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

   Brief For The Petitioner

        TABLE OF CONTENTS
   Question presented
   Opinions below
   Jurisdiction
   Statutory and regulatory provisions involved
   Statement
   Summary of argument
   Argument:
     The Secretary's interpretation of an OSH Act regulation is
     entitled to judicial deference
     A. The Secretary, as the policymaking and enforcement authority
        under the Act, is entitled to deference; the Commission, as a
        purely adjudicatory body, is not entitled to deference
     B. The legislative history confirms that policymaking authority
        resides with the Secretary; therefore deference is owed to her
        interpretations
     C. Principles established in analogous contexts support the view
        that deference is owed to the policymaking entity (the
        Secretary), rather than the adjudicatory entity (the
        Commission)
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-11a) is reported
at 891 F.2d 1495.  The decision of the Occupational Safety and Health
Review Commission (Pet. App. 14a-54a) is reported at 12 O.S.H. Cas.
(BNA) 2067 and 1986-1987 O.S.H. Dec. (CCH) Paragraph 27,691.  The
decision of the administrative law judge (Pet. App. 55a-91a) is
unreported.

                             JURISDICTION

   The judgment of the court of appeals (Pet. App. 12a-13a) was
entered on December 22, 1989.  On March 13, 1990, Justice White
extended the time for filing a petition for a writ of certiorari to
April 9, 1990.  The petition for a writ of certiorari was filed on
April 2, 1990, and was granted on June 25, 1990.  The jurisdiction of
this Court is invoked under 28 U.S.C. 1254(1).

             STATUTORY AND REGULATORY PROVISIONS INVOLVED

   Pertinent sections of the Occupational Safety and Health Act of
1970 (29 U.S.C. 651(b)(3), 655, 658, 659, 660 and 661) are set forth
in the appendix to the petition (at 92a-110a).  Department of Labor
regulations 29 C.F.R. 1910.134 and 1910.1029(g) are also set forth in
the appendix to the petition (at 111a-123a).

                          QUESTION PRESENTED

   Whether the Secretary of Labor, rather than the Occupational Safety
and Health Review Commission, is entitled to deference in the
interpretation of a Department of Labor regulation if the Secretary's
and the Commission's interpretations of the regulation conflict.

                               STATEMENT

   1. In 1970, Congress enacted the Occupational Safety and Health Act
(OSH Act), Pub. L. No. 91-596, 84 Stat. 1590 (29 U.S.C. 651 et seq.).
The purpose of the legislation was "to assure so far as possible * * *
safe and healthful working conditions" for "every working man and
woman in the Nation." 29 U.S.C. 651(b).  The Act reflected a
congressional determination that "the existing state statutory
remedies as well as state common-law actions for negligence and
wrongful death" had proven "inadequate to protect the employee
population from death and injury due to unsafe working conditions."
Atlas Roofing Co. v. OSHRC, 430 U.S. 442, 444-445 (1977).

   To further its goal of ensuring workplace safety, the OSH Act
charges the Secretary of Labor with a broad range of regulatory and
enforcement responsibilities.  Most fundamentally, the Act
"authoriz(es) the Secretary of Labor to set mandatory occupational
safety and health standards applicable to businesses affecting
interstate commerce." 29 U.S.C. 651(b)(3), 655.  Employers must comply
with these standards.  29 U.S.C. 654(a)(2).  /1/ In addition to
promulgating standards, the Secretary has the authority to "modify or
revoke" standards, and to grant individual variances.  29 U.S.C.
655(b), 655(d).  Congress also charged the Secretary with enforcing
the Act and empowered her to undertake various enforcement activities
-- conducting investigations and workplace inspections (29 U.S.C.
657);  issuing citations to employers when she determines that an
employer has violated the OSH Act or any standard, regulation, or
order promulgated by the Secretary (29 U.S.C. 658);  proposing civil
penalties against cited employers (29 U.S.C. 659(a), 666);
prescribing abatement periods for cited health and safety violations
(29 U.S.C. 658(a), 659(b));  and seeking injunctive relief in federal
court from imminent dangers to employee safety and health (29 U.S.C.
662(a)).  See generally Cuyahoga Valley Ry. v. United Transp. Union,
474 U.S. 3, 3-4 (1985);  Whirlpool Corp. v. Marshall, 445 U.S. 1, 8-9
(1980);  Atlas Roofing Co. v. OSHRC, 430 U.S. at 445-446.  /2/

   At the same time, Congress also created, in the OSH Act, the
Occupational Safety and Health Review Commission (the Commission).
The role of the Commission is described as "carrying out adjudicatory
functions." 29 U.S.C. 651(b)(3).  The Commission consists of three
members, appointed by the President and confirmed by the Senate, who
"by reason of training, education, or experience are qualified to
carry out the functions of the Commission." 29 U.S.C. 661(a).  The Act
also provides the Chairman of the Commission with authority to hire
administrative law judges to assist the Commission in performing its
functions.  29 U.S.C. 661(e).

   The Commission's sole responsibility is to adjudicate challenges to
the Secretary's citations.  The only rulemaking authority conferred
upon the Commission by the OSH Act is "to make such rules as are
necessary for the orderly transaction of its proceedings." 29 U.S.C.
661(g).  The Commission has no jurisdiction over petitions to review
the Secretary's promulgation of a safety or health standard;  rather,
the statute provides the courts of appeals with authority to review
challenges to standards.  29 U.S.C. 655(f).  The Commission also has
no non-adjudicatory enforcement responsibilities.

   A Commission proceeding arises from a challenge to a citation or
notice of penalty by the Secretary.  An employer may contest the
Secretary's citation or notice of penalty before the Commission;  in
addition, an employee or employees' representative may challenge the
time allowed for abatement in the Secretary's citation.  29 U.S.C.
659(c).  /3/ When a citation, penalty, or abatement date is contested,
the Commission must "afford an opportunity for a hearing * * * (and)
thereafter issue an order, based on findings of fact, affirming,
modifying, or vacating the Secretary's citation or proposed penalty."
29 U.S.C. 659(c);  see also 29 U.S.C. 666(j).  /4/ The Commission has
the power to compel attendance of witnesses, production of documents,
and taking of evidence.  29 U.S.C. 661(h) and (i).  After the
Commission issues its decision, an aggrieved private party, or the
Secretary, may seek judicial review of adverse Commission decisions in
a specified court of appeals.  29 U.S.C. 660(a) and (b).  "The
findings of the Commission with respect to questions of fact, if
supported by substantial evidence on the record considered as a whole,
shall be conclusive." 29 U.S.C. 660(a).  See generally Atlas Roofing
Co. v. OSHRC, 430 U.S. at 446.

   If the Commission affirms a citation, or if no challenge to a
citation is filed, only the Secretary may seek its enforcement in the
court of appeals.  29 U.S.C. 660(b).  All civil penalties assessed in
final Commission decisions are payable to the Secretary for deposit
into the Treasury of the United States, and are recoverable in a civil
action brought by the Secretary in federal district court.  29 U.S.C.
663, 666(l);  Atlas Roofing Co. v. OSHRC, 430 U.S. at 447.

   2. In 1976, the Secretary determined that coke oven emissions are
carcinogenic.  Pursuant to her rulemaking authority under the Act, the
Secretary promulgated a standard governing occupational exposure to
coke ovem emissions.  41 Fed. Reg. 46,742-46,790 (1976);  29 C.F.R.
1910.1029.  See generally American Iron & Steel Inst. v. OSHA, 577
F.2d 825 (3d Cir. 1978), cert. dismissed, 448 U.S. 917 (1980).  The
standard requires that in "regulated areas" an employee's exposure to
coke oven emissions be limited to a specified level.  See 29 C.F.R.
1910.1029(c).  The standard also requires the use of engineering and
work practice controls to achieve that goal.  29 C.F.R. 1910.1029(f).
Of particular relevance to this case, the standard permits the use of
respirators as a method of compliance in certain circumstances -- for
example, when controls are not yet sufficient to reduce exposure to
the permissible limit (29 C.F.R. 1910.1029(g)(1)).  The coke oven
regulation includes requirements concerning provision of respirators
in such circumstances (29 C.F.R. 1910.1029(g)), and one of these
requirements incorporates into the coke oven regulation a general
regulation regarding respirators.  See 29 C.F.R. 1910.1029(g)(3) ("The
employer shall institute a respiratory protection program in
accordance with Section 1910.134 of this part").  /5/

   3. In August 1979, the Secretary conducted an inspection at
respondent's coke oven facility in Pueblo, Colorado.  /6/ The
Secretary and respondent had previously reached a settlement regarding
citations issued to respondent for violations of the coke oven
emissions standard.  Pet. App. 19a.  As a result of the August 1979
inspection, the Secretary issued three additional citations, one of
which is involved in this case;  it alleges violations of 29 C.F.R.
1910.1029(g) (3) and the general respiratory protection standard that
it incorporates (29 C.F.R. 1910.134).  Pet. App. 3a, 36a-37a, 90a-91a.

   The inspection disclosed that respondent had conducted two kinds of
respirator tests with its employees.  Pet. App. 79a.  The first was a
"positive/negative pressure test," in which a worker places the
respirator on his face, inhales or exhales, and checks for leakage
along the respirator seal;  it is not conducted in a "test
atmosphere." Id. at 3a, 59a.  The second was a "banana oil" test, in
which a worker, while wearing a respirator, is put in a "test
atmosphere" and exposed to isoamyl acetate ("banana oil") in order to
determine whether he can detect the odor of the chemical despite the
respirator.  Id. at 3a, 38a, 59a.  The Secretary discovered that,
during respondent's administration of the banana oil test, 28 of
respondent's employees had detected banana oil, but that respondent
had failed to furnish them with different respirators.  Instead,
respondent had simply sent the employees, with the same respirators,
into a "regulated area." Id. at 3a, 38a-39a, 78a.  Some of these
employees were exposed to coke oven emission levels exceeding the
permissible exposure limit.  Id. at 81a-82a.  Relying on the fact that
"28 coke oven employees working in the regulated area exposed to coke
oven emissions failed their respirator fit test and were not provided
with a different respirator which would fit" (id. at 37a), the
Secretary issued a citation for a "willful" violation /7/ of 29 C.F.R.
1910.1029(g)(3) and assessed the maximum penalty of $10,000.  /8/

   4. Respondent contested the citation.  A Commission administrative
law judge held five days of hearings in February 1980, and in August
1981 issued an opinion upholding the citation.  The ALJ found that, as
the Secretary charged, 28 employees detected banana oil in the fit
test but were then sent into the coke oven areas with the same
respirators.  Pet. App. 79a-82a.

   The Secretary maintained that Section 1910.1029 (g)(3) of the coke
oven emissions standard, by incorporation of the respiratory
protection program requirement in 29 C.F.R. 1910.134(e) --
1910.134(e)(5) in particular /9/ -- requires employers both to use a
test atmossphere (as in the banana oil test) to assure that each
employee's respirator fits properly, and to provide a different type
or size respirator if an employee's equipment fails the test.  Pet.
App. 39a, 78a-79a.  Respondent defended on the ground that the
standard did not require testing in a test atmosphere at all, and that
the positive/negative tests fully satisfied the standard.  Id. at
78a-79a.

   The ALJ agreed with the Secretary that the pertinent regulation --
29 C.F.R. 1910.134(e)(5) -- requires qualitative fit testing in a test
atmosphere and imposes a requirement that a respirator fit properly.
Pet. App. 79a.  "Since these test results show that the employees were
not properly fitted, respondent was obligated to provide a different
respirator to those that failed the test." Id. at 80a.  The ALJ also
concluded that the violation was willful.  In reaching that
determination, he noted, first, that "the requirements of the standard
were explained to respondent long in advance of the inspection by the
(OSHA) compliance officer" (id. at 81a), and, second, that
respondent's own training film recognized its obligation to provide
different respirators to employees who failed the banana oil test.
Ibid.  He observed that respondent's "cynical disregard for the safety
of its workers and * * * deliberate disregard for the standard itself
make() even the maximum penalty seem pitifully inadequate." Id. at
82a.  /10/

   5. Five years later, in September 1986, the Commission reversed the
ALJ's judgment.  In a 2-1 decision the Commission concluded that
Section 1910.-1029(g)(3) -- the coke oven provision incorporating the
respirator standard -- is a "training standard" and "does not require
the employer to assure proper fit of an employee's respirator." Pet.
App. 40a.  The Commission emphasized that the next paragraph of the
coke oven regulation -- Section 1910.1029(g)(4) -- explicitly requires
that respirators fit properly;  thus, in the Commission's view,
Section 1910.1029(g)(3) could not, without redundancy, be read to
require correct respirator fit as well.  Pet. App. 40a, 41a-42a.  The
Commission also concluded that, by its own terms, the general
respirator standard of Section 1910.134 does not impose a requirement
that an employer assure respirator fit;  the Commission stressed that
Section 1910.134 refers to instruction and training and should be
interpreted as a training program.  Pet. App. 40a.  Thus, the
Commission interpreted Section 1910.134(e)(5) as "requiring the
employer to instruct employees during training in such things as how
to select a respirator, how to put on a respirator, how to achieve a
proper fit and how to obtain a face-piece seal" (Pet. App. 41a), and
as requiring the employer to give an employee the opportunity to wear
the respirator in a test atmosphere during training.  Ibid.  The
Commission concluded, however, that it does not require the employer
to insure that proper fit is achieved.  Ibid.  /11/

   Since respondent's employees had received instruction and an
opportunity to wear respirators in a test atmosphere, the Commission
concluded that the requirements of Section 1910.134 had been met.
Pet. App. 45a.  According to the Commission, "(t)he fact that some
employees detected the banana oil while in the test atmosphere does
not establish by itself that the instructions or training otherwise
provided were inadequate." Ibid.  Accordingly, the Commission vacated
the citation, with one Commissioner dissenting.  /12/

   6. The Secretary petitioned for review.  In December 1989, the
court of appeals denied the petition and upheld the Commission's
determination.  The court noted that an agency's interpretation of a
statute is entitled to deference and must be accepted if reasonable,
and that such deference is particularly appropriate where an agency
"interprets its own administrative regulations." Pet. App. 4a.  The
court then observed that, although the Secretary had interpreted 29
C.F.R. 1910.1029(g)(3) as a testing standard for proper fit, the
Commission had interpreted it as a training standard.  "The question
therefore arises:  When the Secretary and Commission disagree over the
interpretation of an OSHA regulation, which view prevails, i.e., to
whom is deference owed?" Pet. App. 4a.  Observing that the question is
"an issue upon which the federal circuits are split" (ibid.), the
court concluded that, "in the face of conflicting regulatory
interpretations, deference is properly accorded to the interpretation
of the Commission." Id. at 2a.  /13/

   Because in the court's view the statutory language did not settle
the deference question, the court consulted the legislative history.
It noted that Congress had decided against combining prosecutorial and
adjudicative authority in the Secretary, and had created the
Commission as an "autonomous, independent, and quasi-judicial body."
Pet. App. 6a.  The court emphasized that the "adjudicative function
necessarily encompasses the power to 'declare' the law." Id. at 7a.
Thus, the court concluded that "where the Secretary has failed to
convey the meaning of an OSHA regulation to those charged with
construing it, and where the Commission has given the regulation an
interpretation well within the plain meaning of the terms of the
regulation, we will defer to the interpretation of the Commission."
Ibid.

   The court of appeals took note of Potomac Elec. Power Co. v.
Director, OWCP, 449 U.S. 268, 278 n.18 (1980) (Pepco), in which this
Court concluded that the interpretations of the Benefits Review Board
under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C.
901 et seq., were not entitled to deference because the Board has only
adjudicative, and not policymaking, authority.  The court of appeals
viewed this Court's statement as "dicta" (Pet. App. 8a) and, for two
reasons, distinguishable.  First, Longshore Act adjudications are
nonaccusatory, "whereas OSHA requires accusatory proceedings that may
result in substantial penalties." Ibid.  Second, Longshore Act claims
are brought by private citizens, and not by the government.  Ibid.
The court concluded that the Longshore Act context does not
"implicate" Congress's concerns about vesting prosecutorial and
adjudicative functions in a single governmental entity, and that the
"need for a strict separation of prosecutorial and adjudicative
functions is therefore far more acute in the case of OSHA." Ibid.

   The court also stated that its decision did not give "carte
blanche" to the Commission;  it observed 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." Pet. App. 9a.  However, if there is "genuine ambiguity,"
the court held, the reasonable interpretation of the Commission will
control.  Ibid.  The court also noted that, if the Secretary maintains
that a different result should prevail, she may amend or clarify the
regulations through rulemaking.  Id. at 7a, 11a.

   Turning to the merits of the specific interpretive question at
issue, the court ruled that the Commission did not unreasonably
interpret 29 C.F.R. 1910.1029(g)(3) to be a training standard rather
than a testing standard to ensure proper fit.  Pet. App. 9a-11a.  The
court found support for that position in 29 C.F.R. 1910.134(e)(5)'s
reference to "training." At the same time, the court noted that "it is
certainly possible to reach an alternate interpretation of the
ambiguous regulatory language." Pet. App. 11a.  Nonetheless, applying
its rule that it would defer to a reasonable Commission
interpretation, the court upheld the Commission's decision.

                          SUMMARY OF ARGUMENT

   It is the Secretary's, and not the Commission's interpretation of
an OSH Act regulation that is entitled to deference.  In according
deference to the Commission, the court of appeals failed to recognize
that the Secretary's interpretations of her own regulations under the
OSH Act are entitled to deference because she is charged with
policymaking and enforcement authority;  the Commission, in contrast,
is purely an adjudicatory agency.

   1. An agency's reasonable interpretations of ambiguous provisions
of a statute it is entrusted to administer are entitled to deference
because those interpretations are an integral part of the agency's
authority to implement statutory policy.  See Chevron U.S.A. Inc. v.
NRDC, Inc., 467 U.S. 837, 842-845 (1984).  Moreover, a heightened
degree of deference is owed to an agency's interpretations of its own
regulations precisely because the agency is the entity that
promulgates and administers those regulations.  INS v. Stanisic, 395
U.S. 62, 72 (1969);  Udall v. Tallman, 380 U.S. 1, 16 (1965).

   Under these principles, it is the Secretary's interpretations that
are entitled to deference.  Congress designated the Secretary as
rulemaker and enforcer under the Act, and it is she who implements
statutory policy.  Thus, the Secretary monitors workplaces across the
country and makes investigative and prosecutorial decisions on a wide
range of health and safety issues.  As rulemaker, she exercises broad
technical expertise in formulating standards;  a necessary component
of her rulemaking authority is the ability to issue reasonable
interpretations of those standards for the guidance of employers and
employees.

   In contrast, the Commission is a purely adjudicatory agency with no
policymaking responsibilities.  It has no role in the formulation of
standards.  Its sole function under the Act is to adjudicate contested
citations, which represent only a small proportion of the Secretary's
enforcement activities.  The Commission therefore does not have the
broad perspective that the Secretary develops in her administration
and enforcement of the Act.

   2. The legislative history confirms that the Secretary is the
policymaker under the Act and that her interpretations of her own
regulations are therefore entitled to deference.  Because Congress
concluded that the Secretary would have the necessary expertise for
rulemaking and that a division of authority would hamper the
Secretary's development of a cohesive enforcement program, Congress
rejected bills that would have placed rulemaking in an independent
board.  Furthermore, the legislative history indicates that the
Commission was established as an independent adjudicative body for the
sole purpose of assuring due process and evenhanded treatment of
employers in individual adjudications.  Achievement of this purpose
does not require or suggest a policymaking role for the Commission,
and does not support a rule of judicial deference to the Commission,
rather than the Secretary, in matters of administrative
interpretation.

   3. Finally, principles established in other contexts support the
view that the Secretary, rather than the Commission, should receive
deference.  In the Longshore and Harbor Workers Compensation Act
context, this Court has stated that the interpretations of the
Benefits Review Board, an adjudicatory body analogous to the
Commission, are not entitled to deference because that body has no
policymaking authority.  Potomac Elec. Power Co. v. Director, OWCP,
449 U.S. 268, 278 n.18 (1980).  So too, under the similar statutory
scheme of the Federal Mine Safety and Health Act of 1977, the
Secretary, as rulemaker and enforcer, rather than the Federal Mine
Safety and Health Review Commission, as adjudicator, is entitled to
deference when their interpretations conflict.  These principles
likewise apply to the OSH Act.

                               ARGUMENT

   THE SECRETARY'S INTERPRETATION OF AN OSH ACT REGULATION IS ENTITLED
TO JUDICIAL DEFERENCE

   In concluding that a purely adjudicatory body (the Commission) is
entitled to deference rather than the policymaking and enforcement
authority (the Secretary), the court of appeals misconstrued the
detailed statutory scheme and incorrectly applied the principles
underlying this Court's decisions on deference.  By denying deference
to the Secretary's views, the lower court's ruling frustrates the
Secretary's exercise of the rulemaking and enforcement duties that
Congress has entrusted to her.

   A. The Secretary, As The Policymaking And Enforcement Authority
Under The Act, Is Entitled To Deference;  The Commission, As A Purely
Adjudicatory Body, Is Not Entitled To Deference

   The assignment of responsibilities under the OSH Act identifies the
Secretary as the entity entitled to deference.  Judicial deference is
rooted in a proper respect for the "legislative delegation to an
agency" of policymaking responsibility.  Chevron U.S.A. Inc. v. NRDC,
Inc., 467 U.S. 837, 844 (1984).  /14/ An important aspect of this
respect for legislative delegation is the recognition that the entity
designated by Congress to administer a statutory regime on a
day-to-day basis gains expertise from its experience, and should be
accorded interpretive discretion to discharge its duty.  /15/
Moreover, when construction of an agency's regulation, rather than of
a statute, is at issue, "deference is even more clearly in order."
Udall v. Tallman, 380 U.S. 1, 16 (1965).  See also Ford Motor Credit
Co. v. Milhollin, 444 U.S. 555, 566 (1980).  As with deference to an
agency's construction of a statute, deference to an agency's
construction of a regulation is integral to the agency's policymaking
and enforcement responsibilities.  It rests on the fact that the
interpretation has been provided by "the agency responsible for
promulgating and administering the regulation" (INS v. Stanisic, 395
U.S. 62, 72 (1969)) -- that indeed the agency's interpretation is
itself an exercise of those delegated responsibilities.  /16/

   Under these principles, the Secretary, rather than the Commission,
should receive deference in the interpretation of the Secretary's
regulation.  As this Court has observed, "(i)t is the Secretary, not
the Commission, who sets the substantive standards for the workplace,"
and "enforcement of the Act is the sole responsibility of the
Secretary." Cuyahoga Valley Ry. v. United Transp. Union, 474 U.S. at
6-7.  In contrast, the Commission's function "is to act as a neutral
arbiter and determine whether the Secretary's citations should be
enforced over employee or union objections." Id. at 7.  A necessary
component of Congress's grant to the Secretary of broad and exclusive
authority to define, investigate, and prosecute health and safety
violations, see pp. 2-3, supra, is the authority to provide guidance
for OSHA compliance officers and for affected employers and employees
by developing reasonable interpretations of the standards and
regulations issued under her rulemaking authority.  Cf. Cuyahoga
Valley Ry. v. United Transp. Union, 474 U.S. at 7 (Commission may not
review Secretary's decision to issue or withdraw a citation because
the Secretary's authority to make such decisions is a "necessary
adjunct" of her power to set substantive standards and issue
citations).  According deference to the Secretary, rather than the
Commission, thus "leaves interpretive discretion where it normally
resides, with the policymaker rather than the adjudicator." Brock v.
Cathedral Bluffs Shale Oil Co., 796 F.2d 533, 537 n.2 (D.C. Cir. 1986)
(Scalia, J.).  /17/

   Notwithstanding the Secretary's pivotal role, the court of appeals
concluded that deference to the Commission was necessary to protect
the Commission's adjudicatory function;  the court emphasized that the
Commission's authority to adjudicate encompasses a "power to 'declare'
the law," and that deference to the Secretary's interpretation of her
own regulations, rather than to the Commission's interpretation of
them, would undermine that power.  Pet. App. 6a-7a;  see also Brennan
v. Gilles & Cotting, Inc., 504 F.2d at 1262.  This analysis is
misconceived.  As an initial matter, even an agency entitled to
deference on judicial review does not conclusively "'declare' the
law";  only the reviewing court may properly exercise that function.
See Ford Motor Credit Co. v. Milhollin, 444 U.S. at 568 (noting the
"ultimate judicial responsibility to determine the law").  And the
court of appeals' statement is incorrect even as to the more limited
point that an adjudicatory agency must receive deference in its
exposition of the governing standard.  The Commission's pronouncements
about the meaning of the Secretary's regulations are not based on the
exercise by the Commission of any delegated regulatory or policymaking
function;  as a result, those pronouncements do not qualify for
deference under Chevron and its governing principles.  Moreover,
deference to the Secretary's reasonable interpretation of her
regulations -- by the Commission as well as by courts -- is not
inconsistent with the Commission's adjudicatory function.  /18/
Deference to a reasonable administrative interpretation is not
denigration of adjudicative authority;  it is, rather, the appropriate
exercise of that authority in accordance with established principles.
Chevron, 467 U.S. at 842-845;  Ford Motor Credit Co. v. Milhollin, 444
U.S. at 568.  /19/

   It has been suggested that deference to the Commission is supported
by the statutory requirement that the three members of the Commission
be "persons who by reason of training, education, or experience are
qualified to carry out the functions of the Commission" (29 U.S.C.
661(a)).  See Dunlop v. Rockwell Int'l, 540 F.2d 1283, 1289-1290 (6th
Cir. 1976);  Brennan v. Gilles & Cotting, Inc., 504 F.2d at 1262.
This suggestion also misapprehends the statute.  By its terms, the
purpose of the requirement of Section 661(a) is to assist the
Commission in carrying out "the functions of the Commission" --
namely, its "adjudicatory functions" (29 U.S.C. 651(b)(3)).  The
requirement does not itself expand the scope of those functions.  To
be sure, the requirement is designed to assure a degree of expertise
in the Commissioners.  Such expertise is clearly of value for members
of a body whose factfinding in a complex field will be "conclusive" if
supported by substantial evidence (29 U.S.C. 660(a)) /20/ and whose
exposition of the pertinent issues will frequently be helpful to a
reviewing court.  /21/ But the requirement does not provide a basis
for giving deference to the Commission's interpretation of the
Secretary's regulation, which the Commission has not promulgated and
does not administer on an ongoing basis.  /22/

   If the Commission's interpretation, rather than the Secretary's,
receives deference, the statutory structure will lead to anomalous
results.  For instance, the Secretary may file suit directly in
district court to remedy discrimination against an employee for the
assertion of his OSH Act rights.  29 U.S.C. 660(c).  This litigation
may involve a challenge to the Secretary's administrative
interpretations, and it is clear that, in such litigation, the
Secretary's administrative interpretations receive full judicial
deference (Whirlpool Corp. v. Marshall, 445 U.S. 1, 11 (1980));  if an
administrative interpretation arises in a citation proceeding,
however, the Commission's interpretation, rather than the Secretary's
interpretation, would receive deference.  The level of deference given
the Secretary's interpretations should not vary according to the
procedural avenues through which cases arrive in court.

   Finally, deference to the Secretary's interpretation of her own
regulations is supported by a number of practical considerations.
Because the Secretary crafted the regulation, she is in the best
position to interpret its meaning.  Cf. Mullins Coal Co. v. Director,
OWCP, 484 U.S. 135, 159 (1987) ("(T)he Secretary's view is not only
eminently reasonable but also is strongly supported by the fact that
Labor wrote the regulation.").  /23/ Additionally, the Commission, as
an institution with a solely adjudicatory function, has no opportunity
to develop broad expertise in administering an occupational safety and
health program, or in appreciating "the likely practical outcomes" of
different interpretations of particular safety and health standards.
Donovan v. A. Amorello & Sons, 761 F.2d at 66.  Because it reviews
only contested enforcement actions that the Secretary initiates -- a
small proportion of OSHA's overall activities /24/ -- the Commission's
vision of the program is, of necessity, quite narrow.  /25/ The
Secretary, in contrast, must exercise a much wider and sharper
perspective in the course of developing new and revised standards, of
monitoring workplaces across the country for compliance, and of making
investigatory and prosecutorial decisions on a broad range of health
and safety issues.  Furthermore, a rule of deference to the
Commission, rather than to the Secretary, would undermine the
stability of the OSH Act regime.  It would weaken the authoritative
force of the Secretary's interpretations, and create incentives for
challenges to the Secretary's interpretations.  Such a result would
hamper the policymaking and enforcement functions assigned to the
Secretary by the OSH Act.

   Several of these practical implications are highlighted by this
case.  According to the evidence in the record, as related by the
Commission, respondent received explicit advance warning that
respirators should be fitted in banana oil or irritant smoke, and
respondent's training film included an explicit statement that a
different respirator would be provided if an employee detected the
presence of banana oil.  Pet. App. 38a;  see also Pet. App. 81a.  Also
according to the evidence in the record, 28 employees who detected
banana oil were sent into regulated areas with the same respirators,
and some were exposed to carcinogenic emissions in levels higher than
the permissible exposure level.  Id. at 38a-39a, 52a, 54a, 79a-82a.
The court of appeals nevertheless rejected the Secretary's
interpretation of her regulation without ever concluding that her
interpretation was unreasonable.  Although recognizing that "it is
certainly possible to reach an alternate interpretation of the
ambiguous regulatory language" (id. at 11a), the court upheld the
Commission's rejection of the Secretary's citation simply because it
could not "be said that the Commission's interpretation of (the
regulation) * * * was unreasonable." Id. at 10a.  In consequence,
under the court of appeals' holding, respondent in this case would
escape liability despite the failure to provide different respirators
to employees exposed to impermissible levels of emissions and despite
the explicit prior warnings by the Secretary's compliance officer.

   B. The Legislative History Confirms That Policymaking Authority
Resides With the Secretary;  Therefore Deference is Owed To Her
Interpretations

   Since, in our view, the statutory structure plainly identifies the
Secretary as the entity entitled to deference, we disagree with the
conclusion of the court of appeals that resort to the legislative
history is necessary.  Pet. App. 6a.  But in any event, that history
confirms that the Secretary should receive deference in the
interpretation of her regulations.

   The OSH Act's legislative history reveals that Congress forged a
compromise between bills creating different administrative schemes:
the Administration bill, supported by business interests, proposed
creation of separate rulemaking and adjudication boards, both
independent of the Secretary, while the Senate and House committee
bills, supported by organized labor, combined all three functions in
the Secretary.  See S. Rep. No. 1282, 91st Cong., 2d Sess. 8, 15, 54
(1970), and H.R. Rep. No. 1291, 91st Cong., 2d Sess. 17-20, 24 (1970),
reprinted in 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, at 148, 155, 193,
847-850, 854 (Comm. Print 1971) (hereinafter Legislative History).
/26/ Senator Javits proposed in committee a compromise whereby the
Secretary would regulate and enforce, and an independent three-person
panel would adjudicate.  S. Rep. No. 1282, supra, at 55, reprinted in
Legislative History 194.  Although his proposal was not accepted by
the committee, Senator Javits was later successful in securing its
adoption on the Senate floor.  Legislative History 380-393, 462-479.
/27/ The House-passed bill, meanwhile, included provisions for both an
independent standards board and an independent adjudicatory panel (id.
at 1094-1101, 1112-1113), but the conference committee adopted the
Senate version, placing rulemaking and enforcement authority with the
Secretary, and creating the Commission as an independent adjudicatory
agency (id. at 1146-1147, 1157-1169).

   The court of appeals' brief discussion of the legislative history
addresses only the congressional decision not to vest the Secretary
with adjudicatory authority.  Pet. App. 6a-7a.  For purposes of the
issues presented here, however, the critical point is that Congress
delegated exclusive policymaking authority to the Secretary, and
explicitly rejected proposals to remove that authority from the
Secretary.  This express choice to lodge rulemaking powers with the
Secretary, rather than with the Commission or another independent
board, provides powerful support for the conclusion that Congress did
not intend the Commission to exercise broad policymaking
responsibilities through its adjudications.  See Donovan v. A.
Amorello & Sons, 761 F.2d at 65.

   Furthermore, the reasons advanced in the legislative history for
these two decisions -- the retention of policymaking authority in the
Secretary and the delegation of adjudicatory authority to the
Commission -- also support the conclusion that the Secretary is the
entity entitled to interpretive deference.  The decision to retain
policymaking authority was supported for the very reasons this Court
has stressed as bases for deference -- congressional confidence in the
Secretary's policymaking expertise and the congressional goal of a
close relationship between policymaking and day-to-day administration
and enforcement.  Noting that proponents of an independent
policymaking board had argued that such a board "would represent
expertise in the field of occupational safety and health," the Senate
committee responded that such a board was not necessary because the
"professional and technical expertise * * * involved in the
development and promulgation of a standard * * * would be fully
available to the Secretary, both (through) members of his staff, and
(through) members of advisory committees." S. Rep. No. 1282, supra, at
8, reprinted in Legislative History 148.  Similarly, in rejecting the
contention that an independent board was necessary for "a separation
of powers" under the Act, the Senate committee emphasized that "a
sounder program will result if responsibility for the formulation of
rules is assigned to the same administrator who is also responsible
for their enforcement and for seeing that they are workable and
effective in their day-to-day application, thus permitting cohesive
administration of a total program." S. Rep. No. 1282, supra, at 8,
reprinted in Legislative History 148.  This decision by the Senate
committee to retain policymaking authority in the Secretary ultimately
prevailed on the Senate floor and in conference, and the committee's
explanation is thus entitled to considerable weight.

   The legislative history also reveals that the reasons for creating
the Commission were very different from the reasons for co-ordinating
policymaking and administration in the Secretary.  The Commission was
created to ensure both fairness and the appearance of fairness in
individual adjudications.  The author of the compromise, Senator
Javits, explained that, although due process could be achieved in
adjudication by either the Secretary or an independent entity,
adjudication by an independent entity "more closely accords with
traditional notions of due process" (Legislative History 392);  see
also S. Rep. No. 1282, supra, at 55 (statement of Sen. Javits),
reprinted in Legislative History 195, and would provide reassurance to
the regulated community (Legislative History 393, 469).  /28/ At the
same time, Senator Javits urged, his proposal would lead to a more
efficient administrative process.  /29/ Thus, a separate adjudicative
body would "preserve due process more easily, and thereby instill much
more confidence in the whole program in workers and businesses alike."
Legislative History 393 (Sen. Javits).  Explanations of the conference
agreement, which accepted the Javits compromise of a separate agency
for adjudication but not for policymaking, similarly described the
Commission's role as ensuring fairness in individual cases.  /30/

   Thus, the legislative history confirms that Congress did not intend
the Commission to have broad interpretive powers.  Like the statute
itself, this legislative history indicates instead that the principal
purpose of creating the Commission was to ensure fair and even-handed
treatment of individual employers who have been cited for violations.
/31/ This goal is clearly consistent with a rule requiring deference
to the Secretary's interpretations of her own regulations.  Congress
could, of course, have achieved the same purpose of ensuring due
process and fairness for individual employers by providing for
challenges to citations in district courts.  That Congress chose to
provide the alternative of independent administrative adjudication
should not change the applicable decisional principles.

   C. Principles Established In Analogous Contexts Support The View
That Deference Is Owed To The Policymaking Entity (the Secretary),
Rather Than The Adjudicatory Entity (the Commission)

   Principles established under analogous statutory schemes also
support the conclusion that the Secretary and not the Commission
should receive deference.  For instance, the Longshore and Harbor
Workers' Compensation Act, 33 U.S.C. 901 et seq., creates an
administrative scheme similar to the OSH Act in that one entity (the
Secretary of Labor) is given policymaking and program functions (33
U.S.C. 939), and another entity (the Benefits Review Board) is given
adjudicatory authority (33 U.S.C. 921(b)).  See Oil, Chemical & Atomic
Workers v. OSHRC, 671 F.2d 643, 652 n.12 (D.C. Cir. 1982) ("The role
of (the Commission) closely parallels the functions of the Benefits
Review Board.") In reference to the Benefits Review Board and its
adjudicatory role under the LHWCA, this Court emphasized that "the
Benefits Review Board is not a policymaking agency;  its
interpretation of the LHWCA thus is not entitled to any special
deference from the courts." Potomac Elec. Power Co. (Pepco) v.
Director, OWCP, 449 U.S. 268, 278 n.18 (1980).  /32/

   Despite the court of appeals' asserted distinction (Pet. App.
7a-8a), this principle is fully applicable here because Congress
assigned policymaking responsibilities to the Secretary, rather than
the Commission.  In particular, nothing in the distinction relied on
by the court of appeals -- that, under the OSH Act, the Secretary has
prosecutorial as well as rulemaking authority (see Pet. App. 8a;  page
14, supra) -- undercuts this basic identity.  In Pepco, this Court
based its conclusion not on the factors emphasized by the court of
appeals, but on the lack of a policymaking role for the Board in the
structure created by Congress -- a fundamental characteristic that
also holds for the Commission in the OSH Act context.  /33/

   In addition, the Federal Mine Safety and Health Act of 1977 (the
Mine Act), 30 U.S.C. 801 et seq., established a structure for the mine
safety and health program that is similar in many respects to the OSH
Act.  /34/ Under that statute, the Secretary of Labor is entrusted
with rulemaking, investigative, and prosecutorial authority (30 U.S.C.
811, 813-816), and the Federal Mine Safety and Health Review
Commission has adjudicative powers (30 U.S.C. 815, 823).  Courts have
concluded that, when their interpretations conflict, the Secretary, as
policymaker and enforcer, rather than the Mine Safety and Health
Review Commission, as adjudicator, receives deference.  See Secretary
of Labor v. Cannelton Indus., Inc., 867 F.2d 1432, 1433, 1435 (D.C.
Cir. 1989);  Brock v. Peabody Coal Co., 822 F.2d 1134, 1145-1146 &
n.41 (D.C. Cir. 1987);  Brock v. Cathedral Bluffs Shale Oil Co., 796
F.2d at 537.  /35/ Additionally, the legislative history of the Mine
Act (which was passed seven years after the OSH Act) explicitly
confirms that the Secretary should receive deference as an aspect of
her policymaking and administrative responsibilities:  "Since the
Secretary of Labor is charged with responsibility for implementing
this Act, it is the intention of the Committee, consistent with
generally accepted precedent, that the Secretary's interpretations of
the law and regulations shall be given weight by both the Commission
and the courts." S. Rep. No. 181, 95th Cong., 1st Sess. 49 (1977).
/36/

   In the OSH Act, as in these other contexts, the policymaker should
receive judicial deference, particularly in the interpretation of the
policymaker's regulations.  Indeed, the contrary rule favoring
deference to the Commission, when its interpretation conflicts with
the Secretary's, treads heavily on the policymaking and regulatory
role Congress sought to lodge in the Secretary.  Cf. Cuyahoga Valley
Ry. v. United Transp. Union, 474 U.S. at 7 ("a procedure (that) would
* * * allow the Commission to make both prosecutorial decisions and to
serve as the adjudicator of the dispute * * * (would be) a commingling
of roles that Congress did not intend").  In this case, for instance,
the court of appeals' decision would permit respondent to escape
liability even though the court did not find the Secretary's
interpretation unreasonable.  And liability would not be imposed even
though (1) respondent had been explicitly warned by the Secretary's
compliance officer that respirators should be fitted in banana oil (or
irritant smoke), (2) respondent then informed its employees that a new
respirator would be provided if they detected banana oil, and (3)
respondent's employees detected banana oil, were not given different
respirators, and were then exposed to levels of carcinogenic coke oven
emissions exceeding the permissible exposure level.  Because
reasonable interpretations of a regulation are an integral part of
policymaking and enforcement, and because Congress entrusted to the
Secretary policymaking and enforcement responsibilities, the
Secretary, and not the Commission, should receive deference in the
interpretation of the Secretary's own regulations.  /37/

                              CONCLUSION

   The judgment of the court of appeals should be reversed.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   DAVID L. SHAPIRO

      Deputy Solicitor General

   CLIFFORD M. SLOAN

      Assistant to the Solicitor General

   ROBERT P. DAVIS

      Solicitor of Labor

   ALLEN H. FELDMAN

      Associate Solicitor

   MARK S. FLYNN

      Attorney Department of Labor

   AUGUST 1990

   /1/ An employer also has a duty under the Act to "furnish to each
of his employees employment and a place of employment which are free
from recognized hazards that are causing or are likely to cause death
or serious physical harm to his employees" (29 U.S.C. 654(a)(1));  an
employee, in turn, has a duty to "comply with occupational safety and
health standards and all rules, regulations and orders issued pursuant
to (the Act) which are applicable to his own actions and conduct." 29
U.S.C. 654(b).

   /2/ The Secretary has delegated many of her OSH Act
responsibilities to the Assistant Secretary for Occupational Safety
and Health, who heads the Occupational Safety and Health
Administration (OSHA), an agency within the Department of Labor that
is responsible for enforcing the OSH Act.  See generally Secretary of
Labor's Order No. 12-71, 36 Fed. Reg. 8754 (1971);  Order No. 8-76, 41
Fed. Reg. 25,059 (1976);  Order No. 9-83, 48 Fed. Reg. 35,736 (1983).

   /3/ If no challenge is filed to the Secretary's citation or notice
of penalty, the citation or penalty itself becomes an order of the
Commission.  29 U.S.C. 659(a).

   /4/ An administrative law judge presides at the hearing and issues
a decision;  further review by the Commission is discretionary.  If no
Commissioner directs further review within 30 days of the ALJ's
decision, that decision becomes a final order of the Commission.  29
U.S.C. 661(j).

   /5/ Section 1910.134 is a general OSHA standard that contains the
basic requirements for acceptable respiratory protection programs and
for proper selection, use, cleaning, and maintenance of respirators.
The standard applies by its own terms when respirators are "necessary
to protect the health of the employee." 29 C.F.R. 1910.134(a)(2).  In
addition, the standard is incorporated by substance - or
industry-specific standards.  Thus, several other standards, in
addition to the coke oven emission standard, incorporate Section
1910.134 in whole or in part.  See, e.g., 29 C.F.R. 1910.1017(g)(3)
(vinyl chloride), 1910.1043(f)(3) (cotton dust), 1910.1047(g)(3)
(ethylene oxide), 1910.1048(g)(3)(i) (formaldehyde).

   /6/ References in this brief to respondent are to respondent CF&I
Steel Corporation, which briefed and argued the case in the court of
appeals.  The Commission was a nominal respondent in the court of
appeals (pursuant to Fed. R. App. P. 15(a)), but did not participate
in those proceedings, in accordance with its statutory role as a
purely adjudicatory agency.  See generally Oil, Chemical & Atomic
Workers v. OSHRC, 671 F.2d 643, 652-653 (D.C. Cir.), cert. denied, 459
U.S. 905 (1982);  Marshall v. OSHRC, 635 F.2d 544, 547 (6th Cir.
1980);  Marshall v. Sun Petroleum Prods. Co., 622 F.2d 1176, 1184 (3d
Cir.), cert. denied, 449 U.S. 1061 (1980);  Dale M. Madden Constr.,
Inc. v. Hodgson, 502 F.2d 278, 280 (9th Cir. 1974);  see also In re
Perry, 882 F.2d 534, 537 n.2 (1st Cir. 1989).  But see Brennan v.
Gilles & Cotting, Inc., 504 F.2d 1255, 1267 (4th Cir. 1974);  Diamond
Roofing Co. v. OSHRC, 528 F.2d 645, 648 n.8 (5th Cir. 1976).  Because
this case raises an important question of the statutory allocation of
responsibilities between the Secretary and the Commission, the
Solicitor General has authorized the Commission to file a brief amicus
curiae.

   /7/ A "willful" violation is in the most serious category of civil
violation, and the highest civil penalties are authorized for such
violations;  only "repeated" violations carry equally severe
penalties.  29 U.S.C. 666(a).  Violations may also be characterized as
"serious" and "not serious" (29 U.S.C. 666(b) and (c)) or as "de
minimis" (29 U.S.C. 658(a)).

   /8/ The allegations of the pertinent citation state:

      29 C.F.R. 1910.1029(b)(sic)(3):  The employer did not institute
      a respiratory protection program in accordance with 1910.134 of
      this part, in that;  Respirator Training did not provide the men
      an opportunity to have their respirator fitted properly and test
      its face-piece-to-face-seal:  a) 28 Coke oven employees working
      in the regulated area exposed to Coke oven emissions failed
      their respirator fit test and were not provided with a different
      respirator which would fit. b) 30 Coke oven employees working in
      the regulated area exposed to Coke oven emissions were not
      qualitatively fit-tested to determine if their respirators did
      fit.

OSHA Citation R5620-018, No. 2 (Aug. 29, 1979).  The citation was
subsequently amended to identify correctly the coke oven emissions
respiratory program standard, which appears at 29 C.F.R.
1910.1029(g)(3), not 1910.1029(b)(3), and to substitute the word
"employees" for the word "men" in the first sentence of the citation.
ALJ hearing (Feb. 25, 1980), Tr. 12.  The ALJ's quotation of the
citation in his decision (Pet. App. 76a) correctly incorporates the
substitution of the word "employees," but fails to correct the
reference to 29 C.F.R. 1910.1029(b)(3).

   /9/ 29 C.F.R. 1910.134(e)(5) provides, 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."
See Pet. App. 115a.

   /10/ The ALJ upheld the citation only insofar as it alleged that
respondent failed to provide properly fitted respirators to employees
who failed the banana oil test, and did not affirm that portion of the
citation challenging respondent's failure to test certain employees.
See paragraph (b) of citation, reprinted in note 8, supra;  Pet. App.
77a-78a.  Although the Secretary disagrees with the ALJ's
interpretation on this point, and believes that testing in a test
atmosphere must be done before an employee's assignment to a regulated
area, the Secretary has not challenged the ruling in this proceeding.

   /11/ The Commission also supported its interpretation by reasoning
that the national consensus standard for respiratory protection
developed by the American National Standards Institute, which served
as the source for 1910.134(e), merely advised, but did not require,
respirator fit testing in a test atmosphere.  Pet. App. 42a-43a.  In
addition, the Commission stated that the Secretary had taken
inconsistent positions in compliance instructions concerning the
requirement of a test atmosphere.  Id. at 44a n.14.

   /12/ The dissenting Commissioner reasoned that, regardless of
whether Section 1910.134 is a "training standard or a use standard,"
the Secretary had established a violation.  Pet. App. 51a.  He
maintained that, even if the standard is construed as a training
provision, the 28 employees who used respirators that did not fit
"were not trained to comprehend the proper fit of respirators, or to
use the respirators properly." Id. at 52a.  He also agreed that the
violation was appropriately characterized as "willful." Emphasizing
that 28 employees failed the banana oil test and were then exposed to
toxic coke oven emissions above the permissible exposure limit without
proper respiratory protection," he noted that the conduct
"demonstrates, at the very least, plain indifference to employee
safety." Id. at 54a.

   /13/ The various court of appeals decisions are cited at Pet. App.
4a-5a and Pet. 10 & n.7.

   /14/ See also Adams Fruit Co. v. Barrett, 110 S.Ct. 1384, 1390
(1990) ("A precondition to deference under Chevron is a congressional
delegation of administrative authority.");  Department of Treasury v.
FLRA, 110 S.Ct. 1623, 1629 (1990) ("As we emphasized in Chevron, when
an agency is charged with administering a statute part of the
authority it receives is the power to give reasonable content to the
statute's textual ambiguities.  * * * That is a task infused with
judgment and discretion, requiring the accommodation of conflicting
policies that were committed to the agency's care.") (internal
quotation marks omitted).

   /15/ See, e.g., Pension Benefit Guaranty Corp. v. LTV Corp., 110
S.Ct. 2668, 2679 (1990) ("(P)ractical agency expertise is one of the
principal justifications behind Chevron deference.");  Teamsters v.
Daniel, 439 U.S. 551, 556 n.20 (1979) ("(D)eference is a product of an
awareness of the practical expertise which an agency normally
develops, and of a willingness to accord some measure of flexibility
to such an agency as it encounters new and unforeseen problems over
time.").

   /16/ The settled principle is that "substantial deference" should
be accorded to "an agency's construction of its own regulations." Lyng
v. Payne, 476 U.S. 926, 939 (1986) (emphasis added).  See also
Robertson v. Methow Valley Citizens Council, 109 S.Ct. 1835, 1850
(1989);  Ford Motor Credit Co. v. Milhollin, 444 U.S. at 566 (1980).

   /17/ Deference is not unbounded, of course.  An administrative
interpretation of a regulation is "of controlling weight unless it is
plainly erroneous or inconsistent with the regulation." Bowles v.
Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945);  Udall v. Tallman,
380 U.S. at 16-17;  Robertson v. Methow Valley Citizens Council, 109
S. Ct. at 1850.  See also Gardebring v. Jenkins, 485 U.S. 415, 430
(1988) (Secretary's interpretation of own regulation should not be
rejected, in the absence of a statutory or constitutional challenge,
"unless (the) 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.").  The court of appeals'
suggestion that deference to the Commission is appropriate only when
there is ambiguity in a regulation (Pet. App. 7a, 9a) does not limit
the scope or significance of its decision;  it is precisely when a
regulation is ambiguous that the issue of deference arises, and
precisely then that deference to the promulgating entity is most
appropriate.  See INS v. Stanisic, 395 U.S. at 72;  Udall v. Tallman,
380 U.S. at 4;  Bowles v. Seminole Rock & Sand Co., 325 U.S. at
413-414.  Cf. Chevron, 467 U.S. at 843.

   /18/ It is well recognized that deference is owed to an
administrative interpretation even if the agency in question does not
have adjudicatory authority over the matter in question.  See, e.g.,
Skidmore v. Swift & Co., 323 U.S. 134, 137-140 (1944).

   /19/ Some courts have analogized the Commission to a district
court, emphasizing that the Commission, like a district court, is an
adjudicatory rather than policymaking body.  See, e.g., In re Perry,
882 F.2d 534, 537 (1st Cir. 1989);  Oil, Chemical & Atomic Workers v.
OSHRC, 671 F.2d 643, 652 (D.C. Cir.), cert. denied, 459 U.S. 905
(1982).  See also Br. in Opp. 19 ("(T)he Commission functions in a
capacity similar to a lower district court.").  It is plainly not
inconsistent with a district court's adjudicative function to defer to
reasonable agency interpretations of its statutes or regulations.
See, e.g., Whirlpool Corp. v. Marshall, 445 U.S. at 8, 11, 22
(district court failed to give appropriate deference to Secretary's
regulation interpreting a statute);  Udall v. Tallman, 380 U.S. at 4
(district court gave appropriate deference to Secretary's
interpretation).  Similarly, while the Commission serves an important
role as adjudicator under the Act, according deference to the
Secretary does not undermine the Commission's exercise of that
significant statutory responsibility.

   /20/ See also 29 U.S.C. 659(c) (Commission's order shall be "based
on findings of fact");  Atlas Roofing Co. v. OSHRC, 430 U.S. at 460
(upholding Commission's exercise of "administrative factfinding").

   /21/ See Donovan v. A. Amorello & Sons, 761 F.2d 61, 66 (1st Cir.
1985).  As with review of a district court's legal conclusions, review
of the Commission's legal conclusions should be undertaken with
appropriate respect for the decision-maker, but with a recognition
that its legal conclusions are subject to interpretive constraints,
such as the deference due a policymaking entity in the interpretation
of its rules.

   /22/ If one governmental entity is a policymaking authority and a
second governmental entity is required to defer or adhere to the
policymaker's determination, the appropriate question on judicial
review of the second entity's decision is the reasonableness of the
policymaker's determination.  See, e.g., Escondido Mut. Water Co. v.
La Jolla Band of Mission Indians, 466 U.S. 765, 778-779 (1984) (in
statute requiring Federal Energy Regulatory Commission to adhere to
Secretary of the Interior's determinations, question on review of
FERC's decision is reasonableness of Secretary's determinations).  In
this context, then, the appropriate question for a reviewing court
should be the reasonableness of the Secretary's interpretation;  if
the Commission has rejected a reasonable interpretation by the
Secretary, the Commission's decision is not "in accordance with law."
5 U.S.C. 706(2)(A).

   /23/ In rejecting the Secretary's interpretation in this case, the
Commission noted that the respirator standard was a pre-existing
standard and adopted as a "national consensus standard," pursuant to
29 U.S.C. 655(a).  Pet. App. 43a n.12.  Two courts have held that the
Secretary's interpretation of such a "national consensus standard"
should receive reduced deference.  See Marshall v. Anaconda Co., 596
F.2d 370, 374 (9th Cir. 1979);  Bethlehem Steel Corp. v. OSHRC, 573
F.2d 157, 160 (3d Cir. 1978).  The selection of a pre-existing
standard, however, is itself a policymaking exercise;  the OSH Act
empowered the Secretary to determine whether the promulgation of a
pre-existing standard as a national consensus standard would "result
in improved safety or health for specifically designated employees,"
and to determine, if pre-existing standards conflicted, "the standard
which assures the greatest protection of the safety or health of the
affected employees." 29 U.S.C. 655(a).  Thus, the Secretary's
interpretation of the pre-existing standard which she has selected is
itself entitled to deference.

   /24/ In fiscal year 1988, according to Labor Department
calculations, less than nine per cent of the Secretary's cited
violations were contested;  174,396 violations were cited during that
time.  Current Report, 18 Occup. Safety and Health Rep. (BNA) 1668
(Mar. 1, 1989).  (This percentage is higher than that of less than two
per cent, cited in the petition (see Pet. 13 n.10), because it
reflects use of contested violations as the numerator of the
percentage;  the figure in the petition reflects use of contested
cases as the numerator, and a contested case may include more than one
violation).  Furthermore, most contested violations are resolved not
through adjudication but through settlements or withdrawals of
citations or notices of contest, as in Cuyahoga Valley Ry. v. United
Transp. Union, 474 U.S. at 4-6 and cases cited therein.

   /25/ The Commission also cannot review claims that the Secretary
improperly failed to issue a citation.  See Donovan v. OSHRC, 713 F.2d
918, 927 (2d Cir. 1983) ("Only (the Secretary) has the authority to
determine if a citation should be issued to an employer.").
Therefore, its perspective is further skewed by its almost exclusive
focus on charges that the Secretary's enforcement of the Act is too
vigorous.  Moreover, the Commission has no role outside the citation
context and, as noted, does not even serve as adjudicator with respect
to certain aspects of the Secretary's enforcement responsibilities.
See, e.g., 29 U.S.C. 660(c)(2) (authorization for Secretary to file
discrimination actions in district court), 662(a) (authorization for
Secretary to file motions in district courts to restrain imminent
dangers).  Thus, the Commission has little familiarity with these
enforcement activities.

   /26/ Other bills adopted a third approach.  They would have created
a single independent board with both rulemaking and adjudicatory
authority, while lodging enforcement authority with the Secretary.  S.
2788, 91st Cong., 1st Sess. (1969), reprinted in Legislative History
31-72;  H.R. 13373, 91st Cong., 1st Sess. (1969) reprinted in
Legislative History 679-720.  These bills died in Committee.  See
generally Marshall v. Sun Petroleum Prods. Co., 622 F.2d 1176, 1182
(3d Cir.), cert. denied, 449 U.S. 1061 (1980).

   /27/ Before the adoption of Senator Javits' amendment, Senator
Dominick proposed on the Senate floor a substitute bill, which would
have created a separate board for promulgating safety and health
standards;  the substitute was defeated.  Legislative History 421-424,
449.

   /28/ Senator Javits frequently referred to the Commission's power
as "quasi-judicial." See, e.g., S. Rep. No. 1282, supra, at 54
(statement of Sen. Javits), reprinted in Legislative History 193;
Legislative History 464 (floor debate);  id. at 465 (floor debate).
Although Senator Javits and other legislators sometimes used the term
"enforcement" in describing the Commission's adjudications (see, e.g.,
Legislative History 464), they clearly were not referring to any
non-adjudicatory enforcement role.  Cf. Cuyahoga Valley Ry., 474 U.S.
at 6-7 ("(E)nforcement of the Act is the sole responsibility of the
Secretary.  * * * The Commission's function is to act as a neutral
arbiter.").  Similarly, although Senator Javits analogized the
Commission to the Federal Trade Commission (Legislative History 462,
465), his specific example made clear that he was referring to the
Occupational Safety and Health Review Commission's adjudicatory role,
not to any policymaking role.  See id. at 462 (referring to "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").

   /29/ Senator Javits cited two reasons for his conclusion that
adjudication by the Commission would be more expeditious than
adjudication by the Secretary:  (1) Commission orders would be
enforceable before judicial review (under the committee bill,
contested orders would not be enforceable until after judicial
review), and (2) Commission review of ALJ decisions would be
discretionary.  See Legislative History 392;  S. Rep. No. 1282, supra,
at 55 (statement of Sen. Javits), reprinted in Legislative History
194.

   /30/ See, e.g., Legislative History 1147 (Sen. Williams)
(separation of adjudicative role intended "to provide every assurance
that fairness and due process would be fully served").  Critics of the
combination of all functions in the Labor Department had objected that
management would perceive the Secretary, "traditionally * * * the
voice of labor in the administration" (id. at 982 (Rep. Anderson)), as
unfair to businesses that were cited for violations (id. at 473 (Sen.
Holland)).

   /31/ Senator Javits distinguished between the powers granted to the
Secretary and the Commission on that very basis:  "The enforcement of
orders is an adjudicatory act, whereas the establishment of standards
is a deliberate act.  There are serious penalties involved for the
individual enterprise.  It is a case by case proposition.  It does not
apply across the board to every member of industry." Legislative
History 464.

   /32/ Unlike the Occupational Safety and Health Review Commission,
the Benefits Review Board's members are appointed by the Secretary of
Labor;  its decisions nevertheless constitute final agency action from
which judicial review may be sought by the Secretary and other
aggrieved parties.  33 U.S.C. 921(c).  The Black Lung Benefits Act of
1972 (30 U.S.C. 901 et seq.) incorporates this structure.  See 30
U.S.C. 932(a) (incorporating by reference certain administrative
provisions of the Longshore Act).  Under both the Longshore Act and
the Black Lung Benefits Act, the Secretary has delegated her authority
to the Director, Office of Workers' Compensation Programs.  20 C.F.R.
701.201, 701.202.

   /33/ Since Pepco, the weight of appellate authority in LHWCA and
Black Lung benefits cases has concluded that deference should be
accorded to the views of the Director, and not the Board, in cases of
conflict over statutory or regulatory interpretation between the
Director and the Board.  See Lukman v. Director, OWCP, 896 F.2d 1248,
1250-1251 (10th Cir. 1990);  Director, OWCP v. Palmer Coking Coal Co.,
867 F.2d 552, 555 & n.3 (9th Cir. 1989);  Saginaw Mining Co. v.
Mazzulli, 818 F.2d 1278, 1283 (6th Cir. 1987);  Peabody Coal Co. v.
Blankenship, 773 F.2d 173, 175 (7th Cir. 1985);  Bethlehem Mines Corp.
v. Director, OWCP, 766 F.2d 128, 130 (3d Cir. 1985);  Boudreaux v.
American Workover, Inc., 680 F.2d 1034, 1046 & n.23 (5th Cir. 1982)
(en banc), cert. denied, 459 U.S. 1170 (1983).  Cf. Mullins Coal Co.
v. Director, OWCP, 484 U.S. 135, 159-160 (1987) (Court adopts
Secretary's reasonable interpretation of black lung regulation that
she has promulgated, but also notes Board's agreement with Secretary);
 Morrison-Knudsen Constr. Co. v. Director, OWCP, 461 U.S. 624, 635
(1983) (shared "practice" of Board and the Director is entitled to
deference).  But see Director, OWCP v. Detroit Harbor Terminals, Inc.,
850 F.2d 283, 288 (6th Cir. 1988) (neither the Board nor the Director
should receive deference);  Director, OWCP v. General Dynamics Corp.,
900 F.2d 506, 510 (2d Cir. 1990) (neither the Board nor the Director
should receive deference, at least where Director's "position has not
been articulated in a more objective context through the promulgation
of regulations").

   /34/ The Mine Act also contains certain important differences from
the OSH Act.  See, e.g., Donovan v. Dewey, 452 U.S. 594 (1981)
(differences in statutes lead to differences in Fourth Amendment
requirements).

   /35/ Courts have also suggested that, in the absence of a contrary
interpretation by the Secretary, the Commission's interpretation
receives deference (Simpson v. Federal Mine Safety & Health Review
Comm'n, 842 F.2d 453, 458 (D.C. Cir. 1988)), and that, if the
Commission's interpretation agrees with the Secretary's, it receives
heightened deference (Clinchfield Coal Co. v. Federal Mine Safety &
Health Review Comm'n, 895 F.2d 773, 776 (D.C. Cir. 1990)).

   /36/ See also 1 C.F.R. 305.86-4 (recommendation of Administrative
Conference of the United States that legislation adopting a
split-enforcement model of agency adjudication explicitly provide that
the adjudicatory agency should defer to the rulemaking agency's
interpretations).

   /37/ Although the court of appeals stated that it was "certainly
possible to reach an alternate interpretation of the ambiguous
regulatory language" (Pet. App. 11a), it did not explicitly address
the reasonableness of the Secretary's interpretation.  As a result,
this Court may wish to remand the case to the court of appeals for
consideration of that issue.  See, e.g., United States v. Sperry
Corp., 110 S. Ct. 387, 397 (1989);  Seatrain Shipbuilding Co. v. Shell
Oil Co., 444 U.S. 572, 597 (1980).

   In our view, the Secretary's interpretation of her regulation
should be sustained because it is not "plainly erroneous or
inconsistent with the regulation." Udall v. Tallman, 380 U.S. at 17.
In support of the reasonableness of the Secretary's interpretation, we
note that the Commission's principal basis for rejecting that
interpretation (Pet. App. 40a, 41a-42a) -- the specific fit
requirement in another provision (29 C.F.R. 1910.1029(g)(4)(i)) -- is
misconceived.  Nothing prevents overlapping prohibitions in statutes
or regulations.  Cf. United States v. Batchelder, 442 U.S. 114,
123-124 (1979);  Pet. App. 52a (dissenting opinion).  Moreover, the
Commission's cramped interpretation of 29 C.F.R. 1910.134, if
accepted, would necessarily govern not only when the regulation
applies in the coke oven emissions context, but also when 29 C.F.R.
1910.134 applies of its own force (cf. note 5, supra), and when it
applies to regulations that incorporate it and do not have specific
fit requirements (e.g., 29 C.F.R. 1910.1017(g)(3)).