


explicitly requires MSHA to follow Section


811 procedures if the Secretary decides not


to use single-shift measurements.               This


intent -- to use Section 811 procedures if


rejecting    single-shift     measurements        --


“bespeaks an equal intent that, once such a




                        24
finding is made, it may be rescinded only”


by following Section 811 procedures.      Id.


     MSHA next argues that it did comply


with Section 811, but that MSHA must only


comply with the procedure-setting portions


of Section 811.       MSHA says Section 811(a)(6)

                                                 3
contains no procedure-setting provisions.

 3
  In the alternative, MSHA argues that
the 2.0 mg/m standard encompasses the
                  3



Section 811(a)(6) requirements.       In other
words, MSHA argues that, so long as they
do not alter the 2.0 mg/m standard,
                                 3



then the improved mandatory health
standard is automatically feasible, does
not materially impair miners’ health,
and is based on the best available
                           25
We       think   MSHA’s        interpretation   is


incorrect.


        The plain language of Sections 842(f)


and 841(a) requires mandatory health or


safety standards to be made “under” or “in


accordance with” the “provisions of section


811.”     No restriction suggests that MSHA


must comply only with the procedures in


Section 811. Where Congress sought to refer


scientific evidence.      The plain language of
Section 841(a), however, states that
Section 811 standards apply to Sections
“842 through 846.”     30 U.S.C. § 841(a)
(emphasis added).
                          26
only to the procedural aspects of Section 811,


it did so clearly.   See 29 U.S.C. § 811(b)(2) (“A


temporary mandatory health or safety


standard shall be effective until superseded


by a mandatory standard promulgated in


accordance with the procedures prescribed


in [Section 811(a)(3)].”) (emphasis added).


   Our conclusion using the statute’s plain


meaning is supported by three additional


points.   First, Section 811(a)(6) says that


MSHA shall consider the feasibility of the




                         27
standards.             The        language     is    not


discretionary.          Second,      MSHA,    in    more


recent        rulemakings,          recognizes         the


requirement to address feasibility. See 63


Fed.   Reg.   17492,   17558       (1998)    (addressing


feasibility     of     proposed       rule    on    diesel

                                     4
engine exhaust in mines).                Third, MSHA is

 4
  We fail to understand MSHA’s
argument that the diesel rulemaking is
inapplicable because it applies to
operators, whereas single-shift sampling
applies to MSHA inspectors.              Section 811
makes no such distinction.               In addition,
MSHA uses inspector sampling to cite
and fine mine operators so, in this
respect, changes to the inspector
                             28
reversing its prior policy on sampling.


Proper      procedures        are     particularly


important       where,        as     here,   MSHA’s


predecessor studied and rejected single-shift


sampling.


      To use single-shift measurements, then,


MSHA must follow all the provisions of


Section 811. We conclude MSHA has not done


so.


      Section   811   requires        notice,     the


opportunity     for   public       comment,     public


sampling program do apply to operators.
                         29
hearings if requested, and final publication


in the Federal Register.   There can be little


doubt, as detailed in the facts above, that


MSHA satisfied these requirements. But as


we have explained, MSHA must also satisfy


the   requirements    of    Section   811(a)(6).


Therefore, MSHA must demonstrate that


the new standard (a) adequately assures


that no miner will suffer a material


impairment of health, on the basis of the


best available evidence; (b) uses the latest




                     30
available scientific data in the field; (c) is

            5
feasible;       and (d) is based on experience


gained      under      the   Mine        Act   and    other


health and safety laws.                  See 30 U.S.C. §


811(a)(6)(A).


     After       a   review       of    the    record,   we


conclude        that   the   record        contains      no


finding         of   economic          feasibility.      The

 5
  "Feasibility” under OSHA means
technological and economic feasibility.
See Color Pigments Mfrs. Ass’n v. OSHA, 16
F.3d 1157, 1161 (11th Cir. 1994).       We believe the
Mine Act term “feasibility” includes these
concepts as well, but we do not otherwise
address the applicability of OSHA.
                             31
absence    of   a   showing    of   economic


feasibility is not surprising because MSHA


insisted, in the Joint Finding, that “there


is no need to address feasibility.”     63 Fed.

                          6
Reg. 5664, 5669 (1998).

 6
  At oral argument, MSHA’s counsel
suggested that the Regulatory Flexibility
Analysis (discussed in note 7) contained
a study of economic feasibility.    But,
“[b]urdened by the view that [Section
811(a)(6)] was advisory, MSHA neither
explored for itself nor elicited
comments” regarding the economic
feasibility of single-shift sampling.
United Mine Workers, 870 F.2d at 674.
Determining if a regulation will have a
“significant economic impact on a
substantial number of small [or large]
                          32
   We conclude, therefore, that MSHA failed


to comply with Section 811(a)(6) of the Mine




entities,” under the RFA, is not the same
as deciding if the rule is economically
feasible.
                     33
                                             7
Act. So we must vacate the Joint Finding.

 7
  We will address NMA’s other procedural
objections.       NMA makes two challenges
under the Administrative Procedure Act.
We reject NMA’s first argument that
MSHA failed to provide notice of its plan
to apply the Joint Finding to surface
mines.     MSHA’s inspector sampling
program -- the program altered by single-
shift sampling -- has applied to surface
mines since the program’s inception.
Also, MSHA referred to 30 C.F.R. § 71 --
regulating surface mines but not
underground mines -- several times
during the rulemaking.        We note that
NMA submitted comments referencing
30 C.F.R. § 71.   We also reject NMA’s second
argument, that MSHA relied on
undisclosed material for the Joint
Finding.    The information used by MSHA
after the record closed was not new or
critical to the Joint Finding.
                         34
   VACATED.




   NMA also challenges the Joint
Finding under the Regulatory Flexibility
Act, 5 U.S.C.A. § 603 (West Supp. 1998) (“RFA”).
We reject this argument.      We find the
Secretary’s certification that single-
shift sampling will not have a
“significant economic impact on a
substantial number of small entities”
meets the requirements of Section
605(b), but -- as discussed in note 6 -- does
not demonstrate the rule’s economic
feasibility.
                       35
