UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


IN RE: INTL UN UNITE


00-1010a

D.C. Cir. 2000


*	*	*


Edwards, Chief Judge: The United Mine Workers of  America ("UMWA" or
"Petitioner") petitioned this court for a  writ of mandamus to compel
the Mine Safety and Health  Administration ("MSHA") of the Department
of Labor to  promulgate an emergency temporary standard, or in the 
alternative, to engage in rulemaking, to protect mine workers  from
exposure to respirable coal mine dust. UMWA prem- ised its request on
a claim that the agency had unreasonably  delayed its rulemaking. Six
months after UMWA filed its  petition, MSHA published notices of two
proposed rulemak- ings which, the agency contends, address the
specific con- cerns raised by UMWA in its petition. In light of the 
proposed rules, we conclude that petitioner's request for  mandamus is


Long-term exposure to excessive levels of respirable coal  mine dust
can cause coal workers' pneumoconiosis ("black  lung") and silicosis,
which are potentially disabling and can  lead to premature death. See
65 Fed. Reg. 23,049, 23,051  (2000). In recognition of these dangers,
the Federal Mine  Safety and Health Act of 1977, s 101(a), 30 U.S.C. s
811(a)  (1994), ("Mine Act") directs the Secretary of Labor ("Secre-
tary") to develop, promulgate, and revise health and safety  standards
in coal and other mines.


In January 1995, the Secretary established an Advisory  Committee on
the Elimination of Pneumoconiosis Among  Coal Mine Workers ("Advisory
Committee") to "make recom- mendations ... for improved standards, or
other appropriate  actions," to eliminate pneumoconiosis and silicosis
through the  control of respirable coal mine dust. 60 Fed. Reg. 5947,
5948  (1995). Later that year, in September 1995, the National 
Institute for Occupational Safety and Health ("NIOSH") is- sued a
criteria document recommending standards "to reduce  or eliminate
health impairment from exposure to respirable  coal mine dust."
Education and Information Division, U.S.  Department of Health and
Human Services, Pub. No. 95-106, 


Criteria for a Recommended Standard: Occupational Expo- sure to
Respirable Coal Mine Dust 9 (1995) [hereinafter  NIOSH Criteria


MSHA published a response to the NIOSH Criteria Docu- ment on April 25,
1996, announcing its intentions to develop a  proposed rule "derived
from the recommendations in the  Document" that would "address
enhanced protections for  surface and underground coal miners from
exposure to res- pirable coal mine dust and crystalline silica." 61
Fed. Reg.  18,308 (1996). The agency stated that it would "defer full 
development" of the proposed rule until it could consider the 
recommendations of the Advisory Committee. Id. at 18,309.


The Advisory Committee submitted its report to the Secre- tary on
November 14, 1996. See 62 Fed. Reg. 3717 (1997).  The report contained
20 wide-ranging recommendations  aimed at eliminating coal miners'
pneumoconiosis and silico- sis. See Advisory Committee on the
Elimination of Pneumo- coniosis Among Coal Mine Workers, Report of the
Secretary  of Labor's Advisory Committee on the Elimination of Pneu-
moconiosis Among Coal Mine Workers (Oct. 1996). On Janu- ary 24, 1997,
MSHA published a response to the Advisory  Committee Report, stating
that the agency was considering  both rulemaking and other actions,
such as internal adminis- trative or policy changes. See 62 Fed. Reg.
3717 (1997).  MSHA observed that "[m]any of the recommendations [were]
 general in nature and would require further development by  MSHA to
be suitable for publication as a proposed rule." Id.


On January 13, 2000, UMWA petitioned this court to  compel MSHA to
issue an emergency temporary standard to  protect miners, or to engage
in rulemaking to address a  subset of the recommendations proposed by
the Advisory  Committee. In particular, UMWA proposed: (1) that MSHA 
assume full responsibility for all respirable coal mine dust 
compliance sampling; (2) that there be continuous monitoring  for
respirable coal mine dust; (3) that miners have full rights  to
participate in the dust sampling program; and (4) that  sampling
contemplate miners' full exposure to respirable dust  (i.e. beyond 8
hours per day and 40 hours per week).


On July 7, 2000, the Secretary published notices of two  proposed
rulemakings aimed at restructuring the respirable  dust program for
underground coal mines. Specifically, the  proposed rules would (i)
permit MSHA to use a single, full- shift sample to determine whether
coal mine operators are in  compliance with the permissible exposure
limit for respirable  coal mine dust, see 65 Fed. Reg. 42,068 (2000)
(to be codified  at 30 C.F.R. pt. 72) (proposed July 7, 2000), and
(ii) require  each underground coal mine operator to have a verified
mine  ventilation plan. See 65 Fed. Reg. 42,122 (2000) (to be 
codified at 30 C.F.R. pts. 70, 75, 90) (proposed July 7, 2000). 
According to the Secretary, all of the concerns raised by the  UMWA
petition are within the compass of the proposed  rulemakings. Indeed,
the Federal Register notice does ad- dress each of the four UMWA
proposals. See 65 Fed. Reg. at  42,129, 42,133 (proposing that MSHA
assume full responsibili- ty for all compliance sampling); id. at
42,138-39 (determining  that technology has not yet advanced to the
point that  promulgation of a rule requiring continuous monitoring for
 respirable coal mine dust would be appropriate); id. at  42,129,
42,134 and n.4 (proposing that miners' representatives  have
participation rights in the dust sampling program); id.  at 42,140,
42,141 (proposing definitions of terms "concentra- tion" and "full
shift" intended to assure that sampling con- templates miners' full


Under section 101(b)(1) of the Mine Act, 30 U.S.C.  s 811(b)(1) (1994),
the Secretary must issue an emergency  temporary standard if she finds
that "miners are exposed to  grave danger" and that an "emergency
standard is necessary  to protect miners from such danger." It is
undisputed here  that respirable coal mine dust is a serious
occupational hazard  in the mining industry. See 65 Fed. Reg. 23,049,
23,051  (2000). Nonetheless, we find that UMWA has failed to  satisfy
its burden of showing that an emergency temporary  standard is
warranted at this time. See Northern States  Power Co. v. United
States Dep't of Energy, 128 F.3d 754, 758  (D.C. Cir. 1997) ("The
party seeking mandamus has the  burden of showing that 'its right to
issuance of the writ is  clear and indisputable.' " (quoting


Corp. v. Mayacamus Corp., 485 U.S. 271, 289 (1988))), cert.  denied,
525 U.S. 1016 (1998). It is far from clear at this  juncture what
standards should be adopted to address the  problem of respirable coal
mine dust. This is a matter that is  committed to the agency's
expertise in the first instance, and  this court is in no position to
pretermit the prescribed statu- tory process. UMWA's request for an
emergency temporary  standard must therefore be denied.


It is unnecessary for us to reach the merits of petitioner's  claim
that MSHA has unreasonably delayed rulemaking on  respirable coal mine
dust. An agency's notice of proposed  rulemaking necessarily moots a
petitioner's claim of unrea- sonable delay if that claim is based upon
(1) a period of delay  occurring prior to the agency's issuance of a
notice of pro- posed rulemaking, and (2) a matter that the agency
proposes  to regulate in that rulemaking. See Action on Smoking and 
Health v. Department of Labor, 28 F.3d 162, 164 (D.C. Cir.  1994);
United Steelworkers of America v. Rubber Mfrs.  Ass'n, 783 F.2d 1117,
1120 (D.C. Cir. 1986). Six months after  UMWA filed its petition to
compel MSHA to promulgate four  standards recommended by the
Secretary's Advisory Com- mittee, the agency issued two notices of
proposed rulemaking.  Although the UMWA disputes the sufficiency of
the manner  in which the agency has addressed its concerns, it would
be  premature for us to consider its objections to the merits of  the
proposed rules. See Action on Smoking and Health, 28  F.3d at 165.
Agency counsel conceded at oral argument that  the standards sought by
UMWA could be a "logical out- growth" of the proposed rules. We agree.
Accordingly, we  find that petitioner's claim of unreasonable delay is


The agency acknowledges that it has 90 days within which  to
"promulgate, modify, or revoke" the proposed standards,  and "publish
[the] reasons therefor." 30 U.S.C.  s 811(a)(4)(B) (1994). In the
event that the agency fails to  act within the statutory period, UMWA
may file a petition for  review under Telecommunications Research and
Action Cen- ter v. FCC ("TRAC"), 750 F.2d 70 (D.C. Cir. 1984). And, of
 course, UMWA and other parties with standing may seek 


judicial review of the final rules adopted by the agency in the  event
that they object to the outcome of the rulemakings.


For all of the foregoing reasons, the petition for a writ of  mandamus
is denied.