UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


AKZO NOBEL SALT INC

v.

MSHR


99-1370a

D.C. Cir. 2000


*	*	*


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


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


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


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.