272 F.3d 590 (D.C. Cir. 2001)
RAG Cumberland Resources LP, Petitionerv.Federal Mine Safety and Health Review Commission and Secretary of Labor, Respondents
No. 00-1438
United States Court of Appeals  FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 14, 2001Decided December 7, 2001

On Petition for Review of an Order of the Federal Mine Safety and Health Review Commission
Ralph Henry Moore II argued the cause and filed the  briefs for petitioner.


1
Harold P. Quinn, Jr. and Michael F. Duffy were on the  brief for amicus curiae National Mining Association.


2
Robin A. Rosenbluth, Attorney, U.S. Department of Labor,  argued the cause for respondents.  With her on the brief was  W. Christian Schumann, Counsel.  John T. Sullivan, Attorney, Federal Mine Safety and Health Review Commission,  entered an appearance.


3
Before:  Garland, Circuit Judge, Silberman and Williams,*  Senior Circuit Judges.


4
Opinion for the Court filed by Circuit Judge Garland.

Garland, Circuit Judge:

5
Petitioner RAG Cumberland Resources LP, the owner and operator of a coal mine, challenges  an order issued against it pursuant to § 104(d)(2) of the  Federal Mine Safety and Health Act of 1977 (the "Mine Act"),  30 U.S.C. § 814(d)(2).  The Secretary of Labor issued the  order after a federal mine inspector discovered that, for the  second time in four months, the petitioner had violated a  mandatory mine safety standard through conduct constituting  more than ordinary negligence.  RAG Cumberland does not  deny that it committed those violations, but asserts that the  Mine Act bars the Secretary from issuing the order because  its mine passed a "clean inspection" during the period between the two violations.  An administrative law judge (ALJ)  for the Federal Mine Safety and Health Review Commission  (FMSHRC or the "Commission") agreed with the petitioner  and vacated the order.  On discretionary review, the Commission set aside the ALJ's conclusion and reinstated the order. For the reasons set forth below, we deny RAG Cumberland's  petition for review of the Commission's decision.


6
* The Mine Act requires the Secretary of Labor to promulgate mandatory health and safety standards for the nation's  mines.  Mine Act § 101(a), 30 U.S.C. § 811(a).  To ensure  compliance with those standards, the Act requires representatives of the Secretary to inspect each underground mine "in  its entirety" at least four times per year and to develop guidelines for conducting additional inspections as appropriate.  Mine Act § 103(a), 30 U.S.C. § 813(a).  The Mine  Safety and Health Administration (MSHA) conducts these  inspections on behalf of the Secretary.


7
Section 104 of the Mine Act, 30 U.S.C. § 814, directs the  Secretary to issue citations and orders to mine operators who  are not in compliance with the Act or the regulations promulgated thereunder.  A MSHA inspector who discovers a violation of a mandatory health or safety standard must issue a  § 104(a) citation to the operator.  The citation must describe  the violation with particularity and fix a reasonable time for  its abatement.  30 U.S.C. § 814(a).


8
Section 104(d) of the Act, 30 U.S.C. § 814(d), the principal  section at issue here, creates a "chain" of increasingly severe  sanctions for certain violations of mandatory standards.  Nacco Mining Co. v. Sec'y of Labor, 9 F.M.S.H.R.C. 1541, 154546 (1987).  If an inspector finds a violation of a mandatory  standard that could "significantly and substantially" contribute to a mine safety or health hazard, and that was caused by  an "unwarrantable failure" of the operator to comply with the  standard,1 MSHA issues what is commonly referred to as a  § 104(d)(1) citation.  30 U.S.C. § 814(d)(1);  see Sec'y of  Labor v. Cyprus Cumberland Res. Corp., 21 F.M.S.H.R.C.  722, 725 (1999) ("Commission Decision I").  If, during the  same inspection or any subsequent inspection within the next  ninety days, an inspector discovers another violation of a  mandatory standard caused by an unwarrantable failure to  comply, MSHA issues a § 104(d)(1) withdrawal order--also  known as a "predicate order."  See Sec'y of Labor v. Wyoming Fuel Co., 16 F.M.S.H.R.C. 1618, 1622 n.7 (1994).2  A  withdrawal order requires the mine operator to remove all  persons (except those needed to correct the problem) from  the area until the violation has been corrected.  30 U.S.C.  § 814(d)(1).  When such an order is issued, production in the  affected area of the mine must cease.


9
Once a § 104(d)(1) withdrawal order has been issued, if  "upon any subsequent inspection" an inspector finds a violation caused by an unwarrantable failure, the inspector issues  a § 104(d)(2) withdrawal order.3  The chain of sanctions  continues, with each new unwarrantable violation generating  a § 104(d)(2) withdrawal order "until such time as an inspection of such mine discloses no similar violations."  30 U.S.C.  § 814(d)(2) (emphasis added);  see United Mine Workers v.  FMSHRC, 768 F.2d 1477, 1478-79 (D.C. Cir. 1985);  Nacco  Mining Co., 9 F.M.S.H.R.C. at 1545.4  The "inspection of such mine" necessary to end the sanctions chain is known as a  "clean inspection."  See Sec'y of Labor v. Kitt Energy Corp., 6  F.M.S.H.R.C. 1596, 1596 (1984).  To sustain a § 104(d)(2)  withdrawal order, the Secretary has the burden of proving,  by a preponderance of the evidence, that a clean inspection  has not occurred since the issuance of the previous withdrawal order.  Id. at 1600.

II

10
RAG Cumberland owns and operates the Cumberland  Mine, an underground bituminous coal mine near Waynesburg, Pennsylvania.5  Each year, MSHA conducts four regular health and safety inspections of the entire Cumberland  Mine.  The inspections are conducted quarterly by two  MSHA inspectors who are assigned to the mine on a full-time  basis.  An inspection usually takes a full quarter to complete. Other inspectors from MSHA's Waynesburg field office periodically visit the mine to assist the two full-time inspectors. See Commission Decision I, 21 F.M.S.H.R.C. at 723.


11
On June 18, 1997, during a regular quarterly inspection, a  MSHA inspector issued the Cumberland Mine a § 104(d)(1)  withdrawal order for a significant and substantial and unwarrantable violation of a mandatory safety standard.  Id.  On  September 24, 1997, during the next quarterly inspection, the  mine was issued a § 104(a) citation for a violation of MSHA's  mandatory roof control standard.  In response, the mine  installed a hydraulic jack to support the roof, which temporarily abated the violation, and placed two warning signs in  the area.  The next day, however, the inspector discovered  that the jack and signs had been removed and that miners  had been working beneath the unsupported roof.  This, he  determined, constituted a significant and substantial and unwarrantable violation of the roof control standard.  In light of  the predicate June 18 order, MSHA issued RAG Cumberland  a § 104(d)(2) withdrawal order on September 25.  Id. at 724.


12
RAG Cumberland filed a challenge to the September 25  order with FMSHRC.  The company stipulated to the validity of the June 18 predicate order, and further stipulated both  that it had violated the roof control standard on September 25  and that the violation was significant and substantial and had  been caused by an unwarrantable failure.  The sole basis for  RAG Cumberland's challenge was its contention that a  § 104(d)(2) withdrawal order was unjustified because MSHA  had conducted a clean inspection of the Cumberland Mine  during the period between June 18 and September 25.  The  Secretary, in turn, stipulated that MSHA had, in fact, thoroughly inspected all areas of the mine between those dates-with the exception of the 60 West Mains haulage, a 4200-foot  passage that serves as the primary route into and out of the  mine.  Thus, the only question affecting the validity of the  September 25 order was whether MSHA had conducted a  clean inspection of the 60 West Mains haulage itself between  June 18 and September 25.  Id.


13
RAG Cumberland's challenge to MSHA's September 25  withdrawal order made two complete trips through the  FMSHRC adjudicatory process before arriving at this court. The challenge was initially heard before an ALJ, who concluded that MSHA had conducted an intervening clean inspection of the haulage and therefore downgraded the  § 104(d)(2) withdrawal order to a § 104(d)(1) citation.  Cyprus Cumberland Res. Corp. v. Sec'y of Labor, 20  F.M.S.H.R.C. 285, 295 (1998) ("ALJ Decision I").  The ALJ  based his conclusion on the Secretary's stipulation that, during the relevant period, MSHA inspectors traveled through  the 60 West Mains haulage "many times," in both open and  closed vehicles, en route to conduct inspections in other areas  of the mine.  Id. at 294.  The ALJ disagreed with the  Secretary's view that such travel was insufficient to constitute  a clean "inspection of such mine" within the meaning of § 104(d)(2).  The ALJ did not dispute the reasonableness of  the Secretary's statutory interpretation:  that to constitute an  "inspection," inspectors must leave their vehicles and conduct  a detailed examination for non-obvious hazards.  Id. at 289. Rather, he simply "decline[d] to defer to the Secretary's  interpretation," id., holding instead that the inspectors' "opportunity to observe" the mine's conditions was enough to  represent a clean inspection under the Act, id. at 294.


14
On discretionary review, the Commission vacated the ALJ's  decision.  It concluded that the ALJ had erred in relying on  the inspectors' repeated travel through the haulage, rather  than examining evidence of actual inspection activity.  Commission Decision I, 21 F.M.S.H.R.C. at 727.  The Commission explained that under controlling precedent, the physical  presence of an inspector in each area of the mine is insufficient to constitute a clean inspection.  To the contrary, such  an inspection requires inspectors to conduct a "thorough and  complete" examination for all potential hazards, not only  those that are visible or obvious.  Id. at 726.  Since RAG  Cumberland's own safety manager had conceded "that an  inspector would have to stop and exit the vehicle in order to  inspect a number of conditions," id. at 727 n.6 (citing ALJ  Hr'g Tr. at 772, 818, 827-29, 844-48),6 the Commission rejected the ALJ's premise that the inspectors' vehicular travel  constituted a clean inspection of the 60 West Mains haulage. It therefore remanded the case to the ALJ to determine  whether the Secretary had met her burden of establishing the  absence of a clean inspection, "by examining evidence regarding any inspection activity in the haulage area during the time  period in question."  Id. at 728.  The Commission specifically  instructed the ALJ to examine a log, maintained by the mine  operator, that depicted all inspection activity in the mine.  Id.


15
On remand, the ALJ again converted the § 104(d)(2) withdrawal order to a § 104(d)(1) citation.  Cyprus Cumberland  Res. Corp. v. Sec'y of Labor, 21 F.M.S.H.R.C. 1112, 1118 (1999) ("ALJ Decision II").  The ALJ noted that, during  their many trips through the haulage, the inspectors had "an  opportunity, if not an obligation, to repeatedly observe the  roof, rib and track conditions," and that they "could have left  their battery operated vehicles at any time if they had  observed any hazardous or violative condition."  Id. at 1113. "The Secretary cannot prevail," the ALJ said, "simply by  establishing that inspectors had not exited their battery  operated vehicles to inspect electrical boxes located in the 60  Mains."  Id. at 1115.  Rather, the ALJ held, the decisive  question was whether a "reasonable person ... would conclude" that the inspectors' observations during their trips  through the haulage "constitute[d] an adequate inspection for  hazardous conditions."  Id. at 1116.  Applying this "reasonable person test," the ALJ held that it would be "unreasonable to conclude" that the inspectors had not conducted a  clean inspection.  Id.


16
Once again, the Commission reversed.  Sec'y of Labor v.  RAG Cumberland Res. Corp., 22 F.M.S.H.R.C. 1066 (2000)  ("Commission Decision II").  The Commission held that an  actual, "thorough and complete" inspection--not the mere  opportunity to observe visible hazards--is required to sever  the chain of sanctions.  Id. at 1072.  Applying that standard  to the facts of record, the Commission reinstated the Secretary's § 104(d)(2) withdrawal order.  Id.

III

17
The Federal Mine Safety and Health Review Commission  adjudicates disputes arising under the Mine Act, including  challenges by mine operators to citations and orders issued  by the Secretary of Labor pursuant to § 104.  See Mine Act  § 113, 30 U.S.C. § 823.  Under the statutory scheme, the  Commission is required to accord deference to " 'the Secretary's interpretations of the law and regulations.' "  Sec'y of  Labor v. Cannelton Indus., Inc., 867 F.2d 1432, 1435 (D.C.  Cir. 1989) (quoting S. Rep. No. 95-181, at 49 (1977)).  And  while it may reverse a decision by an ALJ for legal error, the  Commission must uphold an ALJ's factual determinations if they are supported by substantial evidence.  See Donovan ex  rel. Chacon v. Phelps Dodge Corp., 709 F.2d 86, 90-91 (D.C.  Cir. 1983) (interpreting 30 U.S.C. § 823(d)(2)).7


18
Any person adversely affected by a Commission order may  petition to this court for review.  Mine Act § 106(a), 30  U.S.C. § 816(a).  Like the Commission, we are required to  accord deference to the Secretary's reasonable interpretations of the language of the Mine Act.  See Cannelton, 867  F.2d at 1435 (citing Chevron U.S.A. Inc. v. Natural Res. Def.  Council, Inc., 467 U.S. 837 (1984)).8  When the Secretary and  the Commission divide, we must defer to the Secretary.  See  id.;  see also Sec'y of Labor v. FMSHRC, 111 F.3d 913, 920  (D.C. Cir. 1997);  cf. Martin v. Occupational Safety & Health  Review Comm'n, 499 U.S. 144, 152-53 (1991) (holding that,  under a similar split-enforcement scheme, court must defer to  the interpretation of the Secretary of Labor rather than to  that of OSHRC).9  Where, as here, the Secretary and the  Commission agree, there is no question but that we must  accord deference to their joint view.  See Energy West Mining Co. v. FMSHRC, 111 F.3d 900, 903 (D.C. Cir. 1997); Emerald Mines Co. v. FMSHRC, 863 F.2d 51, 54 (D.C. Cir.  1988).  Finally, we are required to uphold the Commission's  factual findings "if supported by substantial evidence on the  record considered as a whole."  Mine Act § 106(a)(1), 30  U.S.C. § 816(a)(1).10


19
RAG Cumberland contends that, in reversing the ALJ's  conclusion regarding the occurrence of a clean inspection, the  Commission exceeded its statutorily prescribed standard of  review.  The Commission did this, petitioner asserts, by  reweighing the evidence before the ALJ rather than upholding factual determinations that were supported by substantial  evidence.  See Donovan, 709 F.2d at 92 (holding that, under  the Mine Act, the Commission may not "substitute a competing view of the facts for the view the ALJ reasonably  reached").  We disagree.  The Commission did not reverse  the ALJ because it weighed the record evidence differently  than he did.  Instead, the Commission reversed because the  ALJ applied a legally erroneous interpretation of the clean  inspection standard to the record facts, and because it was  clear that under the correct standard those facts established  the absence of a clean inspection.  We uphold the Commission's decision on both counts.


20
* In its review of the ALJ's initial decision, the Commission  determined that he misapplied the law by holding that the  inspectors' repeated travel through the 60 West Mains haulage was sufficient to establish a clean inspection.  The Commission remanded, instructing the ALJ to consider the record  evidence regarding actual inspection activity in the haulage,  including RAG Cumberland's inspection log, in order to determine whether the Secretary had met her burden of proving  that a thorough and complete inspection had not occurred. Commission Decision I, 21 F.M.S.H.R.C. at 727-28.  In  reviewing the ALJ's decision on remand, the Commission  determined that he failed to comply with its instructions to  consider "the record evidence regarding inspections in the  haulage."  Commission Decision II, 22 F.M.S.H.R.C. at 1071. "Rather," the Commission said, "the judge applied the 'reasonable person test' " to determine whether a clean inspection  had occurred.  Id.


21
The ALJ described the "reasonable person test" he thought  applicable to this case as follows:


22
The question is whether a reasonable person, familiar with the deterrent purposes of section 104(d)(2) with respect to unwarrantable failure, would conclude that the numerous mine inspectors' observations (during approximately 135 round trips) of the 60 West Mains haulage ribs, roof, and track, constitute an adequate inspection....


23
ALJ Decision II, 21 F.M.S.H.R.C. at 1116.  The Commission  rightly rejected that test as legally erroneous.  Congress did  not delegate the authority to determine the meaning of a  statutory term like "inspection" to a theoretical reasonable  person.  To the contrary, as we noted above, Congress intended the Secretary of Labor to interpret the terms of the  Mine Act.  See Cannelton, 867 F.2d at 1435 (citing S. Rep. No.  95-181, at 49).  And ALJs, the Commission, and this court are  all bound to defer to the Secretary's interpretations--provided, of course, that they are reasonable.  Id.


24
The Commission also rejected the definition of a clean  inspection that the ALJ apparently thought a reasonable  person would adopt.  The ALJ noted that the "inspectors  could have left their vehicles at any time if they had observed  any conditions that caused concern," suggesting that the  opportunity to examine visible hazards was sufficient even if  there was no evidence that the inspectors had done so.  ALJ  Decision II, 21 F.M.S.H.R.C. at 1113 (emphasis added). Moreover, the ALJ held that the Secretary "cannot prevail  simply by establishing that inspectors had not exited their  battery operated vehicles to inspect electrical boxes located in  the 60 Mains," suggesting that the inspection of non-visible  hazards (e.g., ones that could only be determined by opening  electrical boxes) was not required.  Id. at 1115 (emphasis  added).


25
The Commission rejected these views, agreeing with the  Secretary that a clean inspection requires a "thorough and  complete" inspection for violations of any kind, "obvious or  otherwise."  See Commission Decision II, 22 F.M.S.H.R.C.  at 1072;  id. at 1069 (stating the Secretary's position);  see  also Commission Decision I, 21 F.M.S.H.R.C. at 726 (citing  Eastern Associated Coal Corp., 3 I.B.M.A. 331, 357-58, 81  Interior Dec. 567, 579-80 (Bd. Mine Op. App. 1974) (holding  that, under the same language in the predecessor to the Mine  Act, a clean inspection required a "thorough examination of  conditions and practices throughout a mine")).  The Commission also agreed with the Secretary that the opportunity to  conduct such an inspection is not alone sufficient.  And the  Commission further emphasized that "mere travel through an  area of the mine, without evidence of a thorough and complete inspection, does not suffice to support a finding that a  clean inspection occurred."  Commission Decision II, 22  F.M.S.H.R.C. at 1073.  Accordingly, the Commission held,  evidence of actual "inspection activity in the haulage area  during the relevant time period must be considered" in order  to decide the instant case.  Id.


26
The Commission's ruling constitutes a reasonable interpretation of the statutory phrase "inspection of such mine" in  § 104(d)(2), and hence one to which we must defer.  Indeed, we would be hard pressed to decide otherwise, since the  Commission expressly rested its interpretation on a prior  decision of this court.  See id. at 1072-74 (citing United Mine  Workers v. FMSHRC, 768 F.2d 1477 (D.C. Cir. 1985)).  As  the Commission accurately observed, in United Mine Workers we rejected the notion that "an inspector's physical presence in each area of the mine--regardless of the object of the  inspection or the hazards actually examined for in each  particular area--qualifies as an intervening 'clean' inspection."  768 F.2d at 1479.  "The only rational reading of the  intervening 'clean' inspection requirement," we held, "is that  all areas of a mine must be inspected for all hazards," both  the "unseen" and the "visible."  Id. at 1480.  In fact, contrary  to the very example used by the ALJ here, we suggested that  in order to conduct a clean inspection, an inspector must  "open an electrical junction box to see whether the wiring  inside is safe."  Id. at 1479-80.11


27
Notwithstanding the previously expressed views of both the  Secretary and this court, RAG Cumberland challenges the  validity of the Commission's conclusion that a clean inspection  requires an examination for non-obvious hazards, arguing  that there is evidence that MSHA inspectors do not always  inspect as thoroughly as this view of the statute requires. Lax inspection practices in the field, however, cannot trump  the views of the Secretary of Labor and the Commission.  Cf.  Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1321 (D.C. Cir.  1998) (explaining that "deference is owed to the decisionmaker authorized to speak on behalf of the agency, not to each  individual agency employee").  We therefore hold that the  Commission properly vacated the ALJ's decision as based on  a legally erroneous definition of the requirements of a clean  inspection under § 104(d)(2) of the Mine Act.

B

28
Having vacated the ALJ's erroneous view of the law, the  Commission examined the record evidence regarding actual inspection activity in the 60 West Mains haulage, and, based  on that evidence, reinstated the Secretary's § 104(d)(2) withdrawal order.  Commission Decision II, 22 F.M.S.H.R.C. at  1073-75.  Although the Commission may not "substitute a  competing view of the facts for the view the ALJ reasonably  reached," Donovan, 709 F.2d at 92, it may apply the law to  the facts in the record and "modify the decision or order of  the administrative law judge in conformity with the record." Mine Act § 113(d)(2)(C), 30 U.S.C. § 823(d)(2)(C).12 If supported by substantial evidence, the Commission's findings are  conclusive upon this court.  Mine Act § 106(a)(1), 30 U.S.C.  § 816(a)(1).


29
In deciding that there had not been an intervening clean  inspection at the Cumberland Mine, the Commission relied on  two categories of evidence:  the testimony of two of the fulltime MSHA inspectors responsible for quarterly inspections  of the mine and a log tracking actual inspection activity at the  mine.  The two inspectors testified that they did not conduct  an inspection of the haulage between June 18 and September  25, 1997.  ALJ Hr'g Tr. 287-88, 476, 501.  As one of the  inspectors put it, "I didn't stop and I didn't do the things  necessary to inspect the haulage.  I just traveled across it." Id. at 288 (quoted in Commission Decision II, 22  F.M.S.H.R.C. at 1074).  RAG Cumberland maintains that this  testimony is inconclusive because it fails to prove that no  inspector conducted a clean inspection.  But the Commission  properly rejected the contention that, to meet her burden of  proof, the Secretary must submit evidence from every inspector who traveled through the haulage.  Commission Decision  II, 22 F.M.S.H.R.C. at 1070.  As the Commission pointed out, when it originally placed the burden of proving the absence of  a clean inspection on the Secretary, it also made clear that to  carry this burden the Secretary "need not prove a negative." Id. (citing Kitt Energy Corp., 6 F.M.S.H.R.C. at 1600).


30
The Commission's precedent also provides that, to show the  absence of a clean inspection, the Secretary may rely upon  inspection records for the period in question.  See Kitt Energy Corp., 6 F.M.S.H.R.C. at 1600. Here, the mine operator  kept a log, which the Commission found and the record  confirms documents all inspection activity in the mine during  the relevant period.  See Commission Decision I, 21  F.M.S.H.R.C. at 728.  "Of special significance," the Commission said, was "the [ALJ's] finding, which is undisputed on  review, that the log entries do not indicate that any regular or  spot inspections took place in the 60 West Mains" haulage  between June 18 and September 25.  Commission Decision  II, 22 F.M.S.H.R.C. at 1073 (citing ALJ Decision II, 21  F.M.S.H.R.C. at 1114).  We agree that the absence of a log  reference to any inspections in the haulage is strong evidence  that the area was not inspected.


31
Contrary to RAG Cumberland's contention, the fact that  the mine operator rather than the Secretary initially introduced the log into evidence does not mean that it cannot be  used to support a finding in favor of the Secretary.  See  Burroughs Corp. v. Rocky Mountain Prestress, Inc., 431 F.2d  1185, 1187 (10th Cir. 1970).  Nor does it make the log any  less probative.  If anything, the fact that the mine operator  itself maintained the log makes it even more probative,  because the operator had every incentive to list particular  areas as having been inspected in order to break the chain of  § 104(d)(2) sanctions.13


32
In sum, RAG Cumberland's log of inspection activity, together with the testimony of the MSHA inspectors, provides  substantial evidence for the Commission's conclusion that a  clean inspection of the 60 West Mains haulage did not occur  prior to the issuance of the September 25 withdrawal order.

IV

33
Because the Commission adopted an appropriate standard  for determining whether there was a clean inspection of the  60 West Mains haulage, and because substantial evidence in  the record supports the Commission's decision to reinstate  the Secretary's § 104(d)(2) withdrawal order under that standard, the petition for review is


34
Denied.



Notes:


*
 Senior Circuit Judge Williams was in regular active service at  the time of oral argument.


1
  An unwarrantable failure occurs when the violation is caused  by "aggravated conduct constituting more than ordinary negligence."  Emery Mining Corp. v. Sec'y of Labor, 9 F.M.S.H.R.C.  1997, 2004 (1987).


2
 "Unlike section 104(d)(1) citations, section 104(d)(1) withdrawal  orders require no 'significantly and substantially' findings."  Sec'y  of Labor v. FMSHRC, 111 F.3d 913, 919 (D.C. Cir. 1997).


3
  Unlike a § 104(d)(1) withdrawal order, which may only be  issued within ninety days of its predicate § 104(d)(1) citation, a  § 104(d)(2) withdrawal order may be issued within any period after  its predicate § 104(d)(1) withdrawal order.


4
  Section 104(d)(2) states:
If a withdrawal order with respect to any area in a ... mine has been issued pursuant to [§ 104(d)(1)], a withdrawal order shall promptly be issued by an [inspector] who finds upon any subsequent inspection the existence in such mine of violations similar to those that resulted in the issuance of the withdrawal order under [§ 104(d)(1)] until such time as an inspection of such mine discloses no similar violations.  Following an inspection of such mine which discloses no similar violations, the provisions of [§ 104(d)(1)] shall again be applicable to that mine.
30 U.S.C. § 814(d)(2).  As used in § 104(d)(2), the term "similar  violations" means other violations caused by unwarrantable failures; they need not be substantively similar to the violation upon which  the original order was based.  See S. Rep. No. 95-181, at 32 (1977); Greenwich Collieries v. Sec'y of Labor, 12 F.M.S.H.R.C. 940, 945  (1990);  see also Int'l Union, United Mine Workers v. Kleppe, 532  F.2d 1403, 1406-07 (D.C. Cir. 1976).  In addition, a § 104(d)(2)  withdrawal order, like a § 104(d)(1) withdrawal order, "may issue  on the basis of 'unwarrantable failure' findings alone," without a  finding that the violation was significant and substantial.  Sec'y of  Labor v. FMSHRC, 111 F.3d at 919.


5
  At the time of the events in question, the mine was operated  by Cyprus Cumberland Resources Corporation.  RAG Cumberland  is the new parent company of Cyprus and is the petitioner here. For purposes of clarity, in this opinion we will refer to RAG  Cumberland as the entity against which the Secretary's enforcement action was taken.


6
  Those included "electrical installations, fire fighting equipment, roof and rib conditions, ventilation, and the condition of the  track."  Id.


7
  In this regard, administrative review under the Mine Act is  unlike that under the Administrative Procedure Act, 5 U.S.C.  § 557(b), which ordinarily "empowers agencies to make independent  factual findings on the basis of a record developed by an ALJ." Donovan, 709 F.2d at 91.


8
  Of course, "the Secretary, the Commission, and this court ...  'must give effect to the unambiguously expressed intent of Congress.' "  Cannelton, 867 F.2d at 1435 (citing Chevron, 467 U.S. at  843).  But the Mine Act is silent with respect to what constitutes  the "inspection" required to break the chain of § 104(d)(2) sanctions.


9
  Cf. also Martin, 499 U.S. at 157 (holding that "the Secretary's  litigating position before [OSHRC] is as much an exercise of  delegated lawmaking powers as is the Secretary's promulgation of a  workplace health and safety standard," and that "the Secretary's  interpretation is not undeserving of deference merely because the  Secretary advances it for the first time in an administrative adjudication").


10
  As discussed above, although it may reverse an ALJ's decision for legal error, the Commission must uphold an ALJ's factual  determinations if they are supported by substantial evidence.  Donovan, 709 F.2d at 90.  Because in this case we conclude that the  Commission properly vacated the ALJ's decision for legal error, we  need not consider the precise standard of review we would apply to  a Commission decision reversing an ALJ's findings of fact.  Cf.  Burns v. Director, Office of Workers' Compensation Programs, 41  F.3d 1555, 1562 (D.C. Cir. 1994) (holding that, on a petition for  review of a decision by the Benefits Review Board under the splitenforcement scheme of the Longshore and Harbor Workers' Compensation Act, rather than defer to the Board the court must  "conduct an independent review of the record to determine if the  ALJ's findings are supported by substantial evidence") (internal  quotation marks omitted);  id. at 1565 (Silberman, J., concurring)  (observing the anomaly of a court independently reviewing the  record, but noting uncertainty as to whether "any different scope of  review[ ] is even theoretically available to a court of appeals under  this statute").


11
  As another example, we observed that to "determine whether  there are unsafe concentrations of gases or dust an inspector must  employ special monitoring equipment."  Id. at 1479.


12
  Under § 113(d)(2)(C) of the Mine Act, the Commission must  remand the case to the ALJ only if it "determines that further  evidence is necessary on an issue of fact."  30 U.S.C. § 823(d)(2)(C); see Walker Stone Co. v. Sec'y of Labor, 156 F.3d 1076, 1085 n.6  (10th Cir. 1998) (holding remand unnecessary where the "essential  facts were not in dispute");  Sellersburg Stone Co. v. FMSHRC, 736  F.2d 1147, 1153 (7th Cir. 1984) (holding remand not required  "[g]iven the Commission's conclusion that uncontroverted evidence  did not warrant further factual findings").


13
  RAG Cumberland also contends that the log does not document areas that were inspected, but instead merely indicates an  inspector's ultimate destination on a particular day.  The ALJ did  not make such a finding, and the company's characterization is  contradicted by the record.  In addition to testimony by a Cumberland employee that the log tracks the areas of the mine that were  inspected, ALJ Hr'g Tr. 774-75, the caption of the relevant column  of the log reads "area inspected"--not "area traveled to."  J.A. at  59.


