National Mining Ass'n v. Secretary, U.S. Department of Labor (812 F.3d 843, 2016)

RIPPLE, Circuit Judge:

TABLE OF CONTENTS

I. Background.........................................................848

A. Summary of the New Dust Rule...................................848

B. Positions of the Parties...........................................850

II. Legislative and Regulatory Context....................................852

A. Early Regulation of the Mining Industry and the Coal Act............852

B. The Mine Act...................................................855

C. Regulatory History Following the Mine Act.........................858

III. MSHA’s Authority to Regulate........................................860

A. The Statutory Provisions.........................................860

B. The Authority to Impose Single-Shift Sampling.....................862

C. The Authority to Enact Other Substantive Regulations____’...........863

IV. Substantive Challenges: The Content of the New Dust Rule...............864

A. Standard of Review..............................................864

B. Single-Shift Sampling............................................866

1. Statutory and accuracy-related challenges.......................867

2. Feasibility of single-shift sampling.............................871

C. Technological Feasibility of Other Major Provision s of the New

Dust Rule....................................................872

1. Mandatory use of the CPDM.................. 873

a. Accuracy challenges to the CPDM.................. 873

b. Assumptions underlying MSHA data and requests to supplement the record before the court........... 874

c. Malfunction rate of the CPDM..................... 876

d. Performance at varying temperatures and humidities ,

e. CPDM as an impediment to miners’ ability to perform work .........................................

f. Availability of the CPDM.......................... 878

2. The silica standards.................................. 878

3. The cumulative effect of the New Dust Rule’s changes — 880

D. Economic Feasibility..................................... 880

E. Other Challenges........................................ 882

1. National regulation................................... 882

2. Use of respirators to achieve air quality standards........ 884

3. Experience under other health and safety laws........... 884

Conclusion.............................................................. 884

On May 1, 2014, the Secretary of Labor published in the Federal Register a Final Rule for the Mine Safety and Health Administration (“MSHA”) entitled Lowering Miners’ Exposure to Respirable Coal Mine Dust, Including Continuous Personal Dust Monitors, 79 Fed.Reg. 24,814 (codified at 30 C.F.R. pts. 70, 71, 72, 75, 90) (“New Dust Rule”). Two separate groups, representing the coal industry, then brought pre-enforcement challenges in the Courts of Appeals for the Sixth and Eleventh Circuits. The Panel on Multidistrict Litigation consolidated the challenges here. The petitioners first challenge the authority of MSHA, an agency within the Department of Labor, to issue the rule under the Federal Mine Safety and Health Act of 1977 (“Mine Act”), see Pub.L. 95-164, codified as amended at 30 U.S.C. § 801 et seq. Specifically, the petitioners submit that, on many of the subjects covered by the rule, MSHA is required to act in concert with the Secretary of Health and Human Services (“HHS”) and her designee, the National Institute for .Occupational Safety and Health (“NIOSH”). Second, the petitioners challenge the substance of the rule, raising a variety of detailed objections.

On the first challenge, we now conclude that, consistent with the plain language of the statute and with the earlier precedent of this court, the statute as amended clearly evinces a congressional intent that, although it must consider the advice of NIOSH, MSHA has the sole responsibility to issue regulations covering the subjects addressed by this rule. Here, as anticipated by the statute, MSHA received the views of NIOSH on every required topic. Nothing more is required. With respect to the second challenge, we conclude that MSHA’s decades-long effort, culminating in the publication of this rule, adequately took into account the scientific evidence of record and arrived at conclusions which, given MSHA’s expertise, are worthy of deference. We therefore deny the petitions for review.

I. Background

A. Summary of the New Dust Rule

For nearly sixty years, Congress and various federal agencies working at its behest have worked to improve safety and health standards for workers in our Nation’s mines. A primary focus of this effort has been respirable coal dust (“RCD”) — dust generated by coal mining that is sufficiently small to enter a miner’s respiratory system. Inhalation of RCD puts coal workers at risk for pulmonary diseases, including coal worker’s pneumo-coniosis (“CWP,” commonly known as Black Lung Disease), silicosis, chronic obstructive pulmonary disease, emphysema, and chronic bronchitis. The regulation under review is the latest effort to address this hazard.

In 2010, MSHA, acting alone, proposed the New Dust Rule to address RCD and its known health outcomes. Lowering Miners’ Exposure to Respirable Coal Mine Dust, Including Continuous Personal Dust Monitors, 75 Fed.Reg. 64,412 (proposed Oct. 19, 2010). In our review of an earlier and very similar regulatory attempt, National Mining Ass’n v. Secretary of Labor, 153 F.3d 1264, 1269 (11th Cir.1998), we expressed concern that MSHA’s effort had failed to determine the economic feasibility of single-shift sampling, the same monitoring process at issue in this case. In response to our decision, MSHA initiated a new rulemaking and, as part of that process, issued an economic analysis addressing that concern. It also opened the record for comment and extended the comment period three times, finally closing it in June 2011. After making alterations to respond to the comments received to its proposed rule, MSHA promulgated its final rule in 2014. 79 Fed.Reg. 24,814.

The New Dust Rule phases in a series of significant changes to RCD regulations over a two-year period, beginning in August 2014. The first phase saw the implementation of three basic changes: (1) mine operators began to take air quality samples over the entire shift of a miner rather than over a maximum of eight hours, or a miner’s shift, if shorter, 30 C.F.R. § 70.201(c); (2) mine operators were required to take samples over a “normal production shift,” now defined as one in which the amount of material produced is “at least equal to 80 percent of the average production recorded by the operator for the most recent 30 production shifts” rather than one where production was only required to be at least 50 percent of the average of the prior five bimonthly samples, id. § 70.2; and (3) for the first time, compliance determinations would be based on Excessive Concentration Values (“ECVs”), id. § 70.206(e), (f). ECVs are measurements of RCD so high that, as a statistical matter and accounting for a certain amount of measurement uncertainty, they demonstrate with 95 percent certainty that the true concentration of RCD exceeded the allowable limit. The use of ECVs allows operators the benefit of some margin of measurement-related error by requiring not only that the regulatory RCD standard be exceeded, but that it be exceeded by a margin that assures for MSHA, with a degree of statistical confidence, that the measurement demonstrating noncompliance was not erroneous. When an on-site MSHA inspector sees a single, full-shift sample with an ECV, MSHA will issue a citation to the operator, id. § 72.800. When an operator sees a single, full-shift sample with an ECV, it must take immediate corrective action to reduce RCD concentration and make available respiratory equipment to affected miners, id. § 70.206(e). If two or more samples by an operator in the preceding five exceed the ECV, or if the average of all five exceeds the ECV, MSHA will issue a citation. Id. § 70.206(f). The reliance on individual sample results is a significant change from the prior sampling regime, which is based on multi-shift averaging. It is also at the core of the petitioners’ objections.

In the next phase, commencing in February 2016, operators must use Continuous Personal Dust Monitors (“CPDMs”) to measure concentrations in the dustiest jobs at each section. Id. § 70.201. Sampling frequency also increases: on a quarterly basis, fifteen samples must be taken on consecutive normal production shifts in the designated occupation, and then fifteen samples in other designated occupations; prior standards required only five designated occupation samples bimonthly. Id. § 70.208(a). Over this longer sampling period, when three or more of the fifteen samples meet the ECV, or when the average of all fifteen exceeds the ECV, MSHA will issue a citation. Id. § 70.208(f).

In the final phase, beginning in August 2016, the maximum acceptable concentration limit of RCD reduces to 1.5 milligrams per cubic meter (mg/m). Id. § 70.100(a)(2). Notably, NIOSH’s 1995 Criteria Document called for a further reduction to 1.0 mg/m, see .I-QRA-23 at 108, and the proposed rule itself had accepted that recommendation and required an accelerated timetable for compliance, 75 Fed.Reg. at 64,419, 64,492. For areas of the mine and mine workers in which a lower a 1.0 mg/m standard already applied (because they are in intake air entries or otherwise less dusty areas), the standard will become 0.5 mg/m. 30 C.F.R. §§ 70.100(b), 90.100. The rule also changes the method of calculating the lower RCD values applicable to any mining operation where respirable quartz dust (also called respirable silica dust) is present, although it maintains current absolute limits of 0.1 mg/m of respirable quartz.

B. Positions of the Parties

Within this context, we address the contentions of the parties. The petitioners submit that MSHA has exceeded its authority. They first maintain that, by promulgating the New Dust Rule, the Secretary of Labor has rescinded unilaterally a 1972 Joint Finding of the Secretaries of Labor and of HHS under section 202(f) of the Mine Act, 30 U.S.C. § 842(f). That Joint Finding had determined that reliance on a single sample of RCD levels would be inaccurate and ought not be the basis for compliance determinations. In the petitioners’ view, because the 1972 Joint Finding was issued jointly by the Secretaries of Labor and of HHS, those Secretaries must act together to rescind it. For the same reason, the petitioners attack the new exposure limits, schedules and requirements promulgated under the New Dust Rule. They read section 202(a), 30 U.S.C. § 842(a), as requiring joint rulemaking and promulgation by the Secretaries of Labor and of HHS. Indeed, they continue, section 202(d) of the Mine Act, 30 U.S.C. § 842(d), reserves to HHS alone the authority to promulgate a schedule reducing RCD exposures below the levels set forth in the statute.

Turning to the substance of- the New Dust Rule, the petitioners take issue with the sampling regime set up by that regulation. Noting that section 202(a) of the Mine Act, 30 U.S.C. § 842(a), requires that RCD sampling be accurate, they claim that the regulation permits too wide a variation to meet that statutory criterion. They urge us to hold that, under the first step of the analysis set forth in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), the regulation is invalid. The petitioners continue that, even if we determine that the statutory scheme is ambiguous, we should hold that the promulgation of the New Dust Rule was arbitrary and capricious because MSHA, acting on behalf of the Secretary of Labor, failed to demonstrate the technological and economic feasibility of the Final Rule. They submit that MSHA ignored the record evidence that single-shift sampling and a new sampling device will increase, significantly, the possibility of inaccurate results. In their view, MSHA simply did not rely on the best available scientific evidence and experience.

The Secretary of Labor takes, as might be expected, a distinctly contrary view. He maintains that the Mine Act, through section 101(a), 30 U.S.C. § 811(a), vests in the Secretary of Labor the authority to develop and to promulgate revised and improved mandatory health standards. As he reads the Act, the Secretary of HHS has the authority to recommend that certain criteria be established relating to harmful physical agents, but the authority to conduct rulemaking proceedings and to promulgate regulations belongs exclusively to the Secretary of Labor. Consequently, he reasons, he acted well within the bounds of his statutory authority in receiving from NIOSH its Criteria Document recommending extensive changes in the then-existing dust rules and incorporating some of them in the New Dust Rule.

Turning to the petitioners’ substantive objections, the Secretary maintains that he reasonably determined that single-shift sampling accurately represents the average concentration of respirable dust in the mine during each shift. He points out that sampling methods and technology have improved since the 1972 Joint Finding and that studies have determined that single-shift sampling meets the criterion for accuracy recommended by NIOSH. Relying on standards developed by MSHA and NIOSH, a research entity within the Department of HHS, he further maintains that CPDMs are accurate and reliable instruments for the measurement of coal dust and will be available by the designated implementation date. He rejects the argument that respirators are more effective than the new device; in his view, the statute requires mine operators to comply with air quality standards without resort to respirators. He further maintains that the cost of compliance with.the New Dust Rule amounts to less than one percent of annual revenues..

The Secretary also rejects the suggestion that, instead of the New Dust Rule, he should have promulgated a regional silica rule. In the Secretary’s view, studies continue to show that miners in all regions of the United States continue to develop CWP. Agencies have the prerogative, he submits, to prioritize their regulatory agendas and to address different problems in different rulemaking proceedings.

Accordingly, the Secretary urges us to determine that the New Dust Rule is technologically and economically feasible.

II. Legislative and Regulatory Context

A. Early Regulation of the Mining Industry and the Coal Act

Before we analyze the specific challenges brought to us by the parties, we pause to give these submissions historical context by examining the overall statutory and regulatory scheme that governs mine health and safety issues in the United States.

From the late 19th century until the middle 20th, Congress enacted several discrete measures to increase mine safety. These measures established some minimum safety requirements, prohibited labor by children under twelve, established the Bureau of Mines in the Department of the Interior, and in 1947, authorized the development of safety regulations. Despite these efforts, mining, an essential occupation to the commercial health of a growing industrial society, remained one of the most dangerous occupations in the Nation. In 1967-68, the Country experienced a series of mine accidents that killed more than 500 miners. In one incident, a devastating mine explosion near Farmington, West Virginia, seventy-eight miners died. See H.R.Rep. No. 91-563, at 1 (1969).

Shortly thereafter, Congress enacted the Federal Coal Mine Health and Safety Act of 1969 (“Coal Act”), Pub.L. 91-173, 83 Stat. 742, codified as amended at 30 U.S.C. § 801 et seq. Its express goal was to increase safety for mine workers in the United States. The enacted findings in the Coal Act stated that:

(a) the first priority and concern of all in the coal mining industry must be the health and safety of its most precious resource — the miner;

... [and]

(c) there is an urgent need to provide more effective means and measures for improving the working conditions and practices in the Nation’s coal mines in order to prevent death and serious physical harm, and in order to prevent occupational diseases originating in such mines....

Id. § 2. At the outset of the Title specifically setting health standards, the Coal Act also provided:

Among other things, it is the purpose of this title to provide, to the greatest extent possible, that the working conditions in each underground coal mine are sufficiently free of respirable dust concentration in the mine atmosphere to permit each miner the opportunity to work underground during the period of his entire adult working life without incurring any disability from pneumoconi-osis or any other occupation-related disease during or at the end of such period.

Id. § 201(b).

At the time of its enactment, the Coal Act was the most comprehensive statute addressing health and safety matters in the Nation’s mines. It set forth the most stringent requirements to date and, for the first time, provided for civil and criminal penalties for noncompliance. It also addressed the growing medical knowledge about the progressive respiratory diseases suffered by coal miners. The Coal Act set forth “interim mandatory” health and safety standards in Titles II and III, respectively. Id. §§ 201(a), 301(a). Congress mandated that these interim standards were to remain “applicable to all underground coal mines until superseded in whole or in part by improved mandatory” health or safety standards to be promulgated under the provisions of section 101 of the Act. Id. It is significant that the 1969 statute spoke in terms of “interim” standards. From the very outset, Congress envisioned a shifting landscape as improved health and safety measures became feasible and therefore implemented a regulatory structure that could focus on continuous improvement. Indeed, to guard against regulatory backsliding, the statute mandated that “[n]o improved mandatory health or safety standard promulgated under this title shall reduce the protection afforded miners below that provided by any mandatory health or safety standard.” Id. § 101(b).

Among the issues covered by the Coal Act was air quality, known to play a significant role in the development of the respiratory diseases common among mine workers. Specifically, section 202 of the Coal Act required coal mine operators to “take accurate samples of the amount of respirable dust in the mine atmosphere to which each miner in the active workings of such mine is exposed.” Id. § 202(a). For the first three years after the Coal Act’s enactment, the maximum acceptable level of RCD was 3.0 mg/m3 of air. Id. § 202(b)(1). Following that initial period, the maximum level fell to 2.0 mg/m3. Id. § 202(b)(2). The statute then contemplated a further reduction according to a schedule promulgated through regulation, “to a level of personal exposure which will prevent new incidences of respiratory disease and the further development of such disease in any person.” Id. § 202(d).

Notably, the Coal Act became law during a period when Congress addressed more broadly matters affecting the health and safety of the Nation’s workforce. In 1970, the year following the passage of the Coal Act, Congress enacted the Occupational Safety and Health Act (“OSH Act”), Pub.L. 91-596, 84 Stat. 1590, codified as amended at 29 U.S.C. § 651 et seq. This statute created the Occupational Safety and Health Administration (“OSHA”) in the Department of Labor and gave it broad regulatory and enforcement authority with respect to workplace safety standards. The OSH Act also created NIOSH, an agency within the Department of Health, Education, and Welfare (“HEW”) charged with conducting research and developing recommendations for the prevention of work-related injuries and illnesses generally. Id. § 22, 29 U.S.C. § 671; see also Nat’l Mining Ass’n v. Dep’t of Labor, 292 F.3d 849, 854 (D.C.Cir.2002) (citing 29 U.S.C. § 671). The statute provided that, following its research, NIOSH would forward its recommendations to the Secretary of Labor for consideration of regulatory action through his designee, OSHA. Pub.L. 91-596, § 6(b)(1).

Congress assigned primary responsibility for implementation of the Coal Act to the Secretary of the Interior. Pub.L. 91-173, § 3(a). But the Act also assigned specific responsibility to other cabinet-level Departments, including, importantly, HEW. Section 101 established the procedure by which these Departments would work together to develop the improved standards. The Secretary of the Interior had the responsibility to “develop, promulgate, and revise, as may be appropriate, improved mandatory safety standards for the protection of life and the prevention of injuries in a coal mine.” Id. § 101(a) (emphasis added). In arriving at these standards, however, the Secretary of the Interior was to consult with the Secretaries of HEW and Labor, and others. Id. § 101(c).

For improved mandatory health standards, i.e., those items addressed substantively in Title II of the statute, and which are the principal concern of the present rule, the Coal Act required a more complicated process. In this area, the Secretary of HEW had the laboring oar and was to “develop and revise, as may be appropriate, improved mandatory health standards for the protection of life and the prevention of occupational diseases of miners.” Id. at § 101(d). In arriving at these standards, the Secretary of HEW likewise was to consult with the Secretaries of the Interior and Labor, and others. The Coal Act required a somewhat unusual step after the Secretary of HEW developed comprehensive substantive health standards: he was directed to “transmit!]” those standards to the Secretary of the Interior. Id. The Secretary of the Interior then had the responsibility to publish the HEW-authored proposed mandatory health standards in the Federal Register. After receiving comments on these proposals, the Secretary of the Interior would “transmit! ]” them to the Secretary of HEW. Id. § 101(e). The Secretary of HEW would then conduct hearings, if necessary, and review the comments, make public findings of fact and substantive decisions, and, thereafter, “direct the Secretary [of the Interior] to promulgate such standards with such modifications as the Secretary of [HEW] may deem appropriate.” Id. § 101(e); see also id. § 101(g). In sum, the Secretary of HEW made the substantive decisions on health standards. The Secretary of the Interior, although generally responsible for implementation of most of the Coal Act, played a largely ministerial role as the promulgator of those standards.

Although section 101 of the Coal Act provided the overarching procedural mechanism for developing improved mandatory standards, several additional provisions played supporting roles. Section 201 designated the relevant dust provisions in section 202 as interim mandatory health standards and provided that they would remain in effect “until superseded in whole or in part by improved mandatory health standards promulgated by the Secretary [of the Interior] under the provisions of section 101 of this Act.” Id. § 201. Several additional substantive sections directed one or more of the Secretaries to act on a specific subject, frequently, though not invariably, cross-referencing section 101. See, e.g., id. § 202(d) (“[T]he Secretary of [HEW] shall establish, in accordance with the provisions of section 101 of this Act, a schedule reducing the average concentration of respirable dust in the mine atmosphere .... ”). Other provisions within section 202’s list of interim mandatory standards directed action by one or both Secretaries without an internal explicit cross-reference to section 101 or 201. See, e.g., id. § 202(a) (“Such samples shall be taken by any device approved by the Secretary [of Interior] and the Secretary of [HEW] and in accordance with such methods, at such locations, at such intervals, and in such manner as the Secretaries shall prescribe in the Federal Register....”).

The Coal Act provided that both safety standards, originating with Interior, and health standards, originating with HEW, were to “be based upon research, demonstrations, experiments, and such other information as may be appropriate.” Id. § 101(c), (d). Further, “[i]n addition to the attainment of the highest degree of ... protection for the miner,” the statute directed the respective Secretaries to consider “the latest available scientific data in the field, the technical feasibility of the standards, and experience gained under this and other health [or safety] statutes.” Id.

The Coal Act specified two separate, sequential mechanisms for determining the average dust concentration. For the first eighteen months after enactment, measurements were to be taken “over a number of continuous production shifts.” Id. § 202(f). After that initial eighteen months, the dust concentration was to be measured “over a single shift only.” Id. However, and central to the issue presented in this case, if the Secretaries of Interi- or and HEW jointly found that such a single measurement did not “accurately represent ... atmospheric conditions,” the prior method would continue to be used. Id.

Just months after the enactment of the 1969 Coal Act, the Secretary issued his first set of mandatory health standards implementing section 202. See Mandatory Health Standards — Underground Coal Mines, 35 Fed.Reg. 5,544 (Apr. 3, 1970). In 1972, the Secretaries finalized, and published in the Federal Register under the authority of both Departments, a summary Joint Finding that adoption of a single-shift testing scheme would not accurately measure the atmospheric conditions during the shift/ Consequently, the multi-test averaging scheme remained in place. See Notice of Finding That a Single Shift Measurement of Respirable Dust Will Not Accurately Represent Atmospheric Conditions During Such Shift, 37 Fed.Reg. 3,833 (Feb. 23,1972) (“1972 Joint Finding”).

B. The Mine Act

Five years later, in 1977, mining fatalities were still more than four times as great as the average in other industries. H.R.Rep. No. 95-312, at 3 (1977). Dissatisfied with progress under the Coal Act, Congress reenacted, amended, and consolidated the Coal Act and various other provisions of law, renaming it the Federal Mine Safety and Health Act (“Mine Act”), see Federal Mine Safety and Health Amendments Act, Pub.L. 95-164, 91 Stat. 1290. Procedurally, it made significant changes to its predecessor. In considering the Mine Act, the Senate Committee on Resources concluded that the prior enforcement efforts “demonstrated a basic conflict in the missions” of the Department of the Interior, which aimed to “maximiz[e] production in the extractive industries,” a goal “not wholly compatible with the need to interrupt production,” a “necessary adjunct of the enforcement scheme.” To remove this conflict, the Mine Act designated the Secretary of Labor as having principal authority to implement the statute. It also created MSHA within the Department of Labor — a Department with experience on the issues of worker safety and with new divisions dedicated fully to safety issues. The statute placed within MSHA regulatory authority over mining health and safety standards. Mine Act § 101(a), 30 U.S.C. § 811(a); 29 U.S.C. § 557a (creating MSHA and authorizing and directing the Secretary of Labor to fulfill his functions under the Mine Act through MSHA). Indeed, in making the shift from the Department of the Interior to the Department of Labor, the report of the House Committee on Education and Labor accompanying the Mine Act stated:

The Secretary responsible for the health and safety of miners will no longer be the Secretary of the Interior, but rather the Secretary of Labor, who represents an agency that puts the welfare of workers above all other considerations. The committee believes that by transferring administration of the miner health and safety program, and by upgrading legislative provisions applicable to metal and nonmetal miners through consolidation of all miners under one safety law, the Nation will be better able to meet the dual objectives of increased production of mineral and energy resources, and protection of the sacred lives of those members of our society who toil in the mines to keep our country running efficiently.

H.R.Rep. No. 95-312, at 2 (1977) (emphasis added).

In addition to the transfer of principal authority from Interior to Labor, the Mine Act also substantially revised the general regulatory procedures. Under the Coal Act, health standards and safety standards were addressed separately. As we have noted earlier, the development of health standards specifically involved a two-step process in which the Secretary of HEW developed substantive standards, and the Secretary of Interior promulgated these in a somewhat ministerial fashion. Under the Mine Act, however, health and safety standards both are entrusted to the Secretary of Labor under a single process, although the Secretary of HHS, through NIOSH, has a very significant role in the process. Specifically, the Mine Act directs the Secretary of Labor (acting through MSHA) 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.” Mine Act § 101(a), 30 U.S.C. § 811(a) (emphasis added). The Mine Act gives a broad grant of authority to the Secretary of Labor and directs that “[wjhenever ... upon the basis of information submitted to him in writing by” interested parties, including the Secretary of HHS, NIOSH, or others, the Secretary of Labor “determines that a rule should be promulgated,” he may act. Id. § 101(a)(1), 30 U.S.C. § 811(a)(1). However, when he

receives a recommendation, accompanied by appropriate criteria, from [NIOSH] that a rale be promulgated, modified, or revoked, the Secretary must, within 60 days after receipt thereof, refer such recommendation to an advisory committee ..., or publish such as a proposed rule ..., or publish in the Federal Register his determination not to do so, and his reasons therefor.

Id. Significantly for our purposes, a similar process is set forth in the statute for the recommendations received of the Secretary of HHS regarding toxic agents found in mines. Consistent with the role it plays elsewhere in occupational safety, therefore, NIOSH was given a consultative, rather than regulatory, role under the main provision of the Mine Act addressing the development of health and safety standards.

Perhaps in recognition that many of the Coal Act’s initial interim standards were either in force in the industry or already had been superseded with improved standards set by initial regulations, see generally 35 Fed.Reg. 5,544, the Mine Act itself made no substantive changes to the Coal Act’s interim mandatory health standards. Within Title II, therefore, specific duties assigned under the Coal Act to the Secretary of HEW (now HHS) were preserved. Among these are a number of provisions with significance to the present case, including section 202(a), 30 U.S.C. § 842(a), which requires samples of RCD to be taken in the mines “by any device approved by the Secretary [of Labor] and the Secretary of [HHS] and in accordance with such methods, at such locations, at such intervals, and in such manner as the Secretaries shall prescribe in the Federal Register.” Additionally, section 202(d) provides that “the Secretary of [HHS] shall establish, in accordance with the provisions of section 101 of this Act, a schedule reducing the average concentration of respirable dust in the mine atmosphere.” See also 30 U.S.C. § 842(d). Section 202(e), 30 U.S.C. § 842(e) provides that “concentrations of respirable dust in this title mean the average concentration of respirable dust measured with a device approved by the Secretary [of Labor] and the Secretary of [HHS],” and, likewise, section 202(h), 30 U.S.C. § 842(h) gives the Secretaries of Labor and HHS authority to approve respiratory equipment. Section 202(f), 30 U.S.C. § 842(f) defines the term “average concentration” of RCD, and references a process for measurement that involves, in some measure, both Secretaries. The details of that provision being significant to the present dispute, we shall defer our discussion of them. Suffice it to say that the Mine Act’s intent — to draw upon health expertise, to focus on worker safety, and to minimize conflicts generated by federal agencies with an industry-driven mission — are clear. The precise mechanics of the amendments and their success in achieving those goals are an issue that we shall examine as necessary.

C. Regulatory History Following the Mine Act

Regulatory work under the Mine Act did not revisit immediately the single-shift issue. During the early 1990s, MSHA responded “to concerns about possible tampering with dust samples” by creating a Task Force to review the RCD program. Mine Shift Atmospheric Conditions; Respirable Dust Sample, 63 Fed.Reg. 5,664, 5,667 (Feb. 3, 1998). Out of that review, MSHA developed a spot inspection program that for the first time was based upon samples taken over a single shift or day. “Based on the data from the SIP inspections, the Task Group concluded that MSHA’s practice of making noncompliance determinations solely on the average of multiple-sample results did not always result in citations in situations where miners were known to be overexposed to respirable coal mine dust.” Id. at 5,668. Specifically, multi-sample averaging could mask significant overexposures. “In response to these findings, in November 1991, MSHA decided to permanently adopt the single shift inspection policy initiated during the SIP.” Id. Thus began a series of attempts at modifying, by administrative processes, the multi-shift sampling regime in an effort “designed to defeat suspected tampering of dust samples by mine operators.” Nat’l Mining Ass’n, -153 F.3d at 1266. For the first time, in 1994, the Secretaries jointly proposed rescission of the 1972 Joint Finding in the Federal Register. See Mine Shift Atmospheric Conditions; Respirable Dust Sample, 59 Fed.Reg. 8,357 (Feb. 18, 1994). The following year, NIOSH issued a Criteria Document recommending a move to single-shift sampling. In 1996, an advisory committee created by the Department of Labor to which the NIOSH recommendation had been referred also recommended single-shift sampling. See 30 U.S.C. §§ 811(a)(1), 812. In 1998, MSHA and NIOSH, armed with the recommendations from NIOSH and the advisory committee, again jointly proposed to rescind the 1972 Joint Finding, and did rescind it after notice and comment.

In 1998, the National Mining Association challenged the 1998 Joint Finding on the ground that MSHA had failed to comply with the procedural requirements of section 101 of the Mine Act, 30 U.S.C. § 811, and, specifically, the requirements of section 101(a)(6), 30 U.S.C. § 811(a)(6), that MSHA demonstrate feasibility, use of the best available evidence and latest scientific data, and assure that no miner will suffer a material health impairment. MSHA responded principally by arguing that it was not required to follow section 101, 30 U.S.C. § 811, in order to rescind the Joint Finding, and even if it was, it was not required to follow substantive directions in section 101(a)(6), 30 U.S.C. § 811(a)(6), that were not “procedure-setting.” Nat’l Mining Ass’n, 153 F.3d at 1268. We granted the National Mining Association’s petition and vacated the 1998 Joint Finding on the basis that MSHA was required to meet all of the requirements of section 101, 30 U.S.C. § 811, in order to rescind the 1972 Joint Finding, but had failed to demonstrate economic feasibility, and, therefore, the rescission was invalid. Id. at 1269.

Following the National Mining decision, MSHA and NIOSH proposed jointly to rescind the 1972 Joint Finding. See Determination of Concentration of Respirable Coal Mine Dust, 65 Fed.Reg. 42,068 (July 7, 2000). They engaged in notice- and-comment procedures and held public hearings. They twice reopened or extended the period to allow further development of the record, specifically on new technology for testing, the CPDM. The CPDM is a technology intended to replace the testing that had been in place since the original enactment of the Coal Act in 1969, namely, the Coal Mine Dust Personal Sampler Unit (“CMDPSU”). Testing with the CMDPSU required filters to be mailed away by operators to MSHA facilities for testing and introduced a delay of at least a week before samples could be processed. The CPDM, by contrast, takes continuous samples and makes them available to the mine and MSHA in real time, thus preventing possible avenues for tampering and enabling operators to implement additional, responsive air quality measures on an as-needed basis.

This administrative action resulted in the promulgation of two rules. First, in 2010, following notice-and-comment procedures, MSHA promulgated new regulations concerning standards for approval of CPDMs. See Coal Mine Dust Sampling Devices, 75 Fed.Reg. 17,512 (Apr. 6, 2010) (codified at 30 C.F.R. part 74). Pursuant to those regulations, NIOSH approved a CPDM by Thermo Fisher Scientific in 2011. See 79 Fed.Reg. at 24,818. Consideration of the proposed rule to rescind the 1972 Joint Finding never was completed.

Also in 2010, MSHA, acting alone, proposed the present, comprehensive New Dust Rule. 75 Fed.Reg. 64,412. It issued an economic analysis to address our concerns in National Mining that it had failed to determine the economic feasibility of single-shift sampling. It also opened the record for comment and extended the comment period three times, finally closing it in June 2011. MSHA promulgated its final rule in 2014, with alterations made in response to the comments received to its proposed rule. 79 Fed.Reg. 24,814.

III. MSHA’s Authority to Regulate

With this background in mind, we now turn to the precise issues presented for our review. We first address whether MSHA acted in accordance with the statute when it promulgated the New Dust Rule under its own authority rather than with the joint participation of NIOSH in the promulgation process. At the outset, we note the narrowness of this question: no one maintains that NIOSH has not participated in, or does not agree with, the determinations made by MSHA. Indeed, it is clear that NIOSH has been proposing many of the same revisions for decades. As counsel for the petitioners told us at oral argument, the question here concerns only the formal process of promulgation and NIOSH’s failure to sign on the dotted line.

A. The Statutory Provisions

In assessing the contention that the New Dust Rule is infirm simply because of the absence of a joint promulgation by the MSHA and NIOSH, we begin with the language of the statutory sections at issue. Section 101 of the Mine Act provides:

The Secretary [of Labor] shall by rule in accordance with procedures set forth in this section and in accordance with section 553 of Title 5 (without regard to any reference in such section to sections 556 and 557 of such title), 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); see also Mine Act § 101(a). Its following subsections add substantial detail, including significant substantive involvement by the Secretary of HHS and NIOSH. They do not change, however, the basic structure of regulatory authority and responsibility embodied in subsection (a), which indicates that they belong to the Secretary of Labor alone.

The next section that concerns us is section 202, which provides, in pertinent part:

(a) Samples; procedures; transmittal; notice of excess concentration; periodic reports to Secretary [of Labor]; contents

Each operator of a coal mine shall take accurate samples of the amount of respirable dust in the mine atmosphere to which each miner in the active workings of such mine is exposed. Such samples shall be taken by any device approved by the Secretary [of Labor] and the Secretary of [HHS] and in accordance with such methods, at such locations, at such intervals, and in such manner as the Secretaries shall prescribe in the Federal Register within sixty days from December 30, 1969 and from time to time thereafter. Such samples shall be transmitted to the Secretary [of Labor] in a manner established by him, and analyzed and recorded by him in a manner that will assure application of the provisions of section 814(i) of this title when the applicable limit on the concentration of respirable dust required to be maintained under this section is exceeded____

(d) Promulgation of new standards; procedures

Beginning six months after the operative date of this subchapter and from time to time thereafter, the Secretary of [HHS] shall establish, in accordance with the provisions of section 811 of this title, a schedule reducing the average concentration of respirable dust in the mine atmosphere during each shift to which each miner in the active workings is exposed below the levels established in this section to a level of personal exposure which will prevent new incidences of respiratory disease and the further development of such disease in any person. Such schedule shall specify the minimum time necessary to achieve such levels taking into consideration present and future advancements in technology to reach these levels.

(e) Concentration of respirable dust

References to concentrations of res-pirable dust in this subchapter mean the average concentration of respirable dust measured with a device approved by the Secretary [of Labor] and the Secretary of [HHS].

(f) Average concentration

For the purpose of this subchapter, the term “average concentration” means a determination which accurately represents the atmospheric conditions with regard to respirable dust to which each miner in the active workings of a mine is exposed (1) as measured, during the 18 month period following December 30, 1969, over a number of continuous production shifts to be determined by the Secretary [of Labor] and the Secretary of [HHS], and (2) as measured thereafter, over a single shift only, unless the Secretary [of Labor] and the Secretary of [HHS] find, in accordance with the provisions of section 811 of this title, that such single shift measurement will not, after applying valid statistical techniques to such measurement, accurately represent such atmospheric conditions during such shift.

30 U.S.C. § 842; see also Mine Act § 202.

The question before us is whether these statutory provisions, read in concert, require joint promulgation of the New Dust Rule or permit the approach taken by MSHA in this case — joint participation in development of the substantive standards, but promulgation by MSHA alone.

B. The Authority to Impose Single-Shift Sampling

In our previous decision, National Mining Ass’n, 153 F.3d 1264, we examined a jointly promulgated regulation by MSHA and NIOSH in which the agencies had tried to accomplish single-shift sampling under section 202(f), 30 U.S.C. § 842(f). At the time, the challengers claimed that MSHA had violated the statute by failing to undertake the feasibility analysis required by section 101(a)(6), 30 U.S.C. § 811(a)(6). MSHA took the position that section 101, 30 U.S.C. § 811, did not apply in its entirety to the joint finding in section 202, 30 U.S.C. § 842(f). We flatly rejected this position and held, unambiguously, that to regulate on the single-shift issue under section 202(f), 30 U.S.C. § 842(f), “MSHA must follow all the provisions of [section 101, 30 U.S.C.] § 811.” Id. at 1268 (emphasis added); accord Sec’y of Labor, MSHA v. Keystone Coal Mining Corp., 16 FMSHRC 6, 12-13 (1994) (rejecting MSHA’s position that § 811 did not apply to § 842(f)).

It is clearly the law of this circuit that the transition to a single-shift sampling regime is a matter to be promulgated by MSHA alone. In holding squarely that this matter is governed by section 101, 30 U.S.C. § 811, National Mining forecloses any other result. Our precedent simply precludes our accepting the petitioners’ views that section 202(f), 30 U.S.C. § 842(f), requires, on its face, joint promulgation, that MSHA previously has taken an alternate position on the meaning of this provision, or that what was done by two agencies should not be allowed to be undone by one. “Stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 2609, 115 L.Ed.2d 720 (1991). Moreover,

the burden borne by the party advocating the abandonment of an established precedent is greater where [we are] asked to overrule a point of statutory construction. Considerations of stare decisis have special force in the area of statutory interpretation, for here, unlike in the context of constitutional interpretation, the legislative power is implicated, and Congress remains free to alter what we have done.

Patterson v. McLean Credit Union, 491 U.S. 164, 172-73, 109 S.Ct. 2363, 2370, 105 L.Ed.2d 132 (1989), superseded in part on other grounds by statute, Civil Rights Act of 1991, Pub.L. No. 102-166, 105 Stat. 1071; see also Halliburton Co. v. Erica P. John Fund, Inc., — U.S.-, 134 S.Ct. 2398, 2411, 189 L.Ed.2d 339 (2014).

C. The Authority to Enact Other Substantive Regulations

We next examine whether the provisions of the New Dust Rule not addressed in section 202(f), 30 U.S.C. § 842(f) (i.e., the provisions other than the transition to single-shift sampling) were also subject to the general promulgation rule in section 101, 30 U.S.C. § 811 permitting promulgation by MSHA or whether these provisions must be promulgated by the Secretaries of Labor and of HHS.

The petitioners invite our attention generally to section 202, 30 U.S.C. § 842. When read in isolation, that section might indeed appear somewhat supportive of their position that a joint promulgation is required with respect to the comprehensive dust regulation topics governed by subsections (a) and (d). Indeed, subsection 202(a), 30 U.S.C. § 842(a), recites that “the Secretaries shall prescribe in the Federal Register,” and section 202(d), 30 U.S.C. § 842(d) provides that “the Secretary of [HHS] shall establish” the respective standards. Nevertheless, we cannot accept this argument; we have confronted it in National Mining and rejected squarely such a non-contextual reading of the entire statutory scheme.

In National Mining, we focused on section 201 of the Mine Act, 30 U.S.C. § 841(a). It provides:

The provisions of sections 842 through 846 of this title and the applicable provisions of section 878 of this title shall be interim mandatory health standards applicable to all underground coal mines until superseded in whole or in part by improved mandatory health standards promulgated by the Secretary [of Labor] under the provisions of section 811 of ■this title, and shall be enforced in the same manner and to the same extent as any mandatory health standard promulgated under the provisions of section 811 of this title. Any orders issued in the enforcement of the interim standards set forth in this subchapter shall be subject to review as provided in subchapter I of this chapter.

30 U.S.C. § 841(a); see also Mine Act § 201(a). Put simply, section 201 designates sections 202 through 206 as “interim mandatory health standards” and reinforces that their transition to “improved mandatory health standards promulgated by the Secretary” of Labor will occur under section 101. See 30 U.S.C. §§ 811, 841, 842-846. This language matches exactly the language in section 101, 30 U.S.C. § 811, that the Secretary bears the responsibility to “develop, promulgate, and revise as may be appropriate, improved mandatory health or safety standards.” See also Mine Act § 3(l), 30 U.S.C. § 802(Z) (defining interim mandatory health or safety standards as those appearing between sections 201 and 206, 30 U.S.C. §§ 841-846).

Notably, our analysis of section 202(f), 30 U.S.C. § 842(f), in National Mining did not turn exclusively on its cross-reference to section 101, 30 U.S.C. § 811. It proceeded through section 201, 30 U.S.C. § 841. We said:

Use of single-shift measurements by MSHA is a health and safety standard. Mandatory health and safety standard is defined, in § 802(Z) as “the interim mandatory health or safety standards” between § 841 and § 846. Section 842(f) is the basis for single-shift sampling. Furthermore, § 841(a) refers to §§ 842-846 as “interim mandatory health standards.” At a minimum, therefore, § 842(f) is an interim mandatory health standard. § 841(a) continues, however, to say that the interim mandatory health standards of §§ 842-846 are effective “until superseded in whole or in part by improved mandatory health standards.” Single-shift sampling supersedes multb shift sampling, which was based on § 842(f). Single-shift sampling, therefore, is an “improved mandatory health standard.” According to § 841(a), any new standard must be “promulgated ... under the provisions of Section 811.”

153 F.3d at 1267-68 (citations omitted) (emphasis in original). In short, National Mining addressed not simply the proper interpretation of § 842(f), but read, as it should, the texts of §§ 811, 841, and 842, as a coherent whole. Indeed, it was by a holistic interpretation of the statutory scheme that the court relied on the plain wording of the statute and did not have to proceed beyond the first step of the Chevron analysis.

In deciding National Mining, an earlier panel of this court correctly perceived section 201, 30 U.S.C. '§ 841, as the cornerstone provision for discerning Congress’s scheme, expressed in the entire statute, for continued progress in achieving mine safety. The panel understood that Congress designated section 202, 30 U.S.C. § 842, as a transitional health standard, intended for eventual improvement through the mechanism of section 101, 30 U.S.C. § 811. See Mine Act § 201, 30 U.S.C. § 841. This understanding of the statute not only supports our interpretation of section 202(f), 30 U.S.C. § 842(f), but it also makes clear that section 201, 30 U.S.C. § 841, is the fulcrum upon which the entire regulatory structure of the statute turns.

The petitioners nevertheless contend that there is a direct conflict in the statutory language, and the “specific” language of section 202, 30 U.S.C. § 842, referring to both Secretaries controls the “general” language of sections 101 and 201, 30 U.S.C. §§ 811 and 841, designating the Secretary of Labor as the responsible agency head. Respectfully, we believe this interpretation misconstrues the statutory scheme. “[W]hen deciding whether the language is plain, we must read the words ‘in their context and with a view to their place in the overall statutory scheme.’ ” King v. Burwell, — U.S.-, 135 S.Ct. 2480, 192 L.Ed.2d 483 (2015) (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133, 120 S.Ct. 1291, 1301, 146 L.Ed.2d 121 (2000)). “Our duty, after all, is ‘to construe statutes, not isolated provisions.’ ” Id. (quoting Graham Cty. Soil and Water Conservation Dist. v. United States ex rel. Wilson, 559 U.S. 280, 290, 130 S.Ct. 1396, 1404, 176 L.Ed.2d 225 (2010)).

Accordingly, we conclude that the Mine Act envisions precisely the approach taken by the relevant agencies here and provides the Secretary of Labor, acting through MSHA, with broad regulatory authority, sufficient to authorize the New Dust Rule.

IV. Substantive Challenges: The Content of the New Dust Rule

A. Standard of Review

In, addition to the procedural challenges we already have examined, the industry plaintiffs also challenge the substance of the New Dust Rule. We review the challenges under the Administrative Procedure Act, and shall “hold unlawful and set aside” any agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see also Kennecott Greens Creek Mining Co. v. MSHA 476 F.3d 946, 952 (D.C.Cir.2007).

[U]nder this 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. Nevertheless, the 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. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42-43, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983); accord Miami-Dade Cty. v. U.S. E.P.A., 529 F.3d 1049, 1064 (11th Cir.2008).

Many of the challenges raised in the industry briefing invite our attention to evidence that contradicts the conclusions drawn by MSHA, some within the record and some external to it. They do so in large measure by invoking the statutory requirements found in section 101(a)(6)(A) of the Mine Act, 30 U.S.C. § 811(a)(6)(A):

The Secretary [of Labor], in promulgating mandatory standards dealing with toxic materials or harmful physical agents under this subsection, shall set standards which most adequately assure on the basis of the best available evidence that no miner will suffer material impairment of health or functional capacity even if such miner has regular exposure to the hazards dealt with by such standard for the period of his working life. Development of mandatory standards under this subsection shall be based upon research, demonstrations, experiments, and such other information as may be appropriate. In addition to the attainment of the highest degree of health and safety protection for the miner, other considerations shall be the latest available scientific data in the field, the feasibility of the standards, and experience gained under this and other health and safety laws. Whenever practicable, the mandatory health or safety standard promulgated shall be expressed in terms of objective criteria and of the performance desired.

Many of the specific challenges to the content of the New Dust Rule, therefore, focus on whether MSHA considered the “best available evidence” or whether MSHA demonstrated technological or economic feasibility of such standards. These statutory requirements are significant, and, as the litigation history of this regulation has shown, the failure to address them would require us to vacate the rule. See Nat’l Mining Ass’n, 153 F.3d at 1267-69 (finding that MSHA’s failure to abide by the requirements of § 811(a)(6)(A) in promulgating a rescission of the 1972 Joint Finding on single-shift sampling required vacatur of the rule). Before us, however, is an extremely thorough rulemaking comprising nearly 200 pages. All of the challenges presented were raised by the petitioners or others in the industry as part of the comment period on the proposed rule, see Mine Act § 101(d), 30 U.S.C. § 811(d), (providing that “[n]o objection that has not been urged before the Secretary [of Labor] shall be considered by the court, unless the failure or neglect to urge such objection shall be excused for good cause shown”), and, in the main, MSHA addressed the counter-evidence directly in stating its conclusions in the Federal Register.

Most importantly, the statutory requirements of section 101(a)(6)(A), 30 U.S.C. § 811(a)(6)(A), have no effect on the standard of review that we apply to this case, which is highly deferential. We do not sit in judgment of what evidence is indeed “best” or whether the proposed rule is “feasible” under the statute. We ask only whether MSHA’s conclusions on these matters pass muster under the APA. Furthermore, like our colleagues on the District of Columbia Circuit, we believe it appropriate to “give an extreme degree of deference to the agency when it is evaluating scientific data within its technical expertise.” Kennecott Greens Creek Mining Co., 476 F.3d at 954 (internal quotation marks omitted); see also Marsh v. Oregon Nat. Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 1861, 104 L.Ed.2d 377 (1989) (‘When specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive.”). To do otherwise puts this court in the unenviable — and legally untenable — position of making for itself judgments entrusted by Congress to MSHA. Finally, the Mine Act evinces a clear bias in favor of miner health and safety. The duty to use the best evidence and to consider feasibility are appropriately viewed through this lens and cannot be wielded as counterweight to MSHA’s overarching role to protect the life and health of workers in the mining industry. Not only do we decline to balance interests, we acknowledge that when MSHA itself weighs the evidence before it, it does so in light of its congressional mandate.

With the standard of review firmly established and MSHA’s mandate in mind, we now turn to the particular substantive challenges raised in the briefing.

B. Single-Shift Sampling

Prior to the effective date of the New Dust Rule under review, and consistent with the 1972 Joint Finding favoring multi-shift averaging, the regulations provided:

Compliance determinations are based .on the average concentration of respira-ble dust measured by five valid respira-ble dust samples taken by the operator during five consecutive normal production shifts or five normal production shifts worked on consecutive days (multiple-shift samples). Compliance determinations are also based on the average of multiple measurements taken by the MSHA inspector over a single shift (multiple, single-shift samples) or on the average ,.of multiple measurements obtained for the same occupation on multiple days (multiple-shift samples).

Under’ the existing program, sampling results are often not known to mine operators, miners, and MSHA for at least a week or more after the samples are collected. Due to the delay in receiving sampling results, operators are unable to take timely corrective action to lower dust levels when there are overex-posures.

79 Fed.Reg. at 24,817. In the preamble to the New Dust Rule now under review, MSHA explains the changes to the former multi-shift averaging scheme:

The Secretary [of Labor] has found, in accordance with sections 101 (30 U.S.C. 811) and 202(f)(2) (30 U.S.C. 842(f)(2)) of the Mine Act, that the average concentration of respirable dust to which each miner in the active workings of a coal mine is exposed can be accurately measured over a single shift. Accordingly, the 1972 Joint Finding, by the Secretary of the Interior and the Secretary of [HEW], on the validity of single-shift sampling is rescinded. Final § 72.800 clarifies that MSHA will make a compliance determination based on a single full-shift MSHA inspector sample.

In addition, final § 72.800 clarifies that noncompliance with the respirable dust standard or the applicable respira-ble dust standard when quartz is present, in accordance with subchapter O, is demonstrated when a single, full-shift measurement taken by MSHA meets or exceeds the applicable [excessive concentration value].... However, as explained elsewhere in this preamble under final § 70.208(e), under the final rule, a noncompliance determination based on a single full-shift sample only appl