                                PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 13-1374


DICKENSON-RUSSELL COAL COMPANY, LLC,

                Petitioner,

           v.

SECRETARY OF LABOR; FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION,

                Respondents.



On Petition for Review of an Order of the Federal Mine Safety
and Health Review Commission. (VA 2009-393-R; VA 2009-430)


Argued:   December 11, 2013                  Decided:   March 27, 2014


Before TRAXLER, Chief Judge, and NIEMEYER and DUNCAN, Circuit
Judges.


Petition for review denied by published opinion.  Chief Judge
Traxler wrote the opinion, in which Judge Niemeyer and Judge
Duncan joined.


ARGUED: Patrick Wayne Dennison, JACKSON KELLY PLLC, Pittsburgh,
Pennsylvania, for Petitioner.      Samuel Charles Lord, UNITED
STATES   DEPARTMENT   OF   LABOR,    Arlington,  Virginia,   for
Respondents.   ON BRIEF: Ralph Henry Moore, II, JACKSON KELLY
PLLC, Pittsburgh, Pennsylvania, for Petitioner.     M. Patricia
Smith, Solicitor of Labor, Washington, D.C., Heidi W. Strassler,
Associate Solicitor, Office of Civil Penalty Compliance, MSHA,
W. Christian Schumann, Appellate Litigation, UNITED STATES
DEPARTMENT   OF  LABOR,   Arlington,   Virginia,   for   Respondent
Secretary of Labor.




                                2
TRAXLER, Chief Judge:

     Dickenson-Russell Coal Company (“Dickenson Coal”) was cited

by the Secretary of Labor for violating the Federal Mine Safety

and Health Act of 1977, see Pub. L. No. 95–164, 91 Stat. 1290,

by failing to report an injury at its Roaring Fork No. 4 mine

within ten days of its occurrence.             Dickenson Coal contested the

citation on the grounds that Bates Contracting and Construction,

Inc. (“Bates”), a contractor that supplied miners to work the

Roaring Fork No. 4 mine, had already reported the incident.                   An

Administrative Law Judge (“ALJ”) rendered a summary decision in

the Secretary’s favor, and the Federal Mine Safety and Health

Review    Commission    (the     “Commission”)        declined    to    exercise

discretionary review of the ALJ’s decision.                 Dickenson Coal now

petitions this court for review.              For the reasons that follow,

we deny the petition.

                                        I.

                                        A.

     In     1977,   perceiving    “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,” 30 U.S.C. §

801(c), Congress significantly strengthened federal regulatory

oversight of the mining industry by enacting the Federal Mine

Safety and Health Act (the “Act”), see Donovan v. Dewey, 452

                                        3
U.S. 594, 603 (1981) (“[T]he Mine Safety and Health Act applies

to    industrial            activity    with        a    notorious      history       of     serious

accidents             and     unhealthful           working        conditions”          and        “is

specifically tailored to address those concerns.”).                                   Passage of

the Act followed a series of tragic mining accidents from which

Congress concluded that the then-existing regulatory scheme “had

proven     too        weak”     and    that     a       major    regulatory        overhaul        was

necessary.            Big Ridge, Inc. v. Fed. Mine Safety & Health Review

Comm’n, 715 F.3d 631, 634 (7th Cir. 2013). 1

       Pursuant to the Act, the Secretary of Labor, acting through

the    Mine      Safety        and    Health    Administration            (“MSHA”),          see    29

U.S.C.       §    557a,       established           “mandatory         health      [and]      safety

standards for the protection of life and prevention of injuries

in    coal       or    other        mines,”    30       U.S.C.     §   811(a).         To     ensure

compliance with these mandatory safety and health standards, the

Act    prescribes            regular     mine           inspections      by     the    MSHA,       the

frequency         of        which     depends       upon     the       type   of      mine     being

inspected.            For underground mines, such as the Roaring Fork No.

4 mine, the MSHA is required to conduct inspections four times

annually.         See 30 U.S.C. § 813(a).                   In the event the MSHA finds


       1
       Although mining accidents decreased after passage of the
Act, Congress amended the Act in 2006, see MINER Act of 2006,
Pub. L. No. 109-236, 120 Stat. 493, in the wake of another
mining accident that produced numerous fatalities at the Sago
Mine near Tallmansville, West Virginia.


                                                    4
a violation of the Act or of any mandatory health or safety

regulation, it must issue a citation to the operator of the mine

and order that corrective action be taken.                                See 30 U.S.C. §

814(a) (providing that the Secretary shall issue citations for

violations of MSHA regulations and specify a “reasonable time

for . . . abatement”).                 The Act defines a mine “operator” as

“any owner, lessee, or other person who operates, controls, or

supervises a coal or other mine or any independent contractor

performing services or construction at such mine.”                                30 U.S.C. §

802(d).       The MSHA is further empowered in certain instances to

issue    an    order    of    withdrawal         requiring         mining    operations     to

cease until compliance is achieved, see 30 U.S.C. § 814(b), (d);

id. § 817(a), and to assess civil penalties against an operator

who   has     been    found     in    violation        of    the    Act     or    MSHA   safety

standards, see 30 U.S.C. § 815(a).

      Despite the substantial regulatory oversight granted to the

Secretary,           however,         Congress          intended           that      “primary

responsibility” for ensuring safe working conditions lie with

the operators and the miners.                    30 U.S.C. § 801(e); see Myers v.

United    States,      17    F.3d     890,    903-04        (6th    Cir.    1994)    (placing

primary     responsibility           upon    MSHA     inspectors       to    maintain      safe

working       conditions        would       be       “manifestly       unreasonable        and

unjustified” “[i]n light of the clear Congressional purpose to

ensure that the primary responsibility for safety remains with

                                                 5
the mine owners and miners”).               To that end, the Act imposes

several affirmative duties upon mine operators, including the

duty to notify the MSHA of “any accident occurring in any coal

or other mine,” 30 U.S.C. § 813(j); the duty to investigate any

accident     to    determine    its   cause    and       establish     measures    to

prevent a recurrence, see 30 U.S.C. § 813(d); and the duty to

maintain and make available to the MSHA records of any such

accident, see 30 U.S.C. § 813(d).

     Our focus in this appeal is upon an operator’s duty to

report accidents to the MSHA.          See 30 U.S.C. § 813(j).               Pursuant

to the Act, the Secretary adopted implementing regulations (the

“Part   50    regulations”)      establishing        a    system     governing      an

operator’s        statutorily   required      duty       to   report        accidents,

injuries, and illnesses occurring in its mine to the MSHA.                         See

30 C.F.R. Part 50.       As mandated by these regulations,

     Each operator shall report each accident, occupational
     injury, or occupational illness at the mine.       The
     principal officer in charge of health and safety at
     the mine or the supervisor of the mine area in which
     an accident or occupational injury occurs . . . shall
     complete or review [an MSHA Mine Accident, Injury, and
     Illness Report Form 7000-1]. . . . The operator shall
     mail completed forms to MSHA within ten working days
     after an accident or occupational injury occurs . . .
     .

30 C.F.R. § 50.20(a) (emphasis added).               Accordingly, any person

or entity qualifying as an “operator” under this regulation was

required     to     report   within   10      days   accidents         or    injuries


                                        6
occurring at the operator’s mine by filing an MSHA Form 7000-1. 2

The Part 50 regulations include their own definition of the term

“operator” that is identical to the statutory definition except

that       it    does    not    expressly    include   “independent   contractor”

within the meaning of “operator.”                   See 30 C.F.R. § 50.2(c)(1)

(“As used in [Part 50] . . . Operator means . . . [a]ny owner,

lessee, or other person who operates, controls, or supervises a

coal       mine.”).          There     may   be   multiple   “operators”   engaged

simultaneously at a single mine even though only one of them

owns the mine.               See Speed Mining, Inc. v. Fed. Mine Safety &

Health Review Comm’n, 528 F.3d 310, 315 (4th Cir. 2008).

       Part 50 reporting requirements serve both enforcement and

administrative purposes.                 The local MSHA district office uses

the Form 7000-1 to determine whether to conduct an investigation

of the operation.              See 30 C.F.R. § 50.11(a).       The national MSHA

Office of Injury and Employment Information compiles information

from the reports to determine incident rates for every operator,

see    30       C.F.R.   §     50.1,   and   identifies   operators   in   need   of

greater regulatory supervision.


       2
       Form 7000-1 requires the disclosure of general information
such as the name of the mine in which the accident occurred and
the MSHA identification number assigned to the mining operation;
the   name   and  identification   number   of  the   independent
contractor, if any; and a summary description of the accident,
including the date, time and location of the accident within the
mine and a description of any resulting injuries.


                                              7
                                            B.

     Dickenson Coal is the owner-operator of the Roaring Fork

No. 4 Mine, an underground coal mine in southwestern Virginia.

It is undisputed that Dickenson Coal is an “operator” subject to

the reporting requirements under the Act and the regulations.

See 30 U.S.C. § 802(d); 30 C.F.R. 50.20(a).                      Bates Contracting

is a temporary labor agency that supplied miners to work at the

Roaring Fork No. 4 mine.                On May 9, 2009, Charlie Wood, an

employee of Bates, was installing roof bolts when a portion of

the coal “roof” fell and struck him on the elbow.                          The parties

stipulated        that    Wood’s     accident      resulted      in    a    reportable

“occupational injury” within the meaning of 30 C.F.R. § 50.2(e). 3

Although Wood was an employee of Bates, he was under the control

and supervision of personnel from Dickenson Coal on the day of

his occupational injury.             There were no Bates employees at the

Roaring   Fork      No.   4   mine    who   were    supervising       or   could    have

supervised Wood’s work.

     On     May    12,    2009,      Bates,      rather   than    Dickenson        Coal,

submitted a Form 7000-1 reporting Wood’s occupational injury to

the MSHA.     Bates’ 7000-1 form identified “Roaring Fork 4” as the

“Mine Name,” provided the proper MSHA identification number (44-


     3
       Wood suffered an “occupational injury” because it required
medical attention and resulted in Wood’s temporary inability to
perform his job duties. See 30 C.F.R. § 50.2(e).


                                            8
07146) for the Roaring Fork No. 4 mining operation, and included

its   own    contractor   identification    number.      Dickenson   Coal,

however, did not file a Form 7000-1 or otherwise report Wood’s

injury.     Dickenson Coal claimed that its policy at the time was

not to report occupational injuries or illnesses suffered by an

employee of an independent contractor like Bates.

      On July 16, 2009, the MSHA issued a citation to Dickenson

Coal for failure to timely report an occupational injury and

file a Form 7000-1 as required by 30 C.F.R. § 50.20(a).               The

issuing MSHA inspector was aware that Bates submitted a Form

7000-1 but nonetheless found that Dickenson Coal was liable for

failing to report the injury. 4      The MSHA also proposed a $127.00

civil penalty for the citation.            Dickenson Coal subsequently



      4
        In     his   Citation   to   Dickenson   Coal,    the   inspector
explained:

      The 7000-1 form was submitted by the contractor on
      05/12/2009,    under     the  contractor    3    digit
      Identification number, thus it was attributed to the
      Contractor’s accident and injury history.   The Mine’s
      failure to complete and file the lost time accident
      report accurately, will result in a false Incidence
      Rate being assigned to the Mine Identification Number.
      The Mine’s Incidence Rate will not reflect the true
      accident history for employees performing traditional
      mining jobs at this operation, thereby limiting the
      mine and regulatory agencies’ ability to recognize and
      address accident trends.

J.A. 24-25.



                                     9
abated the citation essentially by re-submitting the Form 7000-1

submitted by Bates with slight alterations. 5

     Dickenson       Coal        contested       the        citation       before      the

Commission.     See 30 U.S.C. §§ 815(d), 823. 6                   The Secretary moved

for summary disposition in light of the undisputed facts that

Dickenson     Coal   is     an    operator      under       the    Act    and   Part   50

regulations    and   that        Wood   suffered       an    “occupational       injury”

under 30 C.F.R. § 50.2(e).              The Secretary argued that Dickenson

Coal’s position that it was not required to report an injury to

an independent contractor’s employee was contrary to the plain

language of the regulation, which requires “[e]ach operator” to

report “each . . . occupational injury.”                     30 C.F.R. § 50.20(a).

In response, Dickenson Coal argued that Bates also qualified as

an “operator” within the meaning of 30 C.F.R. § 50.20(a), and

therefore     that   either       Bates    or    Dickenson         Coal    could    have

satisfied the obligation to report Wood’s injury.                         According to

Dickenson Coal, the only sensible reading of the regulation was



     5
       The Form 7000-1 submitted by Dickenson Coal was simply a
copy of Bates’ Form 7000-1 with Bates’ company name and
Contractor Identification Number struck through, replaced by
Dickenson Coal’s name. The signature of Bates’ Human Resources
official had also been struck and replaced with the signature of
a Dickenson Coal employee.
     6
       When an order is contested, an ALJ appointed by the
Commission conducts an administrative hearing and renders a
decision. 30 U.S.C. § 823(d)(1).


                                          10
that only one of the operators, either Dickenson Coal or Bates

but not both, was required to report the injury.

       The ALJ granted “summary decision” to the Secretary.                         The

ALJ rejected Dickenson Coal’s argument that Bates qualified as

an “operator” within the meaning of 30 C.F.R. § 50.20(a).                           The

ALJ observed that although Bates might qualify as an “operator”

under the statutory definition, see 30 U.S.C. § 802(d), it was

the regulatory definition that controlled the meaning of the

word “operator” in the Part 50 regulations.                    And, because Bates

was     not     “operating,        controlling     or        supervising”      mining

activities at Roaring Fork No. 4 mine when Wood was injured, the

ALJ concluded that Bates did not meet the regulatory definition

of “operator,” 30 C.F.R. § 50.2(c)(1), and therefore was not

obligated       as    an      operator   to    “report       each   accident     [or]

occupational         injury”    within   ten   days,    30    C.F.R.   §    50.20(a).

Accordingly, the ALJ found that the Form 7000-1 filed by Bates

to report the injury “was gratuitous in that it did not relieve

Dickenson       of     its      [reporting]     obligations         under     section

50.20(a).”       J.A. 75 (emphasis added).              The ALJ was careful to

limit his decision to cases where the independent contractor was

not    acting    in    a   supervisory    capacity,      expressly     leaving      for

another day the question of “the reporting responsibility of

mine    operators       and    contractors     under    section     50.20    when    an



                                          11
injury is sustained by a contract employee who is under the

supervision and control of the contractor.”                 J.A. 75.

      Dickenson sought discretionary review of the ALJ’s decision

before   the    full     Commission,   but       the     Commission    declined   to

exercise its review authority.               See U.S.C. § 823(d)(2)(A)(i).

Accordingly, the ALJ’s decision constitutes the final decision

of the Commission, see 30 U.S.C. § 823(d)(1), which is subject

to review in this court, see 30 U.S.C. § 816(a)(1).

                                       II.

      The issue presented to the court requires us to review an

agency’s interpretation of its own regulations.                       Accordingly,

our analysis proceeds under Auer v. Robbins, 519 U.S. 452, 461

(1997), instead of Chevron U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984), which establishes

the deferential framework for reviewing agency interpretations

of statutes.       See Shipbuilders Council of Am. v. U.S. Coast

Guard, 578 F.3d 234, 242 (4th Cir. 2009) (“Chevron deference

applies to an agency’s interpretation of a statute while Auer

deference      applies    to   an   agency’s      interpretation       of   its   own

regulation.”) (internal quotation marks omitted).

      Auer deference, like Chevron deference, “is warranted only

when the language of the regulation is ambiguous.”                     Christensen

v. Harris Cnty., 529 U.S. 576, 588 (2000).                  When the “regulation

in   question    [is]     unambiguous,       .   .   .   adopting     the   agency’s

                                        12
contrary interpretation would permit the agency, under the guise

of    interpreting      a   regulation,       to   create   de   facto    a    new

regulation.”         Chase Bank USA v. McCoy, 131 S. Ct. 871, 882

(2011) (internal quotation marks omitted).              Thus, our first task

is to “determine whether the regulation itself is unambiguous;

if    so,    its    plain   language     controls.”      Ohio    Valley    Envtl.

Coalition v. Aracoma Coal Co., 556 F.3d 177, 193 (4th Cir. 2009)

(emphasis added).

      If the regulation is ambiguous, we apply Auer deference,

meaning that the agency’s interpretation controls unless that

interpretation is “plainly erroneous or inconsistent with the

regulation.”        Auer, 519 U.S. at 461 (internal quotation marks

and citation omitted); see Thomas Jefferson Univ. v. Shalala,

512 U.S. 504, 512 (1994) (stating that courts must defer “unless

an ‘alternative reading is compelled by the regulation’s plain

language or by other indications of the Secretary’s intent at

the    time    of     the   regulation’s       promulgation’”);     Martin      v.

Occupational Safety & Health Review Comm’n, 499 U.S. 144, 150–51

(1991)      (explaining     that   the   agency’s     interpretation      of   the

regulation controls “so long as it is ‘reasonable,’ that is, so

long as the interpretation ‘sensibly conforms to the purpose and

wording of the regulations’”(citation omitted)).                 Our review of

the agency’s interpretation in this context is therefore “highly

deferential.”       Aracoma, 556 F.3d at 193.

                                         13
                                           III.

                                               A.

       Dickenson         Coal     raises       two     challenges          to     the       ALJ’s

conclusion that it violated 30 C.F.R. § 50.20(a) by failing to

file   a      Form    7000-1     with    respect      to    Wood’s        injury.           First,

Dickenson Coal contends that the ALJ incorrectly concluded that

the meaning of “operator” in 30 C.F.R. § 50.20(a), a regulation

which is contained in the Part 50 regulations, is controlled by

the regulatory definition of “operator” set forth in Part 50

rather than the statutory definition of “operator.”                                 Dickenson

Coal argues that under the statutory definition, an independent

contractor such as Bates is clearly an “operator.”                               30 U.S.C. §

802(d)     (defining         “operator”    as       “any    owner,    lessee,          or    other

person who operates, controls, or supervises a coal or other

mine     or    any      independent       contractor        performing          services        or

construction at such mine”).                   Building on the first argument,

Dickenson        Coal       contends    that    when       there     is    more     than      one

“operator” who would be required under § 30 C.F.R. § 50.20(a) to

report     the       same    injury—as     there      would    be     if    the     statutory

definition       controls—the          regulation      requires       only       one    of    the

operators, not both, to file a Form 7000-1 reporting the injury.

Following       this     logic,    Dickenson         Coal    concludes          that    because

Bates in fact filed a Form 7000-1 reporting Wood’s injury in a

timely fashion, there was no violation.                             Stated differently,

                                               14
Dickenson Coal contends that it was relieved of its obligation

to report Wood’s injury under § 50.20(a) when Bates filed the

Form 7000-1 reporting it.

                                        B.

       Dickenson Coal devotes a substantial portion of its case to

quarreling   with      the    ALJ’s   decision      not    to   use   the    statutory

definition of “operator,” which expressly includes “independent

contractor[s],” but instead to utilize the regulatory definition

of “operator,” which does not.               Dickenson Coal’s obligation to

report   Wood’s   injury,       however,     does    not    depend    upon     whether

Bates is considered an “operator” for purposes of 30 C.F.R. §

50.20(a).    Even assuming Bates is an “operator,” its filing of

the Form 7000-1 injury report did not relieve Dickenson Coal of

the obligation to file its own report.

       Our analysis begins with the language of the regulation to

“determine    whether        the   regulation        itself      is   unambiguous,”

Aracoma, 556 F.3d at 193, on the question of whether the filing

of a Form 7000-1 by one operator to report an injury to MSHA

relieves any other operator of its duty to file a Form 7000-1

with   respect    to    the    same    injury.        In    relevant        part,   the

regulation states:

       Each operator shall report each accident, occupational
       injury, or occupational illness at the mine. . . .
       The operator shall mail completed [MSHA Mine Accident,
       Injury, and Illness Report Form 7000-1s] to MSHA
       within  ten   working  days   after  an   accident  or

                                        15
      occupational injury occurs or an occupational illness
      is diagnosed.

30 C.F.R. § 50.20(a) (emphasis added).            When construing statutes

and regulations, we begin with the assumption that the words

were meant to express their ordinary meaning.              See INS v. Elias–

Zacarias, 502 U.S. 478, 482 (1992).              Here, the key phrases are

“each operator” and “each accident.”              The ordinary meaning of

the word “each” is “every one of two or more people or things

considered     separately.”        Merriam–Webster        Online   Dictionary,

http://www.merriam-webster.com/dictionary/each               (last     visited

Mar. 6, 2014) (emphasis added).            According the regulation its

regular and ordinary meaning, then, we read the regulation to

mean that anyone who qualifies as an “operator” under 30 C.F.R.

§ 50.20(a) must report every qualifying accident or injury via

the   filing    of   a    Form   7000-1.     This    language      permits   no

exceptions; it is unconditional, and Dickenson Coal has failed

to identify anything in the actual text of the regulation that

suggests     otherwise.       Based   on   the    plain     language   of    the

regulation, therefore, where there are two or more operators who

are subject individually to the reporting requirement set forth

in 30 C.F.R. § 50.20(a), every one of them must report every

qualifying accident or injury.

      Because the language of this regulation is not “susceptible

to more than one plausible reading,” we conclude that it is


                                      16
unambiguous and that Auer deference is unwarranted.                                American

Airlines, Inc. v. United States, 551 F.3d 1294, 1300 (Fed. Cir.

2008)     (“When       the     language     of    a   regulation       is    ambiguous    or

susceptible to more than one plausible reading, we defer to the

agency’s interpretation of its own regulations. . . .”).                                 The

“plain    language           controls”      our       reading     of     the       reporting

regulation, Aracoma, 556 F.3d at 193, and we conclude that the

ALJ’s decision was consistent with this language.                            Accordingly,

we will not disturb the decision of the ALJ.

                                             C.

       Finding nothing in the text of the actual regulation to

support its argument, Dickenson Coal seeks to upend the plain

language of the regulation by suggesting that our interpretation

will lead to absurd results.                 See Forest Watch v. U.S. Forest

Serv., 410 F.3d 115, 117 (2d Cir. 2005) (“The plain meaning of

language in a regulation governs unless that meaning would lead

to    absurd       results.”    (internal        quotation      and    alteration       marks

omitted)).          Dickenson Coal takes the position that a literal

reading       of     the    regulation      results       in     unnecessary        “double

reporting” as exemplified by this case.                         Dickenson Coal points

out    that    Bates       supplied   all    the      required        information       about

Wood’s injury to MSHA when it filed the Form 7000-1, and that

its own subsequent filing of a report with MSHA added nothing

new.      In       other   words,     Dickenson        Coal     argues      that    a   plain

                                             17
language    interpretation        creates         a    needlessly          duplicative,      and

therefore absurd, reporting requirement.

     Duplicative         and   unnecessary             is    not     the    same     thing   as

absurd.     Instances in which the court can disregard clear and

unambiguous language because reading the regulation as written

would produce absurd results “are, and should be, exceptionally

rare.”     Sigmon Coal Co. v. Apfel, 226 F.3d 291, 304 (4th Cir.

2000), aff’d sub nom. Barnhart v. Sigmon Coal Co., 534 U.S. 993

(2001).     Before we would conclude that the unambiguously plain

meaning of a regulation leads to genuinely absurd results, we

would have to be convinced that it was “patently inconceivable

that the agency intended the result.”                         Pacific Bell Tel. Co. v.

California Pub. Utils. Comm’n, 621 F.3d 836, 848 (9th Cir. 2010)

(internal quotation marks omitted).

     There    is    nothing     of    the     sort          here.     The    Secretary       has

suggested     plausible        reasons       for       the     regulation       to     require

potentially      overlapping         or     duplicative             accident    and     injury

reports.     Requiring every operator to report to MSHA each time

there is an accident reduces the likelihood that accidents and

injuries    will    go    unreported        as     a       result    of    inadvertence      or

miscommunication between operators obligated to report the same

accident    or     injury.       In       turn,       if     unreported      incidents       are

minimized, the MSHA’s “rates of injury occurrence” statistics

for each operator will be more accurate.                              30 C.F.R. § 50.1.

                                             18
(directing the MSHA, using “information received under part 50,”

to “develop rates of injury occurrence”).                  The MSHA uses this

statistical    data       to   determine     whether,     for    example,     closer

oversight is needed at a mine with a poor safety record.                         See

Big Ridge, 715 F.3d at 636 (“MSHA designates a mine as having a

‘pattern of violations’ (‘POV’) when the mine has established a

history of significant and substantial violations of mandatory

safety or health standards.           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.” (internal citations omitted)).

Thus, the regulation’s built-in reporting redundancy is anything

but absurd.        It ensures that accidents and injuries do not go

unreported    and     that     the   MSHA    is   able    to    compile   accurate

statistics which promotes increased industry safety.

      Moreover,     the    wide-sweeping      “each      operator”     requirement

precludes operators from shifting via private contract the duty

to report accidents and injuries in their mines to independent

contractors, such as Bates, that had no supervisory authority at

the   time    of    the    accident     or    injury.          Such   shifting   is

undesirable in light of the fact that “[o]wner-operators are

generally in continuous control of mine conditions” and more

aware of the full circumstances surrounding a mining accident

and also “more likely to know the federal safety and health

                                        19
requirements.”             Speed      Mining,        528     F.3d   at     315     (internal

quotation marks omitted) (holding that the Secretary may cite

the owner-operator for violations of the Act committed by an

independent contractor).

      Dickenson Coal’s last attempt to circumvent the unambiguous

regulatory         language      is    premised        on     regulatory     history      and

general MSHA policy.               Neither basis is compelling.                    Dickenson

Coal’s regulatory history argument focuses on the definition of

“operator” and apparently is offered to convince the court that

independent contractors such as Bates are operators who have a

duty to report.           This is of no value to Dickenson Coal, however,

since we have assumed that premise to be true in rejecting the

argument      that     Bates’s        filing    of      the     Form     7000-1    relieved

Dickenson Coal of its reporting obligation under 30 C.F.R. §

50.20(a).      And, finally, Dickenson Coal argues the MSHA’s own

Program Policy Manual demonstrates that the regulation was not

intended      to     elicit      duplicate          injury     reports     from     multiple

operators.          The    key     portion      of     the     Policy     Manual    directs

independent contractors to “carefully coordinate their Part 50

reporting responsibilities” with the owner-operator “[i]n order

to   assure    accurate       reporting        and     recordkeeping       and     to   avoid

duplication.”         J.A. 65.        This statement is not irreconcilably at

odds with the reporting regulation because, as Dickenson itself

has noted, “[d]epending on the employment circumstances of the

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injured miner, one operator may have some information regarding

the miner or the incident, while the other may have different

information      at    its     disposal.”        Br.     of   Appellant            at     21.

Coordination between operators is therefore necessary if each

operator    is    to   accurately     report      the     injury       to    MSHA       while

minimizing the already slight duplication of effort caused when

multiple    operators        gather      the     same     information           about      a

reportable injury before filing separate reports.

                                         IV.

     For the foregoing reasons, we conclude that the unambiguous

language of 30 C.F.R. § 50.20(a) imposed an unconditional duty

upon the Dickenson-Russell Coal Company, owner-operator of the

Roaring Fork No. 4 mine, to file within ten days a Form 7000-1

reporting the occupational injury Charlie Wood suffered at that

mine.   Dickenson Coal was not relieved of this duty when Wood’s

employer,     Bates     Contracting,       timely        filed     a        Form    7000-1

reporting   the    same      incident.         Accordingly,      the        petition     for

review is hereby denied.

                                                       PETITION FOR REVIEW DENIED




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