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, 1989

   The Solicitor General, on Behalf of the Secretary of Labor,
petitions for a writ of certiorari to review the judgment of the
United States Court of Appeals for the Tenth Circuit in this case.

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

            TABLE OF CONTENTS
   Question Presented
   Opinions below
   Jurisdiction
   Statutory and regulatory provisions involved
   Statement
   Reasons for granting the petition
   Conclusion

                            OPINIONS BELOW

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

                             JURISDICTION

   The judgment of the court of appeals (App., infra, 12a-13a) was
entered on December 22, 1989.  On March 14, 1990, Justice White
extended the time for filing a petition for writ of certiorari to
April 9, 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 (1982 & Supp. V 1987),
and 661) are reprinted at App., infra, 92a-110a.  Department of Labor
regulations 29 C.F.R. 1910.134 and 1910.1029(g) are also reprinted at
App., infra, 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.),
"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).  Toward that end, the OSH Act provides the Secretary of Labor
with a broad array of regulatory and enforcement responsibilities.
Specifically, she has authority to "promulgate, modify, or revoke any
occupational safety or health standard" (29 U.S.C. 655(b));  to grant
variances from such standards to particular employers (29 U.S.C.
655(d));  and to conduct investigations and worksite inspections to
assure compliance with health and safety requirements (29 U.S.C. 657).
 The OSH Act also emplowers her to issue citations to employers
whenever she believes that an employer has violated the OSH Act or any
standard, rule, regulation, or order promulgated by the Secretary (29
U.S.C. 658);  to propose civil penalties against cited employers (29
U.S.C. 659(a), 666);  to prescribe abatement periods for cited health
and safety violations (29 U.S.C. 658(a), 659(c));  and to seek
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. 442, 445-446 (1977).  /1/

   In the OSH Act, Congress also created the Occupational Safety and
Health Review Commission (OSHRC) "for carrying out adjudicatory
functions." 29 U.S.C. 651(b)(3).  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 for abatement in the Secretary's citation.  29 U.S.C. 659(c).
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);  Atlas Roofing Co. v. OSHRC, 430 U.S. at 446.  The
OSH Act vests the Commission with power to compel attendance of
witnesses, production of documents, and taking of evidence.  29 U.S.C.
661(h) and (i).

   The OSH Act limits the Commission's rulemaking authority to
establishment of procedural norms for adjudicatory hearings before the
Commission and its administrative law judges.  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).  If the Commission affirms
a citation, only the Secretary may seek enforcement of the
administrative order in the court of appeals.  29 U.S.C. 660(b).  The
Secretary or an aggrieved party may seek judicial review of adverse
Commission decisions.  Ibid.  All civil penalties assessed in final
Commission decisions are payable to the Secretary and are recoverable
only 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, she
promulgated a standard governing occupational exposure to coke oven
emissions.  41 Fed. Reg. 46,742-46,790 (1976);  29 C.F.R. 1910.1029.
The standard requires limiting employee exposure to a specified level
of coke oven emissions in a "regulated area" (29 C.F.R. 1910.1029(c)).
 The standard also requires the use of engineering and work practice
controls to achieve that reduction (29 C.F.R. 1910.1029(f)).  Of
particular relevance for purposes of 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 program
in accordance with Section 1910.134 of this part.").

   3. In August 1979, the Secretary conducted an inspection at
respondent's coke oven facility in Pueblo, Colorado.  /2/ The
Secretary and respondent had previously reached a settlement regarding
citations issued to respondent for violations of the coke oven
emissions standard.  App., infra, 19a.  As a result of the August 1979
inspection, the Secretary issued three additional citations.  Id. at
90a-91a.  One part of one citation is currently at issue.  Id. at 3a,
36a-37a.

   The inspection disclosed that respondent had conducted two kinds of
respirator tests with its employees.  App., infra, 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 28 of
respondent's employees had detected banana oil, but that respondent
had failed to give them 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 of 29 C.F.R.
1910.1029(g)(3) -- the coke oven provision that incorporates the
respirator regulation in 29 C.F.R. 1910.134.  The Secretary assessed
the maximum penalty of $10,000.  /3/

   4. Respondent contested the citation.  A Commission administrative
law judge (ALJ) held five days of hearings in February 1980, and
issued an opinion upholding the citation in August 1981.  The ALJ
found that, as the Secretary charged, 28 employees detected banana oil
in the banana oil test and were then sent into the coke oven areas
without any adjustment in their respirators.  App., infra, 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) -- and
1910.134(e)(5) in particular /4/ -- requires employers both to assure
that each employee's respirator fits properly by using a test
atmosphere (as in the banana oil test) and to provide a different type
or size respirator if an employee's equipment fails the test.  App.,
infra, 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.  He concluded that the pertinent
regulation -- 29 C.F.R. 1910.134(e)(5) -- requires qualitative fit
testing in a test atmosphere and that it imposed a requirement that a
respirator fit properly.  App., infra, 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 concluded that the violation was willful
and 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.

   5. Five years later, in September 1986, the Commission reversed the
ALJ's judgment.  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." App., infra, 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
proper respirator fit as well.  App., infra, 40a, 41a.  The Commission
also concluded that, on 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.  App., infra, 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" (App., infra, 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.

   Inasmuch as 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.
App., infra, 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.  One Commissioner dissented.  /5/

   6. The Secretary petitioned for review.  On December 22, 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." App., infra, 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?" App., infra, 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.  /6/

   Since in the court's view the statutory language did not settle the
matter, 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." App., infra, 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 Electric 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" (App., infra, 8a) and, for
two reasons, distinguishable.  First, Longshore adjudications are
nonaccusatory, "whereas OSHA requires accusatory proceedings that may
result in substantial penalties." Ibid.  Second, Longshore claims are
brought by private citizens, not by the government.  Ibid.  The court
concluded that the Longshore context does not "implicate" Congress's
concerns about vesting prosecutorial and adjucative 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 of appeals 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." App., infra, 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 continuing proper fit.  App., infra,
9a-11a.  The court found support for its 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." App., infra,
11a.  Nonetheless, applying its rule that it would defer to a
reasonable Commission interpretation, the court upheld the
Commission's decision.

                   REASONS FOR GRANTING THE PETITION

   This Court should review the court of appeals' holding that it
would defer to the Commission's interpretation of an OSH Act standard
that the Secretary had promulgated rather than to the Secretary's
interpretation.  As the court of appeals' opinion recognizes, the
circuits are in widespread conflict on the question.  Furthermore, in
concluding that a purely adjudicatory body (the Commission) rather
than the policymaking and enforcement authority (the Secretary) is
entitled to deference, the court of appeals misapplied the principles
underlying this Court's decisions on deference.  Finally, the question
is of considerable importance.  As this case illustrates, the court of
appeals' rule frustrates the Secretary's exercise of the policymaking
and enforcement duties entrusted to her by Congress.

   1. The courts of appeals are severely divided on the question of
which entity -- the Secretary or the Commission -- is entitled to
deference under the OSH Act.  The First, Fifth, Seventh, and Eleventh
Circuits have endorsed a rule favoring the Secretary's interpretation.
 Donovan v. A. Amorello & Sons, Inc., 761 F.2d 61, 64-66 (1st Cir.
1985);  Brock v. Chicago Zoological Soc'y, 820 F.2d 909, 912 (7th Cir.
1987);  United Steelworkers v. Schuylkill Metals Corp., 828 F.2d 314,
319-320 (5th Cir. 1987);  Brock v. Williams Enterprises of Georgia,
Inc., 832 F.2d 567, 569-570 (11th Cir. 1987).  Cf. Brock v. Cathedral
Bluffs Shale Oil Co., 796 F.2d 533, 537 & n.2 (D.C. Cir. 1986) (noting
split under OSH Act, and holding that, under the Federal Mine Safety
and Health Act, deference is accorded to the Secretary rather than to
the Federal Mine Safety and Health Review Commission).  In contrast,
in addition to the Tenth Circuit in this case, the Second, Fourth,
Sixth, and Ninth Circuits defer to the Commission.  Marshall v.
Western Elec., Inc., 565 F.2d 240, 244 (2d Cir. 1977);  Brennan v.
Gilles & Cotting, Inc., 504 F.2d 1255, 1261-1262 (4th Cir. 1974);
Usery v. Hermitage Concrete Pipe Co., 584 F.2d 127, 132 (6th Cir.
1978);  Brock v. Bechtel Power Corp., 803 F.2d 999, 1000-1001 (9th
Cir. 1986).  /7/

   This division of authority undermines important values of
uniformity.  Moreover, as this case illustrates, a deference rule is
often outcome determinative, since the rule establishes which of two
reasonable, but conflicting, interpretations the court will approve.
See App., infra, 11a ("While it is certainly possible to reach an
alternate interpretation of the ambiguous regulatory language * * * ,
we defer to the interpretation chosen by the Commission.");  United
Steelworkers v. Schuylkill Metals, 828 F.2d at 320 ("In this case, the
standard of review determines the outcome.");  Brennan v. Gilles &
Cotting, 504 F.2d at 1262 (statute allows decision "either way" on
question of whether a general contractor is jointly responsible with
subcontractor for safety violations hazardous to subcontractor
workmen, and court defers to interpretation of Commission).  In
addition, the existence of conflicting rules on this issue provides a
strong incentive for forum shopping by the party seeking review of a
Commission decision.  See 29 U.S.C. 660(a) (1982 & Supp. V 1987)
(aggrieved party may obtain review of Commission order in the circuit
in which violation occurred, where the employer has its principal
place of business, or in the District of Columbia Circuit).  Thus,
there is a substantial conflict in the circuits, and a need for this
Court to establish the governing rule.  /8/

   2. The decision below is incorrect.  The court of appeals'
fundamental error is its failure to recognize that the Secretary is
entitled to deference because she is charged by Congress with
policymaking and rulemaking;  the Commission is simply an adjudicatory
agency.  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, 467 U.S. 837, 844 (1984).  Thus,
"considerable weight should be accorded to an executive department's
construction of a statutory scheme it is entrusted to administer"
(ibid.), and the dispositive question is whether the agency's "choice
represents a reasonable accommodation of conflicting policies that
were committed to the agency's care by statute" (id. at 845) (internal
quotation marks omitted).  Deference is appropriate because an
agency's interpretations are part of the policymaking responsibility
that has been delegated to the agency.  /9/

   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 citation 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
p. 2, supra, is the authority to provide guidance for both OSHA
compliance officers and 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).

   In light of Congress's explicit grant of authority to the
Secretary, not to the Commission, to promulgate standards for employee
safety and health, it is clear that the Secretary's interpretation of
her own regulations should receive deference.  The Commission does not
write, or participate in any way, in the formulation of health and
safety standards.  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.").  The Commission is vested "with no direct
policymaking functions" (Donovan v. OSHRC, 713 F.2d 918, 930 (2d Cir.
1983)), and "(u)nlike the NLRB and the FTC, it has neither prosecution
nor enforcement powers," Dale M. Madden Constr., Inc. v. Hodgson, 502
F.2d 278, 280 (9th Cir. 1974).  The Commission, as an institution with
a solely adjudicatory function, is not well situated 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, Inc., 761 F.2d at 66.  Because OSHRC reviews only
contested enforcement actions that the Secretary initiates -- a tiny
proportion of OSHA's overall activities /10/ -- the Commission's
vision of the program is, of necessity, quite narrow.  The Secretary,
in contrast, has gained 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 the broad range of health
and safety issues that arise under the Act itself and the standards
she has promulgated.

   Notwithstanding the Secretary's pivotal role, the court of appeals
concluded that deference to the Commission was appropriate to protect
the Commission's role under the Act.  App., infra, 6a-7a.  The court
emphasized that since the Commission's adjudicative function
encompasses a "power to 'declare' the law," deference to the
Secretary's interpretation of her regulations, rather than to the
Commission's interpretation of them, would undermine that power.  Id.
at 7a.

   The court's analysis is off the mark.  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 pronouncement about the meaning
of the Secretary's regulations are not based on the exercise by the
Commission of any regulatory function;  as a result, those
pronouncements do not qualify for deference under Chevron and its
progeny.  Moreover, deference to the Secretary's reasonable
interpretation of her regulations -- by the Commission as well as by
courts -- is not inconsistent with an adjudicatory function.  /11/
When an adjudicatory body defers to a reasonable administrative
interpretation of a regulation or statute, it is not denigrating its
adjudicatory authority;  it is, rather, exercising that authority in
accordance with established principles.  Chevron, 467 U.S. at 842-845.

   The court of appeals also relied on the OSH Act's legislative
history, and in particular on the congressional determination to
separate the adjudicatory function from the enforcement function.
App., infra, 6a-7a.  This is a slender reed.  The legislative history
reveals that Congress forged a compromise between bills creating
different administrative schemes:  one approach would have lodged
enforcement authority in the Secretary, but placed rulemaking as well
as adjudication authority in separate boards independent of the
Secretary;  the other approach would have placed all three functions
in the Secretary.  In the end, Congress provided the Secretary with
authority to regulate and enforce, and created the Commission to
adjudicate contested citations.  /12/ For purposes of the issue
presented here, the critical point is that Congress entrusted
exclusive policymaking authority to the Secretary;  indeed, Congress
explicitly rejected the proposal to take that authority away from the
Secretary.  /13/

   Thus, the legislative history does not suggest that Congress
intended the Commission to have broad interpretive powers.  Like the
statute itself, this 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.
/14/ This goal is in no way undermined by requiring deference to the
Secretary's interpretations of regulations (or of the statute).

   The conclusion that in this context the policymaking entity rather
than the adjudicatory entity should receive deference is also
supported by principles established in analogous contexts.  Referring
to the Benefits Review Board and its adjudicatory role under the
Longshore and Harbor Workers' Compensation Act, 33 U.S.C. 901 et seq.,
this Court stated 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. v. Director, OWCP, 449 U.S. 268, 278 n.18 (1980) (Pepco).
/15/ Despite the court of appeals' asserted distinctions (App., infra,
7a-8a), this principle is fully applicable to the OSH Act context
because in both instances Congress assigned policymaking
responsibilities to the Secretary.  Neither the fact that the
Secretary (rather than a private citizen) brings OSH Act enforcement
actions nor the fact that in the OSH Act Congress separated that
prosecutorial function from the adjudicatory function undercuts this
basic identity.  Similarly, under the Federal Mine Safety and Health
Act of 1977 (the MSH Act) (30 U.S.C. 801 et seq.), the Secretary of
Labor, rather than the Mine Health and Safety Review Commission,
receives deference in the interpretation of the Secretary's
regulations.  See Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d at
537 n.2 (Scalia, J.) ("We see no reason to depart from the view we
announced with regard to the Mine Act * * * which leaves interpretive
discretion where it normally resides, with the policy-maker rather
than the adjudicator.").  /16/ Under the OSH Act, as in these other
contexts, the policymaker should receive deference in the
interpretation of the policy-maker's regulations.

   3. The issue presented in this case is of considerable importance.
As we have noted, a court's deference rule is often outcome
determinative, and thus a rule favoring deference to the Commission
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").  Moreover, the many decisions in the
courts of appeals on this issue (pp. 9-10, supra) reveal how
frequently the issue recurs.  Although the court of appeals in this
case suggested that the Secretary can amend the regulation, the
amending process is burdensome and time-consuming, and if the
Secretary's interpretation of a regulation is reasonable, that process
should not be necessary.  /17/ Furthermore, the court's requirement
bars enforcement of the Secretary's interpretation in the interim.  In
this case, for instance, the court of appeals' holding would enable
respondent to escape liability even though, under the Secretary's
reasonable interpretation of her own regulations, the employer
willfully violated the coke oven emissions standard by requiring its
workers to use inadequate respirators in areas with dangerously high
emission levels.

   In view of the division in the courts of appeals on a question of
such importance, the issue warrants this Court's review.

                              CONCLUSION

   The petition for a writ of certiorari should be granted.

   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

   CHARLES I. HADDEN

      Deputy Associate Solicitor

   MARK S. FLYNN

      Attorney Department of Labor

   APRIL 1990

   /1/ 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).

   /2/ References in this petition to respondent are to respondent
CF&ISteel Corporation, which briefed and argued the case in the court
of appeals.  OSHRC was nominally a respondent in the court of appeals
(pursuant to Fed. R. App. P. 15), but did not participate in those
proceedings.

   /3/ A "willful" violation is the most serious form of civil
violation, and the highest civil penalties are authorized for such
violations;  violations may also be characterized as "serious" and
"not serious." 29 U.S.C. 666.

   /4/ 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."

   /5/ 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.  App., infra, 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, he noted that the
conduct "demonstrates, at the very least, plain indifference to
employee safety." Id. at 54a.

   /6/ The panel distinguished the Tenth Circuit's earlier decision in
Brennan v. OSHRC & Kesler, 513 F.2d 553, 554 (1975), in which the
court of appeals had appeared to endorse the contrary rule and pay
deference to the interpretation of the Secretary.  Because, in the
panel's view, the Commission's interpretation in that case was not
supported by the regulatory language, the panel did not believe that
Kesler established a rule applicable to this case.  App., infra, 5a.

   /7/ The court of appeals cited the Eighth Circuit as one of the
Circuits favoring deference to the Commission.  App., infra, 5a
(citing Brennan v. OSHRC, 513 F.2d 713, 715-716 (1975)).  The Eighth
Circuit's most recent decision, however, suggests that deference to
the Commission is not appropriate.  See Brock v. Dun-Par Engineered
Form Co., 843 F.2d 1135, 1137 (1988).

   The Third Circuit has not articulated a clear deference rule
governing cases in which there is a conflict between the Secretary's
and the Commission's interpretations.  Compare Bethlehem Steel Corp.
v. OSHRC, 573 F.2d 157, 160 (1978) (suggesting that deference is
inapplicable when Commission's and Secretary's interpretations
conflict), with Director, OWCP v. Mangifest, 826 F.2d 1318, 1323 n.11
(3d Cir. 1987) (explaining Bethlehem Steel on the ground that the
Secretary had failed to clarify an ambiguous regulation interpreted in
conflicting ways by the Commission).  See also Donovan v. Adams Steel
Erectors, Inc., 766 F.2d 804, 807 n.3 (3d Cir. 1985).

   /8/ The court of appeals' suggestion that deference to the
Commission is appropriate only when there is ambiguity in a regulation
(App., infra, 7a, 9a) does not minimize the reach of its decision
because deference is generally relevant only when there is ambiguity
in the language of a regulation (or statute).  See also Lukman v.
Director, OWCP, No. 88-1733 (10th Cir. Feb. 22, 1990), slip op. 5 n.3
(noting that, "(i)n Dole, we joined those Circuits which defer to the
Commission").

   /9/ "When the construction of an administrative regulation rather
than a statute is in 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).  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.  The particular deference due an agency's
interpretation of its regulation rests on the fact that the
interpretation has been provided by "the agency responsible for
promulgating and administering the regulation." Immigration &
Naturalization Service v. Stanisic, 395 U.S. 62, 72 (1969).

   /10/ In fiscal year 1988, less than two percent of the Secretary's
citations were contested;  174,396 violations were cited during that
time.  Current Report, 18 O. S. H. Rep. 1668 (BNA) (Mar. 1, 1989).

   /11/ Indeed, at the same time that the court of appeals stressed
the importance of the interpretive role to the Commission's
adjudicatory function (App., infra, 7a), the court also emphasized
that the Commission should defer to the Secretary's interpretation and
reject it only if "clearly wrong or in the presence of genuine
ambiguity." Id. at 9a.

   /12/ During consideration of the bill that ultimately became the
OSH Act, labor and management advocates were at odds about whether the
Secretary of Labor, in addition to his prosecutorial role, should have
power to promulgate safety and health standards and adjudicate
contested enforcement cases.  The Administration bill, suported 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 (1970), and H.R. Rep. No. 1291, 91st Cong.,
2d Sess. 17-20, 24 (1970), reprinted in Staff of the Senate 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, 847-850, 854 (Comm. Print 1971) (hereinafter
Legislative History).  Senator Javits unsuccessfully 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), but
he was later successful in obtaining its adoption on the Senate floor
(Legislative History 381-393, 462-479).  The creation of an
independent adjudicatory panel was included in the House-passed bill
(id. at 1098-1101), and was adopted by the conference committee (id.
1147, 1165-1169).

   /13/ The OSH Act requires the President to appoint Commissioners
"who by reason of training, education, or experience are qualified to
carry out the functions of the Commission." 29 U.S.C. 661(a).  Some
courts have considered this provision an indication that Congress
intended to make OSHRC an expert body, and have concluded that courts
should therefore defer to its expertise.  See, e.g., Dunlop v.
Rockwell International, 540 F.2d 1283, 1289-1290 (6th Cir. 1976).  But
the provision is not an endorsement of any policy role for the
Commission;  rather, it reflects congressional concern that the
Commissioners have some background in safety and health to assist them
in carrying out their adjudicative function.  Indeed, the fact that
the OSH Act does not require Commission involvement in the formulation
of standards or in the resolution of the vast majority of violations
confirms OSHRC's lack of a policy role.  Thus, there is no Commission
review of the Secretary's interpretation of the OSH Act and
regulations for the more than 98% of violations that employers do not
contest.  See 29 U.S.C. 659(a) and note 10, supra.  Moreover, the OSH
Act permits affected persons to challenge the validity of standards
that the Secretary promulgates directly in the court of appeals,
without any review by the Commission.  29 U.S.C. 655(f).

   /14/ See, e.g., Legislative History 464 (Sen. Javits) ("The
enforcement of orders is an adjudicatory act, whereas the
establishment of standards is a deliberative 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.");  id. at 1147 (Sen. Williams) (separation of
prosecutorial and adjudicative roles intended "to provide every
assurance that fairness and due process would be fairly 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
473 (Rep. Anderson)) as unfair to businesses that were cited for
violations (ibid. (Sen. Holland)), and that the combination would
create "an undue concentration of power" with a potential for abuse.
id. at 426 (Sen. Dominick).

   /15/ The longshore and harbor workers' compensation program (33
U.S.C. 901 et seq.) is similar to the OSH Act in that one entity (the
Secretary of Labor) is given policymaking and program functions (33
U.S.C. 939 (1982 & Supp. V 1987)), and another entity (the Benefits
Review Board) is given adjudicatory authority (33 U.S.C. 921(b)).  The
Secretary has delegated her authority to the Director, Office of
Workers' Compensation.  20 C.F.R. 701.201, 701.202.  Deputy
Commissioners subordinate to the Secretary (and thus the Director)
make initial determinations on benefits claims (33 U.S.C. 919 (1982 &
Supp. V 1987)), and their decisions may be appealed to the Benefit
Review Board (33 U.S.C. 921(b)).  Unlike OSHRC, the Benefit 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 Director 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)
(1982 & Supp. V 1987) (incorporating by reference certain
administrative provisions of the Longshore Act).  Following Pepco, the
courts of appeals have concluded that, because "the BRB's function is
more akin to that of a District Court, unlike other agencies'
policymaking bodies," due 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.
Alford v. American Bridge Div., U.S. Steel Corp., 642 F.2d 807, 809 &
n.2 (5th Cir. 1981), cert. denied, 455 U.S. 927 (1982).  See also
Lukman v. Director, OWCP, slip op. 5;  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).  Cf. Mullins Coal Co. v.
Director, OWCP, 484 U.S. 135, 163-164 (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 Const. 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 Board nor Director is
entitled to deference).

   /16/ The Federal Mine Safety and Health Act of 1977 established a
structure for the mine safety and health program similar to the
occupational safety and health program.  The Secretary of Labor is
entrusted with rulemaking, investigative, and prosecutorial authority
(30 U.S.C. 811, 813-816 (1982 & Supp. V 1987)), and the Federal Mine
Safety and Health Commission has adjudicative powers (30 U.S.C. 815,
823).  The legislative history of the MSH Act (which was passed seven
years after the OSH Act) confirms that the Secretary of Labor should
receive deference as an aspect of her policymaking and administrative
responsibilities:  "Since the Secretary of Labor is charged with
responsibility for implementing the 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).  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
rule-making agency's interpretations).

   /17/ To the extent that the same deference rule applies to
statutory interpretations, the Secretary cannot correct a Commission
interpretation simply by amending a regulation.

   APPENDIX