ELIZABETH H. DOLE, SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF
LABOR, PETITIONER V. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
AND CF&I STEEL CORPORATION

   No. 89-1541

   In The Supreme Court Of The United States

   October Term, 1990

   On Writ Of Certiorari To The United States Court Of Appeals For The
Tenth Circuit

   Reply Brief For The Petitioner

   In our opening brief, we showed that, under the regime created by
the Occupational Safety and Health Act (OSH Act), the Secretary of
Labor, rather than the Occupational Safety and Health Review
Commission, is entitled to deference in the interpretation of the
Secretary's regulations.  As we discussed (at 18-27), deference is
rooted in respect for the congressional delegation of policymaking
authority;  the OSH Act assings policymaking and enforcement
responsibilities to the Secretary, and establishes the Commission as a
"neutral arbiter." Cuyahoga Valley Ry. v. United Transp. Union, 474
U.S. 3, 7 (1985).  The appropriate question for a reviewing court
should thus be the reasonableness of the Secretary's interpretation of
her regulation.  Because the court of appeals erroneously deferred to
the Commission and did not determine the reasonableness of the
Secretary's interpretation of her regulation, we believe the judgment
should be reversed and the case may appropriately be remanded to the
court of appeals for that determination.

   In response to our argument, respondent and its amici, including
the Commission, offer a range of objections and maintain that
deference should properly be accorded to the interpretation of the
Commission.  We will consider the various objections in turn.

   1. At the outset, it is important to address certain claims
concerning our position and corresponding principles of administrative
law.

   a. Respondent fundamentally mischaracterizes our position as
arguing that "a reviewing court should always defer to the
interpretation of the Secretary, regardless of whether that
interpretation is reasonable." Resp. Br. 19-20 n.18.  In fact, our
opening brief is quite explicit that the Secretary's interpretation
should be upheld if it is reasonable, and that the reasonableness of
the Secretary's interpretation is the appropriate question for a
reviewing court.  /1/

   b. The Commission, for its part, also fails to present an accurate
characterization of our position.  The Commission repeatedly asserts
that we would require the Secretary's interpretation to be given
"controlling weight" (see, e.g., Comm'n Amicus Br. 10, 18), but never
places that term in the context in which it was used.  We employed the
phrase in quoting the settled principle of deference accorded an
agency's interpretation of its own regulation:  such an interpretation
is "'of controlling weight unless it is plainly erroneous or
inconsistent with the regulation.'" Gov't Br. 20-21 n.17 (quoting
Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)).  This
principle has been consistently reiterated by this Court.  /2/

   c. Rather than addressing the decisions concerning an agency's
interpretation of its regulations, the Commission launches into a
confused discussion of deference principles and administrative law.
Amicus Br. 10-15.  The Commission's central point seems to be that
"Chevron-style deference" is appropriate principally for rules and
orders, while a lesser form of deference, pursuant to Skidmore v.
Swift & Co., 323 U.S. 134 (1944), is appropriate for most other forms
of administrative interpretations.  Br. 13, 15.  /3/ But the sharp
line the Commission seeks to draw between Chevron deference and
Skidmore deference is untenable.  In Chevron itself, the Court relied
on Skidmore in determining the reasonableness of the agency's
interpretation;  Skidmore was thus an aspect of the Court's
application of "Chevron-style" deference.  See Chevron U.S.A. Inc. v.
NRDC, Inc., 467 U.S. 837, 865 & n.40 (1984).  Other decisions have
also relied on Skidmore in evaluating regulations.  See, e.g.,
Whirlpool Corp. v. Marshall, 445 U.S. 1, 11 (1980).  Conversely, and
contrary to the Commission's suggestion, Chevron has been applied to
administrative interpretations not embodied in regulations or orders.
/4/ Moreover, the Commission's analysis ignores the settled principle
of deference to an agency's interpretation of its own regulation,
whether or not embodied in a regulation or order.  See, e.g., Lyng v.
Payne, 476 U.S. 926, 939 (1986);  Thorpe v. Housing Auth., 393 U.S. at
276;  Bowles, 325 U.S. at 416.

   We believe that Chevron is not confined to one side of a rigid
dichotomy but stands for a broad principle of deference to reasonable
administrative interpretations;  that this principle fairly embraces
deference to an agency's interpretation of its regulations (see
Robertson v. Methow Valley Citizens Council, 109 S. Ct. at 1850);  and
that Skidmore may sometimes be helpful in assessing the reasonableness
of such agency interpretations.  To be sure, evaluation of the
reasonableness of an agency interpretation -- and the degree of
deference to which it is entitled -- may require consideration of the
nature and form of that interpretation, but that fact lends no support
to the Commission's theory.

   Furthermore, even accepting the Commission's sharp dichotomy
between Chevron deference and a lesser type of Skidmore deference, the
Commission's corollary -- that its adjudicatory interpretations are
entitled to the higher Chevron deference -- would not follow.  Chevron
explicitly rests on the congressional delegation of policymaking
authority to the agency (467 U.S. at 843-845), and, as will be
discussed in greater detail, the Commission has not been given
policymaking authority under the Act.  Indeed, the commentary relied
on so extensively by the Commission (Amicus Br. 12-14) itself
emphasizes that "(a) purely adjudicative agency, holding no rulemaking
or other policymaking powers, 'is not entitled to any special
deference from the courts' for its interpretations," and cites with
approval a Fifth Circuit decision holding that deference should be
accorded to the Secretary, rather than the Commission, in this very
OSH Act context.  See Anthony, Which Agency Interpretations Should
Bind Citizens and the Courts?, 7 Yale J. on Reg. 1, 47 & n.217 (1990).
 /5/

   2. Respondent and the Commission propose an irrational bifurcated
approach to evaluating the Secretary's interpretation of her
regulation.  Because their positions differ in some significant
respects, they will be addressed separately.

   a. Embracing the court of appeals' opinion, respondent contends
that "'(t)he Secretary's unique policy and rulemaking role requires
that her regulatory interpretations be accorded substantial weight by
the Commission and contravened only if clearly wrong or in the
presence of genuine ambiguity.'" Br. 16 (quoting Pet. App. 9a).  We
agree that the Secretary's interpretation may be rejected if her
interpretation is "clearly wrong." But in advocating deference to the
Commission whenever a regulation is determined to possess "genuine
ambiguity," respondent precludes deference to the Secretary in the
only situation in which it is pertinent.  /6/ As a result,
respondent's statement that the Secretary's interpretation must be
accorded "substantial weight" is so lacking in content as to be
meaningless.

   b. The Commission's position is different.  It acknowledges that
"the Commission should be, and is, hesitant to substitute its reading
of a regulation for the reading of the Secretary";  thus, "the
Commission will reject the Secretary's view only when," pursuant to
Skidmore and to Gardebring v. Jenkins, 485 U.S. 415, 420 (1988), "it
lacks the power to persuade." Amicus Br. 18.  /7/ For the reviewing
court, however, the question will not be the reasonableness of the
Secretary's interpretation;  rather, the question will be simply
whether the court should sustain the Commission's conclusion without
itself applying principles of deference to the Secretary's
interpretation.  /8/

   Thus, under the Commission's approach, the Commission would defer
to the Secretary's reasonable interpretations, and, indeed, apply
accepted principles of judicial review for that evaluation.  On
judicial review itself, however, a court would not apply those same
principles to the Secretary's interpretation (as the Commission
purportedly had).  Rather, the reviewing court would defer to the
Commission, which, in turn, had avowedly deferred to the Secretary.

   This approach is ill-conceived.  It sets forth a confusing,
two-tiered structure.  It converts the principle of deference (at
least as embodied in Skidmore and Gardebring) into a doctrine limited
to inter-agency review rather than an explication of factors to guide
all review of an agency's interpretations of its regulations.  And, in
contending that the reviewing court should not defer to the
Secretary's interpretation even though the Commission will, the
Commission asserts a self-perceived duty of deference that is
essentially unreviewable by the courts.

   Rather than the artificial, bifurcated approach advocated by the
Commission, it is far more appropriate -- and consistent with
established principles of judicial review -- for the reviewing court
to determine the reasonableness of the Secretary's interpretation.  To
the extent that the Commission's analysis of the Secretary's
interpretation sheds light on that inquiry (as one would expect from a
sophisticated adjudicatory tribunal whose members have background in
the field and whose findings of fact are conclusive if supported by
substantial evidence), it should of course be carefully considered by
the court;  the ultimate question, however, should be the
reasonableness of the Secretary's interpretation.  In view of the
Commission's own view of its role, this approach cannot credibly be
claimed to be intrusive or disrespectful of the Commission, or to
complicate or handicap its proceedings.  And such an approach
represents a correct application of the Administrative Procedure Act
because a Commission decision rejecting the Secretary's reasonable
interpretation is not "in accordance with law." 5 U.S.C. 706(2)(A).
/9/

   3. Respondent and its amici contend that granting deference to the
Secretary's interpretations of her regulations will undermine the
Commission's statutory role.  Resp. Br. 12-15;  Comm'n Br. 21-24.
This objection is unfounded.  The Commission's statutory role is to
"carry() out adjudicatory functions." 29 U.S.C. 651(b)(3).  According
deference to the Secretary's reasonable interpretations of ambiguous
regulations is in no way inconsistent with that important adjudicatory
function;  indeed, the Commission claims to accord deference to the
Secretary as part of its own conception of its adjudicatory role.
Amicus Br. 18.

   Respondent's amici nevertheless invoke the example of such agencies
as the National Labor Relations Board and the Federal Trade
Commission, both of which may announce new policy through
adjudication, and claim that the Commission is similarly a
policymaking body.  See Comm'n Br. 21-22;  Chamber of Commerce Br.
20-21.  The example of these agencies, however, points in precisely
the opposite direction.  Such agencies have authority to announce new
policies either in rulemaking or adjudication, and the exercise of
that choice lies in the agencies' informed discretion.  /10/ That
model, however, is inapposite here.  In the OSH Act, Congress
explicitly denied the Commission the power to make policy through the
setting of standards and the administrative enforcement of the Act;
to the contrary, as we noted, Congress gave those policymaking
responsibilities to the Secretary and established the Commission
solely as a "neutral arbiter." Cuyahoga Valley Ry., 474 U.S. at 7.
Unlike such entities as the National Labor Relations Board, the
Commission has been vested with neither policymaking nor rulemaking
authority by the pertinent statute;  /11/ the claim that its
adjudicatory function gives it a policymaking role -- rather than
simply the role of a "neutral arbiter" -- is baseless.

   Refusing to defer to the Secretary's reasonable interpretations of
her regulations would jeopardize the exercise of her statutory
responsibilities.  As explained in our opening brief (at 18-20),
interpretive discretion to resolve ambiguities in a statute or
regulation is an essential aspect of the policymaking responsibility
delegated by Congress to an administrative agency.  See Department of
Treasury v. FLRA, 110 S. Ct. 1623, 1629 (1990);  Chevron, 467 U.S. at
844;  INS v. Stanisic, 395 U.S. at 72.  The established principle that
"an agency's construction of its own regulations is entitled to
substantial deference" (Lyng v. Payne, 476 U.S. at 939) rests, at
least in part, on a recognition that it would place an intolerable
burden on a policymaking agency to allow it to clarify the meaning of
a regulation only by promulgating a new or amended regulation.  To the
extent that an agency's interpretation is reasonable, it is within the
scope of permissible interpretive discretion.  This framework reflects
not an encouragement of ambiguous regulations but a recognition that,
when inevitable ambiguities arise, the promulgating entity is the most
appropriate entity for resolving those ambiguities;  denying the
Secretary interpretive discretion accorded all other promulgating
entities would severely hamper the discharge of her statutory mission.
 /12/

   4. Respondent and its amici contend that the legislative history of
the OSH Acts supports deference to the Commission.  Resp. Br. 15-17;
Comm'n Br. 19-21;  Chamber of Commerce Br. 13-19.  They advance two
basic points:  (1) deference to the Secretary's reasonable
interpretations of her regulations would undermine the express purpose
of creating the Commission, and (2) the legislative debates contain
references to the Federal Trade Commission and the National Labor
Relations Board, and since both agencies may make policy in
adjudications, the Commission should similarly be given such power.
Neither objection is well founded.

   The express purpose of creating the Commission was to ensure
fairness and due process.  Legislative History 195, 392-393, 1147.
/13/ That purpose would, of course, be fully served by a regime in
which courts adjudicated challenges and accorded deference to the
Secretary's reasonable interpretations.  It is thus implausible to
suggest that an independent adjudicatory board is somehow unable to
act fairly under such a decisional principle.  Indeed, as noted, the
Commission understands its relationship to the Secretary to require
deference to her interpretations (Br. 18), and there is no reason why
the statutory purpose would be endangered by a court's application of
the same standard.

   The references to the Federal Trade Commission and the National
Labor Relations Board in the legislative history lend no support to
the proposition advanced by respondent and its amici.  Senator Javits
referred to the Federal Trade Commission twice -- first, in stating
that the Occupational Safety and Health Review Commission would have
"the same type of authority that the Federal Trade Commission
exercises:  The power to issue a cease and desist order which, if
challenged within a given period of time, can be reviewed by the
Circuit Court of Appeals" (Legislative History, 462) /14/ and second,
in responding to a question concerning the "makeup" of the Commission
by referring to the composition and authority of the FTC (id. at 465,
471).  These references obviously do not support the proposition that
the Commission was intended to enjoy policymaking power parallel to
the FTC's.  /15/

   As for the NLRB, Senator Javits also referred to it twice -- first
to state simply that its record and that of similar independent
agencies "in the area of quasi-judicial adjudication" was neither so
bad nor so good as to justify the reactions to the proposal for an
independent adjudicative agency in the OSH Act (id. at 194) and,
second, to state that, in the NLRB and the Equal Employment
Opportunity Commission, "independent counsel" had been provided (id.
at 477).  Again, neither of these statements suggests that the
Occupational Safety and Health Review Commission was intended to have
a policymaking role akin to the NLRB's -- a contention that would, in
any case, be refuted by the stark differences between the statutory
assignment of policymaking authority to the NLRB and the lack of any
such assignment to the Commission.  See note 11, supra.

   Moreover, respondent and its amici disregard the critical fact that
Congress explicitly rejected proposals to strip policymaking authority
from the Secretary;  the reasons given for this congressional decision
were the Secretary's expertise in formulating policy and the
legislative goal of promoting close coordination between policymaking
and enforcement -- two of the reasons this Court has stressed as the
basis for deference.  See Gov't Br. 29-31.

   5. Respondent's amici also dispute our contention that principles
developed in other contexts support the conclusion that the Secretary,
rather than the Commission, is entitled to deference.  See Comm'n Br.
27-28;  Chamber of Commerce Br. 24-27.

   In our brief, we noted (at 33-34) that as to the Longshore and
Harbor Workers' Compensation Act, this Court has explained that the
interpretations of the Benefits Review Board are not entitled to
deference because the Board "is not a policymaking agency." Potomac
Elec. Power Co. (Pepco) v. Director, OWCP, 449 U.S. 268, 278 n.18
(1980).  Respondent's amici offer three responses:  (1) the courts of
appeals have been in conflict about whether to follow Pepco;  (2) the
Longshore Act context and the OSH Act context are distinguishable;
and (3) the Court's statement in Pepco can be dismissed as dictum.

   The first objection is patently erroneous.  Every court of appeals
that has considered the matter since Pepco has concluded that the
Benefits Review Board, as a purely adjudicatory entity, is not
entitled to deference.  See Gov't Br. 34-35 n.33 (collecting cases).
/16/ The second objection is also insubstantial.  The Longshore Act
context and the OSH Act context are not distinguishable on the
pertinent point -- that, like the Benefits Review Board, the
Commission is not a policymaking agency.  Finally, although this
Court's observation concerning the Benefits Review Board may not have
been strictly necessary to the holding in Pepco, the statement
represents a considered conclusion regarding the role of the Board,
and the Court's observation relies on two leading court of appeals
decisions, which had similarly held that the Board's interpretations
were not entitled to deference because the Board was not a
policymaking entity.  See 449 U.S. at 278 n.18.  This Court's
statement in Pepco is thus entitled to more than the curt dismissal
suggested by respondent's amici, and, as noted, the courts of appeals
have unanimously understood Pepco to mean that the Board's
interpretations are not entitled to deference.

   In our brief, we also noted that, in the similar administrative
structure created by the Federal Mine Safety and Health Act of 1977,
the Secretary of Labor's interpretations, rather than the Federal Mine
Safety and Health Review Commission's interpretations, have received
deference when their interpretations conflict.  Br. 35-36.  Although
the amici claim that the Mine Safety and Health context is
distinguishable (Comm'n Br. 27-28;  Chamber of Commerce Br. 25-26),
they are unable to identify any material difference between the two
administrative structures that would justify different principles of
deference.  The amici also claim that the court of appeals decisions
have been conflicting (Comm's Br. 28;  Chamber of Commerce Br. 25-26),
but the suggestion is simply inaccurate.  For instance, the Chamber of
Commerce (at 26) cites Brock v. Peabody Coal Co., 822 F.2d 1134 (D.C.
Cir. 1987), but fails to mention that the decision explicitly
reiterates the principle of "Chevron deference to the Secretary's, not
the Commission's, interpretation of the Act." Id. at 1146 n.41.  For
its part, the Commission claims (at 28) that "courts have disagreed
about the appropriate deference" in the Mine Act context;  in fact,
the decisions addressing the issue make it clear that, in cases of
conflict between the Secretary and the Commission, the Secretary
should receive deference.  See Gov't Br. 35-36.  /17/

   6. Respondent also maintains that the Secretary's interpretation is
unreasonable on a number of grounds and that, even though the court of
appeals did not resolve the reasonableness of the Secretary's
interpretation, this Court should decide the question in the first
instance.  Br. 23-29.  As discussed in our opening brief (at 37 n.37),
we believe that, since the court of appeals has not addressed this
matter, a remand to that court is appropriate.  But if the issue is to
be considered here, respondent's contentions should be rejected and
the Secretary's interpretation sustained.

   The coke oven emission standard incorporates the general
respiratory standard.  See 29 C.F.R. 1910.1029(g)(3) (incorporating 29
C.F.R. 1910.134), quoted at Pet. App. 122a.  The incorporated standard
states, in part, that "(t)raining shall provide the men an opportunity
to handle the respirator, have it fitted properly, * * * and, finally,
to wear it in a test atmosphere." 29 C.F.R. 1910.134(e)(5), quoted at
Pet. App. 115a.  Under the Secretary's interpretation, this provision
does not simply require an employer to place an employee in a test
atmosphere wearing a respirator and then leave the employer free to
ignore the test results;  rather, it also requires that, if the test
indicates an improper fit, the employer must provide the employee with
a respirator that fits.  Contrary to respondent's suggestion, the
language of the regulation, referring both to a respirator's being
"fitted properly" and worn "in a test atmosphere," supports this
interpretation.  Indeed, any other interpretation would strip the
regulation of its force.

   Respondent nevertheless maintains that the Secretary's
interpretation of Section 134 is unreasonable.  Respondent emphasizes
that another provision of the coke oven standard (29 C.F.R.
1910.1029(g)(4)(i), quoted at Pet. App. 122a) requires an employer to
ensure that "the respiratory is fitted properly," and urges that the
Secretary's interpretation of Section 134 be rejected because of this
specific fit requirement.  Resp. Br. 27-28.  This contention
misapprehends the role of Section 134 in the administration of the OSH
Act.  Section 134 is relevant in three different types of situations:
(1) when it applies directly;  (2) when it applies through
incorporation in a particular standard and the incorporating standard
has no specific fit requirement (as in the standard for vinyl
chloride, 29 C.F.R. 1910.1017(g)(3));  and (3) when it applies through
incorporation in a particular standard and the incorporating standard
has a specific fit requirement (as in the standard for asbestos, 29
C.F.R. 1910.1001(g)(3) and (4), and App. C).  In most of the
regulations involving the third situation, the specific fit
requirement includes a general statement that the employer must ensure
that the respiratory is "fitted properly" and then imposes highly
specific additional requirements (e.g., the asbestos standard, supra).
 In the first two categories, the rejection of the Secretary's
interpretation of Section 134 would prevent the Secretary from
imposing a fit testing requirement even though, in these situations,
an alternative specific fit requirement -- the professed basis for
rejecting the Secretary's interpretation -- does not exist.  /18/

   Respondent also errs in suggesting (at 27 n.24) that the citation
issued in this case represents merely a compliance officer's mistake.
Section 1029(g)(4)(i) now consists of only a single sentence
containing a general fit requirement.  See Pet. App. 122a.  Initially,
however, consistent with many other standards that incorporate Section
134 and impose additional specific requirements (the third category
outlined above), Section 1029(g)(4)(i) also contained a specific
additional requirement -- quantitative fit testing -- and the sentence
now remaining in Section 1029(g)(4)(i) served in large part as an
introduction to that specific requirement.  See 41 Fed. Reg. 46,787
(1976).  After the quantitative fit requirement was invalidated in
litigation, only the initial sentence remained.  See American Iron &
Steel Inst. v. OSHA, 577 F.2d 825, 839 (3d Cir. 1978), cert.
dismissed, 448 U.S. 917 (1980).  Although the compliance officer may
have been mistaken in believing that the first sentence of Section
1029(g)(4)(i) had also been invalidated (cf. Pet. App. 43a), he was
not at all incorrect in concluding that, with the invalidation of the
quantitative fit requirement in Section 1029(g)(4)(i), the general fit
testing requirement imposed by Section 134 and incorporated in Section
1029(g)(3) remained pertinent.

   Finally, respondent's related suggestion (at 24-25;  see also
Comm'n Br. 18) that the Secretary's interpretation is merely a
litigation position for this case is also incorrect.  As an initial
matter, respondent cannot claim unfair surprise because, as the
Commission observed, OSHA's compliance officer had explicitly warned
respondent that its employees' respirators should be "fitted in banana
oil or irritant smoke" and respondent's training film instructed its
employees that "if an employee detected the presence of banana oil, a
new respirator would be supplied." Pet. App. 38a;  see also Pet. App.
81a.  /19/ In any event, respondent's suggestion is incorrect:  Both
before and after the citation at issue here, the Secretary has cited
employers for violations of Section 134 on the ground that the
employer did not ensure proper respirator fit.  /20/ And as noted
above, that interpretation is currently embodied in OSHA's official
program instructions.  See note 18, supra.  /21/ The interpretation
represents an important aspect of OSHA's compliance program, and its
rejection would have significant consequences for OSHA's respiratory
enforcement efforts.  /22/

                      *    *    *    *

   For the foregoing reasons and those stated in our opening brief,
the judgment of the court of appeals should be reversed.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   ROBERT P. DAVIS

      Solicitor of Labor

   OCTOBER 1990

   /1/ See, e.g., Gov't Br. 16 ("(A) necessary component of (the
Secretary's) rulemaking authority is the ability to issue reasonable
interpretations of those standards for the guidance of employers and
employees.") (emphasis added);  id. at 24 n.22 ("In this context, * *
* the appropriate question for a reviewing court should be the
reasonableness of the Secretary's interpretation.") (emphasis added).
See also id. at 15, 20 n.17, 22, 27, 37 & n.37.

   /2/ See Br. 20-21 n.17 (citing Robertson v. Methow Valley Citizens
Council, 109 S. Ct. 1835, 1850 (1989) and Udall v. Tallman, 380 U.S.
1, 16 (1965)).  See also United States v. Larionoff, 431 U.S. 864, 872
(1977);  Thorpe v. Housing Auth., 393 U.S. 268, 276 (1969).

   /3/ In Skidmore, this Court held that the "rulings, interpretations
and opinions of the Administrator" of the Wage and Hour Division of
the Department of Labor under the Fair Labor Standards Act, "while not
controlling upon the courts by reason of their authority, do
constitute a body of experience and informed judgment to which courts
and litigants may properly resort for guidance.  The weight of such a
judgment in a particular case will depend upon the thoroughness
evident in its consideration, the validity of its reasoning, its
consistency with earlier and later pronouncements, and all those
factors which give it power to persuade, if lacking power to control."
323 U.S. at 140.

   /4/ See, e.g., Lukhard v. Reed, 481 U.S. 368, 376 n.3, 378 (1987)
(Chevron deference to Secretary's interpretation as reflected in
Federal Register statement, letters, memoranda, and administrative
practice);  id. at 383-384 (Blackmun, J., concurring in judgment);
Japan Whaling Ass'n v. American Cetacean Soc'y, 478 U.S. 221, 227-228,
233, 240-241 (1986) (Chevron deference to Secretary's interpretation
in executive agreement);  Young v. Community Nutrition Inst., 476 U.S.
974, 977-982 (1986) (Chevron deference to FDA interpretation,
including notice in Federal Register reflecting that interpretation);
FDIC v. Philadelphia Gear Corp., 476 U.S. 426, 439 (1986) (Chevron
deference to the FDIC's "practice and belief";  Court explicitly notes
that "the FDIC's interpretation of the relevant statute has not been
reduced to a specific regulation");  Hillsborough County v. Automated
Medical Laboratories, Inc., 471 U.S. 707, 714-715 (1985) (Chevron
deference to "a statement accompanying the regulations").

   /5/ Notably, neither the Commission, the respondent, nor any of the
respondent's other amici addresses the fact that the Administrative
Conference of the United States has analyzed the OSH Act context and
has concluded that, in such "split-enforcement" administrative
situations, the legislation should provide deference to the rulemaker,
rather than the adjudicator.  See Gov't Br. 36 n.36;  1 C.F.R.
305.86-4.

   /6/ See, e.g., INS v. Stanisic, 395 U.S. 62, 72 (1969) ("Granting
that the regulation and its successor provision are not free from
ambiguity, we find it dispositive that the agency responsible for
promulgating and administering the regulation has interpreted it" in a
particular manner.);  Udall v. Tallman, 380 U.S. at 4 ("The
Secretary's interpretation may not be the only one permitted by the
language of the orders, but it is quite clearly a reasonable
interpretation;  courts must therefore respect it.");  Bowles v.
Seminole Rock & Sand Co, 325 U.S. at 414 ("(A) court must necessarily
look to the administrative construction of the regulation if the
meaning of the words used is in doubt.").

   /7/ In Gardebring, this Court emphasized that "when it is the
Secretary's regulation that we are construing, and when there is no
claim in this Court that the regulation violates any constitutional or
statutory mandate, we are properly hesitant to substitute an
alternative reading for the Secretary's unless that 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." 485 U.S. at 430.

   /8/ See Comm'n Br. 18 n.7 ("The question for the court below was
not whether to substitute its view for that of the Secretary;  that
was the question which the Commission faced.  The question for the
court below was whether to substitute its judgment for that of the
only legally binding agency position in the case -- i.e., the
Commission's order.").

   /9/ See Gov't Br. 24 n.22.  Indeed, the Commission agrees that, if
it rejects the Secretary's reasonable interpretation of the statute as
embodied in a regulation, the Commission's decision is not "'in
accordance with law'" (Amicus Br. 17 n.6);  a similar principle should
apply to the Secretary's interpretation of her regulations.

   /10/ See NLRB v. Bell Aerospace Co., 416 U.S. 267, 294 (1974)
("(T)he Board is not precluded from announcing new principles in an
adjudicative proceeding and * * * the choice between rulemaking and
adjudication lies in the first instance within the Board's
discretion.");  SEC v. Chenery Corp., 332 U.S. 194, 203 (1947) ("(T)he
choice made between proceeding by general rule or by individual, ad
hoc litigation is one that lies primarily in the informed discretion
of the administrative agency.").

   /11/ Cf. 29 U.S.C. 156 (NLRB's rulemaking authority);  29 U.S.C.
160 (NLRB's authority to prevent unfair labor practices).  See also 15
U.S.C. 45(a) (FTC's authority to prevent unfair methods of competition
and unfair or deceptive actions or practices);  15 U.S.C. 46(g) (FTC's
rulemaking authority).

   /12/ As an alternative argument, respondent suggests that, in lieu
of a principle of deference, a reviewing court should simply "arrive
at the most reasonable interpretation" of a regulation.  Br. 32.  It
is unclear whether respondent means that the court should reach that
determination on its own (id. at 31), or should defer to the most
reasonable of the competing interpretations by the Secretary and the
Commission (id. at 11).  Either alternative trenches on the
policymaking responsibility assigned to the Secretary and exercised by
other promulgating entities, regardless of whether they also possess
adjudicative authority.  See Gardebring v. Jenkins, 485 U.S. at 430;
INS v. Stanisic, 395 U.S. at 72;  Udall v. Tallman, 380 U.S. at 4.

   /13/ Staff of the Subcomm. on Labor of the Senate Comm. on Labor
and Public Welfare, 92d Cong., 1st Sess., Legislative History of the
Occupational Safety and Health Act of 1970 (Comm. Print 1971)
(hereinafter Legislative History).

   /14/ Both the Commission and the Chamber of Commerce, in quoting
this statement, include only the phrase "'the same type of authority
that the Federal Trade Commission exercises,'" without the immediately
succeeding explanation of the authority referred to.  See Comm'n Br.
20;  Chamber of Commerce Br. 18.  Cf. Gov't Br. 31 n.28.

   /15/ Indeed, in opposing the Javits amendment and in supporting the
assignment of adjudication to the Secretary, Senator Williams invoked
the FTC as a positive example of an entity that combined policymaking
and adjudication (id. at 467;  see also id. at 427);  conversely, in
supporting the Javits amendment, Senator Dominick cited the FTC's
combination of functions as the kind of procedure that he hoped to
avoid through the creation of the Commission (id. at 472).

   /16/ As we pointed out (Br. 34-35 n.33), most courts of appeals
have also held that, as a logical corollary, the interpretations of
the policymaking entity (the Director of the Office of Workers'
Compensation Programs) are entitled to deference;  as we also pointed
out (ibid.), however, two courts of appeals have suggested that, at
least in some circumstances, neither the Board nor the Director is
entitled to deference.  Cf. note 12, supra.

   /17/ The Commission also claims that examples concerning the Board
of Immigration Appeals (BIA) and the Merit Systems Protection Board
(MSPB) support its position.  Amicus Br. 22 n.9.  This claim is
incorrect.  With regard to the BIA, the statute vests administrative
authority in the Attorney General (8 U.S.C. 1103(a));  the Attorney
General, in turn, has delegated authority to the Commissioner of the
Immigration and Naturalization Service (8 C.F.R. 2.1) and to the Board
of Immigration Appeals, under the supervision of the Executive Office
for Immigration Review (8 C.F.R. 3.0-3.2).  The Attorney General
retains authority to review BIA decisions (8 C.F.R. 3.1(h)).  Thus the
BIA is simply a delegate of the Attorney General for the statutory
authority conferred on him;  to the extent that the BIA's views would
conflict with the Attorney General's views, the former would not be
entitled to deference.  In INS v. Cardoza-Fonseca, 480 U.S. 421
(1987), and the other decisions cited by the Commission, the claim for
deference arose in a context in which the BIA, INS, and the Attorney
General were in agreement.

   As for the MSPB, unlike the Commission, it is given limited
substantive rulemaking authority, and it was to the MSPB's
interpretation of an MSPB-promulgated regulation that the Court
deferred in Cornelius v. Nutt, 472 U.S. 648, 657-659 (1985), a case in
which the Office of Personnel Management (OPM) agreed with the MSPB.
Furthermore, the Federal Circuit, which now has exclusive jurisdiction
of most MSPB appeals (5 U.S.C. 7703(b)(1)), has explicitly accorded
deference to the OPM, rather than the MSPB, in a case in which the
MSPB and the OPM disagreed.  See Horner v. Andrzjewski, 811 F.2d 571,
574-576 (Fed. Cir. 1987).  In contrast, United States v. Paddack, 825
F.2d 504, 513 (D.C. Cir. 1987), relied on by the Commission, was a
case in which the court found no "legally relevant interpretation" by
the agency that had drafted the regulation in dispute and thus no
conflict with the interpretation of the adjudicating agency.

   Amicus American Iron and Steel Institute (AISI), in turn, claims
that the Tax Court, rather than the IRS, receives deference from the
appellate courts.  Br. 10-11.  Several lower court decisions have
refused to give deference to the Tax Court.  See, e.g., Commissioner
v. Hendrickson, 873 F.2d 1018, 1022 (7th Cir. 1989);  Lynch v.
Commissioner, 801 F.2d 1176, 1178-1179 (9th Cir. 1986);  Vukasovich,
Inc. v. Commissioner, 790 F.2d 1409, 1413 (9th Cir. 1986).  And in our
view, the tax statute itself precludes special deference to the Tax
Court in the event of conflicting interpretations between the Tax
Court and the Commissioner.  See 26 U.S.C. 7482(a)(1) (providing for
appellate review of the Tax Court "in the same manner and to the same
extent as decisions of the district courts in civil actions tried
without a jury").  See also National Muffler Dealers Ass'n v. United
States, 440 U.S. 472, 476-477 (1979).

   /18/ The Secretary currently interprets Section 134 to impose this
respirator fit testing requirement.  See OSHA Instruction CPL 2-2.29,
reprinted in 1 O.S.H. Rep. (BNA) 21:8321 (1986).

   /19/ The Commission (Br. 26-27) vehemently objects to this and
related observations in our opening brief (at 27, 37), but does not
dispute the underlying facts.  We highlighted those facts and the
consequences of the court of appeals' decision to emphasize the
instability and irrationality created by a regime in which the
regulatory interpretation by the policymaking and administering entity
may be rejected without a judicial determination that the
interpretation is unreasonable.

   /20/ E.g., OSHA Inspection H9371-055 (Mar. 19, 1979);  OSHA
Inspection F5129-060 (Nov. 20, 1979);  OSHA Inspection 102806866 (May
22, 1989);  OSHA Inspection 100566306 (Feb. 15, 1990);  OSHA
Inspection 017799891 (June 14, 1990).

   /21/ Even without regard to the prior and subsequent agency actions
relying on this interpretation, the fact that the interpretation was
the very basis for the administrative action (the citation) serves to
distinguish it from a situation in which the interpretation at issue
is simply a post hoc rationalization by appellate counsel.  Cf. Bowen
v. Georgetown University Hosp., 488 U.S. 204, 212 (1988).

   Amici also contend that the Secretary's interpretation has been
inconsistent (Comm'r Br. 18;  Chamber of Commerce Br. 22 n.8;  see
also Pet. App. 44a n.14).  The claimed inconsistency, however, relates
to testing method, not to whether Section 134 imposes a fit testing
requirement at all;  as respondent acknowledges (Br. 24 n.21), the
question whether a test atmosphere was the required method is not at
issue.  Like the current program instruction, the previous
administrative document interpreted Section 134 as requiring that
"(t)he respiratory protective equipment must be properly fitted."
Industrial Hygiene Field Operations Manual, ch. XII, Sec. A, para.
4(d) (Jan. 1, 1979), reprinted in Empl. Safety & Health Guide (CCH)
Paragraph 4488.10 (1979).

   /22/ Respondent also emphasizes (at 27-28) that Section 134 was a
"national consensus standard" adopted under the expedited procedure of
29 U.S.C. 655(a).  As discussed in our opening brief (at 25 n.23), the
adoption of a national consensus standard as a regulation of the
Secretary is itself a policymaking exercise, and the Secretary's
interpretations of such a standard are accordingly entitled to
deference.  And even if the Secretary's role in adopting, rather than
writing, the standard bears on the appropriate degree of deference, it
does not affect the reasons for deference as a basic principle of
review (the Secretary's role in setting policy and enforcing the
standard on a day-to-day basis), and it certainly does not justify
according deference to the Commission, which has neither written nor
adopted the standard, nor administered it on an ongoing basis.