Akzo Nobel Salt, Inc. v. Federal Mine Safety & Health Review Commission

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 17, 2000 Decided May 26, 2000

No. 99-1370

Akzo Nobel Salt, Inc. and
Cargill, Incorporated,
Petitioners

v.

Federal Mine Safety and Health Review Commission and
Secretary of Labor,
Respondents

On Petition for Review of a Final Decision by the
Federal Mine Safety and Health Review Commission

Mark N. Savit argued the cause for petitioners. With him
on the brief were Adele L. Abrams, and David J. Farber.

Jerald S. Feingold, Attorney, U.S. Department of Labor,
argued the cause for respondent. With him on the brief was
W. Christian Schumann, Counsel.

 Before: Williams, Randolph and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Williams.

Williams, Circuit Judge: The Federal Mine Safety and
Health Act of 1977 (the "Mine Act") authorizes the Secretary
of Labor, acting through the Mine Safety and Health Admin-
istration ("MSHA") to promulgate "mandatory health or safe-
ty standards for the protection of life and prevention of
injuries in coal or other mines." Mine Act s 101(a), 30 U.S.C.
s 811(a). At issue here is a standard governing escapeways
from mines:

Every mine shall have two or more separate, properly
maintained escapeways to the surface from the lowest
levels which are so positioned that damage to one shall
not lessen the effectiveness of the others. A method of
refuge shall be provided while a second opening to the
surface is being developed. A second escapeway is rec-
ommended, but not required, during the exploration or
development of an ore body.

30 CFR s 57.11050.

When maintenance at Akzo Nobel Salt's Cleveland Mine
required temporary shut-down of one of the mine's two
escapeways, Akzo received a citation for violating this stan-
dard. After successfully contesting the citation before an
ALJ, Akzo lost on the Secretary's appeal to the Federal Mine
Safety and Health Review Commission. The Commission
took the view--now espoused by the Secretary as well--that
the regulation unambiguously required every mine to have at
least two escapeways operable at all times that miners (other
than ones involved in escapeway repair or maintenance) were
in the mine. Akzo (together with Cargill, Inc., which pur-
chased the Cleveland Mine during the litigation but will
henceforth be disregarded), petitioned this court for review.

The regulation does not have the supposedly unambiguous
meaning assigned it by the Commission (and before us by the
Secretary as well). "[P]roperly maintained" is not identical
to "continuously functioning." Moreover, because the Secre-
tary's interpretation of s 57.11050(a) has vacillated over time,

we remand for the Commission to ascertain the interpretation
that the Secretary currently espouses and to resolve the case
under standard principles governing deference to an agency's
interpretation of its regulations.

* * *

The parties have stipulated to the relevant facts. The Akzo
Cleveland Mine was opened in 1961. It operates two hoists
to transport miners and material to and from the surface,
each hoist being contained within a separate shaft. Because
of the construction of the wire ropes used in the hoists, these
ropes must be adjusted periodically to ensure that they're
tight and of equal length.

On November 6, 1995 counsel for Akzo wrote to Vernon
Gomez, then MSHA's Administrator for Metal and Nonmetal
Mine Safety and Health, asking for clarification of MSHA's
interpretation of 30 CFR s 57.11050(a) when one escapeway
is taken out of use for repairs, leaving only one escapeway
available for immediate use. Gomez responded on December
8, 1995, saying that "if a hoist could be returned to service
within 1 hour of the need to be used then evacuation of the
mine would not be required." On December 15 Akzo's coun-
sel informed the Secretary that it would plan a hoist outage
over the upcoming holidays to test the Gomez interpretation,
which has become known as the "one-hour rule." On Decem-
ber 25 the planned outage took place. The hoist was shut
down for roughly three and a half hours; that period included
a time during which it could not have been returned to
service in less than an hour. During this shift there were
three miners underground doing work unrelated to the main-
tenance. On January 25, 1996 an MSHA inspector issued two
citations under s 104(d) of the Mine Act, 30 U.S.C. s 814(d):
one under 30 CFR s 50.10 for failure to report the incident
immediately, and a second one under 30 CFR s 57.11050(a).

Akzo contested the January 25th citations (as well as an
earlier citation for failure to comply with s 50.10) pursuant to
s 105(d) of the Mine Act, 30 U.S.C. s 815(d). Both Akzo and
the Secretary moved for summary decision, and the ALJ

ruled in Akzo's favor, vacating the citations. The Secretary
did not appeal the decision on s 50.10, so we need not address
it. As for the s 57.11050(a) citation, the ALJ found that
Gomez's one-hour interpretation was not contained within the
regulation's text and was "a significant departure from
MSHA's apparent prior practice that has a substantial ad-
verse impact on AKZO's mining rights and compliance obli-
gations." Akzo Nobel Salt, Inc. v. Secretary of Labor, Mine
Safety and Health Administration, 18 F.M.S.H.R.C. 1950,
2027 (ALJ 1996). It followed that the Gomez letter was "a
substantive rule subject to APA notice, comment, and publica-
tion requirements." Id. Indeed, the ALJ rejected the con-
tention that the Gomez letter constituted "the prevailing
definitive interpretation[ ] of section 57.11050." Id. at 2019.
Rather, the letter was "a private communication," which "was
prepared unilaterally and was not shared with other members
of the mining community, and its contents have apparently
never been reduced to other written form." Id. at 2020.

The Secretary appealed, arguing (as summarized by the
Commission) that the one-hour rule was an interpretive rule
and therefore did not require notice-and-comment rulemak-
ing, see 5 U.S.C. s 553(b)(A), and that the interpretation was
"reasonable and consistent with the language and purpose of
the standard." Secretary of Labor, Mine Safety and Health
Administration v. Akzo Nobel Salt, Inc., 21 F.M.S.H.R.C.
846, 850 (F.M.S.H.R.C. 1999). In an opinion joined by two
commissioners, the Commission took a more stringent view of
the regulation than Akzo and the ALJ or even the Secretary.
It reversed the ALJ on the ground that Akzo's conduct was in
violation of "the plain terms" of the regulation, which it saw
as requiring that "an operator must provide two means of
escape at all times." Id. at 853. Commissioner Marks
agreed that the plain meaning of the regulation required
reversal but wrote separately to discuss a variety of matters.
Akzo attacks Marks's opinion as "no more than an emotional
screed," Petitioner's Initial Br. at 29, but because the plurali-
ty opinion is unsustainable we need not consider the Marks
opinion.

 We defer to an agency's interpretation of its own regula-
tions "unless it is plainly erroneous or inconsistent with the
regulation," Thomas Jefferson University v. Shalala, 512 U.S.
504, 512 (1994) (internal quotation marks omitted). And
when, as in this case, the Commission and the Secretary
adopt conflicting interpretations, it is the Secretary's that
deserves deference. Secretary of Labor, Mine Safety and
Health Administration v. FMSHRC, 111 F.3d 913, 920 (D.C.
Cir. 1997); see also Martin v. Occupational Safety & Health
Review Comm'n, 499 U.S. 144, 152-53 (1991) (holding that
because the Occupational Safety and Health Act of 1970
invests rulemaking and enforcement authority in the Secre-
tary of Labor, his or her interpretations, rather than those of
the adjudicatory Occupational Safety and Health Review
Commission, are accorded deference).

Although at the time this litigation arose the Secretary's
position was the one-hour rule (at least as evidenced by the
Gomez letter and its enforcement action against Akzo), her
primary litigation position here is to ask us to affirm the
Commission on its stated ground--that when miners are
underground, s 57.11050 unambiguously requires, at all
times, two functioning escapeways. She rests this in part on
the truth that use of the word "shall" indicates that the
condition is mandatory, as well on legislative history. The
Senate reports both to the Mine Act and to its predecessor
the Coal Act, she argues, contain references to instances
when lives were lost because "a second escapeway was not
provided." S. Rep. No. 91-411, at 84 (1969) (Coal Act Senate
Report); see also S. Rep. No. 95-181, at 4 (1977) (Mine Act
Senate Report).

Both the Secretary's textual argument and argument from
legislative history are misplaced to the point of distraction.
The ambiguity in this case is not whether s 57.11050 man-
dates two escapeways. It does. And the Cleveland Mine,
unlike those cited in the Senate reports, has two escapeways.
As petitioner rightly observes, a car owner with two cars, one
of them in the shop for an oil change, still "has" two cars.

 The real issue, as the Secretary quite rightly framed it in
her brief before the Commission, is "what the standard
requires when only one escapeway is functional." Secretary's
Commission Br. at 8. Nothing in s 57.11050 definitely ad-
dresses this question: "properly maintained" is not unambig-
uously the same as "continuously functioning." Neither the
text, legislative history, nor general safety purpose of the
regulation, nor all three taken together, answer the Secre-
tary's well-framed question unambiguously. Ultimate resolu-
tion of the issue would seem to require some exploration of
the phrase "properly maintained."

Had the Secretary projected her view through her various
mouthpieces with any consistency, we would rule on the
permissibility of that view. But here we have the Gomez
letter's one-hour rule, offered initially by Gomez and pursued
by the Secretary's litigation counsel before the Commission.
Then we have the Secretary's two views before us--the view
that s 57.11050 unambiguously demands immediate evacua-
tion for any period of incomplete functioning, and the view
that immediate evacuation is a reasonable resolution of the
regulation's ambiguity. The Supreme Court has stated that
when interpreting an ambiguous regulation we normally owe
deference to the Secretary's litigation position before the
Commission. Martin, 499 U.S. at 157. The Secretary's
interpretation before the Commission is "agency action, not a
post hoc rationalization of it." Id. And, "when embodied in a
citation, the Secretary's interpretation assumes a form ex-
pressly provided for by Congress," id. (citing 29 U.S.C.
s 658), and is therefore "as much an exercise of delegated
lawmaking powers as is the Secretary's promulgation of" a
regulation. Id. But the Secretary now ranks her earlier
view (the Gomez one-hour rule) lowest among her prefer-
ences, instead favoring the Commission's "at all times" read-
ing (either as the "plain" message of the regulation or, as a
fallback, as a resolution of its ambiguity).

In considering the permissibility of the "at all times"
interpretation, we recognize that courts defer to agency inter-
pretations of ambiguous regulations first put forward in the
course of litigation, but only where they "reflect the agency's
fair and considered judgment on the matter in question."

Auer v. Robbins, 519 U.S. 452, 462 (1997); Church of Scien-
tology of California v. IRS, 792 F.2d 153, 165 (Silberman, J.,
concurring) (D.C. Cir. 1986); compare Christensen v. Harris
County, __ U.S. __, 2000 WL 504548, *6 (U.S. 2000) (noting
that agency interpretations that lack the force of law (such
as those embodied in opinion letters and policy statements)
"do not warrant Chevron-style deference" when they inter-
pret ambiguous statutes but do receive deference under
Auer when interpreting ambiguous regulations). In assess-
ing the likelihood of such "considered judgment," we have
noted, for example, whether the agency had previously
"adopted a different interpretation of the regulation or con-
tradicted its position on appeal," National Wildlife Federa-
tion v. Browner, 127 F.3d 1126, 1129 (D.C. Cir. 1997), as, of
course, the Secretary has here. Compare Association of
Bituminous Contractors, Inc. v. Apfel, 156 F.3d 1246, 1252
(D.C. Cir. 1998), deferring to an agency's litigation position
where it appeared simply to articulate an explanation of
longstanding agency practice. By contrast, the flip-flops
here mark the Secretary's position as the sort of "post hoc
rationalizations" to which courts will not defer. Martin, 499
U.S. at 156. Moreover, litigation counsel's simultaneous ad-
vocacy of several different positions strongly suggests to us
that the Secretary has in fact never grappled with--and thus
never exercised her judgment over--the conundrum posed
by the regulation's clear ambiguity. We thus do not pass on
the permissibility of any of these interpretations. On re-
mand, of course, the Secretary might offer a permissible in-
terpretation, yet one which because of concerns over fair
notice could not be applied punitively against Akzo here.
Trinity Broadcasting of Florida, Inc. v. FCC, __ F.3d __,
2000 WL 426981, *14-*15 (D.C. Cir. 2000).

Accordingly, we vacate the Commission's decision and re-
mand for it to secure from the Secretary an authoritative
interpretation of s 57.11050, and to resolve the case applying
standard deference principles to that interpretation.

The decision of the Commission is vacated and remanded.

So ordered.