                            In the

 United States Court of Appeals
               For the Seventh Circuit

Nos. 12-2316 & 12-2460

B IG R IDGE, INC., JERAD B ICKETT, et al.,
                                                       Petitioners,
                                v.

F EDERAL M INE S AFETY AND
H EALTH R EVIEW C OMMISSION, et al.,
                                                     Respondents.


                  Petitions for Review of an Order
     of the Federal Mine Safety and Health Review Commission.



     A RGUED D ECEMBER 4, 2012—D ECIDED A PRIL 26, 2013




 Before B AUER and H AMILTON, Circuit Judges, and T HARP,
District Judge.
  H AMILTON, Circuit Judge. Under the Federal Mine
Safety & Health Act of 1977 (“the Mine Safety Act”),
the Secretary of Labor is charged with protecting the
health and safety of the nation’s miners, acting through



   The Honorable John J. Tharp of the Northern District of
Illinois, sitting by designation.
2                                  Nos. 12-2316 & 12-2460

the Federal Mine Safety and Health Administration
(“MSHA”). Regulations issued under the Mine Safety
Act require mine operators to report to MSHA all mine-
related injuries and illnesses suffered by mine employees.
In October 2010, MSHA acted on a new and broader
interpretation of existing regulations. It informed thirty-
nine mine operators that, in addition to providing the
injury and illness reports, they would be required to
permit an MSHA inspector to review employee med-
ical and personnel records during their next inspections.
Reviewing employee medical and personnel records
would enable MSHA to verify that the mines have not
been under-reporting miners’ injuries and illnesses.
  Two mine operators refused to provide the records.
MSHA issued citations and imposed monetary penalties
for failing to comply with the demand for the records.
The mine operators challenged MSHA’s authority to
demand the records and to impose penalties under the
Mine Safety Act and relevant regulations. The mine
operators argued that MSHA is not authorized to
require them to produce records beyond those that reg-
ulations specifically require them to maintain. The chal-
lenge was heard by an administrative law judge and
reviewed by the Federal Mine Safety and Health
Review Commission (“the Commission”), both of which
found that the document demands and enforcement
were lawful under 30 U.S.C. § 813(h) and 30 C.F.R. § 50.41.
The mine operators petitioned for review by this court,
joined by a group of mine employees who intervened
before the Commission to raise personal privacy chal-
lenges to the document demands.
Nos. 12-2316 & 12-2460                                      3

  On petitions for judicial review, the mine operators
and miners challenge the document demands on several
grounds. They contend: (1) that MSHA does not have
the authority to require mines to comply with the
demands under the Mine Safety Act or relevant regula-
tions; (2) that the relevant regulation, 30 C.F.R. § 50.41, is
not a reasonable interpretation of the Mine Safety Act
and was not properly promulgated; (3) that the docu-
ment demands infringe the mine operators’ Fourth
Amendment right not to be searched without a warrant;
(4) that the demands violate the miners’ Fourth Amend-
ment privacy rights in their medical records; (5) that the
daily penalties MSHA imposed for failure to comply
violate the mine operators’ Fifth Amendment right to
due process of law; and (6) that the demands conflict
with a variety of other federal and state laws.
  We agree with the Commission that MSHA acted
within its statutory and constitutional authority both in
demanding information that would permit MSHA to
verify the accuracy of mine operators’ injury reports and
in issuing citations and monetary penalties when mine
operators refused to comply. We deny this petition
for review of the judgment of the Commission.


I. Regulatory and Factual Background
  A. Federal Regulation of Mine Safety
  The Federal Mine Safety and Health Act of 1977, Pub. L.
No. 95-164, superseded two prior pieces of mine legisla-
tion, the Federal Coal Mine Health and Safety Act of 1969
4                                     Nos. 12-2316 & 12-2460

(“the Coal Act”), Pub. L. No. 91-173, and the Federal
Metal and Nonmetallic Mine Safety Act of 1966 (“the
Metal Act”), Pub. L. No. 89-577. The 1977 Mine Safety
Act covers all types of mines addressed by these prior
acts. In passing the new Mine Safety Act, Congress
acted to strengthen the government’s authority to reg-
ulate mines in response to a joint committee of Congress
finding that after “ten years of enforcement of the
Metal [A]ct, and six years of enforcement of the Coal Act .
. . fatalities and disabling injuries in our nation’s mines are
still unacceptably and unconscionably high.” S. Rep. No.
95-181, at 7 (1977), reprinted in 1977 U.S.C.C.A.N. 3401,
3407. Recognizing “an 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, and in order to prevent occupational
diseases originating in such mines,” Congress passed
the 1977 Mine Safety Act to strengthen the govern-
ment’s ability to ensure mine safety. 30 U.S.C. § 801(c).
Congress found that the stronger Mine Safety Act was
needed because earlier laws had proven too weak and
mines still had appalling safety records. At the time the
Mine Safety Act passed, an average of one miner died
and sixty-six miners were injured each day, and the
incidence of work-related injuries and illnesses for
miners exceeded the “all-industry” rate at the time by
about 14 percent. S. Rep. No. 95-181, at 4, 7, 1977
U.S.C.C.A.N. 3404, 3407.
  The Mine Safety Act created the Mining Enforcement
and Safety Administration (“MESA”), which has been
Nos. 12-2316 & 12-2460                                   5

renamed the Mine Safety and Health Administration
(“MSHA”). The Act gave MSHA broad authority to
ensure the safety of mines, including the authority
to inspect mines and collect records and reports,
30 U.S.C. § 813, to promulgate mandatory health and
safety standards and rules, § 811, and to enforce safety
standards and rules through citations and penalties, § 814.
Most relevant here, section 813(a) authorizes MSHA
to inspect and investigate mines, and section 813(h)
imposes reporting and record-keeping requirements
upon mine operators.
  Sections 813(a) and 813(h) provide the statutory basis
for MSHA’s collection and reporting of data relating
to mine safety and health. To implement these sections,
regulations were promulgated detailing a system of
required reporting for mines. Under the “Part 50” regula-
tions, mines must immediately report serious injuries
or incidents, 30 C.F.R. § 50.10; must report all mine ac-
cidents, injuries, and occupational illnesses as they
occur on forms called 7000-1 reports, § 50.20; and must
report employee work hours and total coal production
for each quarter on forms called 7000-2 reports, § 50.30.
MSHA uses Part 50 reports to calculate for all mines
the “Incidence Rates,” which are the number of injuries
or illnesses per employee hour worked, and “Severity
Measures,” which take into account the severity of
injuries per employee hour worked. See 30 C.F.R. § 50.1.
These reports permit MSHA “to investigate, and to
obtain and utilize information pertaining to, accidents,
injuries, and illnesses occurring or originating in
mines.” Id. MSHA also makes all of this compiled data
6                                  Nos. 12-2316 & 12-2460

publicly available on its website. See MSHA Statistics,
www.msha.gov/stats/statinfo.htm (last visited April 24,
2013).
  In addition to requiring mine operators to submit the
7000-1 and 7000-2 reports, the Part 50 regulations require
mine operators to maintain copies of those records and
to permit MSHA to verify the information in those re-
ports. The provision at the center of the controversy
here is section 50.41, which permits MSHA to verify
the information in the reports:
    Upon request by MSHA, an operator shall allow
    MSHA to inspect and copy information related to an
    accident, injury or illnesses which MSHA considers
    relevant and necessary to verify a report of investiga-
    tion required by § 50.11 of this part or relevant and
    necessary to a determination of compliance with
    the reporting requirements of this part.
30 C.F.R. § 50.41.
  The Mine Safety Act authorizes MSHA to enforce
these reporting requirements through citations and
orders, 30 U.S.C. § 814(a), “failure to abate” penalty fees
when a mine has not abated a previously-cited viola-
tion, § 814(b), and withdrawal orders, which require a
mine to be evacuated and shut down, § 814(d). Mine
operators can challenge citations and orders in a
hearing before an administrative law judge whose deci-
sion is appealable to the Commission. § 815(d). While
the contest hearing is pending, mine operators can
request temporary relief from certain penalties and
other orders. § 815(b)(2). Mine operators can petition for
Nos. 12-2316 & 12-2460                                      7

review of final orders of the Commission by a federal
court of appeals, § 816(a)(1), as petitioners have done here.


  B. Part 50 Audits
  During inspections of several mines in October
2010, MSHA inspectors presented letters ordering the
mine operators to have several pieces of information
and documents related to the 7000-1 and 7000-2 reports
from July 1, 2009 through June 30, 2010 “available for
review” during their next inspections. The demanded
documents included:
  1.   All MSHA Form 7000-1 Accident Reports
  2.   All quarterly MSHA Form 7000-2 Employment
       and Production Reports
  3.   All payroll records and time sheets for all individuals
       working at your mine for the covered time period
  4.   The number of employees working at the mine
       for each quarter
  5.   All medical records, doctor’s slips, worker com-
       pensation filings, sick leave requests or reports,
       drug testing documents, emergency medical trans-
       portation records, and medical claims forms in
       your possession relating to accidents, injuries, or
       illnesses that occurred at the mine or may have
       resulted from work at the mine for all individuals
       working at your mine for the period of July 1, 2009
       through June 30, 2010.
Joint App. 32.
8                                    Nos. 12-2316 & 12-2460

  MSHA sent this letter to thirty-nine mines, including
two mines operated by Peabody Energy Company.
Counsel for MSHA later told the Commission that the
thirty-nine mines were selected because, “but for sup-
posedly low severity measures . . . they would
have met the criteria for a potential pattern of violations
screening.” Comm’n Tr. at 45. MSHA designates a mine
as having a “pattern of violations” (“POV”) when the
mine has established a history of significant and sub-
stantial violations of mandatory safety or health stan-
dards. 30 U.S.C. § 814(e); see also 30 C.F.R. §§ 104.1 et seq.
  Once a mine is in POV status, MSHA has increased
authority to institute safety precautions, which can
involve burdensome administrative requirements and
disruption of mine activities. See 30 U.S.C. § 814(e) (autho-
rizing withdrawal orders after a POV notice); 30 C.F.R.
§ 104.4 (requiring mine operators to post all POV notifica-
tions and listing actions a mine operator may be re-
quired to take upon issuance of a POV notice). Thus,
MSHA had determined, based on other data it collected,
that these thirty-nine mines’ Incidence Rates and
Severity Measures were statistically lower than MSHA’s
calculations indicated they should be. MSHA suspected
that the mines might be under-reporting injuries to
avoid the increased scrutiny that would come with
POV status. Reviewing employee medical and personnel
records could enable MSHA to determine if more em-
ployees had been injured or ill than the mines had re-
ported.
  When MSHA representatives first presented the
initial demand letter to two Peabody-owned mines,
Nos. 12-2316 & 12-2460                                  9

mine personnel complied with the requests to produce
the 7000-1 and 7000-2 reports and the number of em-
ployees working at the mine for each quarter (items 1, 2,
and 4), but they refused to produce payroll and medical
records (items 3 and 5). MSHA sent another letter
on October 28, 2010, demanding the same list of docu-
ments. Counsel for petitioner Peabody and another
mine operator, petitioner Big Ridge, responded to the
October 28 letter with a letter explaining that the mine
operators would not comply with the medical and
payroll record demands because they did not believe
the demands were within MSHA’s authority. They also
expressed concern for the privacy rights of miners and
privacy of the mines’ “confidential business informa-
tion.” Joint App. 70, 72.
  MSHA inspectors returned to two mines operated by
Peabody on November 9, 2011, and again demanded
the medical and personnel records. The mine operators
again refused, and the inspectors issued citations under
30 U.S.C. § 814(a). With the dispute having already
been teed up, the citations listed the failure-to-abate
period as fifteen minutes, meaning that the mine
operators would have fifteen minutes from the time the
citation was issued to comply with the underlying
demand before MSHA could begin imposing failure-to-
abate penalties under section 814(b). When, after fifteen
minutes passed, mine personnel again refused to produce
the records, the inspectors issued failure-to-abate orders
under section 814(b). MSHA later imposed a penalty fee
of $4,000 per day in conjunction with the failure-to-
abate order on one mine, Peabody Midwest.
10                                  Nos. 12-2316 & 12-2460

  The mine operators contested the orders and citations,
and the case was heard by an administrative law judge.
MSHA stayed the daily failure-to-abate penalties while
the hearing was pending. In two opinions issued on May
20, 2011, the ALJ affirmed the citations and orders, finding
that (1) the medical and personnel records MSHA sought
were relevant to the mines’ compliance with reporting
regulations, (2) MSHA was authorized to demand the
records as part of a Part 50 audit, and (3) the demands
did not impose an unreasonable burden on the mine
operators. The mine operators appealed to the Commis-
sion, which consolidated several similar cases. A group
of miners who objected to the record demands inter-
vened and filed briefs.
  The Commission affirmed the orders and citations on
May 24, 2012. The Commission held that MSHA was
authorized to make the demands under sections 813(a)
and (h) and Part 50.41. The Commission also held that
the demands did not violate either the mine operators’
or the miners’ privacy or Fourth Amendment rights,
that the demands did not violate mine operators’ Fifth
Amendment right to due process, and that the demands
did not conflict with other federal and state laws. One
commissioner dissented, arguing that MSHA would
need to undertake additional notice-and-comment
rulemaking to have the authority to demand the records
without offending the Fourth or Fifth Amendments. The
mine operators and miners petitioned for review of the
Commission’s decision, raising all of the objections
they raised before the Commission.
Nos. 12-2316 & 12-2460                                 11

II. Analysis
   We have jurisdiction under 30 U.S.C. § 816(a)(1) to
review orders of the Commission. Petitioners raise
a number of challenges to the Commission’s order affirm-
ing MSHA’s authority to demand the medical and per-
sonnel records and enforce compliance with them. We
first consider whether the Mine Safety Act and relevant
regulations give MSHA the statutory and regulatory
authority to require mine operators to produce em-
ployee medical and personnel records that mine
operators are not otherwise required to maintain. We con-
clude first that under 30 C.F.R. § 50.41, MSHA may
require mine operators to permit MSHA inspectors to
review and copy employee medical and personnel
records necessary to verify the mine operators’ com-
pliance with other reporting obligations. We also
conclude that section 50.41 is a valid exercise of the
agency’s authority under sections 813(a) and 813(h) of
the statute. Second, we then consider petitioners’ Fourth
Amendment challenges to the demands, concluding
that the demands do not impermissibly infringe on
the mine operators’ Fourth Amendment rights and do not
impermissibly infringe on the privacy of the miners’
personal information. Third, we consider whether im-
posing daily penalties before the opportunity for Article
III judicial review of the validity of the underlying vio-
lation infringes the mine operators’ right to due pro-
cess; we conclude that it does not. Fourth, we explain
why the document demands do not impermissibly
conflict with other federal and state laws.
12                                  Nos. 12-2316 & 12-2460

  A. Statutory and Regulatory Authority
  MSHA sought to review mine employee medical
records under the authority of a Part 50 regulation,
section 50.41. The mine operators and miners argue that
neither section 50.41 of the regulations nor section 813(a)
or section 813(h) of the statute permits the MSHA de-
mands. Petitioners argue that none of those provisions
require mine operators to produce documents they
are not required to maintain by statute or regulation, and
they are not required to maintain the records demanded
here. They also argue that even if the text of section 50.41
authorizes the demands, the regulation is an unrea-
sonable interpretation of the Mine Safety Act. They also
challenge MSHA’s promulgation and implementation
of the regulation.
  We disagree with these challenges. The broad language
of section 50.41 authorizes MSHA to require mine opera-
tors to permit inspectors to review and copy employee
medical and personnel records that would permit
MSHA to verify the accuracy of mine operators’ 7000-1
and 7000-2 reports. Moreover, section 50.41 is valid
because the relevant sections of the Mine Safety Act
permit MSHA to promulgate a regulation that would
authorize these record demands. The Act grants MSHA
broad inspection and document review powers, in-
cluding the power to “reasonably require” mines to
provide information that would enable MSHA to
“perform [its] functions under this chapter.” 30 U.S.C.
§ 813(h). The demands here fall within the scope of
these powers because verifying the accuracy of mine
Nos. 12-2316 & 12-2460                                     13

operators’ injury reports is necessary for MSHA to ful-
fill its duties of ensuring miner health and safety. None
of the petitioners’ challenges to the validity of the reg-
ulation or the MSHA’s interpretation of the statute per-
suade us otherwise.


    1.   Section 50.41 Authorizes the Demands
  Section 50.41 authorizes MSHA to require mine
operators to permit MSHA agents to inspect and copy
employee medical and personnel records to verify mine
operators’ compliance with reporting requirements
under Part 50. Section 50.41 requires mine operators to
permit MSHA to “inspect and copy information related
to an accident, injury or illnesses which MSHA con-
siders relevant and necessary to . . . a determination of
compliance with the reporting requirements of this
part.” 30 C.F.R. § 50.41.
   We believe this language is straight-forward. This
section authorizes the demands here because employee
medical and personnel records are “relevant and neces-
sary” for MSHA to determine whether mine operators
are accurately reporting mine-related injuries and
illnesses on 7000-1 reports. The Mine Safety Act relies
in the first instance on mines to self-report all injuries, so
it is possible for mine personnel to decide to leave out
some employees’ work-related injuries or illnesses by
not filing out a 7000-1 form for a given injury or illness.
Under-reporting in this way could be beneficial to a
mine because having lower Incidence Rates and Severity
Measures could lessen the scrutiny the mine receives
14                                Nos. 12-2316 & 12-2460

from MSHA. Moreover, the mines here used procedures
for filing 7000-1 forms that left much room for error
and omissions. Several safety managers from the mines
testified before the ALJ that they had no way of ensuring
that they were aware of all injuries and illnesses
suffered by employees in the mine — they reported to
MSHA only what others in the mine reported to them.
Thus, if MSHA were to rely on the 7000-1 forms alone,
it would risk missing additional injuries and illnesses
and would not have the basis from which to take action
against mines that were under-reporting. While the
Mine Safety Act relies primarily on self-reporting for
injuries and illnesses, MSHA is not required to take the
self-reports on faith. Without the records demanded in
these audits, MSHA may not even be aware that a mine
is under-reporting. Moreover, without knowing whether
mines are under-reporting injuries and illnesses, MSHA
would not have an accurate view of the frequency and
types of injuries and illnesses caused by mine work,
thus hindering its ability to fulfill its duty to develop
policies and standards to ensure mine safety.
   The records MSHA demanded in the disputed inspec-
tions here would help alleviate these problems. The
medical records could reveal work-related injuries or
illnesses beyond those reported in the 7000-1 reports.
For example, doctors’ notes that a mine collected from
employees missing work could reveal ongoing work-
related illnesses, such as pneumoconiosis, or workers’
compensation records could reveal that the mine subsi-
dized an employee’s treatment for a work-related injury
that it had not reported in a 7000-1 report. Personnel
Nos. 12-2316 & 12-2460                                 15

records, such as timesheets or other records of the hours
employees had worked, would enable MSHA to
ensure that it used the correct total work hours in cal-
culating Incidence Rates and Severity Measures. (This
too is important, for mines could artificially lower their
Incidence Rates and Severity Measures by reporting
more worked hours than were actually worked. Both
measures are calculated by dividing by work hours.)
  The agency’s explanatory preface issued when section
50.41 was first promulgated confirms that the agency
(then known as MESA) intended the broad language of
section 50.41 to authorize demands such as these:
   Section 50.41 requires operators to allow MESA to
 inspect or copy any information the agency thinks
 may be relevant and necessary for verification of
 reports or for determination of compliance with
 Part 50. In effect, it allows MESA to copy company
 medical records, employment records, and other com-
 pany information.
   MESA believes that this provision is necessary if it is
 to be able to develop epidemiological data essential
 to development of effective health standards. It is also
 necessary if MESA is to be able to discover instances
 of intentional violation of statutory or regulatory re-
 quirements. It will allow MESA to control the data
 flow, rather than depend on operator filtered records.
42 Fed. Reg. 55568, 55569 (1977). We agree. The medical
and personnel records are relevant and necessary for
MSHA to determine whether the mines are complying
with the reporting requirements of part 50.
16                                   Nos. 12-2316 & 12-2460

  Our analysis is not altered by Sewell Coal Co. v. Secretary
of Labor, an early decision in which an administrative
law judge held that section 50.41 did not authorize
MSHA to inspect certain employee records, including
medical and personnel records similar to those de-
manded here. 1 FMSHRC 864, 869-73 (1979). Although
the ALJ’s analysis and decision support petitioners’
arguments here, we are not bound by, nor need we
defer to, that ALJ’s decision, as it is not the “agency’s
construction of the statute which it administers.” See
Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 842-43 (1984); see also Olson v. Fed. Mine
Safety & Health Review Comm’n, 381 F.3d 1007, 1014 (10th
Cir. 2004) (under Mine Safety Act, ALJ’s “decision is not
entitled to deference, however, because the Commission
did not review the ALJ’s decision, and the decision is
therefore not binding precedent under the Commission’s
rules,”), citing 29 C.F.R. § 2700.72 (currently 29 C.F.R.
§ 2700.69(d)) (“A decision of a Judge is not a precedent
binding upon the Commission.”).
  Nevertheless, we recognize that the ALJ gave serious
consideration to the problem, and we can and should
consider the merits of his reasoning. The reason that
Sewell Coal is not persuasive is that the ALJ’s decision
rested on constitutional avoidance grounds that are no
longer pertinent. The ALJ determined that neither
section 50.41 nor section 813 of the statute permitted
MSHA to inspect the records without a warrant because he
interpreted both sections in a way that he intended to
avoid any potential conflict with the Constitution. Sewell
Coal, 1 FMSHRC at 871, 873. Sewell Coal, however, came
Nos. 12-2316 & 12-2460                                     17

before the Supreme Court held in Donovan v. Dewey that
MSHA may conduct warrantless inspections under the
Mine Safety Act and that such inspections do not offend
the Fourth Amendment. 452 U.S. 594, 602-06 (1981). The
Supreme Court’s reasoning in Donovan altered the con-
stitutional analysis applicable to MSHA inspections. We
analyze the constitutionality of the record demands in light
of Donovan and other cases below when we consider the
mine operators’ and miners’ Fourth Amendment chal-
lenges. On the issue of statutory and regulatory authority,
though, Donovan undermined the reasoning of Sewell Coal.


    2.   Validity of Section 50.41 Under the Mine Safety Act
  Since section 50.41 authorizes MSHA to demand the
records at issue here, we now turn to the statutory
validity of section 50.41 as a regulation implementing
the Mine Safety Act. The mine operators and miners
argue that, even if section 50.41 authorizes the demands,
they still exceed the bounds of authority given to
MSHA in the Mine Safety Act because section 813 cannot
be read to permit MSHA to require mines to produce
employee medical and personnel records.
  We disagree. We read section 813, particularly sub-
sections 813(a) and 813(h), to authorize MSHA to promul-
gate a regulation that requires mine operators to permit
MSHA to review files that are relevant for verifying
compliance with other reporting requirements. Because
section 50.41 is a regulation promulgated by the
Secretary under the authority of the Mine Safety Act, we
apply the Chevron two-step analysis to determine whether
18                                  Nos. 12-2316 & 12-2460

the regulation and the demands it authorizes are a per-
missible construction of the statute. See Chevron, 467
U.S. at 842-43.
  First, we consider whether “Congress has directly
spoken to the precise question at issue,” here, whether
the Secretary may promulgate a regulation and interpret
it to require mine operators to produce employee
records that they are not otherwise required to maintain
but that are necessary or relevant for MSHA to verify com-
pliance with other reporting requirements. Chevron, 467
U.S. at 842-43. If the Mine Safety Act clearly addresses
this question, then we must “give effect to the unam-
biguously expressed intent of Congress.” Id. If the Act
does not directly answer the question, we consider
whether the Secretary’s answer — that she is so
authorized — is “arbitrary, capricious, or manifestly
contrary to the statute.” Chevron, 467 U.S. at 844.
  Section 813 is the source of MSHA’s broad inspection
power under the Mine Safety Act. Specifically, section
813(a) grants MSHA broad authority to inspect and
investigate mines for several purposes, including:
     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, . . . and deter-
     mining whether there is compliance with the manda-
     tory health or safety standards or with any citation,
     order, or decision issued under this subchapter
     or other requirements of this chapter.
30 U.S.C. § 813(a).
Nos. 12-2316 & 12-2460                                    19

  Related to this inspection authority, section 813(h)
imposes duties on mine operators to provide reports,
keep records, and provide information on demand of the
Secretary:
    In addition to such records as are specifically required
    by this chapter, every operator of a coal or other
    mine shall establish and maintain such records,
    make such reports, and provide such information, as
    the Secretary . . . may reasonably require from time
    to time to enable him to perform his functions
    under this chapter. . . .
30 U.S.C. § 813(h).
  In the first step of Chevron analysis, the statutory lan-
guage does not directly tell us whether MSHA may
require mines to produce employee records, beyond
those they are already required to maintain, to verify
reporting compliance, as section 50.41 authorizes.
Certainly section 813(h) unambiguously requires mines
to provide MSHA with records, reports, and informa-
tion beyond what mines are otherwise required to main-
tain. The sentence’s opening clause makes clear that
the reporting requirements under that section are “[i]n
addition to such records as are specifically required by
this chapter.” But the question here is a little more
specific: whether MSHA can require mines to produce
employee records, beyond those required to be main-
tained, for the purpose of verifying other reporting require-
ments, as section 50.41 permits. Section 813(h) provides
that MSHA may “reasonably require” mines to produce
non-required records when the additional informa-
20                                Nos. 12-2316 & 12-2460

tion would enable MSHA “to perform [its] functions”
under the Act. This text permits MSHA to make infor-
mation demands for a wide range of purposes — any
reasonable requirement that would help MSHA fulfill
the purposes of the Mine Safety Act. There is a little
room for reasonable argument about whether the
statute authorizes MSHA more specifically to require
mines to provide documents that would verify com-
pliance with other reporting requirements.
  The statute certainly does not forbid MSHA’s actions,
but for purposes of argument, therefore, we will
proceed to the second step of Chevron analysis and de-
termine whether the Secretary’s position is a “permis-
sible construction” of the statute. 467 U.S. at 843. We
find that it is. Section 813(h) permits MSHA to require
mines to produce documents not otherwise required
to be maintained as long as it does so “reasonably” and
in order to “enable [it] to perform [its] functions under
the Act.” Section 50.41 and the document demands here
are well within those bounds. First, it is reasonable for
MSHA to require mines to provide information to
verify required reports. To preclude MSHA from doing
so would reduce the value of the required reports. More-
over, the specific demands made here are limited in
scope, manner, and time. Their scope is tailored to
include only information that would be needed to verify
compliance with 7000-1 and 7000-2 reports (informa-
tion related to accidents, injuries, illnesses, and total
employee work hours). The manner is reasonable, for
MSHA is demanding only to inspect and copy the
relevant records, not to rummage through mine offices.
Nos. 12-2316 & 12-2460                                  21

The time limits are reasonable, covering records from
only one year.
  Second, MSHA’s functions under the Act include veri-
fying the accuracy of required reports. Verifying com-
pliance with the Mine Safety Act and relevant regula-
tions is one of the express purposes for which sec-
tion 813(a) authorizes MSHA to inspect and investigate
mines. These document demands do just that — enable
MSHA to verify the accuracy of mine injury reports.
Since section 813 gives MSHA the authority to make
reasonable records demands that it deems necessary
to fulfill its purposes under the statute (which expressly
include verifying compliance), section 50.41 and the
demands here fall within the limits on MSHA’s
authority imposed by section 813. MSHA’s interpreta-
tion that the Act permits section 50.41 and these
demands is certainly not “arbitrary, capricious, or mani-
festly contrary to the statute.” Chevron, 467 U.S. at 844.
  Petitioners point to a new bill in the House of Represen-
tatives that would amend the Mine Safety Act to give
MSHA express subpoena powers, as evidence that the
current statutory language does not permit the record
demands at issue here. See Robert C. Byrd Mine Safety
Protection Act of 2013, H.R. 1373 113th Cong. § 102
(amending Mine Safety Act to give MSHA general sub-
poena power). Citing a statement by the bill’s sponsor,
petitioners argue that the proposed extension of general
subpoena power is intended to address the “[p]roblem
[that] MSHA lacks subpoena power for investigations
and inspections.” See Committee on Education and
22                                 Nos. 12-2316 & 12-2460

the Workforce Democrats, H.R. 1373: The Robert C.
Byrd Mine Safety Protection Act of 2013, at
http://democrats.edworkforce.house.gov/bill/robert-c-byrd-
mine-safety-protection-act-2013 (last visited April 24,
2013). Petitioners argue that this proposed legislation
highlights the fact that MSHA currently lacks such
power. We are not persuaded. This legislative attempt
to expand MSHA’s powers does not require us to
interpret its existing powers narrowly. There are plenty
of possible reasons to propose such legislation besides
an understanding that MSHA currently could not
demand the records here. The fact that this issue is
being litigated in these petitions for review could prompt
MSHA or others to undertake legislative efforts to
clarify and support its understanding of its powers. The
proposed legislation does not change our determination
that the current statutory text supports MSHA’s
actions here.
   Before concluding the Chevron discussion, we note
that petitioners argue that Chevron deference is inap-
propriate in this case because MSHA has held incon-
sistent positions as to whether the Mine Safety Act autho-
rizes the record demands. We are not persuaded. First,
as a matter of law, “inconsistency is not a basis for de-
clining to analyze the agency’s interpretation under
the Chevron framework.” National Cable & Telecommunica-
tions Ass’n v. Brand X Internet Services, 545 U.S. 967, 981
(2005). Second, as a matter of fact, petitioners have not
shown that the agency’s position has been inconsistent.
As evidence of inconsistency, petitioners rely on a letter
written by Edward Clair, the Associate Solicitor for
Nos. 12-2316 & 12-2460                                 23

Mine Safety and Health, to the National Stone Associa-
tion in 1987. The letter responded to an inquiry about
“the limits on MSHA’s legal authority to examine
‘payroll and personal files containing medical and other
information not required to be maintained by Part 50.’ ”
Joint App. 75. Petitioners read portions of the letter
as limiting MSHA’s authority to inspect personnel
files to those records required to be maintained under
Part 50. But the letter concluded: “MSHA in Part 50
audits routinely seeks access to information related to
accidents and injuries which the Agency believes is
relevant and necessary to verification of compliance
with Part 50. It is our position that as long as these
audits do not constitute the ‘wholesale’ warrantless
search proscribed [by a recent decision of the Commis-
sion, Sewell Coal Co. v. MSHA, 1 FMSHRC 864 (1979),
discussed above], they are entirely permissible.” Joint
App. 76-77. We read the 1987 letter as actually consistent
with MSHA’s current position.


   3. Petitioners’ Other Objections
  Petitioners object to this reading of the statute and
regulations on two other grounds: (1) that under
section 813(h) MSHA can reasonably require records
“from time to time” only by promulgating a regulation
via notice-and-comment rulemaking, and (2) that MSHA
cannot rely on section 50.41 to authorize the demands
because section 50.41 itself was not properly promul-
gated. Neither of these objections is persuasive.
  First, the argument that section 813(h) requires notice-
and-comment rulemaking before any set of records or
24                                 Nos. 12-2316 & 12-2460

information falls under its scope does not make a dif-
ference here. MSHA (actually, its predecessor MESA)
did in fact promulgate a regulation specifically stating
that mines must make certain records available for in-
spection: section 50.41 itself. Moreover, section 813(h)
does not indicate that MSHA must promulgate a
specific regulation via notice-and-comment rulemaking
any time it wishes to make records subject to section
813(h). The section does not say MSHA “may reasonably
require through rulemaking” but instead says only
“from time to time.” We interpret the phrase as more
likely to mean that demands may be made from time
to time.
   On this point, both sides claim support from a par-
ticular episode in the legislative history: that Congress
enacted the Mine Safety Act without language present
in earlier bills requiring operators to maintain records
“pursuant to regulations issued by the Secretaries.” See
H.R. Conf. Rep. No. 95-655, at 45 (1977), reprinted in 1977
U.S.C.C.A.N. 3485, 3493. The Senate committee report
stated that the language was removed “because the
conference substitute provides elsewhere for certain
necessary recordkeeping,” an explanation that does not
add much to either side’s argument. We read the plain
text of the statute as not requiring MSHA to promulgate
specific rules whenever it wants to be able to make rea-
sonable demands for records under section 813(h). Even
if it were required to do so, it has met that obligation
with section 50.41.
  Second, it is far too late to challenge the validity of
section 50.41 with an argument that the Secretary did not
Nos. 12-2316 & 12-2460                                25

adequately explain the rationale for the regulation.
Upon promulgating a rule, agencies must provide a
“concise general statement” of the basis and purpose of
the rule. 5 U.S.C. § 553(c). The Mine Safety Act requires
that any court challenges to the validity of a regulation
be brought within sixty days of the rule’s promulgation.
30 U.S.C. § 811(d). Section 50.41 was promulgated
on December 30, 1977.
  For all these reasons, we find that the Mine Safety Act
and relevant regulations authorize MSHA to require
mine operators to permit MSHA to review the em-
ployee medical and personnel records demanded here.


 B. Fourth Amendment
  Petitioners also challenge the record demands on
Fourth Amendment grounds. The mine operators argue
that the demands violate their right to be free
from warrantless searches, seeking to distinguish these
demands from the warrantless mine inspections per-
mitted under Donovan v. Dewey, 452 U.S. 594 (1981). The
miners argue that the demands invade their personal
privacy. Although the mine operators have framed the
issue primarily in terms of warrantless searches, we
conclude that the record demands are best understood,
in constitutional terms, as administrative subpoenas. The
document demands do not violate mine operators’
Fourth Amendment rights because they are limited in
scope and reasonably necessary to keep mines safe. The
demands also do not violate miners’ Fourth Amendment
rights because MSHA is legally constrained (and
26                                 Nos. 12-2316 & 12-2460

took precautionary measures) to keep miners’ medical
information confidential. Miners’ interest in keeping
their private information out of the wrong hands is out-
weighed by the government’s interest in MSHA’s
purpose — miner safety and health.


     1. Mine Operators
  Petitioners argue that the record demands here are
warrantless searches and prohibited by the Fourth Amend-
ment. A government agency typically must secure a
warrant before conducting a search of commercial prem-
ises or a business. See v. City of Seattle, 387 U.S. 541
(1967). A warrant is not always necessary, though, to
search a business operating in a pervasively regulated
industry because businesses in those industries have
lower expectations of privacy. New York v. Burger,
482 U.S. 691, 702 (1987) (in closely regulated industries,
“where the privacy interests of the owner are weakened
and the government interests in regulating particular
business are concomitantly heightened, a warrantless
inspection of commercial premises may well be rea-
sonable within the meaning of the Fourth Amendment”);
United States v. Biswell, 406 U.S. 311 (1972); Colonnade
Catering Corp. v. United States, 397 U.S. 72 (1970).
  In Donovan v. Dewey, the Supreme Court held that
mining falls into this category — it is so pervasively
regulated that it should be excepted from the warrant
requirement for the purposes of regulating mine safety.
The Court observed that the 1977 Mine Safety Act regu-
lated “industrial activity with a notorious history of
Nos. 12-2316 & 12-2460                                  27

serious accidents and unhealthful working conditions,”
and that the Act’s regulation of mines “is sufficiently
pervasive and defined that the owner of such a facility
cannot help but be aware that he ‘will be subject to ef-
fective inspection.’ ” 452 U.S. at 602-05, citing Biswell,
406 U.S. at 316. The Court upheld the Mine Safety
Act’s scheme of warrantless inspections of surface and
underground mines.
   Donovan is highly instructive but does not fully
answer the Fourth Amendment question here, for
Donovan concerned physical safety inspections of mines,
not demands for production of medical and personnel
files in mine custody. While Donovan found that the
mining industry is sufficiently regulated to justify an
exception from the warrant requirement, the fact that
these document demands occur in the context of a perva-
sively regulated industry does not end the inquiry.
Warrantless searches of pervasively regulated industries
must still be reasonable. Burger, 482 U.S. at 702.
  In determining whether a warrantless search of a
closely-regulated enterprise pursuant to a regulatory
scheme is reasonable, the Supreme Court has taught
that such a search is reasonable if it satisfies three ele-
ments: the government has a substantial interest in the
regulatory scheme prompting the search, a warrantless
search is necessary to accomplish the goals of the reg-
ulatory scheme, and the regulatory scheme provides
enough certainty and regularity to put business
operators on notice and to limit individual agent dis-
cretion. See Burger, 482 U.S. at 701-03.
28                                 Nos. 12-2316 & 12-2460

  Although the parties have briefed the issue primarily
in terms of warrantless searches, the distinct differences
between the document demands here and unannounced
physical inspections, as in Donovan or Burger, persuade
us that the Fourth Amendment issues are better under-
stood in terms of the law applicable to administrative
subpoenas. In essence, what section 50.41 permits is not
an intrusion in which government inspectors them-
selves open file cabinets and examine computer hard
drives, but rather an administrative subpoena that
requires mine operators to allow MSHA inspectors to
review and keep copies of the records. The record
demands meet the Fourth Amendment requirements
for administrative subpoenas.


     a. The Nature of MSHA’s Record Demands
  Petitioners argue that the record demands here run
afoul of the Fourth Amendment protections for com-
mercial enterprises. The record demands here, however,
are of a different nature than the challenged searches
in the Supreme Court’s cases delineating the Fourth
Amendment’s protections for closely-regulated indus-
tries. Most of those cases address physical inspections
of commercial premises. See, e.g., Burger, 482 U.S. at 712
(inspection of vehicle identification numbers at junk-
yard was excepted from warrant requirement after
owner refused to permit officers to review his vehicle
records); Donovan, 452 U.S. at 602 (warrantless physi-
cal inspection of mine for apparent safety violations
as authorized by Mine Safety Act did not violate
Nos. 12-2316 & 12-2460                                 29

Fourth Amendment); Marshall v. Barlow’s, Inc., 436 U.S.
307, 322-25 (1978) (entry into electrical and plumbing
installation business to inspect for workplace safety
conditions by OSHA inspector required warrant).
   In this case, however, MSHA is not seeking to require
mine operators to permit inspectors to enter mine opera-
tors’ private offices and search through mine operators’
file cabinets and computer files. Rather, MSHA seeks
only to require the mine operators to provide certain
documents. It is up to the mine operators them-
selves to search for, review, identify, and produce the
responsive documents. For Fourth Amendment pur-
poses, therefore, such demands are administrative sub-
poenas rather than physical searches carried out by
government agents. See Oklahoma Press Pub. Co. v. Walling,
327 U.S. 186, 195 (1946) (subpoenas requiring news-
paper publishing companies to produce specified rec-
ords that would determine compliance with Fair Labor
Standards Act were not searches for Fourth Amendment
purposes: “the records in these cases present no question
of actual search and seizure, but raise only the question
whether orders of court for the production of specified
records have been validly made”); RSM, Inc. v. Buckles,
254 F.3d 61, 63, 69 (4th Cir. 2001) (“demand letters” from
ATF requiring firearms licensees to “submit information
concerning their firearms purchases and sales for the
past three years” were “analogous to [ ] administrative
subpoena[s]” and met the Fourth Amendment’s require-
ments for such subpoenas).
  Although the Mine Safety Act does not expressly refer
to MSHA’s document review power as the power to
30                                Nos. 12-2316 & 12-2460

issue an “administrative subpoena,” the authority the
Act confers upon MSHA amounts to an administrative
subpoena in substance. It is the authority to inspect
and copy specific documents in the possession of mine
operators and the authority to issue citations and
orders and impose penalties if mine operators do not
cooperate. It is true that most administrative subpoenas
are not self-executing, meaning that the agency cannot
seek penalties for non-compliance until after a judicial
officer has ordered compliance. But here, as we discuss
further below, the Act provides mine operators with a
variety of tools with which to defer and mitigate the
imposition of penalties, thus mitigating the extent to
which MSHA’s document inspection demands may be
more coercive than ordinary administrative subpoenas.
  For purposes of our Fourth Amendment analysis,
we look to the substance of MSHA’s inspection power
rather than how the Act nominally refers to those powers.
And the power at issue here more closely resembles
an administrative subpoena than a search or a seizure.
A subpoena also implicates the Fourth Amendment, but
only to the extent of requiring that the demand for in-
formation be “sufficiently limited in scope, relevant in
purpose, and specific in directive so that compliance
will not be unreasonably burdensome.” See v. City of
Seattle, 387 U.S. 541, 544 (1967). The record demands
here satisfy these criteria.
  First, the record demands are sufficiently limited in
scope. The records demanded are limited to those that
are necessary for MSHA to determine compliance
Nos. 12-2316 & 12-2460                                 31

with 7000-1 and 7000-2 reports: personnel records to
verify employee hours work and medical records to verify
accurate injury and illness reporting. The demands
are narrowly written so as to not require mine operators
to produce records that would not aid MSHA in
verifying compliance with Part 50 reporting require-
ments. Moreover, the demands cover relevant records
from only one year. In light of these limits, the demands
meet the first prong of the Fourth Amendment’s require-
ments for administrative subpoenas.
   Second, the record demands are relevant to the goals
of the statutory scheme and the government’s interest
in miner safety. Congress has articulated a strong gov-
ernment interest in mine safety that drives the system
of Part 50 audits and these demands for documents
to verify compliance with other important regulatory
requirements. When Congress passed the Mine Safety
Act in 1977, it responded to a pressing need for tighter
safety regulation of mines. See Donovoan, 452, U.S. at 602
(“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,” and
“Congress was plainly aware that the mining industry
is among the most hazardous in the country”).
  The importance of miner safety remains strong today.
Unfortunately, we need only look to the twenty-nine
miners who died in the 2010 disaster at the Upper Big
Branch mine — the “deadliest coal mine disaster this
nation has experienced in forty years.” See A Tragic
Anniversary: Improving Safety at Dangerous Mines
32                                 Nos. 12-2316 & 12-2460

One Year After Upper Big Branch: Hearing Before the
S. Comm. on Health, Education, Labor and Pensions,
112th Cong. 1 (2011) (statement of Joseph A. Main at 1,
Assistant Secretary of Labor for Mine Safety and Health).
  An MSHA briefing following the Upper Big Branch
accident reveals the importance of accurate reporting
of safety violations. MSHA reported that in the years
preceding the accident, the number of safety violations
and citations for Upper Big Branch mine had increased
and were “not only [ ] more numerous than average,
they [were] also more serious.” Briefing by Department
of Labor, Mine Safety and Health Administration on
Disaster at Massey Energy’s Upper Big Branch Mine-
South at 4 (April 5, 2010). These numerous and serious
violations would have put Upper Big Branch into a
“pattern of violation” status (thus permitting heightened
scrutiny) in the year before the accident, but for an error
in MSHA’s reporting system. Although this computer
error was a different kind of error than deliberate or
unintentional under-reporting of injuries on 7000-1 forms,
the error tragically illustrates the importance of ensuring
accurate reports of injuries and illnesses. Artificially
low injury rates and severity measures can cause MSHA
to miss mines that should otherwise be in POV status
and subject to more rigorous inspection and regulation.
  Finally, the record demands are specific enough that it
will not be unreasonably burdensome for mine oper-
ators to comply with the demands. The letters MSHA
sent to mine operators specifically listed the documents
to be reviewed (e.g., “All payroll records and time sheets
Nos. 12-2316 & 12-2460                                   33

for all individuals working at your mine for the covered
time period,” Joint App. 32), and listed specific examples
of the types of documents included in the demand:
    All medical records, doctor’s slips, worker compensa-
    tion filings, sick leave requests or reports, drug
    testing documents, emergency medical transportation
    records, and medical claims forms in your posses-
    sion relating to accidents, injuries, or illnesses that
    occurred at the mine or may have resulted from
    work at the mine . . . .
Id. These demands are quite specific with regard to the
type of records demanded (medical and payroll).
While the medical record demand may require mine
operators to sort between relevant and irrelevant
medical records, the demand provides specific enough
guidance so that any such sorting should not unrea-
sonably burden mine operators. The demand sets a
clear standard for which medical records are relevant:
accidents, injuries, or illnesses, that occurred at the mine
or may have resulted from work at the mine. Sorting
between relevant and irrelevant medical records with
this guidance should not be burdensome for mine opera-
tors, who are usually quite familiar with mine injuries
and illnesses.
  Thus, although the petitioners ask us to invalidate
these demands as warrantless inspections offensive to
the Fourth Amendment, we find that they are in sub-
stance administrative subpoenas and they satisfy the
Fourth Amendment’s requirements for such subpoenas.
34                                 Nos. 12-2316 & 12-2460

     2. Miners
  In addition to the mine operators, the intervening
miners also challenge the validity of the document de-
mands on Fourth Amendment grounds, arguing that
they have a constitutionally protected privacy interest
in their personal medical records and that the regula-
tory mechanisms used by MSHA violate their Fourth
Amendment rights by “attaching legal jeopardy to a
refusal to produce confidential records without a prior
opportunity for judicial review.” Br. for Petitioners
Bickett, et al., at 36.
  We recognize the gravity of this concern. Medical
records can contain some of the most private informa-
tion about a person. Any scheme that puts those records
in the hands of strangers, even a government agency, is
a serious matter. Even though the demanded records
are limited to those related to injuries and illnesses suf-
fered due to mine work, we recognize that these records
could reveal employees’ medical history unrelated to
mine work. For example, doctor’s slips may contain
information about multiple conditions, including condi-
tions unrelated to mine work, and mine operators may
choose to permit MSHA to inspect an entire file of
medical records without first having mine personnel
sort between relevant and irrelevant records.
  Courts recognize that private medical records warrant
some privacy protection under the Fourth Amendment.
See Whalen v. Roe, 429 U.S. 589, 599-604 (1977) (acknowl-
edging Fourth Amendment may protect “zone of pri-
vacy,” which includes protection of “the individual
Nos. 12-2316 & 12-2460                                   35

interest in avoiding disclosure of personal matters”);
United States v. Westinghouse Elec. Corp., 638 F.2d 570, 577
(3d Cir. 1980) (“[t]here can be no question that an em-
ployee’s medical records, which may contain intimate
facts of a personal nature, are well within the ambit of
materials entitled to privacy protection,” generally
basing this entitlement to privacy protection in a “not yet
[ ] delineated” constitutional right to privacy as discussed
in Whalen, 429 U.S. at 599-600).
  The extent of the Fourth Amendment’s protection in
this area is not clear. In Anderson v. Romero, 72 F.3d 518
(7th Cir. 1995), we traced the history of the “legal concept
of privacy” and noted that the “right to conceal one’s
medical history is readily derivable from the branch of
the tort of invasion of privacy” in the common law,
but that “[n]othing in the Fourth Amendment . . . bears
directly on the interest in the privacy of one’s medical
records.” Id. at 521-22. We found the best indication of
such a right in Whalen and the cases that followed it,
but noted that Whalen was “very vague” on the possi-
bility of a constitutional right to the privacy of one’s
medical records. Id. at 522. (We ultimately held that
neither the common law invasion of privacy nor the
possible Fourth Amendment right to privacy of med-
ical records could support a cause of action by a state
prisoner against a prison officer who revealed to an-
other guard that the prisoner had AIDS).
  This is not the case in which to sort out this doctrinal
ambiguity, as the record demands here do not come
close to invading any privacy protection the Fourth
36                                  Nos. 12-2316 & 12-2460

Amendment or the common law might offer. Cf. National
Aeronautics & Space Admin. v. Nelson, 131 S. Ct. 746, 756-57
(2011) (“as was our approach in Whalen, we will assume
for present purposes that the Government’s challenged
inquiries implicate a privacy interest of constitutional
significance,” holding that, “whatever the scope of this
interest,” it did not preclude the government from
asking questions about treatment or counseling for
illegal drug use on employment background question-
naires otherwise protected from unwarranted disclosure
by the Privacy Act), citing Whalen, 429 U.S. at 599, 605.
  Any possible Fourth Amendment right to the privacy
of the miners’ medical records here is limited by the
fact that when MSHA sought to inspect and copy the
records, they were in the custody of the mines. In
holding that a bank customer held no Fourth Amend-
ment possessory interest in his bank records that the
bank provided to government officials, the Supreme
Court noted:
     This Court has held repeatedly that the Fourth
     Amendment does not prohibit the obtaining of
     information revealed to a third party and conveyed
     by him to Government authorities, even if the infor-
     mation is revealed on the assumption that it will
     be used only for a limited purpose and the con-
     fidence placed in the third party will not be betrayed.
United States v. Miller, 425 U.S. 435, 443 (1976) (collecting
cases).
  Our court has similarly applied this principle. In Young
v. Murphy, 90 F.3d 1225, 1236 (7th Cir. 1996), we affirmed
Nos. 12-2316 & 12-2460                                    37

the district court’s finding that qualified immunity pro-
tected investigators who inspected a deceased man’s
nursing home records, where his estate alleged that the
deceased’s Fourth Amendment rights were violated by
the inspection. We found that “no such [Fourth Amend-
ment] right has been clearly established,” and that the
estate alleged no facts showing that the deceased held
a possessory interest in the inspected records, as
“hospital records are typically the property of the
hospital rather than a patient.” Id. at 1236.
  But some personal records are so private that, even
when entrusted to another, an individual retains some
amount of protection of the privacy of the records in
the third party’s custody. In Whalen, the Supreme
Court implicitly acknowledged the possibility of a right
against compulsory disclosure of a person’s medical
records to the government while upholding a New York
law that required doctors to file with the state copies
of every prescription for drugs deemed to have potential
for abuse. 429 U.S. at 599-604. This right is not absolute,
however. Whalen indicated that there are circumstances
in which the government may obtain access to private
personal records in third-party custody:
   disclosures of private medical information to
   doctors, to hospital personnel, to insurance com-
   panies, and to public health agencies are often an es-
   sential part of modern medical practice even
   when the disclosure may reflect unfavorably on the
   character of the patient. Requiring such disclosure to
   representatives of the State having responsibility for the
38                                  Nos. 12-2316 & 12-2460

     health of the community, does not automatically amount
     to an impermissible invasion of privacy.
429 U.S. at 602 (emphases added).
  Whether the government can require banks, medical
providers, or employers to turn over private medical
records of customers, patients, or employees that are
in their possession is a difficult question of balancing.
The Third Circuit provided excellent guidance for this
balancing in United States v. Westinghouse Electric Corp.,
in which it considered whether OSHA could require
an electric insulator manufacturing company to turn
over all of its employees’ medical records to determine
the possible health effects of mold used to produce the
insulators. 638 F.2d 570 (3d Cir. 1980). The court looked
to several factors to balance the government’s interest
in public health against the privacy interests of the em-
ployees. Those factors included:
     the type of record requested, the information it does
     or might contain, the potential for harm in any sub-
     sequent nonconsensual disclosure, the injury from
     disclosure to the relationship in which the record
     was generated, the adequacy of safeguards to
     prevent unauthorized disclosure, the degree of need
     for access, and whether there is an express statutory
     mandate, articulated public policy, or other recog-
     nizable public interest militating toward access.
Id. at 578.
  Based on our previous discussions, two of these
factors — the need for access and whether there are
Nos. 12-2316 & 12-2460                                 39

express statutory or regulatory mandates requiring
access — weigh in favor of MSHA’s access to the records.
  Another of these factors — the precautions in place to
protect the information from unauthorized disclosure
to unintended parties — was emphasized by the Su-
preme Court in Whalen and seems especially significant
here. In Whalen the Court noted that the government
accumulates “vast amounts of personal information”
and that the “right to collect and use such data for
public purposes is typically accompanied by a con-
comitant statutory or regulatory duty to avoid unwar-
ranted disclosures.” 429 U.S. at 605.
  Here, this factor weighs in favor of MSHA’s document
demands. The mechanism for collecting information
used here is accompanied by both statutory and
regulatory duties for MSHA agents to keep the records
confidential and avoid unwarranted disclosures. First,
like all federal officials handling personal information,
MSHA agents are bound by the Privacy Act not to
disclose any personal information and to take certain
precautions to keep personal information confidential.
5 U.S.C. § 552a(b) (“No agency shall disclose any
record which is contained in a system of records by any
means of communication to any person, or to another
agency, except pursuant to a written request by, or with
the prior written consent of, the individual to whom
the record pertains . . . .”); see also 5 U.S.C. § 552a(c)
(outlining accounting precautions agencies must take
with regard to personal information); U.S. Dep’t of Navy
v. Federal Labor Relations Auth., 975 F.2d 348, 350 (7th
40                                    Nos. 12-2316 & 12-2460

Cir. 1992) (reiterating Privacy Act’s requirement that
federal officials not disclose personal information with-
out consent).
   Although there are exceptions to the Privacy Act’s
protection against disclosures, none of those excep-
tions change our determination. Some of the exceptions
permit disclosures that would not be unwarranted in
this circumstance. For example, exception (1) is for
officers of the agency who need the records. Excep-
tion (3) is for disclosures for the purpose the informa-
tion was collected. Exception (5) allows disclosure
without any identifying information for purposes of
statistical research. Exception (7) allows disclosure to
other jurisdictions for law enforcement. And excep-
tion (8) allows disclosure in compelling circumstances
“affecting the health or safety of an individual.” One
exception does not apply in this context: exception (6)
for the National Archives, where the record has suf-
ficient historical or other value. 1 See 5 U.S.C. § 552a(b).
  The second exception allows disclosure of records
required to be disclosed under the Freedom of Informa-



1
   Some of the exceptions would not be relevant for these
types of documents: exception (4) for the census bureau,
exception (9) for disclosure to Congress, and exception (12) for
disclosure to a consumer reporting agency. Finally, one excep-
tion would inherently provide sufficient protection of min-
ers’ privacy interests: exception (11) allows disclosure pursu-
ant to the order of a court of competent jurisdiction. 5 U.S.C.
§ 552a(b).
Nos. 12-2316 & 12-2460                                   41

tion Act (FOIA). See Pub. L. No. 89-554, 80 Stat. 378,
codified at 5 U.S.C. § 552 (FOIA); 5 U.S.C. § 552a(b)(2)
(Privacy Act’s second exception). The records demanded
here, however, are not subject to disclosure under
FOIA. They fall into FOIA’s sixth exemption, for “person-
nel and medical files and similar files the disclosure
of which would constitute a clearly unwarranted inva-
sion of personal privacy.” 5 U.S.C. § 552(b)(6); see also
U.S. Dep’t of Navy, 975 F.2d at 350. The medical records
at issue here easily pass both parts of the analysis
under FOIA exemption six. First, they are “personnel
and medical files and similar files,” and second, the
individual privacy concerns the records implicate out-
weigh FOIA’s purpose of “shed[ding] light on an
agency’s performance of its statutory duties.” U.S. Dep’t of
Defense v. Federal Labor Relations Auth., 510 U.S. 487, 497
(1994), citing U.S. Dep’t of Justice v. Reporters Committee
for BB8 Freedom of Press, 489 U.S. 749, 773 (1989); see also
Dep’t of Air Force v. Rose, 425 U.S. 352, 372 (1976) (exemp-
tion six “require[s] a balancing of the individual’s right
of privacy against the preservation of the basic pur-
pose of the Freedom of Information Act to open agency
action to the light of public scrutiny”) (internal quotation
marks omitted).
  The records demanded here are medical records.
Absent extraordinary circumstances, it would be a viola-
tion of the miners’ privacy if the records were revealed
beyond the agency, and revealing individual miners’
medical or personnel information would not advance
public transparency of the operations of the Department
of Labor or MSHA. See Lakin Law Firm, P.C. v. F.T.C., 352
42                                   Nos. 12-2316 & 12-2460

F.3d 1122, 1124 (7th Cir. 2003) (“[P]ersonal identifying
information is regularly exempt from disclosure. And
that is as it should be, for the core purpose of the
FOIA is to expose what the government is doing, not
what its private citizens are up to.”); cf. Rose, 425 U.S. at
372 (case summaries of honor and ethics hearings in
the military were not within exemption six after
personal and other identifying information had been
deleted); U.S. Dep’t of Navy, 975 F.2d at 350 (union em-
ployees’ names and addresses would fall under FOIA’s
exemption six); Consumers’ Checkbook Center for the
Study of Services v. U.S. Dep’t of Health and Human
Services, 554 F.3d 1046, 1050-56 (D.C. Cir. 2009) (physicians’
Medicare receipts and financial records fall under ex-
emption six).
   Beyond the protection of the Privacy Act, the Secretary
of Labor has adopted specific training and protocols
to ensure the confidentiality of personal information. The
Secretary implemented rules of conduct that require
department employees, managers, contractors, licensees,
certificate holders, and grantees to follow a set of rules
designed to minimize any accidental disclosure of
personal information (for example, not sharing
passwords, not uploading, downloading, or transferring
files with personal information, and immediately re-
porting theft). U.S. Dep’t of Labor, Office of Chief In-
formation Officer, Rules of Conduct and the Conse-
quences for Failure to Follow Rules Concerning the Safe-
guarding of Personally Identifiable Information (April 25,
2011), Joint App. 96. The document lays out consequences
for failure to follow the rules and has space
Nos. 12-2316 & 12-2460                                 43

for the employee and supervisor to sign and date
upon receipt of the policy and the related training.
  The miners argue that these rules and protocols are
insufficient because the Secretary implemented them
after the initial records demands at issue here, but how
recently they were adopted is not relevant to our analy-
sis. We are convinced that any private medical or per-
sonnel information the Secretary or her agents obtain
pursuant to these audits will be adequately protected.
  Thus, despite the personal nature of the medical
records demanded here, we find that the demands do
not violate miners’ privacy or Fourth Amendment
rights because the government’s need for the records
outweighs the miners’ privacy interest in the records, the
records are no longer in the miners’ custody, and
the Privacy Act and MSHA’s training and protocols
adequately protect against unwarranted disclosure by
MSHA agents. The warrantless demands for inspection
of these records do not violate the Fourth Amendment
rights of either the mine operators or the miners.


 C. Due Process and Penalties
  Petitioners and amicus National Mining Association
argue that the audit scheme violates mine operators’ due
process rights because it permits MSHA to impose
daily penalties on mines not complying with the
record demands before any opportunity for judicial
review of the violations or demands.
 MSHA proposed daily penalties for one mine, Peabody
Midwest, after it failed to comply with the failure-to-
44                                 Nos. 12-2316 & 12-2460

abate citations under 30 U.S.C. § 814(b) that MSHA
issued when the mine refused to provide the documents.
If a mine fails to correct a violation cited under section
814(b), section 815(b) authorizes the Secretary, through
MSHA, to propose a penalty, and MSHA proposed pen-
alties of $4,000 per day on Peabody Midwest, which
were ultimately assessed. (Section 820(b) authorizes
the Commission to assess proposed penalties for failure
to correct a violation after a section 814(b) order.)
Section 815(b)(1)(A) provides mines the opportunity to
challenge the proposed assessment, in response to
which the Commission must hold a hearing, and
section 815(a)(1)(B) permits mines to request temporary
relief from penalties. In determining whether to propose
penalties, the statute directs the Secretary to consider:
“[1] the operator’s history of previous violations, [2] the
appropriateness of such penalty to the size of the
business of the operator charged, [3] whether the
operator was negligent, [4] the effect on the operator’s
ability to continue in business, [5] the gravity of the
violation, and [6] the demonstrated good faith of the
operator charged in attempting to achieve rapid compli-
ance after notification of a violation.” Section 815(b)(2)
accords with section 820(i), which instructs the Com-
mission to consider the same factors in deciding
whether to assess proposed penalties. § 820(i).
  Congress intended this penalty scheme to provide
swift, strong consequences for mines that failed to
correct violations of mine safety rules and regulations.
In passing the Mine Safety Act, Congress noted that the
previous Coal Act’s weak penalty scheme permitted
Nos. 12-2316 & 12-2460                                   45

mines to pay their way through violations and citations,
and that Congress intended to strengthen the penalty
scheme to ensure that mines fully complied with
health and safety standards. The Senate Committee
Report noted:
 The assessment and collection of civil penalties under
 the Coal Act has also been a great disappointment to
 the Committee. The Committee firmly believes that the
 civil penalty is one of the single most effective mecha-
 nisms for insuring lasting and meaningful compliance
 with the law. . . . The Committee firmly believes that
 to effectively induce compliance, the penalty must be
 paid by the operator in reasonably close time proximity
 to the occurrence of the underlying violation.
S. Rep. No. 95-181, at 15-16 (1977), reprinted in 1977
U.S.C.C.A.N. 3401, 3415-16.
  In addition to emphasizing the importance of strong
penalties, the Senate committee also noted problems
with the previous and weaker penalty scheme:
   Final determinations of penalties are not self-enforcing,
   and operators have the right to seek judicial review
   of penalty determinations, and may request a de novo
   trial on the issues in the U.S. District Courts. This
   encourages operators who are not predisposed to
   voluntarily pay assessed penalties to pursue cases
   through the elaborate administrative procedure and
   then to seek redress in the Courts.
Id. at 16, 1977 U.S.C.C.A.N. at 3416. Thus, Congress
intended the scheme to allow MSHA to impose penalties
46                                  Nos. 12-2316 & 12-2460

with teeth, which would actually induce mines to
comply with MSHA’s orders when it found a mine vio-
lated a health or safety rule.
   Petitioners and amicus National Mining Association
argue that this scheme impermissibly forces mine opera-
tors into an impossible choice — either they submit to
violations of mine operators’ and mine employees’
privacy by allowing inspection of the records or they
face staggering penalties that accumulate daily — all
before review by an Article III court. They base this
argument on Ex parte Young, 209 U.S. 123, 146-49 (1908).
The Young case is best known these days for authorizing
suits against state officials to require them to comply
with federal law, despite the Eleventh Amendment to
the Constitution. Here, however, we consider Young for
its more specific facts.
  The Supreme Court held unconstitutional a state statute
that set railroad rates one-third lower than the going rates
at the time, and that also imposed hefty financial and even
criminal penalties for any person or corporation not
abiding by the statutory rates. The Court noted: “[W]hen
the penalties for disobedience are by fines so enormous
and imprisonment so severe as to intimidate the company
and its officers from resorting to the courts to test the
validity of the legislation, the result is the same as if the
law in terms prohibited the company from seeking
judicial construction of laws which deeply affect its
rights.” 209 U.S. at 147. Petitioners and amicus National
Mining Association argue that the penalty scheme here
is similarly flawed because, for mine operators to
Nos. 12-2316 & 12-2460                                   47

challenge the validity of the demands in federal court,
they must violate the orders and submit to daily
penalties, which in this case have accumulated for over
a year.
  We do not find the procedures for imposing penalties
here to be constitutionally flawed. As the Supreme
Court noted in Thunder Basin Coal Co. v. Reich, 510 U.S. 200
(1994), the Mine Safety Act’s procedures differ from the
rate-setting scheme in Ex parte Young in three important
respects. First, mine operators can contest and receive a
hearing on proposed penalties and orders before they
become final. See 30 U.S.C. § 815(b)(1)(A), (d). Second,
mine operators can request that the Secretary delay
imposing the penalties until further review. § 815(b)(2).
Third, penalties are not automatic, but rather within
the discretion of the Secretary to propose under
§ 815(b)(1)(B). See Thunder Basin, 510 U.S. at 217-18
(penalty scheme under Mine Safety Act does not in-
volve “prehearing deprivation” comparable to Ex parte
Young).
   The mine operators here were able to take advantage
of this flexibility. They contested the order and received
a hearing before an ALJ, the Commission, and now this
court. The Secretary granted their request that MSHA
not assess any failure-to-abate penalties until after the
disposition of the hearing before the ALJ, and the Com-
mission granted the mine operators’ request to expedite
its review. Thus, we find that the penalties do not
violate the mine operators’ right to due process because
the statutory scheme offered opportunities both for
review and to mitigate the penalties.
48                                  Nos. 12-2316 & 12-2460

   Another important distinction is that the imposition
of these penalties is discretionary, not automatic. The
Mine Safety Act directs the Secretary and the Commis-
sion to take several factors into consideration before
proposing and assessing penalties, including the size of
the operator, its ability to continue business, and the
gravity of the violation. 30 U.S.C. §§ 815(b)(2), 820(b)(2).
The Secretary exercised discretion here and demon-
strated appropriate fidelity to those factors. Of all the
mines that received failure-to-abate orders, the Secretary
ultimately imposed daily penalties on only one mine
operator — Peabody Midwest. See Joint App. 92. In
its letter notifying Peabody Midwest of the penalties,
MSHA explained the rationale for proposing penalties
according to all six criteria from section 815(b)(1), includ-
ing that Peabody Midwest had a history of violations,
that Peabody Midwest’s violations reflected an “inten-
tional decision not to comply” with the demands, and
that MSHA had no information indicating that the penal-
ties would put Peabody Midwest out of business. Id. at 93.
  Thus, unlike the automatic penalties under the statute
in Ex parte Young, which included time in prison, the
Mine Safety Act requires the Secretary to consider the
appropriateness of imposing a given penalty before
proposing it, which provides an additional layer of
process to mine operators. This comports with cases in
which courts have found no Ex parte Young problem
where, instead of automatic penalties, penalties depend
on the party’s rationale for refusing to pay. Cf. Reisman
v. Caplin, 375 U.S. 440, 446-47 (1964) (tax statute
requiring witnesses or taxpayers to appear in court
Nos. 12-2316 & 12-2460                                        49

subject to contempt does not present Ex parte Young
problem because criminal sanctions and fines do not
apply when summonses are contested in good faith);
Solid State Circuits, Inc. v. EPA, 812 F.2d 383, 388-92 (8th Cir.
1987) (CERCLA’s treble damage penalty was not
due process violation because statute permits agency
not to impose penalty if party had “objectively rea-
sonable basis” for believing order supporting penalties
was “invalid or inapplicable,” even where no oppor-
tunity for prior administrative hearing).
  The procedures for proposing and assessing the penalties
here under the Mine Safety Act did not violate mine
operators’ right to due process under the Fifth Amend-
ment.


  D. Conflict With Other Laws
  Petitioners and amicus National Mining Association
argue that the audit scheme is invalid because it conflicts
with other federal and state laws. They claim there
are conflicts with the Americans with Disabilities Act of
1990 (ADA), 42 U.S.C. §§ 12101 et seq., the Family and
Medical Leave Act of 1993 (FMLA), 29 U.S.C. §§ 2601
et seq., the Paperwork Reduction Act of 1980, 44 U.S.C.
§§ 3501 et seq., and Indiana and Illinois medical privacy
laws. We find no conflict between MSHA’s record de-
mands and any of these laws.
50                                  Nos. 12-2316 & 12-2460

     1. Paperwork Reduction Act
  Amicus National Mining Association argues that the
Paperwork Reduction Act limits MSHA’s authority to
impose paperwork collection burdens on mines. See
44 U.S.C. §§ 3506(c), 3507 (requiring agencies to present
estimates of burden of proposed paperwork collection
from public to the Office of Management and Budget
before making information requests). We lack jurisdic-
tion to consider the argument because it was not
raised before the Commission. See 30 U.S.C. § 816(a)
(“No objection that has not been urged before the Com-
mission shall be considered by the court, unless the
failure or neglect to urge such objection shall be ex-
cused because of extraordinary circumstances.”).


     2. The ADA and the FMLA
  Petitioners argue that requiring mine operators to
comply with the record demands here conflicts with
the ADA and the FMLA and may, under some circum-
stances, leave mine operators open to liability under
those acts. Regulations promulgated under the ADA
permit employers to use entrance medical examinations
to screen potential employees and to require medical
examinations of current employees to assess their ability
to perform job-related functions. 29 C.F.R. § 1630.14(b),
(c). The regulations require employees to treat the
results of these examinations as “confidential medical
record[s],” § 1630.14(b)(1), (c)(1), subject to three excep-
tions: for supervisors and managers who need to
make accommodations, for first aid and safety personnel
Nos. 12-2316 & 12-2460                                   51

if emergency treatment might be required, and for
“[g]overnment officials investigating compliance with
this part.” § 1630.14(b)(1)(i)-(iii).
  Regulations promulgated under the FMLA include a
substantially similar provision: records and documents
relating to employee medical histories that employers
create or keep pursuant to the FMLA must be “main-
tained as confidential medical records.” 29 C.F.R.
§ 825.500(g) (tracking language from and refer-
encing ADA regulation 29 C.F.R. § 1630.14(b), (c)). The
FMLA’s confidentiality requirement contains excep-
tions for supervisors, managers, and first aid and
safety personnel that are identical to the ADA’s, and
another for “government officials investigating compliance
with FMLA (or other pertinent law[s]).” § 825.500(g)(1)-(3).
  None of these provisions conflicts with or should
limit MSHA’s authority to inspect and copy medical
records here. These regulations merely state that if, in
the course of their duties under the ADA and the
FMLA, employers collect medical records on employees,
those records must be treated as confidential. In our
view, employee medical records that employers collect
pursuant to the ADA or the FMLA will be kept con-
fidential even if mine operators permit MSHA in-
spectors to inspect and copy them. As explained above,
we read section 813 of the Mine Safety Act and corre-
sponding regulation section 50.41 to permit MSHA
to require mine operators to allow MSHA to inspect and
copy employee medical records that may be relevant to
work-related injuries or illnesses. Such inspection and
52                                    Nos. 12-2316 & 12-2460

copying does not violate miners’ privacy, in part
because MSHA agents are bound by the Privacy Act to
prevent unwarranted disclosure of their contents. Both
of these holdings apply to all potentially relevant
employee medical records, whether they would other-
wise be subject to ADA or FMLA confidentiality require-
ments or not.
   While the ADA’s exemption does not expressly extend
to “other pertinent law” as the FMLA’s exemption does,
the ADA regulations provide: “It may be a defense to a
charge of discrimination under this part that a chal-
lenged action is required or necessitated by another
Federal law or regulation . . . .” 29 C.F.R. § 1630.15(e). Thus,
because the Mine Safety Act requires mine operators
to permit MSHA agents to inspect and copy employee
medical records relevant to mine-related injuries or
illnesses, we see no conflict between the ADA’s confi-
dentiality requirement and MSHA’s demands here. If
in the future an agency responsible for enforcing the
ADA tried to take action against a mine operator for fol-
lowing MSHA’s orders to produce relevant documents,
our doors would be open to resolve such a dispute.
  For either the ADA or FMLA regulations to supersede
MSHA’s power to inspect records under the Mine
Safety Act, the text of the ADA and the FMLA would
need to say explicitly that Congress intended to limit
the powers it had previously granted to MSHA. Neither
law contains such language. See National Ass’n of
Home Builders v. Defenders of Wildlife, 551 U.S. 644, 662-63
(2007) (collecting cases to support rule of statutory con-
Nos. 12-2316 & 12-2460                                   53

struction that “repeals by implication are not favored
and will not be presumed unless the intention of the
legislature to repeal [is] clear and manifest,” holding
“[w]e will not infer a statutory repeal unless the later
statute expressly contradict[s] the original act,” and
noting further that “a statute dealing with a narrow,
precise, and specific subject is not submerged by a later
enacted statute covering a more generalized spectrum”)
(internal quotation marks omitted), citing Watt v.
Alaska, 451 U.S. 259, 267 (1981); Traynor v. Turnage, 485
U.S. 535, 548 (1988); Radzanower v. Touche Ross & Co., 426
U.S. 148, 153 (1976).
  Further, given the respective contexts of the ADA
and FMLA’s confidentiality requirements, petitioners’
interpretation of those regulations is quite strained. It
would mean that one agency could unilaterally limit
other agencies’ ability to collect information needed for
their purposes. The FMLA, the more recent of the two
laws, is written to avoid this anomalous result. Compare
29 C.F.R. § 825.500(g)(3) (third exception permits con-
fidential records to be shared upon request with “Govern-
ment officials investigating compliance with FMLA (or
other pertinent law)” (emphasis added)), with 29 C.F.R.
§ 1630.14(b)(1)(iii) (ADA regulation permitting confidential
records to be shared with “Government officials investigat-
ing compliance with this part”). The better interpretation
is that the confidentiality requirements are added insur-
ance that employers do not violate employees’ privacy by
sharing their medical records with unauthorized parties.
But as we have already explained, sharing medical records
with MSHA in this case does not violate miners’ privacy,
54                                  Nos. 12-2316 & 12-2460

regardless of the purpose for which the mine operators
initially created or collected the records.
  Finally, our analysis on this point is consistent with
the Health Insurance Portability and Accountability Act
of 1996 (HIPAA), Pub. L. No. 104-191, 110 Stat. 1936,
which requires health care providers to keep medical
records confidential but contains exceptions for dis-
closures to government entities engaging in “public
health activities” and for disclosures by a “public health
authority that is authorized by law to collect or receive
such information for the purpose of preventing or con-
trolling disease, injury, or disability, including, but not
limited to, the reporting of disease [and] injury.” 45
C.F.R. § 164.512(b)(1)(i). This language aptly describes
MSHA’s role in these record demands — fulfilling its
statutory obligation to protect miner health and safety
by collecting information from mines regarding work-
related injuries and illnesses. See also 65 Fed. Reg. 82462-
01, 82624 (2000) (preamble to HIPAA regulations
noting “[w]e agree that OSHA, MSHA and their state
equivalents are public health authorities when carrying
out their activities related to the health and safety
of workers”).
  For these reasons we find that neither the ADA nor
the FMLA limits MSHA’s authority to require mine
operators to permit MSHA agents to inspect and copy
employee medical and records that are reasonably
related to mine-related injuries and illnesses.
Nos. 12-2316 & 12-2460                                    55

    3. State Laws
   Petitioners make a similar argument with regard to
both Indiana and Illinois state laws — that they require
mine operators to keep employee medical files con-
fidential, and that complying with MSHA orders to
permit its agents to inspect and copy such files would
expose employers to liability. Petitioners point to
several Indiana and Illinois laws, including portions of
the Indiana Civil Rights Law, Ind. Code § 22-9-5-20(c)(2)
(requiring employers to treat medical information as “a
confidential medical record,” with exceptions mirroring
federal ADA, as part of prohibition of employment dis-
crimination based on disability); 910 Ind. Admin. Code
§ 3-3-11(b), (f), (i) (regulations including similar provi-
sions requiring medical information obtained by covered
entities to be treated as “confidential medical record”),
Illinois’ Genetic Information Privacy Act, 410 Ill. Comp.
Stat. 513/15, 40 (“genetic testing and information derived
from genetic testing is confidential and privileged,” and
providing right of action for violation of the Act), and
Illinois’ A.I.D.S. Confidentiality Act, 410 Ill. Comp. Stat.
305/9 (“No person may disclose or be compelled to
disclose the identity of any person upon whom a test is
performed, or the results of such a test in a manner
which permits identification of the subject of the test,
except to the following persons: . . . .”).
  Our reasoning with regard to the ADA and the FMLA
also applies to these provisions. In addition, of course, the
alleged conflicts with these state law provisions could
not present a problem under federal law because the
56                                 Nos. 12-2316 & 12-2460

Mine Safety Act preempts any conflicting state law: “No
State law in effect on December 30, 1969 or which may
become effective thereafter shall be superseded by any
provision of this chapter or order issued or any manda-
tory health or safety standard, except insofar as such
State law is in conflict with this chapter or with any
order issued or any mandatory health or safety stan-
dard.” 30 U.S.C. § 955(a).
   Petitioners argue that this section does not apply here
because the Part 50 audits are not “mandatory health
or safety standards.” We need not resolve that question.
Even if read as petitioners urge, the state laws would
still conflict with the orders MSHA issued to the mine
operators directing them to comply with the records
demands. Section 955(a) preempts state laws conflicting
with MSHA orders. In the event that an employer in
Illinois or Indiana is required to permit MSHA agents
to inspect and copy medical records that these laws
deem “confidential,” MSHA’s order directing the mine
operator to permit the inspection and copying would
preempt the state law.
  In sum, we do not find MSHA’s record demands to
conflict with the federal and state laws as petitioners
and amicus National Mining Association argue. The
Mine Safety Act preempts state privacy laws in the
event of any conflict; the ADA and FMLA’s con-
fidentiality requirement would not be violated by dis-
closure to MSHA pursuant to these orders; and we do
not have jurisdiction to consider whether the demands
violate the PRA.
Nos. 12-2316 & 12-2460                                    57

III. Conclusion
   The records that MSHA seeks from mine operators are
reasonably necessary for the agency to be able to fulfill
its responsibility to protect miner safety and health.
Without the records, significant numbers of mine-related
injuries and illnesses may go unaccounted for, and
mines operating under risky and hazardous conditions
may continue to do so without sanction. While the peti-
tioners raise important privacy concerns, Justice Holmes
reminded us to “remember that the machinery of gov-
ernment would not work if it were not allowed a little
play in its joints.” Bain Peanut Co. v. Pinson, 282 U.S. 499,
501 (1931). In light of the long history of mine acci-
dents and illness, Congress has given the Secretary and
MSHA powerful tools to protect miners. Those tools
include the demands to inspect documents at issue here.
  The petitions for review are D ENIED.




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