                                         PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                 _____________

                      No. 12-4457
                     _____________

        SHAMOKIN FILLER COMPANY, INC.,

                                 Petitioner

                            v.

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


                                 Respondents

                     _____________

 On Petition for Review from the Federal Mine Safety and
                Health Review Commission
(Docket Nos. PENN 2009-775, -825, PENN 2010-63, -191,
 -275, -291, -381, -465, -515, -745, PENN 2011-16, -104, -
                          129, -189)
                      _____________

               Argued: December 10, 2013




                            1
Before: MCKEE, Chief Judge, FUENTES and CHAGARES,
                   Circuit Judges.

               (Opinion Filed: July 11, 2014)

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

Attorney for Petitioner Shamokin Filler Company Inc.

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

Attorney for Respondent-Appellee Secretary of Labor


                      _____________

                OPINION OF THE COURT
                    _____________

FUENTES, Circuit Judge:

        Petitioner Shamokin Filler Company, Inc., operates a
coal preparation facility in Shamokin, Pennsylvania that has
been regulated by the Federal Mine Safety and Health
Administration (“MSHA”) since 1977. After a change in
ownership in 2009, the new owners challenged MSHA’s
jurisdiction over the Shamokin facility, contending that the




                             2
Occupational Safety and Health Administration (“OSHA”),
not MSHA, should oversee it.1 The Secretary of Labor, along
with an Administrative Law Judge for the Federal Mine
Safety and Health Review Commission, and the same
Commission’s appellate body, all disagreed and concluded
that because Shamokin was engaged in the “work of
preparing the coal,” as defined in the Federal Mine Safety and
Health Act of 1977 (the “Mine Act”), 30 U.S.C. § 802(i),
MSHA’s assertion of jurisdiction was proper. Shamokin
petitions for review of the Commission’s final order, arguing
that its plant does not engage in the “work of preparing the
coal” because it makes its 100% coal products out of already
processed coal.

       Shamokin’s interpretation of the statute lacks any basis
in the text of the Mine Act, and we decline to adopt it.
Shamokin also requests reversal of an evidentiary
determination       excluding      evidence    of     MSHA’s
non-jurisdiction over other plants. We find this evidentiary
challenge to be without merit. For the reasons that follow, we
will deny the petition for review.


                    I. BACKGROUND2

1
   Presumably the new owners desired to avoid the more
stringent requirements imposed by MSHA regulations and the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq. As discussed in more detail below, MSHA, rather than
OSHA, has much stricter oversight requirements including
regarding respirable coal dust standards.
2
    We have jurisdiction over this appeal under 30
U.S.C. § 816(a). The Administrative Law Judge’s (“ALJ”)




                              3
       A. Legal and Administrative Framework

       The U.S. Department of Labor oversees, in relevant
part, two agencies devoted to workplace safety and worker
health: OSHA and MSHA. OSHA administers the
Occupational Health and Safety Act of 1970 (the “OSH Act”)
and regulates workplace safety and worker health unless
Congress has conferred jurisdiction on another agency in an
industry-specific statute. See 29 U.S.C. § 653(b)(1). In this
case, OSHA and the OSH Act govern Shamokin’s plant
unless MSHA, administering the Mine Act, governs instead.
       The difference in jurisdiction results in a difference in
oversight. MSHA’s regulatory framework is more specific
and extensive than OSHA’s in regulating safety and health
hazards associated with the handling of coal, particularly with


final decision and order, entered on October 18, 2012, was
not directed for review by the Mine Commission and by law
became a final order of the Mine Commission on November
26, 2012. We review the Mine Commission’s legal
conclusions de novo. See Reich v. D.M. Sabia Co., 90 F.3d
854, 860 (3d Cir. 1996). We review evidentiary rulings for
abuse of discretion. See Mach Min., LLC v. Sec’y of Labor,
Mine Safety & Health Admin., 728 F.3d 643, 659 (7th Cir.
2013); cf. Gunderson v. U.S. Dep’t of Labor, 601 F.3d 1013,
1021 (10th Cir. 2010) (reviewing evidentiary decisions of an
ALJ of the Department of Labor’s Benefits Review Board
under an abuse of discretion standard); R & B Transp., LLC v.
U.S. Dep’t of Labor, Admin. Review Bd., 618 F.3d 37, 44 (1st
Cir. 2010) (same as to decisions of an ALJ of the Department
of Labor’s Administrative Review Board).




                               4
regard to workers’ exposure to respirable coal dust. Compare
30 C.F.R. Part 71 with 29 C.F.R. Part 1910, Subpart Z.
Because of the dangers inherent in mining, Congress also
gave the Secretary more rigorous enforcement mechanisms
under the Mine Act than under the OSH Act. For example,
the Mine Act, unlike the OSH Act, requires two inspections
per year for surface mines, permits inspections to be
conducted without a warrant, and in specified circumstances
authorizes inspectors to issue orders requiring withdrawal of
miners from the mine. See 30 U.S.C. §§ 813(a), 814(d),
814(e), 817(a); Donovan v. Dewey, 452 U.S. 594, 606 (1981);
RNS Servs., Inc. v. Sec'y of Labor, Mine Safety & Health
Admin. (MSHA), 115 F.3d 182, 187 (3d Cir. 1997).

        In order to determine whether MSHA and the Mine
Act govern, we must decide whether the facility to be
regulated is a “coal or other mine, the products of which enter
commerce, or the operations or products of which affect
commerce.” 30 U.S.C. § 803; see RNS Servs., Inc., 115 F.3d
at 183. In relevant part, a “coal or other mine” under the Mine
Act includes “lands, . . . facilities, equipment, machines,
tools, or other property, . . . used in, or to be used in, . . . the
work of preparing coal . . . and includes custom coal
preparation facilities.” 30 U.S.C. § 802(h)(1)-(h)(2). We have
found this provision to be “so expansively worded as to
indicate an intention on the part of Congress to authorize the
Secretary to assert jurisdiction over any lands integral to the
process of preparing coal for its ultimate consumer.” RNS
Servs., Inc., 115 F.3d at 186 (emphasis added). The Mine Act
defines “the work of preparing the coal” as “the breaking,
crushing, sizing, cleaning, washing, drying, mixing, storing,
and loading of bituminous coal, lignite, or anthracite, and




                                 5
such other work of preparing such coal as is usually done by
the operator of the coal mine.” 30 U.S.C. § 802(i).

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

      Turning to the case law, in [Penelec], we held
      that “the delivery of raw coal to a coal
      processing facility is an activity within the Mine
      Act, but not the delivery of completely
      processed coal to the ultimate consumer.” 969
      F.2d 1501 [at 1504] (citing Stroh v. Director,
      Office of Workers’ Comp. Progs., 810 F.2d 61,
      64 (3d Cir. 1987)). See also Hanna v. Director,
      Office of Workers’ Comp. Progs., 860 F.2d 88,
      92-93 (3d Cir.1988). In Stroh, we found that
      “shovel[ing coal] into [a] truck, and haul[ing] it
      to independently owned coal processing plants”
      was integral to the work of preparing the coal.
      [810 F.2d] at 62. We further noted that the
      loaded coal’s subsequent transportation over
      public roads did not alter its status as an activity
      that is part of the work of preparing the coal. Id.
      at 65.

      Penelec applied a functional analysis, wherein
      the propriety of Mine Act jurisdiction is
      determined by the nature of the functions that




                               6
      occur at a site. That analysis has its roots in
      Wisor v. Director, Office of Workers’ Comp.
      Progs., 748 F.2d 176, 178 (3d Cir.1984), was
      applied in Stroh, 810 F.2d at 64, and has been
      adopted by the Fourth Circuit. See United
      Energy Servs., Inc. v. Federal Mine Safety &
      Health Admin., 35 F.3d 971, 975 (4th Cir.
      1994).

RNS Servs. Inc., 115 F.3d at 184.

      B. Procedural History

        Between 1977 and 2009, MSHA treated Shamokin’s
facility, operated by another owner, as a mine and inspected it
for compliance with the Mine Act. In 2009, Shamokin
changed ownership. The current owners (children of the
former owners) wrote to the Secretary of Labor requesting
that MSHA relinquish jurisdiction over the plant. The
Secretary refused. Between 2009 and 2011, the Secretary,
through MSHA, issued a number of citations against
Shamokin for violations of the Mine Act that MSHA
inspectors found at Shamokin’s plant. Among the most
serious of these citations were numerous violations of
MSHA’s respirable dust standards.

       Shamokin contested the citations in front of an ALJ of
the Federal Mine Safety and Health Review Commission.
Shamokin stipulated that it was liable for the violations and
associated penalties to the extent that MSHA appropriately
exercised jurisdiction over the plant. However, Shamokin
objected to MSHA’s jurisdiction, on the grounds that it was
not operating a “coal or other mine,” but instead was mainly




                              7
engaged in the manufacture of products made out of coal
rather than the preparation of anthracite coal. After an ALJ
found that MSHA had jurisdiction, Shamokin appealed to the
Mine Commission’s appellate body, which affirmed the ALJ.

       C. Factual Findings of the Mine Commission

       The facts as found by the Mine Commission are
conclusive as Shamokin mounts no argument to show that
they are not supported by substantial evidence. See 30
U.S.C. § 816(a). The ALJ specifically found that, “the Carbon
Plant is a custom coal preparation facility that stores, sizes,
dries and loads coal to make it suitable for subsequent
industrial use.” App. at A25. The ALJ also determined
Shamokin’s key witness “offered contradictory, inconsistent,
and suspect testimony.” Id. Specifically, there was “an
attempt by the owners to obstruct the amount of coal used by
the Carbon Plant, the percentage of coal versus non-mined
materials, and the actual nature and extent of its coal versus
non-coal operations.” Id. The ALJ determined that
Shamokin’s assertion that it was principally engaged in
manufacturing coal products, rather than coal processing, was
belied by the evidence: “over 6,000 tons of [Shamokin’s]
product, ‘carb-o-cite,’ made of 100% anthracite coal, was
sold in 2009, as compared to only a few tons of multiple
products containing no coal or coal mixtures. . . . This Court
noted that neither inspector . . . observed any mixing of coal
with non-coal materials at the plant.” Id. at A26. The ALJ
concluded that “[Shamokin] is storing large amounts of coal,
screening it to remove impurities and ensure size quality,
drying it, and loading it in bags appropriately sized to be sold
in the stream of commerce.” Id. at A28. The Mine




                               8
Commission’s appellate body affirmed the ALJ’s decision as
supported by “substantial evidence.” Id. at A36.

       D. Conclusions of Law of the Mine Commission

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

       E. Evidentiary Ruling

       The ALJ granted the Secretary’s motion seeking to
exclude evidence gathered by a 2004 MSHA fact-finding
committee that had reviewed operations at seven facilities
that Shamokin claimed were similar to its carbon plant. The
ALJ first found that the evidence of MSHA’s oversight over
other facilities was irrelevant because MSHA jurisdiction
should be determined on a “case-by-case basis.” Id. at A2. It
also found that, even if it were relevant, it should be excluded
because “its probative value [was] . . . substantially
outweighed by a danger of unfair prejudice, confusion of the
issues, or . . . a waste of time or needless presentation of
cumulative evidence.” Id. (relying on 29 C.F.R. § 2700.63(a),
which provides, “relevant evidence, including hearsay
evidence, that is not unduly repetitious or cumulative is
admissible,” and Federal Rule of Evidence 403). The ALJ




                               9
reasoned that the balance in this case weighed in favor of
exclusion given the case-by-case nature of the inquiry over
whether MSHA jurisdiction is proper; the fact that it would
be “cumbersome and impractical” to review “whether and
why MSHA has exercised or should exercise jurisdiction over
similar ‘bagging facilities’”; and that Shamokin would be not
be prejudiced given the otherwise wide breadth of the
evidentiary hearing. App. at A2-3.

        The ALJ revisited the evidentiary determination after
the hearing itself, adding that there was no appellate case law
on the question of whether “a comparative facility analysis
approach” was proper. Id. at A9. Accordingly, the ALJ found
that the approach Shamokin requested would detract from
analysis of the particular facility at issue, sending the tribunal
on a “jurisdictional safari, searching out all similar facilities
in the country and comparing alike and non-alike activities,
structures, operations, and products with that of the subject
Carbon Plant. [] The collateral inquiries would be endless.”
Id. at A10.

       The Mine Commission’s appellate body affirmed
under an abuse of discretion standard, adding that
Administrative Procedure Act § 556(d) imposes an obligation
on the agency to have a policy to exclude “irrelevant,
immaterial, or unduly repetitious evidence.” Id. at A39 (citing
5 U.S.C. § 556(d)). The Mine Commission agreed that the
evidence was not relevant because “[i]t is unlikely that any
two facilities would be identical and warrant the same
conclusion on jurisdiction,” and jurisdiction is “governed by
the statute, rather than by which of two conflicting
interpretations by the Solicitor is correct.” App. at A39
(internal quotation marks and citations omitted). Moreover,




                               10
given that the evidence was of “limited probative value,” its
introduction would have “unduly delayed the trial”—
Shamokin would have had to present “a significant number of
additional witnesses” to “demonstrate the similarities between
those facilities and its Carbon Plant.” Id. at A40. Finally, the
appellate body noted that MSHA has asserted jurisdiction
over Shamokin’s plant for decades, and that there has been no
change in Shamokin’s operations. Id.

                      II. DISCUSSION

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

        Under our functional analysis, Shomakin is engaged in
“the work of preparing the coal.” In RNS, the loading of coal
for transport to another facility for further processing was
considered “the work of preparing the coal,” because the
“storage and loading of the coal is a critical step in the
processing of minerals extracted from the earth in preparation
for their receipt by an end-user, and the Mine Act was
intended to reach all such activities.” 115 F.3d at 185.
Shamokin does more than the facility in RNS: Shamokin
admits that it stores, dries, screens, and bags coal. Under RNS,
it is subject to MSHA jurisdiction.

       Shamokin nonetheless argues that it is not engaged in
the work of preparing coal under the Mine Act definition
because it purchases coal that has already been processed.
Shamokin supports its argument in four ways worth
addressing: first, through statutory interpretation, second,
through relying on a definition of “coal preparation” from the
now defunct U.S. Bureau of Mines, third, by arguing that the
statute would lack meaningful boundaries without its




                              11
proposed limitation, and finally, by relying on case law from
various Courts of Appeals. Each argument will be addressed
in turn.

       Shamokin first makes a statutory argument.             It
contends that the last phrase in § 802(i), “and such other work
of preparing such coal as is usually done by the operator of
the coal mine,” modifies the earlier items in the list such that
only functions that are usually done by the “operator of a coal
mine” are regulated under the Mine Act. Petitioner’s Br. at 13
(emphasis added). In turn, only processing of “raw,” “run-of-
mill” or unprepared coal, not the processing of coal that is
already in “usable or marketable condition,” would usually be
done by an operator of a coal mine. Id. The Secretary
responds that the Mine Act contains no such limitation.

        We believe the Secretary is correct. The words “raw”
or “unprepared” or “run-of-mill” never appear anywhere in
the Mine Act definitions, a strong indication that Congress
never restricted Mine Act coverage to those facilities that
begin with coal in these states. Additionally, in RNS, we
addressed the last phrase in § 802(i), and rejected the
predicate of the argument that Shamokin raises here—
whether the activities at the plant are usually done by the
operator of a hypothetical coal mine is not relevant in the
analysis. In RNS, we placed emphasis on the definite article in
the phrase “as is usually done by the operator of the coal
mine.” 115 F.3d at 185 (emphasis added) (internal quotation
marks omitted). We decided that if 802(i) had an indefinite
article in place of the definite article, reading instead “the
operator of a coal mine,” this clause could imply that “one
might have to compare the activities at the alleged coal mine
with those of a typical, paradigmatic, ‘usual’ coal mine.” RNS




                              12
Servs. Inc., 115 F.3d at 185. However, the sentence as
written differs. It “simply explains that the work of the coal
mine is the work that is usually done in that particular place.
The fact that [a] [s]ite is perhaps an unconventional coal mine
does not defeat its status as a coal mine for the purposes of
[§] 802.” Id. Shamokin’s statutory argument is therefore
without merit.

       Shamokin’s second argument borrows from the
Dictionary of Mining, Mineral and Related Terms published
by the U.S. Bureau of Mines, a now defunct federal agency
that conducted scientific research on the extraction,
processing, use, and conservation of mineral resources until
its closure in 1995. The Bureau had defined “coal
preparation” as “[t]he various physical and mechanical
processes in which raw coal is dedusted, graded, and treated
by dry methods (rarely) or water methods, using dense-media
separation (sink-float), jigs, tables, and flotation. The
objective is the removal of free dirt, sulfur, and other
undesirable constituents.” 3 This definition is at least eighteen
years old and is from an agency that was tasked not with
safety but rather research. In any event, the words “raw coal”
do not appear in the Mine Act, and Shamokin has failed to
show why this definition should take precedence over the one
in the Mine Act.

       Third, Shamokin asserts that unless the work of
preparing coal ends “when the raw, run-of-mill extracted
material has been processed into a usable condition,” the list

3
 Available at
http://webharvest.gov/peth04/20041015011634/imcg.wr.usgs.
gov/dmmrt/ (last accessed June 30, 2014) (emphasis added).




                               13
of activities enumerated in § 802(i) would be unworkably
broad. Petitioner’s Br. at 14. Such an interpretation, the
argument runs, could include “anyone who handles coal, no
matter how far down the stream of commerce,” subsuming
non-mining activities such as operations “that use processed
coal for heating, powering equipment, as a feedstock in
producing other products, or which merely transport the
processed coal.” Id. at 14-15. But this Court’s functional
approach has already managed to weed out such activities.
For example, without Shamokin’s proposed limitation, we
determined that delivery of raw coal to a processing facility,
but not delivery of processed coal to the consumer, counts as
the work of preparing the coal. See RNS Servs., Inc., 115 F.3d
at 184. In RNS, the loading of coal for transport to another
facility for further processing was considered “the work of
preparing the coal” because the “storage and loading of the
coal is a critical step in the processing of minerals extracted
from the earth in preparation for their receipt by an end-user,
and the Mine Act was intended to reach all such activities.”
Id. at 185. Thus, through the rubric of the functional test,
activities that are too far attenuated from the actual processing
of coal, and which are not “critical” or “integral,” see id. at
185-86, in preparation of receipt by the end user, will not be
subsumed under the Mine Act definition and in fact have not
been.

      Contrary to Shamokin’s assertion, our opinion in
Dowd v. Director, Office of Workers’ Compensation
Programs, 846 F.2d 193, 194-195 (3d Cir. 1988) does not
counsel in favor of another result. 4 In Dowd, we determined

4
 Dowd is of limited import here because it was decided under
Title IV of the Mine Act, or the Black Lung Benefits Act of




                               14
that a worker was involved in the preparation of coal at a
“custom coal preparation facility” because his employer dried
and crushed “unprepared anthracite [coal].” Id. at 195.
Shamokin asks us to extrapolate from this that the work of
further preparing prepared coal would thus not be considered
coal preparation. In so doing, it requests that we convert a
sufficient condition into a necessary one, but nothing about
the opinion implies that the facilities have to begin with
unprepared anthracite to be “custom coal preparation
facilities.”

       Finally, Shamokin attempts to demonstrate that courts
routinely cut off Mine Act jurisdiction at the point where raw
coal becomes usable. Having reviewed the cases cited, we
agree with the Secretary that none of these cases stands for
the proposition that the Mine Act does not cover the further
processing of already processed coal.5


1972 (“BLBA”), 30 U.S.C. § 901 et seq., for which Congress
has specified that a different definition of coal mine applies.
Compare 30 U.S.C. § 802(h)(2) (defining “coal mine” for
purposes, among others, of subchapter IV of chapter 22,
which includes the BLBA), with 30 U.S.C. § 802(h)(1)
(defining “coal or other mine” for the rest of chapter 22,
which includes the Mine Act).
5
  See Petitioner’s Br. at 16-18 (citing Southard v. Dir.,
OWCP, 732 F.2d 66, 68-70 (6th Cir. 1984) (finding under the
BLBA that a worker who stored, loaded, and unloaded coal
for a coal retailer was not engaged in the “work of preparing
the coal” because the coal retailers he worked for were
“purchasers of prepared coal”); Eplion v. Dir., OWCP, 794
F.2d 935, 937 (4th Cir. 1986) (finding under the BLBA that a




                              15
       It is also worth noting that Shamokin’s most serious
mine safety citations involved violations of MSHA’s
respirable dust standards. Given that the activities at
Shamokin’s plant trigger the types of safety concerns that the
Mine Act was intended to remedy, it would defy Congress’s
intent to allow Shamokin to escape Mine Act jurisdiction
based on a formality. See RNS Servs., Inc., 115 F.3d at 187
(noting that the Mine Commission had “legitimate concerns
about worker safety and health at the Site,” which included
“[t]rue potential hazards” such as “circulation of dust”).
       Thus, we decline Shamokin’s invitation to impose
additional limitations not in the statute and find that MSHA’s
assertion of jurisdiction over the plant was proper.



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




                              16
       B. Evidentiary Appeal

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

       Shamokin submits that a number of memoranda are
relevant to the question of whether MSHA has consistently
interpreted the statute to allow for jurisdiction over the further
processing of non-raw coal. In its brief, Shamokin discusses
only the operations of the Keystone Filler & Manufacturing
plant, highlighting a June 22, 2004 memorandum as
representative, so that is the plant and memorandum we will
address. According to this memorandum, written by Counsel
for Standards, Mine Safety and Health, to a District Manager
of MSHA, Keystone’s facility was not engaged in the “work
of preparing the coal” because,

       once the coal arrives at this facility, it is already
       fully prepared and ready to be used by Keystone
       as a chemical compound ingredient in the
       manufacture of saleable products for the rubber,
       plastics, and steel products industries. . . . Other
       ingredients are added to it such as coke,
       petroleum laced coke and graphite. Any
       oversized pieces are crushed at Keystone, but
       this crushing is incidental to the manufacturing
       process. As a consumer of fully processed coal




                                17
       sold in the open market, Keystone’s work
       constitutes manufacturing rather than mining,
       and as such, not subject to MSHA jurisdiction. .
       . . [P]reparation ends when the coal is ready for
       use.

App. at A184.

         We agree that the consistency of an agency’s
application of a statute might be relevant. See, e.g., Westar
Energy, Inc. v. Fed. Energy Regulatory Comm’n, 473 F.3d
1239, 1243 (D.C. Cir. 2007) (“The Order under review is
arbitrary and capricious in that it provides no basis in fact or
in logic for the Commission’s refusal to treat Westar as it had
treated KCPL.”). However, this memorandum is not relevant.
Keystone was engaged in manufacturing, not coal processing.
Shamokin argued unsuccessfully to the Mine Commission
that it, like Keystone, was mainly engaged in the manufacture
of carbon-based products for the steel, rubber, and plastics
industries. The Mine Commission determined this assertion
was factually without merit, as inspectors found no mixing of
coal with non-coal materials at the plant, and the records
supplied by Shamokin confirmed that it sold only a few tons
of products containing no coal or coal mixtures. As such,
Shamokin’s comparison to Keystone is not apt, as Shamokin
was mainly engaged in coal processing, not manufacturing of
other products using coal.

       Furthermore, as the Mine Commission pointed out,
better evidence on the consistency of MSHA’s jurisdictional
decisions is the fact that the Secretary through MSHA has
asserted jurisdiction over Shamokin from 1977 to 2009
without a change in its operations when the new owners




                              18
assumed the helm. Indeed, this demonstrates that the
Secretary has consistently interpreted the statute. We also
agree with the ALJ’s assessment that the introduction of this
evidence could have opened up a stream of requests for
comparisons to facilities all around the country, causing an
unnecessary delay in the proceedings to address collateral
matters.

        Given the limited probative value of the evidence, and
the potential it had to unnecessarily delay the hearing, we
affirm the Mine Commission’s decision to exclude the
evidence of MSHA’s non-assertion of jurisdiction over other
facilities. We find that the agency’s decision was not an abuse
of discretion. Cf. Bhaya v. Westinghouse Elec. Corp., 922
F.2d 184, 187 (3d Cir. 1990); see also United States v. Long,
574 F.2d 761, 767 (3d Cir. 1978) (“If judicial self-restraint is
ever desirable, it is when a Rule 403 analysis of a trial court is
reviewed by an appellate tribunal.”).

                      III. CONCLUSION

       For the foregoing reasons, we will deny the Petition
for Review of the Mine Commission’s final order. The
Secretary’s exercise of jurisdiction over Shamokin through
MSHA was proper. Furthermore, the ALJ did not commit an
abuse of discretion by failing to allow into evidence internal
memoranda between MSHA employees regarding the
non-assertion of jurisdiction over other facilities.




                               19
