# United States Court of Appeals **for the Fifth Circuit**

No. 22-60322

Cactus Canyon Quarri es, Incorporated,

Petitioner ,

versus Federal Mine Safety and Health Review Commission; Martin Walsh, Secretary, U. S. Department of Labor, Mine Safety and Health Administration, Respondents

.

On Petition for Review of a Decision of the Federal Mine Safety & Health Review Commission Docket No. CENT-2021-0090

Before Wiener, Stewart, and Engelhardt, Circuit Judges

. Per Curiam: * Petitioner Cactus Canyon Quarries , Inc. (“Cactus Canyon”) appeals a decision by an Administrative Law Judge (ALJ) of the Federal Mine Safety and Health Review Commission (“Commission”).

* This opinion is not designated for publication. See 5th Cir. R. 47.5

. United States Court of Appeals Fifth Circuit 

### FILED March 8, 2023 Lyle W. Cayce Clerk Case: 22-60322 Document: 00516670417 Page: 1 Date Filed: 03/08/2023No. 22-60322

2 In 2020, Cactus Canyon was issued three citations by the Mine Safety and Health Administration (MSHA). At issue here is Citation No. 9641812 (“Citation”), which alleges that: The air brake system on the #34 ye llow International end dump truck . . . was not maintained in functional condition. When inspected[,] the operator (CDL license holder) demonstrated the correct method of testing the low brake pressure alar m[;] the low brake pressure alarm system failed to work in two attempts. Sec’y of Labor v. Cactus Canyon Quarries Inc. , 44 FMSHRC 289, 298 (Apr. 2022). 1 The low brake pressure alarm failure violated Section 56.14101(a)(3), which requires that “[a]ll braking systems . . . be maintained in functional condition.” 30 C.F.R. § 56.14101(a)(3). Cactus Canyon contested its citations before an ALJ. See 30 U.S.C. §§ 815(d). The ALJ heard fact witness te stimony and concluded that the alarm was part of the braking system. Cactus Canyon , 44 FMSHRC at 295. The Citation was maintained, but Cactus Ca nyon’s negligence determination was reduced from moderate to low. Id. at 296–99. A penalty of $123 was assessed. Id. Cactus Canyon appealed.
As the circuit in which the violation occurred, we have jurisdiction to review this agency adjudication. 30 U. S.C. § 816(a)(1). We review the ALJ’s legal conclusions de novo and its factual findings for substantial evidence. Ramirez-Mejia v. Lynch , 794 F.3d 485, 489 (5th Cir. 2015). We hold that the ALJ properly in terpreted Section 56.14101(a)(3) to include the low brake pressure alarm as a component of the truck’s “braking

1 The ALJ vacated the remaining citations. Cactus Canyon also raises issues regarding the vacated citation s on appeal, but it cannot pursue those arguments here— Cactus Canyon is no longer “adversely affe cted or aggrieved by” the Commission on those citations. 30 U.S. C. § 816(a)(1). Case: 22-60322 Document: 00516670417 Page: 2 Date Filed: 03/08/2023No. 22-60322

3 system.” Cactus Canyon contends that the alarm is not such a component, because it has no effect on the brak ing system’s ability to stop and hold equipment. But the regulation’s plai n language and purpose support the inclusion of the alarm in the “braking system.” In interpreting this regulation, we must first determine whether the standard is “genuinely ambiguous.” Kisor v. Wilkie , 139 S.Ct. 2400, 2415 (2019). We find that it is not, so the regulation “ just means what it means .” Id. at 2416. The Commission engaged in this exercise in Secretary of Labor v. Daanen & Janssen , when it determined that “t he plain language of the standard mandates a finding of violation when a component of the braking system is not maintained in func tional condition, regardle ss of whether the braking system is capable of stopping and ho lding the vehicle.” 20 FMSHRC 189 (Mar. 1998). When we independently do the same, we conclude that the braking regulation unambiguously supports th e Government’s interpretation. Since a “system”—by definition at the ti me of the regulation’s passage—is composed of parts, the Section’s referenc e to “braking systems” extends to its related components, including those that do not simply function to stop and hold the vehicle. W EBSTER ’ S T HIRD I NTERNATIONAL D ICTIONARY (U NABRIDGED ) 2322 (1986) (defining “system” as “a complex unity formed of many often-diverse parts subject to a common plan or serving a common purpose.”). The maintenance of this comp onent advances the regulation’s purpose of ensuring miner safety, and the pl ain text of the regulation is not counter to this interpretation—an alarm that sounds based on the condition of the braking system is a component of the “braking system[].” 30 C.F.R. § 56.14101(a)(3); see Sec’y of Labor v. Dolese Bros. Co., 16 FMSHRC 689, 693 (Apr. 1994) (“A safety standard ‘must be interpreted so as to harmonize with and further . . . the objectives of’ the Mine Act.”) (quoting Emery Mining Co. v. Sec’y of Labor, 744 F.2d 1411, 1414 (10th Cir. 1984)). Case: 22-60322 Document: 00516670417 Page: 3 Date Filed: 03/08/2023No. 22-60322

4 The ALJ’s findings of fact corrob orate this interpretation and are supported by substantial evidence. 2 The inspector testified that (1) the alarm alerts drivers whenever the brake pressu re is low and (2) if the air pressure drops too low, backup brakes could sudd enly stop the truck. The alarm serves to prevent actual failure and injury. The ALJ did not need expert testimon y to come to this conclusion, as Cactus Canyon lengthily contends. 3 Specifically, Cactus Canyon asserts that the Secretary’s evidence should have b een admitted only as expert testimony under Federal Rule of Evidence 702 be cause of the technical complexities of the braking system. The ALJ correct ly addressed Cactus Canyon’s arguments—the inspector testified on personal knowledge which he was equipped to do in light of the simplicit y of the issues—but the Federal Rules of Evidence also do not control Commission hearings. See Sec’y of Labor v. Mid-Continent Res., Inc. , 6 FMSHRC 1132, 1139 n.6 (May 1984) (“While the Federal Rules of Evidence may have valu e by analogy, they are not required to be applied to our hearings—either by their own terms, by the Mine Act, or by our procedural rules.”); see also Fed. R. Evid. 1101 (identifying proceedings to which the rules apply). We finally address Cactus Canyon’s due process arguments regarding notice. Cactus Canyon contends that it was not provided re quisite notice of this regulation because no prior inspector had issued a citation related to the

2 Substantial evidence also supports th e ALJ’s finding that the alarm was not functional, which the parties do not dispute. The witnesses unanimou sly agreed that the alarm did not work.

3 Cactus Canyon’s contention that it wa s denied due process because of the ALJ’s evidentiary errors accordingly fails. We note that this argument has other defects including the fact that the Administrative Procedure Act, 5 U.S.C. 701, et seq., does not apply to Commission hearings or to this court’s review of Commission decisions. 30 U.S.C. § 956; Noranda Alumina, L.L.C. v. Perez , 841 F.3d 661, 664 (5th Cir. 2016). Case: 22-60322 Document: 00516670417 Page: 4 Date Filed: 03/08/2023No. 22-60322

5 low air pressure warning alarms on an y of its vehicles. But inconsistent enforcement is no excuse here. See Mainline Rock & Ballast, Inc. v. Sec’y of Labor , 693 F.3d 1181, 1187 (10th Cir. 2012) (“[T]he MSHA cannot be estopped from enforcing its regulations simply because it did not previously cite the mine operator.”). Cactus Ca nyon had adequate notice of this interpretation based on the Commission’s longstanding decision in Daanen & Janssen

. See Corbesco, Inc. v. Dole , 926 F.2d 422, 427–28 (5th Cir. 1991). Fair notice does not requir e “explicit prior notice of a specific prohibition or requirement.” Sec’y of Labor v. Ideal Cement Co. , 12 FMSHRC 2409, 2416 (Nov. 1990). We thus DENY Cactus Canyon’s petition for review and AFFIRM the ALJ’s Decision and Order. Case: 22-60322 Document: 00516670417 Page: 5 Date Filed: 03/08/2023