Citation for providing advance notice of a Mine Safety & Health Administration (MSHA) inspection to underground personnel; § 103(a) of the Federal Mine Safety & Health Act (Mine Safety Act) (30 USC § 813(a)); Applicability to mine operators; Statutory interpretation; Whether there was a violation of § 103(a); The Federal Mine Safety & Health Review Commission’s factual findings; “Substantial evidence”; First Amendment claim; Whether § 103(a) is narrowly tailored

The court held that § 103(a) of the Mine Safety Act applies to mine operators, and that the Federal Mine Safety and Health Review Commission did not err in determining petitioner-KenAmerican’s employee’s (H) statement violated § 103(a). Further, it rejected petitioner’s argument that the statute violates the First Amendment, holding that § 103(a) “is narrowly tailored to serve a compelling governmental interest.” Thus, it denied the petition to review the Commission’s order upholding the citation issued by respondent-Secretary of Labor for “providing advance notice of a MSHA inspection to personnel underground,” in violation of § 103(a). Petitioner raised textual arguments for its claim that the statute was not intended to apply to mine operators. The court concluded that the first clause of the second sentence in § 103(a) is “more reasonably read to identify the context. That is, it is properly read as: ‘As the Secretary is carrying out the requirements of this subsection, no advance notice of an inspection shall be provided to any person.’” In addition, any ambiguity on the face of the statute was resolved by examining “the broader text of the Mine Safety Act.” The court noted that Congress found the advance-notice prohibition “important enough to the statutory scheme to warrant both civil and criminal penalties. . . . It would be odd for Congress not to have intended the advance-notice prohibition to be enforced against mine operators by civil penalties as well as criminal[.]” As to whether the statute was violated, an unidentified miner asked H, the mine’s dispatcher, over the mine phone “if there ‘[was] company outside,’ and [H] responded ‘I think there is.’ [H] admitted that he assumed the miner was asking about MSHA inspectors when the miner asked if there was ‘company’ outside. Further, circumstantial evidence surrounding the exchange gives rise to the inference that [H’s] response alerted the miner not only that MSHA was on the premises, but also that MSHA inspectors would soon be entering the mine to perform an inspection.” The court noted that MSHA inspectors are required “to issue citations for any violations they see, and [H’s] answer provided the miner with at least” 35 minutes’ advance notice of the impending inspection.