dissenting.
When Twin City Carpenters Pension Fund suspended Richard Bond’s benefits because of the number of hours that he was working, Mr. Bond requested that the plan’s board of trustees review the fund’s determination. The board approved the suspension. Mr. Bond then pursued arbitration of his claim, as the plan required as a pre-requisite to filing a civil action; the arbitrator affirmed the board’s decision and decided that Mr. Bond was responsible for half the arbitration costs. After Mr. Bond paid that amount, he filed the present action seeking reimbursement of the payment, claiming that the provision in the pension plan providing for sharing arbitration costs was illegal under § 503 of the Employment Retirement Income Security Act (ERISA) (29 U.S.C. § 1133). The district court ruled that the challenged provision did not violate ERISA, and Mr. Bond appealed. For the reasons that follow, I would affirm the judgment of the district court.
I.
I begin by examining the ERISA provision under which Mr. Bond seeks relief. Section 1133 requires, in relevant part, that employee benefit plans provide participants whose claims are denied with a procedure that affords “a reasonable opportunity” for “a full and fair review by the appropriate named fiduciary of the decision denying the claim.”
There is no dispute that Mr. Bond’s pension plan qualifies as an employee benefit plan under § 1133. The question is whether the plan’s arbitration provisions creating a presumption that arbitration costs should be shared by the parties and granting an arbitrator discretion in dividing those costs, violate this statute. I believe that § 1133 simply does not govern these plan provisions because it does not purport to deal with proceedings that occur after a review by the fiduciary. Cf. Graphic Comm. Union v. GCIU-Employer Ret. Benefit Plan, 917 F.2d 1184, 1189 (9th Cir.1990); Chappel v. Lab. Corp. of Am., 232 F.3d 719, 725 (9th Cir.2000). The statute requires only that a participant whose claim for benefits has been initially denied by the plan have an opportunity for a “full and fair review” by the plan’s named fiduciary. In this case, Mr. Bond does not contest the fact that the plan’s named fiduciary (namely, the board) provided him with a “full and fair review,” and so I believe that the statute has been fully satisfied.
Mr. Bond relies on an opinion letter issued by the United States Department of Labor to support his position that the plan’s arbitration provisions violated § 1133. The letter states that “a plan that required that a participant bear an equal *708share of the expenses” of arbitration when such arbitration is a pre-requisite to “initiating a civil action” violates 29 C.F.R. § 2560.503-l(b) (1999). Section 2560.503-1(b) in turn provides that a plan’s claims procedures must be “reasonable,” and 29 C.F.R. § 2560.503 — l(b)(l)(iii) (1999), which presumably is the subsection that the opinion letter’s author believes would be violated, states that an employee benefit plan cannot have any procedure that “unduly inhibits or hampers the initiation or processing of plan claims.”
I recognize that an agency’s interpretation of its own regulation is controlling unless it is “plainly erroneous or inconsistent with the regulation,” Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945), or exceeds the limits of the statute to which the regulation applies, see Auer v. Robbins, 519 U.S. 452, 463, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997). I further recognize that an agency’s regulations themselves are entitled to deference, and that the relevant question is not how a court would interpret a statute, but whether an agency’s interpretation of a statute is reasonable. See Chevron U.S.A., Inc., v. Natural Res. Defense Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Nonetheless, courts are the final authorities on issues of statutory construction. See id at 843 n. 9, 104 S.Ct. 2778. They are “not obliged to stand aside and rubber-stamp their affirmance of administrative decisions that they deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute.” NLRB v. Brown, 380 U.S. 278, 291, 85 S.Ct. 980, 13 L.Ed.2d 839 (1965).
I am clear that § 2560.503 — 1(b)(iii) (1999) is itself consistent with ERISA because I believe that that regulation means merely to provide that a plan cannot adopt any procedure that “unduly inhibits or hampers” participants from obtaining review from a named fiduciary after a claim has been initially rejected. I agree with the Department of Labor that any such procedure would deny participants “a reasonable opportunity” for the “full and fair review by the appropriate named fiduciary” required by § 1133. For instance, a plan that required participants to pay an excessive fee before they could obtain review of a rejected claim from a plan’s named fiduciary would violate the terms of this regulation. What I reject as entirely unreasonable is the opinion letter’s assertion that any plan that requires arbitration as a pre-requisite to initiating a civil action and that requires employees to bear an equal share of arbitration expenses violates § 2560.503 — l(b)(iii). For reasons that I have already stated, I do not believe that ERISA has anything at all to say about cost-sharing arrangements for arbitration that is a pre-requisite for filing a civil action.
Perhaps if arbitration imposes costs on a beneficiary that make it prohibitive for him or her to “ ‘vindicate’ ” his or her statutory cause in an “ ‘arbitral forum,’ ” then, under general legal principles entirely independent of ERISA, the beneficiary would have the right not to submit his or her claim to arbitration despite an explicit contractual agreement to the contrary. See Shankle v. B-G Maint. Mgmt of Colorado, Inc., 163 F.3d 1230, 1234-35 (10th Cir.1999) (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 637, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985)). In this case, therefore, the plan’s provision creating a presumption that Mr. Bond would bear half the costs of arbitration might, at worst, have rendered the provision mandating arbitration as a pre-requisite for civil litigation unenforceable under the Federal Arbitration Act. See Shankle, 163 F.3d at 1234-35. But the fact that Mr. Bond might *709have had a right to initiate a civü action directly does not imply that ERISA prohibits an employee benefit plan from requiring him to pay for arbitration if he in fact decides to avail himself of an arbitral forum. If Congress wants employers to bear the cost of arbitration arising from § 1133 claims, it can presumably pass legislation to that effect. It has not chosen to do so.
II.
Mr. Bond also relies on regulations relevant to § 1133 that apply to all claims filed on or after January 1, 2002. See 29 C.F.R. § 2560.503 — l(o)(l) (2001). Both parties, however, recognize that these regulations do not control Mr. Bond’s claim because his claim was filed before they went into effect. Mr. Bond argues, nonetheless, that the new regulations clarify how we should interpret § 1133. The new regulation states that claims procedures may “not contain any provision ... that unduly inhibits or hampers the initiation provision or processing of claims for benefits” and further provides that “a provision or practice that requires payment of a fee or costs as a condition to making a claim or to appealing an adverse benefit determination would be considered to unduly inhibit the initiation and processing of claims for benefits.” 29 C.F.R. § 2560.503 — 1(b)(3) (2001). For reasons already adumbrated, I believe that the claims procedures referred to here are procedures that § 1133 requires a plan’s fiduciary to provide, and thus the new regulation prohibits a plan from requiring beneficiaries to pay fees for obtaining review from a fiduciary. It does not prohibit a plan from requiring beneficiaries to pay for arbitration after a fiduciary has reviewed a claim.
In any case, I agree with the district court’s holding that in Mr. Bond’s case, while the plan creates a presumption that the fees will be split equally, the split is not mandated. Rather, the plan gives the arbitrator the discretion to determine an appropriate allocation of fees. Mr. Bond, thus, would not have a claim even if the new regulation clarified the interpretation of § 1133 and prohibited a plan from requiring beneficiaries to pay arbitration fees.
III.
In sum, I think that Twin City Carpenters Pension Fund completely satisfied § 1133 by providing Mr. Bond with a “full and fair review” of his claim. I would hold, moreover, that the statute has no application to the cost-sharing provisions of the plan and thus those provisions did not violate ERISA. I therefore respectfully dissent.