KenAmerican Res., Inc. v. U.S. Sec'y of Labor ( 2022 )


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  •                              RECOMMENDED FOR PUBLICATION
    Pursuant to Sixth Circuit I.O.P. 32.1(b)
    File Name: 22a0101p.06
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    ┐
    KENAMERICAN RESOURCES, INC.,
    │
    Petitioner,     │
    >        No. 20-4102
    │
    v.                                                 │
    │
    UNITED STATES SECRETARY OF LABOR; MINE SAFETY            │
    AND HEALTH ADMINISTRATION, FEDERAL MINE                  │
    SAFETY AND HEALTH REVIEW COMMISSION,                     │
    Respondent.           │
    ┘
    Upon Petition for Review from the Federal Mine Safety & Health Administration;
    No. KENT 2013-211.
    Argued: July 20, 2021
    Decided and Filed: May 11, 2022
    Before: BOGGS, CLAY, and WHITE, Circuit Judges.
    _________________
    COUNSEL
    ARGUED: Artemis D. Vamianakis, FABIAN VANCOTT, Salt Lake City, Utah, for Petitioner.
    Emily Toler Scott, UNITED STATES DEPARTMENT OF LABOR, Arlington, Virginia, for
    Respondent. ON BRIEF: Artemis D. Vamianakis, Jason W. Hardin, FABIAN VANCOTT,
    Salt Lake City, Utah, for Petitioner. Emily Toler Scott, UNITED STATES DEPARTMENT OF
    LABOR, Arlington, Virginia, for Respondent.
    No. 20-4102                KenAmerican Res., Inc. v. U.S. Sec’y of Labor                                Page 2
    _________________
    OPINION
    _________________
    HELENE N. WHITE, Circuit Judge. Petitioner KenAmerican Resources, Inc. challenges
    an order of the Federal Mine Safety and Health Review Commission upholding a citation issued
    by the Secretary of Labor. We DENY the petition for review.
    I.
    The Paradise No. 9 mine is a large underground coal mine located in Muhlenberg
    County, Kentucky, operated by Petitioner KenAmerican Resources, Inc. (“KenAmerican”). On
    April 19, 2012, someone filed an anonymous hazard complaint with the Department of Labor’s
    Mine Safety and Health Administration (“MSHA”) reporting potentially dangerous conditions at
    the Paradise No. 9 mine. The next day, MSHA inspector Doyle Sparks and several other
    inspectors1 from the MSHA arrived at the mine to perform an unannounced safety inspection.
    The Paradise No. 9 mine has two portals, so the MSHA team split into two groups for the
    inspection; Sparks and three other inspectors went to the mine’s new portal, and two inspectors
    went to the mine’s old portal, located about six miles away. The mine’s dispatcher, Lance Holz,
    worked in a shack outside the old portal. Since the MSHA inspectors arrived midway through
    the evening shift, Holz called for a miner to return to the surface with a mantrip.2 The inspectors
    at the old portal instructed Holz not to tell anyone down in the mine that they were there.
    Unbeknownst to Holz, Sparks, who was positioned at the new portal, was monitoring a
    mine-phone receiver from which he could hear Holz.                        While Sparks was listening, an
    unidentified miner in unit four picked up the receiver and asked Holz, “do we have any company
    1As  noted by the ALJ, there is conflicting information in the record regarding the number of inspectors
    responding to the complaint. However, the precise number of inspectors is not material to any issue in this appeal.
    2A mantrip is “a car that carries miners underground.” Pendley v. Fed. Mine Safety & Health Rev.
    Comm’n, 
    601 F.3d 417
    , 419 (6th Cir. 2010).
    No. 20-4102                KenAmerican Res., Inc. v. U.S. Sec’y of Labor                              Page 3
    outside?” App. 107. According to Sparks, Holz responded, “yeah, I think there is.” 
    3 App. 108
    .
    Sparks then asked the miner to identify himself and received the response, “who is this?” 
    Id.
    Sparks stated that he was a representative of MSHA and again asked the miner to identify
    himself, but received no response. Believing that the unidentified miner was asking Holz
    whether MSHA was there to conduct an inspection, and believing that Holz’s response was an
    illegal attempt to tip the miner off about MSHA’s impending inspection, Sparks issued Citation
    No. 8502992 to KenAmerican. The citation accused KenAmerican of providing advance notice
    of a MSHA inspection to personnel underground, which is a violation of section 103(a) of the
    Federal Mine Safety and Health Act of 1977 (“Mine Safety Act”), 
    30 U.S.C. § 813
    (a).
    KenAmerican contested the citation and associated penalty. An administrative law judge
    (“ALJ”) granted summary judgment to KenAmerican and vacated the citation, finding that the
    Secretary did not establish a violation of section 103(a) because the conversation between Holz
    and the unknown miner was ambiguous, and Holz’s response did not clearly constitute advance
    notice of a MSHA inspection. The Secretary filed a petition for review, and the Commission
    reversed the ALJ, finding that whether Holz’s response constituted advance notice of an
    inspection was an issue of material fact that precluded summary judgment. The Commission
    remanded with instructions to hold a hearing.
    At the hearing before the ALJ, Sparks testified that he heard an underground miner ask
    Holz, “do we have any company outside?” and heard Holz respond, “yeah, I think there is.”
    App. 107–08. Sparks then asked the miner to identify himself and received no response. He
    testified that based on his decades of experience working in the mining industry, he believed that
    the miner and Holz were using coded language and that Holz’s statement provided the miner
    with advance notice of an MSHA inspection.
    Holz’s testimony largely corroborated Sparks’s recollection of the events at issue, with
    one exception: Holz confirmed that when he heard the caller ask if there was “company outside”
    he assumed the caller was asking about MSHA inspectors, but he testified that he responded,
    3During    the October 3, 2017 evidentiary hearing before Administrative Law Judge L. Zane Gill, Sparks
    quoted this line as both “yeah, I think there is” and as “yeah, I think we do.” App. 107–08. Because the opinions
    below quoted this phrase as “yeah, I think there is,” App. 54; 69, we do the same.
    No. 20-4102                KenAmerican Res., Inc. v. U.S. Sec’y of Labor                                Page 4
    “I don’t know[.]” App. 248. Holz immediately acknowledged, however, that “it’s possible” he
    said something else. 
    Id.
     at 247–48.
    Following the hearing, the ALJ again ruled in KenAmerican’s favor and vacated the
    citation. The ALJ credited Holz’s claim that he responded “I don’t know” over Sparks’s
    testimony that he heard Holz say “I think there is.” The ALJ then concluded that KenAmerican
    had not provided advance notice of an MSHA inspection. App. 54–66.
    The Secretary appealed the ALJ’s second decision, and the Commission again reversed,
    finding that the ALJ abused his discretion in crediting Holz’s testimony over Sparks’s
    testimony,4 and that KenAmerican had provided advance notice of an inspection in violation of
    section 103(a)). The Commission’s second decision also rejected KenAmerican’s arguments that
    section 103(a)’s prohibitions do not apply to mine operators and that section 103(a) violates the
    First Amendment. The Commission remanded and ordered the ALJ to assess an appropriate
    penalty.
    On remand, the ALJ assessed a penalty of $18,742.                      KenAmerican petitioned the
    Commission for discretionary review, which was denied. Forty days later, the ALJ’s third
    decision became the final decision of the Commission. 
    30 U.S.C. § 823
    (d)(1).
    This appeal followed.
    II.
    A party aggrieved by an order of the Commission may seek review in this court.
    
    30 U.S.C. § 816
    (a)(1). “The standard under which this Court reviews the Commission’s order is
    governed by the Mine Safety Act and general administrative law principles, although the
    Administrative Procedure Act’s judicial review provisions do not apply here, 
    30 U.S.C. § 956
    .”
    Pendley, 
    601 F.3d at 422
    .
    4KenAmerican    does not contest the Commission’s reversal of the ALJ’s credibility finding in this appeal.
    Therefore, we take as fact that Holz said “I think there is” when asked if there was “company outside.” See supra
    note 3 and accompanying text.
    No. 20-4102             KenAmerican Res., Inc. v. U.S. Sec’y of Labor                      Page 5
    A.
    The Secretary cited KenAmerican for providing advance notice of an MSHA inspection
    in violation of section 103(a) of the Mine Safety Act.           KenAmerican argued before the
    Commission that the citation was invalid because section 103(a), by its terms, does not apply to
    mine operators like KenAmerican. The Commission rejected KenAmerican’s interpretation of
    section 103(a), finding it “flatly inconsistent” with the plain language of the statute. App. 73.
    KenAmerican contends that the Commission’s interpretation is erroneous.
    We review the Commission’s interpretation of section 103(a) de novo. Pendley, 
    601 F.3d at 423
    . When interpreting a statute, our task is to give effect to Congressional intent. United
    States v. Am. Trucking Ass’ns, 
    310 U.S. 534
    , 542 (1940). If the meaning of the language of the
    statute is clear, we apply the statute as written. 
    Id. at 543
    ; see also Chevron, U.S.A., Inc. v. Nat.
    Res. Def. Council, Inc., 
    467 U.S. 837
    , 843 n.9 (1984) (“If a court, employing traditional tools of
    statutory construction, ascertains that Congress had an intention on the precise question at issue,
    that intention is the law and must be given effect.”).
    Section 103(a) of the Mine Safety Act states:
    Authorized representatives of the Secretary or the Secretary of Health and Human
    Services shall make frequent inspections and investigations in coal or other mines
    each year for the purpose of (1) obtaining, utilizing, and disseminating
    information relating to health and safety conditions, the causes of accidents, and
    the causes of diseases and physical impairments originating in such mines,
    (2) gathering information with respect to mandatory health or safety standards,
    (3) determining whether an imminent danger exists, and (4) determining whether
    there is compliance with the mandatory health or safety standards or with any
    citation, order, or decision issued under this subchapter or other requirements of
    this chapter. In carrying out the requirements of this subsection, no advance
    notice of an inspection shall be provided to any person, except that in carrying out
    the requirements of clauses (1) and (2) of this subsection, the Secretary of Health
    and Human Services may give advance notice of inspections. In carrying out the
    requirements of clauses (3) and (4) of this subsection, the Secretary shall make
    inspections of each underground coal or other mine in its entirety at least four
    times a year, and of each surface coal or other mine in its entirety at least two
    times a year. The Secretary shall develop guidelines for additional inspections of
    mines based on criteria including, but not limited to, the hazards found in mines
    subject to this chapter, and his experience under this chapter and other health and
    safety laws. For the purpose of making any inspection or investigation under this
    No. 20-4102               KenAmerican Res., Inc. v. U.S. Sec’y of Labor                    Page 6
    chapter, the Secretary, or the Secretary of Health and Human Services, with
    respect to fulfilling his responsibilities under this chapter, or any authorized
    representative of the Secretary or the Secretary of Health and Human Services,
    shall have a right of entry to, upon, or through any coal or other mine.
    
    30 U.S.C. § 813
    (a).
    KenAmerican advances two textual arguments for its position that Congress did not
    intend section 103(a) to apply to mine operators. It first argues that the first clause of the second
    sentence—“[i]n carrying out the requirements of this subsection”—is restrictive, which makes
    Congress’s intent clear: since only the Secretaries of Labor and Health and Human Services
    carry out the requirements of section 103(a), the second clause in the second sentence—which
    prohibits providing advance notice of an inspection to “any person”—applies only to the two
    Secretaries and their representatives. Thus, in KenAmerican’s view, section 103(a) does not
    apply to mine operators.
    We are not convinced. To start, the second sentence in section 103(a) is the only
    sentence written entirely in the passive voice, which indicates that Congress was “focuse[d] on
    an event that occurs without respect to a specific actor[.]” Dean v. United States, 
    556 U.S. 568
    ,
    572 (2009).    In this light, although the first clause can be read restrictively with the two
    Secretaries as the implied actors, it 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.”
    We are also unpersuaded by KenAmerican’s second textual argument that if Congress
    truly intended the prohibition to apply to “any person,” it would have explicitly made the
    statutory actor “any person,” as it did in section 110(e), which imposes criminal penalties for
    providing advance notice of an inspection.        See 
    30 U.S.C. § 820
    (e) (establishing criminal
    penalties for “any person who gives advance notice of any inspection to be conducted under [the
    Mine Safety Act]”). Maybe. But if Congress intended the Secretary to be the statutory actor in
    the second sentence—as in every other sentence in section 103(a)—why did Congress not use
    the same sentence structure that it did in the rest of section 103(a) (“the Secretary shall,” or its
    converse, “the Secretary shall not”)? KenAmerican provides no answer.
    No. 20-4102             KenAmerican Res., Inc. v. U.S. Sec’y of Labor                     Page 7
    Fortunately, any ambiguity on the face of § 813(a) is resolved when we examine the
    broader text of the Mine Safety Act. We need “not interpret each [sentence] in [the] statute with
    blinders on, refusing to look at the [sentence’s] function within the broader statutory context.”
    Abramski v. United States, 
    573 U.S. 169
    , 179 n.6 (2014); see Keen v. Helson, 
    930 F.3d 799
    , 803
    (6th Cir. 2019) (“Statutory interpretation is a ‘holistic endeavor’—the structure and wording of
    other parts of [the] statute can help clarify the meaning of an isolated term.”) (quoting United
    Sav. Assoc. of Tex. v. Timbers of Inwood Forest Assocs., Ltd., 
    484 U.S. 365
    , 371 (1988)); Nat’l
    Air Traffic Controllers Assoc. v. Sec’y of Dep’t of Transp., 
    654 F.3d 654
    , 657 (6th Cir. 2011)
    (“Plain meaning is examined by looking at the language and design of the statute as a whole.”)
    (citation omitted). Here, as its name implies, the Mine Safety Act was enacted to address the
    “urgent need to provide more effective means and measures for improving the working
    conditions and practices in the Nation’s coal or other mines in order to prevent death and serious
    physical harm[.]”    
    30 U.S.C. § 801
    (c).      To that end, Congress tasked the Secretary with
    promulgating mandatory health and safety standards for the Nation’s mines, and “require[d] that
    each operator of a coal or other mine and every miner in such mine comply with such
    standards[.]” 
    Id.
     § 801(g)(1)–(2). Congress also emphasized, in the statutory text itself, that “the
    operators of such mines with the assistance of the miners have the primary responsibility to
    prevent the existence of [unsafe] conditions and practices in such mines.” Id. § 801(e).
    To ensure compliance, Congress required the Secretary to perform periodic inspections of
    each of the Nation’s mines, § 813(a), and issue citations for any violations found therein,
    § 814(a). Congress was concerned enough about the problem of miners being tipped off about
    impending inspections that it established criminal penalties of “a fine of not more than $1,000 or
    . . . imprisonment for not more than six months” for “any person who gives advance notice of
    any inspection . . . conducted” pursuant to the Mine Safety Act. Id. § 820(e).
    With this broader statutory context in mind, we turn back to the text of section 103(a).
    Under the Secretary’s interpretation, mine operators like KenAmerican are subject to civil
    penalties under section 104(a) for violating section 103(a). KenAmerican contends that the
    Secretary’s interpretation is wrong because Congress did not intend for section 103(a) to cover
    mine operators, and instead intended only to prohibit the Secretary and the Secretary’s agents
    No. 20-4102              KenAmerican Res., Inc. v. U.S. Sec’y of Labor                  Page 8
    from providing advance notice of their own inspections—so as to ensure the Secretary and his
    agents do not become too friendly with the miners they regulate. KenAmerican asserts that mine
    operators are sufficiently deterred from providing advance notice of inspections by section
    110(e)’s criminal penalties, and that Congress did not intend that mine operators be subject to
    civil citations for violating section 103(a).
    But KenAmerican’s interpretation is unsupported by the text of the Mine Safety Act.
    Congress saw the advance-notice prohibition as important enough to the statutory scheme to
    warrant both civil and criminal penalties. 
    30 U.S.C. §§ 813
    (a), 820(e). 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, especially since the maximum fine associated
    with the criminal penalty is only $1,000 and Congress determined that “the operators of such
    mines . . . have the primary responsibility to prevent the existence of [unsafe] conditions and
    practices in [the] mines.” 
    Id.
     §§ 801(e), 820(e).
    When two parties offer competing interpretations of a statute, one consistent with the
    statute’s overall structure, and another which would produce an “odd” result, we adopt the
    former. See Broad. Music, Inc. v. Roger Miller Music, Inc., 
    396 F.3d 762
    , 773 (6th Cir. 2005)
    (avoiding interpretation of statute that would “produce an odd result” where “[n]o statutory
    language suggests why such a result should occur”). Accordingly, because the Secretary’s
    interpretation is consistent with the overall structure of the Mine Safety Act, and KenAmerican’s
    interpretation would produce odd results, the Commission did not err in rejecting
    KenAmerican’s interpretation of section 103(a).
    B.
    Next, KenAmerican contends that even if section 103(a) applies to mine operators, the
    Secretary’s citation is invalid because Holz’s statement to the underground miner did not violate
    section 103(a). Specifically, KenAmerican argues that although Holz may have informed the
    miner that MSHA inspectors were on mine property, he did not provide the miner with advance
    notice of an impending MSHA inspection.
    No. 20-4102                KenAmerican Res., Inc. v. U.S. Sec’y of Labor                              Page 9
    The Commission rejected KenAmerican’s argument, upholding the Secretary’s citation
    because it found the unidentified miner’s question about there being “company outside” to be a
    “solicit[ation of] advance notice of an MSHA inspection,” and Holz’s response to be
    confirmation of an impending MSHA inspection. App. 69, 72–73.
    We review the Commission’s factual findings deferentially. Pendley, 
    601 F.3d at 422
    .
    “The findings of the Commission with respect to questions of fact, if supported by substantial
    evidence on the record considered as a whole, shall be conclusive.” 
    30 U.S.C. § 816
    (a)(1).
    Substantial evidence “is such relevant evidence as a reasonable mind might accept as adequate to
    support the Commission’s conclusion.” Pendley, 
    601 F.3d at 423
     (brackets omitted) (quoting
    Nat’l Cement Co. v. Fed. Mine Safety & Health Rev. Comm’n, 
    27 F.3d 526
    , 530 (11th Cir.
    1994)).
    At the hearing, Sparks testified that based on his years of experience as both a miner and
    an inspector, miners and dispatchers often use coded language to alert underground miners about
    the presence of MSHA inspectors so that underground miners can conceal or fix violations
    before inspectors arrive. For example, Sparks testified that a miner may ask a dispatcher “is it
    raining outside?” on a day they both know to be sunny, or ask whether a particular belt is
    running when they both know that such a belt does not exist. App. 108–09. Based on a
    preexisting understanding between the miner and the dispatcher about what a particular response
    means, the miner is able to learn whether MSHA inspectors are heading into the mine.
    Here, the unidentified miner asked Holz if there “[was] company outside,” and Holz
    responded “I think there is.” App. 107–10, 180. Holz admitted that he assumed the miner was
    asking about MSHA inspectors when the miner asked if there was “company” outside. 
    5 App. 247
    –49, 256.       Further, circumstantial evidence surrounding the exchange gives rise to the
    inference that Holz’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.
    5The miner’s decision not to identify himself after Sparks asked who was on the line may be further
    circumstantial evidence that the miner knew he was seeking prohibited advance notice of an inspection from Holz.
    However, because the miner remains unidentified and was not deposed, we cannot exclude the possibility that the
    miner never heard Sparks’s request to identify himself; it is possible the miner hung up the phone in the “couple
    seconds” between Holz’s response and Sparks’s request for identification. See App. 252.
    No. 20-4102            KenAmerican Res., Inc. v. U.S. Sec’y of Labor                   Page 10
    Specifically, the mine’s rudimentary phone system allowed anyone in the mine to hear Holz
    calling for mantrips.   And the unidentified miner could infer that if Holz was calling for
    mantrips, it meant that a visitor was waiting to enter the mine. Once Holz confirmed for the
    miner that MSHA inspectors were present, the miner more likely than not drew the inference that
    Holz was summoning the mantrips for the MSHA inspectors. The miner, knowing how long it
    takes someone to get from the surface to his area of the mine, could then approximate how long
    he had to conceal any violations in his working area before inspectors arrived (should the
    inspectors be heading to his area of the mine). For example, Sparks testified that it took about
    thirty-five minutes to get from the surface to the working areas of the mine, and in that amount
    of time a miner “could hang [ventilation line] curtain . . . . [C]ould roof bolt and maybe do a
    better job of cleaning up [coal accumulations] before [MSHA inspectors] got there.” App. 111–
    12.
    KenAmerican contends that Holz could not have tipped the miner off about MSHA’s
    inspection because Holz did not know why the inspectors wanted to enter the mine that day or
    where they intended to go. But KenAmerican’s interpretation of notice is too narrow. A mine
    operator need not be privy to the MSHA inspectors’ reason for wanting to enter the mine in order
    to provide advance notice of an inspection. Such an interpretation would effectively eviscerate
    the prohibition against advance notice as applied to mine operators because MSHA inspectors do
    not typically disclose their inspection plans to operators ahead of time. As long as a dispatcher
    like Holz remained ignorant of the MSHA inspectors’ reason for requesting mantrips, the
    dispatcher would be free to notify underground miners when MSHA inspectors entered the mine
    and keep them apprised in real time as to where the inspectors go inside the mine. Miners would
    then be able to conceal or fix violations before inspectors arrived in their area and to resume
    violating the law after inspectors have left—precisely the scenario Congress sought to avoid by
    incorporating in the Mine Safety Act a warrantless right of entry and a prohibition on advance
    notice. See Donovan v. Dewey, 
    452 U.S. 594
    , 603 (1981); cf. Abramski, 573 U.S. at 179–80
    (rejecting defendant’s interpretation of a statute because it “would undermine—indeed, for all
    important purposes, would virtually repeal—the [law at issue’s] core provisions”).
    No. 20-4102                   KenAmerican Res., Inc. v. U.S. Sec’y of Labor                               Page 11
    KenAmerican also argues that Holz’s statement to the miner that “company” was present
    only confirmed what was almost always true at a large mine like Paradise No. 9: inspectors were
    on the premises for one reason or another. But if MSHA inspectors were on mine property
    almost every day, and Holz’s statement merely confirmed a fact that was almost always true, it
    raises the question: why would a miner ask the dispatcher—in coded language, no less—whether
    MSHA inspectors were present? KenAmerican provides no explanation. And for the reasons
    explained above, the most plausible explanation is that both Holz and the miner understood that
    the miner was not really asking whether MSHA inspectors were somewhere on the premises, but
    instead whether MSHA inspectors were about to enter the mine from the portal to which Holz
    was calling mantrips. MSHA inspectors are required under section 104(a) to issue citations for
    any violations they see, and Holz’s answer provided the miner with at least thirty-five minutes of
    advance notice of MSHA’s impending inspection.6 The Commission therefore did not err in
    finding that Holz’s statement violated section 103(a).7
    Finally, KenAmerican contends that the Commission erred in upholding the citation
    because section 103(a) violates the First Amendment. According to KenAmerican, section
    103(a) is a content-based restriction on speech that cannot survive strict scrutiny.
    6Of course, we do not know whether MSHA inspectors ultimately inspected the miner’s working area on
    April 20, 2012 since the miner remains unidentified.
    7In   its second decision reversing the ALJ, the Commission stated:
    Moreover, the Judge erred in finding no violation on the grounds that the miner might have asked
    the question for many reasons, such as the need to provide mantrips. He held that Holz’s
    confirmation of visitors was only a violation if Holz intended to convey advance notice. That is
    incorrect. Advance notice of an inspection is a violation. Proof of intent is not required. Wake
    Stone Corp., 
    36 FMSHRC 825
    , 827 (Apr. 2014). If the effect of the communication is to convey
    advance notice, then the violation is complete. Here, Holz thought the caller was asking whether
    MSHA inspectors were on site and Holz’s statement informed him that inspectors were present.
    At that point, the violation occurred.
    App. 72–73.
    The meaning of this paragraph is unclear. But in light of the ALJ’s decision, it appears to be critical of the
    ALJ’s discussion of the many innocent reasons the miner and Holz may have had to ask and answer the question as
    they did. To the extent this language is meant to convey that there can be a violation when there was no intent to
    seek or give advance notice, we do not adopt this reasoning. However, we need not remand for further factfinding
    regarding intent because it is clear that the Commission found as fact that Holz understood that the caller was asking
    whether MSHA inspectors were present and intended to answer that question, knowing that the inspectors were
    there to go into the mine and inspect. Had Holz responded in a more ambiguous way, remand may have been
    necessary.
    No. 20-4102             KenAmerican Res., Inc. v. U.S. Sec’y of Labor                    Page 12
    The Commission rejected KenAmerican’s First Amendment argument, finding that even
    if section 103(a) is a content-based restriction on speech and strict scrutiny applies, section
    103(a) does not violate the Constitution because it is “narrowly tailored to allow a meaningful
    inspection of the mine.” App. 74.
    We review the Commission’s legal interpretations de novo. Pendley, 
    601 F.3d at 423
    .
    “Content-based laws—those that target speech based on its communicative content—are
    presumptively unconstitutional and may be justified only if the government proves that they are
    narrowly tailored to serve compelling state interests.” Reed v. Town of Gilbert, 
    576 U.S. 155
    ,
    163 (2015). On the other hand, a law targeting conduct that only incidentally affects speech
    “will be sustained under the First Amendment if it advances important governmental interests
    unrelated to the suppression of free speech and does not burden substantially more speech than
    necessary to further those interests.” Holder v. Humanitarian L. Project, 
    561 U.S. 1
    , 26–27
    (2010) (quoting Turner Broad. Sys., Inc. v. FCC, 
    520 U.S. 180
    , 189 (1997)).
    The parties disagree on which level of scrutiny is appropriate here.          KenAmerican
    contends that section 103(a) is a content-based restriction subject to strict scrutiny.         The
    Secretary argues that section 103(a) is a content-neutral law only incidentally affecting speech,
    making it subject to intermediate scrutiny. We need not decide whether section 103(a) is subject
    to strict or intermediate scrutiny because even applying it to the former standard, section 103(a)
    is narrowly tailored to serve a compelling governmental interest.
    The Supreme Court has stated that it is undisputed that “there is a substantial federal
    interest in improving the health and safety conditions in the Nation’s underground and surface
    mines[,]” Donovan, 
    452 U.S. at 602
    , and KenAmerican does not dispute that section 103(a)’s
    advance-notice prohibition serves a compelling governmental interest in allowing MSHA to
    inspect mines where they actually operate. Instead, KenAmerican contends that section 103(a)
    cannot survive strict scrutiny because it is overbroad. In KenAmerican’s view, section 103(a)
    bars all communication about MSHA inspectors once they are on mine property, and a narrowly
    tailored rule would only prohibit operators from communicating “where the inspector w[ill] be
    going [in the mine] or what the inspector might be inspecting . . . in advance.” Petitioner’s Br. at
    43.
    No. 20-4102            KenAmerican Res., Inc. v. U.S. Sec’y of Labor                   Page 13
    But KenAmerican’s proposed “narrower” rule would not only be less effective than
    section 103(a), it would actively undermine the interests the provision is meant to serve. In
    practice, KenAmerican’s rule would allow mine operators to broadly notify miners below ground
    whenever MSHA inspectors arrive at a mine, so long as the operator does not disclose where in
    the mine inspectors are headed or what they intend to inspect—easy facts for operators to omit,
    since they are not normally privy to the minutiae of MSHA’s inspection plans. For example, a
    dispatcher could establish a practice of activating a warning light or siren in the mine whenever
    MSHA inspectors arrive at a portal. As already discussed, the miners, knowing the layout of the
    mine and how long it would take MSHA inspectors to reach them from the portals, would then
    be able to approximate how much time they have to conceal or fix violations before inspectors
    arrive, should inspectors decide to inspect their working area. Miners would also presumably
    make an inverse inference: If the dispatcher has not sounded the “MSHA inspector alarm,” that
    means that MSHA inspectors are not in the mine, and miners can operate unsafely without fear
    that inspectors will unexpectedly arrive and issue a citation. Thus, KenAmerican’s proposed
    “narrower” rule would not only less effectively serve the government’s interest in enabling
    MSHA inspectors to inspect mines as they actually operate, but it would also allow miners
    and/or operators to more confidently violate the very health and safety rules Congress tasked the
    Secretary with enforcing.
    In sum, section 103(a) prohibits communication that provides advance notice of an
    MSHA inspection. It does not bar all communication about MSHA, nor prevent discussion of
    MSHA inspections after they have occurred. KenAmerican failed to demonstrate that there is a
    less restrictive rule that would effectively serve the government’s compelling interests, and the
    Commission did not err in concluding that section 103(a) is narrowly tailored to allow for
    meaningful inspection of the Nation’s mines.
    III.
    For the reasons set forth above, the petition for review is DENIED.