1 PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

_____________

No. 1 2

- 4457

_____________

SHAMOKIN FILLER COMPANY

, INC.,

Petitioner

v.

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION; SECRETARY OF LABOR, MINE
SAFETY AND HEALTH A DMINISTRATION (MSHA)

Respondents

_____________

On Petition for Review from the Federal Mine Safety and

Health Review Commission (Docket Nos. PENN 2009

- 775,

- 82 5, PENN 2010

- 63,

- 191,

- 275,

- 291,

- 381,

- 465,

- 515,

- 745, PENN 2011

- 16,

- 104,

-

129,

- 1 89 )

_____________
Argued : December 10 , 20132 Before: MCKEE, Chief Judge , FUENTES and CHAGARES

,

Circuit Judges

.

(Opinion Filed: July 11, 2014)

Adele L. Abrams , Esq. [ARGUED] Law Office of Adele L. Abrams, P.C. 4740 Corridor Place, Suite D Beltsville, MD 20705

Attorney for Petitioner Shamokin Filler Company Inc.

Sara L. Johnson, Esq. [ARGUED] U.S. Department of Labor 1100 Wilson Blvd., 22nd Fl. Arlington, VA 22209

Attorney for Respondent

- Appellee Secretary of Labor

_____________

OPINION OF THE COU RT

_____________

FUENTES

, Circuit Judge :

Petitioner Shamokin Filler Company, Inc., operates a coal preparation facility in Shamokin, Pennsylvania that has been regulated by t he Federal Mine Safety and Health Administration (“MSHA”) since 1977. After a c hange in ownership in 2009, the new owners challenged MSHA’s jurisdiction over the Shamokin facility, contending that the3 Occupational Safety and Health Administration (“OSHA”), not MSHA, should oversee it

. 1 The Secretary of Labor, along
with an Administr ative Law Judge for the Federal Mine Safety and Health Review Commission, and the same Commission’s appellate body, all disagreed and conc luded
that because Shamokin was engaged in the “work of preparing the coal

, ” as defined in the Federal Mine Safety and Health Act of 1977 ( the “Mine Act”), 30 U.S.C. § 802(i)

, MSHA’s assertion of jurisdiction was proper. Shamokin petitions for re view of the Commission’s final o rder, arguing
that its plant does not engage in the “work of preparing the coal” bec ause it make s its 100% coal products out of already processed coal

.

Shamokin’s interpretation of the statute lacks any basis
in the text of the Mine Act , and we decline to adopt it

. Shamokin also requests reversal of an evidentiary
determination e xcluding evidence of MSHA’s

non

- jurisdiction over other plants. We find this evidentiary challenge to be without merit. For the reasons that follow , w e will deny the petition for review.

I

. BACKGROUND 2

1 Presumably the new owners desired to avoid the more stringent requirements imposed by MSHA regulations and the Federal Mine Safety and Health Act of 1977 , 30 U.S.C. § 801
et seq . As di scussed in more detail below, MSHA, rather than OSHA, has much stricter oversight requirements including regarding respirable coal dust standards.

2 We have jurisdiction over this appe al under 30
U.S.C. § 816(a). The Administrative Law Judge’s (“ALJ”)4 A. Legal and Administrative Framework

The U.S. Department o f Lab or oversees , in relevant part, two agencies devoted to workplace safety and worker
health: OSHA and MSHA

. OSHA administer s the Occupational Health and Safety Act of 1970 ( the “OSH Act”)
and regulates workplace safety and worker health unless Congress has c onferred jurisdiction on another agency in an industry

- specific statute. See 29 U.S.C. § 653( b)(1) . In this case, OSHA and the OSH Act govern Shamokin’s plant unless MSHA, administering the Mine Act, govern s instead. The difference in jurisdiction result s in a difference in oversight. MSHA’s regulatory framework is more specific and extensive than OSHA’s in regulating safety and health hazards associated with the handling of coal, particularly with

fin al decision and order, entered on October 18, 2012, was not directed for review by t he Mine Commission and by law
became a final order of the Mine Commission on November 26, 2012. We review t he Mine Commission’s legal
conclusions de novo

. See Reich v. D.M. Sabia Co. , 90 F.3d 854, 860 (3d Cir. 1996). We review evidentiary rulings for
abuse of discretion. See Mach Min., LLC v. Sec ’ y of Labor, Mine Safety & Health Admin. , 728 F.3d 643, 659 (7th Cir. 2013); cf. Gunderson v. U.S. Dep ’ t of Labor , 601 F.3d 1013,
1 021 (10th Cir. 2010) (reviewing evidentiary decisions of an ALJ of the Department of Labor’s Benefits Review Board under an abuse of discretion standard); R & B Transp., LLC v. U.S. Dep ’ t of Labor, Admin. Review Bd. , 618 F.3d 37, 44 (1st Cir. 2010) ( same a s to decisions of an ALJ of the Department of Labor’s Administrative Review Board).5 regard to workers’ exposure to respirable coal dust. Comp are 30 C.F.R. Part 71 with 29 C.F.R. Pa rt 1910, Subpart Z. Because of the dangers inherent in mining, Congress also gave the Secretary more rigorous enforcement mechanisms under the Mine Act than under the OSH Act. For example, the Mine Act, unlike the OSH Act, requires two inspections per year for surface mines, permits inspections to be conducted without a warrant, and in specified circumstances authorizes inspectors to issue orders requiring withdrawal of
miners from the mine. See 30 U.S.C. §§ 813(a), 81 4(d), 814(e), 817(a); Donovan v. Dewey , 452 U.S. 594, 606 (1981) ; RNS Servs., Inc. v. Sec'y of Labor, Mine Safety & Health Admin. (MSHA) , 115 F.3d 182, 187 (3d Cir. 1997)

.

In order to determine whether MSHA and the Mine
Act gover n , we must decide whether the facility to be regulated is a “ coal or other mine, the products of which enter commerce, or the operations or products of which affect

commerce. ” 30 U.S.C. § 803 ; s ee RNS Servs., Inc.

, 115 F.3d
at 183 . In relevant part, a “coal or other mine” under th e Mine Act includes “lands,

. . . facilities, equipment, machi nes, tools, or other property,

. . . used in, or to be used in,

. . . the work of preparing coal

. . . and includes custom coal preparation facilities.” 30 U.S.C. § 802(h)(1)

- (h)(2)

. We have
fou nd this provision to be “so expansively worded as to indicate an intention on the part of Congress to authorize the Secretary to assert jurisdiction over any lands integral to the process of preparing coal for its ultimate consumer.” RNS Servs., Inc. , 115 F.3d at 186 (emphasis added). The Mine Act defines “the work of preparing the coal” as “the breaking, crushing, sizing, cleaning, washing, drying, mixing, storing, and loading of bituminous coal, lignite, or anthracite, and6 such other work of preparing suc h coal as is usually done by the operator of the coal mine.” 30 U.S.C. § 802(i).

We employ a “functional analysis” in assessing
whether MSHA has jurisdiction, under which we give the “broadest possible scope to [M] i ne Act coverage.” Pa. Elec.
Co. v. Fed . Mine Safety & Health Review Comm ’ n (“Penelec”) , 969 F.2d 1501, 1503 (3d Cir. 1992) (quotation marks omitted). What matters most is how the company uses
the coal :

Turning to the case law, in [ Penelec ] , we held that “the delivery of raw coal to a coal

pro cessing facility is an activity within the Mine Act, but not the delivery of completely processed coal to the ultimate consumer.” 969
F.2d 1501 [at 1504] (citing Stroh v. Director, Office of Workers ’ Comp. Progs., 810 F.2d 61, 64 (3d Cir. 1987)). See also Hanna v. Director, Office of Workers ’ Comp. Progs., 860 F.2d 88,
92

- 93 (3d Cir.1988). In Stroh, we found that “shovel[ing coal] into [a] truck, and haul[ing] it to independently owned coal processing plants” was integral to the work of preparing the coal. [810 F.2d] at 62. We further noted that the
loaded coal ’ s subsequent transportation over public roads did not alter its status as an activity that is part of the work of preparing the coal. Id.
at 65.

Penelec applied a functional analysis, wherein the pro priety of Mine Act jurisdiction is determined by the nature of the functions that7 occur at a site. That analysis has its roots in Wisor v. Director, Office of Workers ’ Comp. Progs., 748 F.2d 176, 178 (3d Cir.1984), was applied in Stroh, 810 F.2d at 64, and has been adopted by the Fourth Circuit. See United Energy Servs., Inc. v. Federal Mine Safety & Health Admin., 35 F.3d 971, 975 (4th Cir. 1994).

RNS Servs. Inc.

, 115 F.3d at 184.

B

. Procedural History

Between 1977 and 2009, MSHA treated Shamokin’s
fac ility, operated by another owner, as a mine and inspected it for compliance with the Mine Act

. In 2009, Shamokin changed ownership. The current owners (children of the former owners) wrote to the Secretary of Labor requesting that MSHA relinqui sh jurisdict ion over the plant. The Secretary refused. Between 2009 and 2011, the Secretary, through MSHA

, issued a number of citations against
Shamokin for violations of the Mine Act that MSHA inspectors found at Shamokin’s plant

. Among the most
serious of these cita tions were numerous violations of MSHA’s respirable dust standards.

Shamokin contested the citations in front of an ALJ of the Federal Mine Safety and Health Review Commission. Shamokin stipulated that it was liable for the violations and associated pen alties to the extent that MSHA appropriately exercised jurisdiction over the plant. However, Shamokin objected to MSHA’s jurisdiction

, on the grounds that it was not operating a “coal or other mine

, ” but instead was mainly8 engaged in the manufacture of pro ducts made out of coal
rather than the preparation of anth racite coal. After an ALJ found that MSHA had jurisdiction, Shamokin appealed to the Mine Commission’s appellate body

, which affirmed the ALJ

.

C. Factual Findings of the Mine Commission

The fac ts as found by the Mine Commission are conclusive as Shamokin mounts no argument to show that they are not supported by substantial evidence. See 30
U.S.C. § 816(a). The ALJ specifically found that, “ t he Carbon Plant is a custom coal preparation facility t hat stores, sizes,
dries and loads coal to make it suitable for subsequent industrial use.” App. at A 25. The ALJ also deter mined Shamokin’s key witness “ offered contradictory, inconsistent, and suspect testimony. ” Id. Specifically, there was “ an attempt by the owners to obstruct the amount of coal used by the Carbon Plant, the percentage of coal versus non

- mined materials, and the actual nature and extent of its c oal versus

non

- coal operations.” Id. The ALJ determined that Shamokin’s assertion that it was p rincipally engaged in manufacturing coal products , rather than coal processing, was belied by the evidence : “ over 6,000 tons of [Shamokin’s] product, ‘carb

- o

- cite,’ made of 100% anthracite coal, was sold in 2009, as compared to only a few tons of multiple products containing no coal or coal mixtures. . . . This Court noted that neither inspector . . . observed any mixing of c oal
with non

- coal materials at t he plant. ” Id. at A 2 6. T he ALJ concluded that “ [Shamokin] is storing large amounts of coal,
screenin g it to remove impurities and ensure size quality, drying it, and loading it in bags appropriately sized to be sold
in the stream of commerce

. ” Id . at A28. The Mine9 Commission’s appellate body affirmed the ALJ’s decision as supported by “substantial eviden ce.” Id. at A36.

D. Conclusions of Law of the Mine Commission

The ALJ determined that “[ t] he fact that [Shamokin] is customizing the formulas to meet industry and customer specifications only strengthens the Secretary’s position that [Shamokin] is oper ating a custom coal preparation facility and should, therefore, continue to be covered under MSHA’s jurisdiction. ” Id. at A28. The Mine Commission affirmed, concluding that that the ALJ “ was correct in concluding that the Carbon Plant performs the ‘work of preparing the coal,’ and thus is a ‘mine’ . . . subject to jurisdiction under the Mine
Act.” Id. at A38.

E . Evidentiary Ruling

The ALJ granted the Secretary’s motion seeking to exclude evidence gathered by a 2004 MSHA fact

- finding
committee that had reviewed operations at seven facilities
that Shamokin claimed we re similar to its carbon plant. T he
ALJ first found that the evidence of MSHA’s oversight over
other facilities was irrelevant because MSHA jurisdiction should be determined on a “case

- by

- cas e basis.” Id . at A2. It also found that, even if it were relevant, it should be excluded because “ its probative value [was]

. . . substantially outweighed b y a danger of unfair prejudice, confusion of the issues, or . . . a waste of time or needless presen tation of cumulative evidence.” Id

. (relying on 29 C.F.R. § 2700.63 (a)

, which provides, “relevant evidence, including hearsay evidence, that is not unduly repetiti ous or cumulative is
admissible

, ” and Federal Rule of Evidence 403). The ALJ10 reasoned that th e balance in this cas e weighed in favor of
exclusion given the case

- by

- case nature of the inquiry over
whether MSHA jurisdiction is proper; the fact that it would be “cumbersome and impractical” to review “whether and why MSHA has exercised or should exerc ise jurisdiction over similar ‘bagging facilities’”; and that Shamokin would be not be prejudiced given the otherwise wide breadth of the evidentiary hearing. App. at A 2

- 3.

The ALJ revisited the evidentiary determination after the hearing itself, addin g that there was no appellate case law on the question of whether “a comparative facility analysis approach” was proper

. Id . at A9. Accordingly, the ALJ found
that the approach Shamokin requested would detract from analysis of t he particular facility at is sue , sending the tribunal on a “jurisdictional safari, searching out all similar facilities in the country and comparing a like and non

- alike activities, structures, operations, and products with that of the subject Carbon Plant. [] The collateral inquiries would be endless.”
Id

. at A 10.

The Mine Commission ’s appellate body affirmed
under an abuse of discretion standard , add ing that
Administrative Procedure Act § 556(d) imposes an obligation on the agency to have a policy to exclude “irrelevant,
immateria l, or unduly repetitious evidence.” Id . at A 39 (citing 5 U.S.C. § 556(d)). The Mine Commission agreed that the evidence was not relevant because “[i]t is unlikely that any
two facilities would be identical and warrant the same conclusion on jurisdiction

, ” and jurisdiction is “governed by
the statute, rather than by which of two conflicting interpretations by the Solicitor is correct.” App. at A 39 (internal quotatio n marks and citations omitted). M oreover,11 given that the evidence was of “limited probative va lue

, ” its
introduc tion would have “unduly delayed the trial ”

— Shamokin would have had to present “a significant number of
additional witnesses” to “demonstrate the similarities between those facilities and its Carbon Plant.” Id

. at A 40. Finally, the appella te body noted that MSHA has asserted jurisdiction over Shamokin’s plant for decades , and that there has been no change in Shamokin’s operations

. Id

.

II

. DISCUSSION

A. 30 U.S.C. § 802: “work of preparing the coal”

Under our functional analysis, Shoma kin is engaged in “the work of preparing the coal.” In RNS , the loading of coal for transport to another facility for further processing was considered “the work of preparing the coal

, ” because the “storage and loading of the coal is a critical step in the processing of minerals extracted from the earth in preparation for their receipt by an end

- user, and the Mine Act was intended to reach all such activities.” 115 F.3d at 185. Shamokin does more than the facility in RNS : Shamokin admits that it stores, dri es, screens, and bags coal. Under RNS

, it is subject to MSHA jurisdiction.

Shamokin nonetheless argues that it is not engaged in the work of preparing coal under the Mine Act definition because it purchases coal that has already been processed

. Shamoki n supports its argument in four ways worth addressing : first

, through statutory interpretation, second

, through relying on a definition of “coal preparation” from the now defunct U.S. Bureau of Mines, third

, by arguing that the statute would lack meaningfu l boundaries without its12 proposed limitation, and finally

, by relying on case law from various Courts of Appeals . Each argument will be addressed
in turn

.

Shamokin first makes a statutory argument . It
contend s that the last phrase in § 802(i), “ and suc h other work of preparing such coal as is usually done b y the operator of
the coal mine

, ” modifies the earlier items in the list such that only functions that are usually done by the “ operator of a coal mine” are regulated under the Mine Act. Petitioner’s Br. at 13 (emphasis added)

. In turn, only processing of “raw, ” “run

- of

mill” or unprepared coal, not the processing of coal that is already in “usable or marketable condition,” would usually be done by an operator of a coal mine. Id. The Secretary responds that the Mine Act contains no such limitation.

We believe t he Secretary is correct

. T he words “raw” or “unprepared” or “run

- of

- mill” never appear anywhere in the Mine Act definitions, a strong indication that Congress never restricted Mine Act coverag e to those facilities that begin with coal in these states . Additionally, in R NS , we addressed the last phrase in § 802(i) , and rejected the predicate of the argument that Shamokin raises here

— whether the activities at the plant are usually done by the

ope rator of a hypothetical coal mine is not relevant in the analysis . In RNS , we placed emphasis on the definite article in the phrase “ as is usually done by the operator of the coal mine.” 115 F.3d at 185 (emphasis added) (internal quotation marks omitted)

. We decided that if 802(i) had an indefinite
article in place of the definite article

, reading instead “the operator of a coal mine,” this clause could imply that “one might have to compare the activities at the alleged coal mine with those of a typical, pa radigmatic

, ‘usual’ coal mine .” RNS13 Servs. Inc.

, 115 F.3d at 185

. However, the sentence as
written differs. It “ simply explains that the work of the coal
mine is the work that is usua lly done in that particular place

. The fact that [a] [s]ite is perhaps a n unconventional coal mine
does not defeat its status as a coal mine for the purposes of [§] 802.” Id. Shamokin’s statutory argument is therefore
without merit.

Shamokin’s second argument borrows from the Dictionary of Mining, Mineral and Related Terms published by the U.S. Bureau of Mines, a now defunct federal agency that conducted scientific research on the extraction, processing, use, and conservation of mineral resources until its closure in 1995. The Bureau had defined “coal preparation” as “[t] he various physical and mechanical processes in which raw coal is dedusted, graded, and treated by dry methods (rarely) or water methods, using dense

- media separation (sink

- float), jigs, tables, and flotation. The objective is the removal of free dirt, sulfur , and other
undesirable constituents. ” 3 This definition is at least eighteen years old and is from an agency that was tasked not w ith safety but rather research. In any event, the words “raw coal” do not appear in the Mine Act, and Shamokin has failed to show why this definition should take precedence over the one in the Mine Act

.

Third, Shamokin asserts that unless the work of preparing coal ends “when the raw, run

- of

- mill extracted material has been processed into a usable condition

, ” the list

3 A vailable at
h ttp://webharvest.gov/peth04/20041015011634/imcg.wr.usgs. gov/dmmrt/ (last accessed June 30, 2014 ) (emphasis added).14 of act ivities enumerated in § 802(i) would be u n workably
broad. Petitioner’s Br. at 14. Such an interpretation , the argument runs, could include “anyone who handles coal, no
matter how far down the stream of commerce

, ” subsuming

non

- mining activities such as ope rations “that use processed coal for heating, powering equipment, as a feedstock in producing other products, or which merely transport the processed coal.” Id. at 1 4

- 1 5. But this Court’s functional approach has already managed to weed out such activities

. F or example, without Shamokin’s proposed limitation

, we determined that delivery of raw coal to a processing facility, but not delivery of processed coal to the consumer, counts as
the work of preparing the coal. See RNS Servs., Inc. , 115 F.3d
at 184. In RNS , the loading of coal for transport to another facility for further processing was considered “the work of preparing the coal” because the “storage and loading of the coal is a critical step in the processing of minerals extracted from the earth in prep aration for their receipt by an end

- user, and the Mine Act was intended to reach all such activities .”
Id. at 185. Thus, through the rubric of the functional test, activities that are too far attenuated from the actual processing of coal, and which are not “critical” or “integral

, ” see i d. at 18 5

- 8 6

, in prepara tion of receipt by the end user, will not be
subsumed under the Mine Act definition and in fact have not
been.

Contrary to Shamokin’s assertion, our opinion in
Dowd v. Dir ector, Office of Workers’ Compensation Programs

, 846 F.2d 193, 194

- 195 (3d Cir. 1988) does not
counsel in favor of another result

. 4 In Dowd , we determined

4 Dowd is of limited import here becaus e it was decided under Title IV of the Mine Act, or the Black Lung Benefits Act of15 that a worker was involved in the prepar ation of coal at a “custom coal preparation facility” because his employer dried
and c rushed “unprepared anthracite [ coal ] .” Id. at 195

. Shamokin asks us to extrapolate from this that the work of further preparing prepared coal would thus not be considered coal prep a ration. In so doing, it requests that we convert a sufficient condition in to a necessary one , but nothing about the opinion implies that the facilities have to begin with unprepared anthracite to be “custo m coal preparation facilities.”

Finally, Shamokin attempts to demonstrate that courts routinely cut off Mine Act jurisdicti on at the point where raw coal becomes usable. Having reviewed the cases cited, we agree with the Secretary that none of these cases stand s for the proposition that the Mine Act does not cover the further processing of already processed coal

. 5

1972 (“BLBA”), 30 U.S.C. § 901 et seq. , for which Congress has specified that a different definition of coal mine applies

. C ompare 30 U.S.C. § 802(h)(2) (defining “coal mine ” for purposes, among others, of subchapter IV of chapte r 22, which includes the BLBA), with 30 U.S.C. § 802(h)(1) (defining “coal or other mine” for the rest of chapter 22, which includes the Mine Act)

.

5 See Petitioner’s Br. at 16

- 18 (citing Southard v. Dir.,
OWCP , 732 F.2d 66, 68

- 70 (6th Cir. 1984) (finding under the BLBA that a worker who stored, loaded, and unloaded coal for a coal retailer was not engaged in the “work of preparing the coal” because the coal retailers he worked for were “purchasers of prepared coal”); Eplion v. Dir., OWCP , 794 F.2d 935, 937 (4th Cir. 1986) ( finding under the BLBA that a16 It is also worth noting that Shamokin’s most serious mine safety citations involved violations of MSHA’s respirable dust standards. Given that the activities at Shamokin’s plant trigger the types of safety concerns that the Mine Act was intended to remedy, it would defy Congress’s intent to allow Shamokin to escape Mine Act jurisdiction based on a formality. S ee RNS Servs., Inc. , 115 F.3d at 187 (noting that the Mine Commission had “legitimate concerns about worker safety and health at the Site,” which included “[t]r ue potential hazards” such as “circulation of dust”). Thus, we decline Shamokin’s invitation to impose additional limitations not in the statute and find that MSHA’s assertion of jurisdiction over the plant was proper.

worker who transported and distributed processed coal was not engaged in the “work of preparing the coal” because the coal was “already processed and p repared for market before [the worker] had any contact with it”); Collins v. Dir.,
OWCP , 795 F.2d 368, 372 (4th Cir. 1986) (finding under the BLBA that a truck driver who hauled slate (coal refuse) from the “tipple” at the end of processing was not engaged in coal mine employment)). In fact, we have before declined to impose a bright line rule that preparation ends “at the point
when the coal is placed into the processing tipple because we
are not convinced that each ste p essential to the preparation of
the coal for entry into the stream of commerce is completed at that point. Thus, [the employer’s] participation in the removal of the coal from the tipple was a step, if only the very last step, in the preparation of the coal. ” Hanna v. Dir., Office of
Worker s ’ Comp. Programs, U.S. Dep ’ t of Labor , 860 F.2d 88, 93 (3d Cir. 1988) (looking with skepticism on Collins , 795
F.2d at 372 , relied on by Shamokin).17 B. Evidentiary Appeal

Shamokin also challenges the ALJ’s decision to
exclude evidence of MSHA’s non

- assertion of jurisdiction over plants that Shamokin claims are its competitors.
Shamokin contends that the evidence would have showed an inconsistent position regarding MSHA’s exercise of jurisdiction over carbon products plants such as Shamokin’s, which could call into question the propriety of the Secretary’s assertion of jurisdiction here.

Shamokin submits that a number of memoranda are relevant to the question of whether MSHA has co nsistently interpreted the statute to allow for jurisdiction over the further processing of non

- raw coal. In its brief, Shamokin discusses only the operations of the Keyston e Filler & Manufacturing plant , highlighting a June 22, 2004 memorandum as
represen tative, so that is the plant and memorandum we will
address . According to this memorandum, written by Counsel
for Standards , Mine Safety and Health, to a District Man a ger of MSHA

, Keystone’s facility was not engaged in the “w ork of preparing the coal” bec ause,

on ce the coal arrives at this facility, it is already fully prepared and ready to be used by Keystone as a chemical compound ingredient in the manufacture of saleable products for the rubber, plastics, and steel products industries.

. . . Ot her ingr edients are added to it such as coke, petroleum laced coke and graphite. Any oversized pieces are crushed at Keystone, but this crushing is incidental to the manufacturing process. As a consumer of fully processed coal18 sold in the open market, Keystone’s w ork constitutes manufacturing rather than mining, and as such, not subject to MSHA jurisdiction. . . . [P]reparation ends when the coal is ready for

use.

App. at A184.

W e agree that the consistency of an agency’s application of a statute might be rel evant

. S ee, e.g. , Westar Energy, Inc. v. Fed. Energy Regulatory Comm ’ n , 473 F.3d 1239, 1243 (D.C. Cir. 2007) (“ The Order under review is arbitrary and capricious in that it provides no basis in fact or in logic for the Commission’ s refusal to treat Westar as it had
treated KCPL. ”) . However , this memorandum is not relevant

. Keystone was engaged in manufacturing , not coal processing

. Shamokin argued unsuccessfully to the M ine Commission
that it , like Keystone, was mainly engag ed in the manufacture
of carbon

- b ased products for the steel, ru bber, and plastics
industries. T he Mine Commission determined this assertion

was factually without merit, as inspectors found no mixing of
coal with non

- coal materials at the plant, and the records supplied by Shamokin confir med that it sold only a few tons of products containing no coal or coal mixtures

. As such, Shamokin’s comparison to Keystone is not apt, as Shamokin was mainly engaged in coal processing, not manufacturing of other products using coal.

Furthermore, as t he Mine Commission pointed out,
better evidence on the consistency of MSHA’s jurisdictional
decisions i s the fact that the Secretary through MSHA has asserted jurisdiction over Shamokin from 1977 to 2009 without a change in its operations when t he new owne rs19 assumed the helm. Indeed, this demonstrates that the Secretary has consistent ly interpret ed the statute

. We also agree with the ALJ’s assessment that the introduction of this
evidence could have opened up a stream of requests for comparisons to faciliti es all around the count ry, causing an

unnecessar y delay in the proceedings to address collateral

matters

.

Given the limited probative value of the evidence, and the potential it had to unnecessarily delay the hearing, we affirm the Mine Commission ’s dec ision to exclude the evidence of MSHA’s non

- assertion of jurisdiction over other
facilities. We find that the agency’s decision was not an abuse
of discretion

. Cf. Bhaya v. Westinghouse Elec. Corp. , 922 F.2d 184, 187 (3d Cir. 1990); see also United States v. Long

, 574 F.2d 761, 767 (3d Cir. 1978) (“If judicial self

- restraint is ever desirable, it is when a Rule 403 analysis of a trial court is reviewed by an appellate tribunal.”).

III

. CONCLUSION

For the foregoing reasons, we will deny the Petition
for R eview of the Mine Commission’s final o rder . The Secretary’s exercise of jurisdiction over Shamokin through MSHA was proper. Furthermore, the ALJ did not commit an abuse of discretion by failing to allow into evidence internal
memoranda between MSHA employe es regarding the

non

- assertion of jurisdiction over other facilities.