                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 12-2249
                        ___________________________

                          Northshore Mining Company

                            lllllllllllllllllllllPetitioner

                                          v.

Secretary of Labor; Mine Safety and Health Administration; Federal Mine Safety
                       and Health Review Commission

                           lllllllllllllllllllllRespondents
                                    ____________

                      Petition for Review of an Order of the
               Federal Mine Safety and Health Review Commission
                                  ____________

                         Submitted: November 13, 2012
                             Filed: March 8, 2013
                                ____________

Before SMITH, BEAM, and GRUENDER, Circuit Judges.
                           ____________

BEAM, Circuit Judge.

      Northshore Mining Company (Northshore) petitions for review of a final
decision of the Federal Mine Safety and Health Review Commission (Commission)
affirming a citation by the Secretary of Labor's Mine Safety and Health
Administration (hereinafter Secretary or MSHA) charging a violation of the Federal
Mine Safety and Health Act of 1977 (Mine Act), 30 U.S.C. §§ 801 et seq. Because
we conclude that MSHA erred in relying upon 30 C.F.R. § 56.12016, we vacate the
Commission's decision and set aside the citation.

I.    BACKGROUND

       This case arises under the Mine Act, wherein the Secretary of Labor sets
mandatory safety and health standards for coal and other mines in order to reduce
and, ideally, eliminate accidents, injuries and fatalities. 30 U.S.C. § 811.
Representatives of the Secretary, in this case from MSHA, inspect mines to determine
whether the conditions and practices they encounter comport with established
standards. Id. § 813. The Mine Act provides that the Secretary may issue citations
and orders for violations of the Mine Act or any rule, order, or regulation
promulgated thereunder. Id. § 814. A mine operator can contest a citation or order
issued under the Mine Act, as Northshore did here, before the Commission, an
independent adjudicatory body that provides administrative hearings and appellate
review. Id. §§ 815(d), 823. After an order is contested, an Administrative Law Judge
(ALJ) appointed by the Commission conducts an administrative hearing and renders
a decision. Id. § 823(d)(1). An aggrieved party may seek discretionary review of this
decision before the full Commission. Id. § 823(d)(2)(A)(i). If the Commission
declines to exercise such authority, as it did here, the ALJ's decision becomes the
Commission's final decision. Id. § 823(d)(1). That decision is appealable to a United
States Court of Appeals. Id. § 816(a)(1).

       In January 2010, an inspector for MSHA visited Northshore's surface mine in
St. Louis County, Minnesota. During his visits, the inspector observed Northshore's
operation of a P&H Model 2800XPC Electric Cable Shovel–a mammoth,
sophisticated piece of equipment (approximately fifty-five to sixty feet in height) used
for mining. On January 19, 2010, the inspector issued a citation against Northshore
for an alleged violation of 30 C.F.R. § 56.12016. The citation described the violative
condition as follows:

                                          -2-
      Company #103, P&H Model 2800 Electric Cable Shovel: On 1/11/10 a
      bull gang mechanic was observed working on the "Dutchman" portion
      of the shovel bucket. A spot-check of the shovel lock-out indicated that
      he had locked out the "control supply circuit breaker" and the "relay
      supply circuit breaker" as per company procedure. Subsequent
      investigation revealed that only control power was de-energized and
      locked out versus main power. This condition exposed personnel to
      moving machine hazards. Company personnel involved in developing
      this procedure, reportedly were un-aware of the hazard of locking out
      only control power. This company shovel lockout procedure has
      reportedly been in effect for about 1 year.

       The "dutchman" referenced in the citation is the mechanism that permits the
shovel bottom, or "dipper door," to open and dump material. Maintenance on the
shovel bucket may occur three times a day, or ten to twenty times a week. As for the
procedure employed by Northshore during the maintenance work at issue, MSHA
took the position that the lockout for power to the main transformer must be done at
the knife switches for the main transformer and not at the circuit breakers for the main
transformer, as Northshore's method proscribed. As noted in its text, MSHA issued
the citation because of a concern regarding hazards created by mechanical movement
of the shovel.

       Northshore challenged the citation. As relevant here, the ALJ rejected
Northshore's arguments and held that Northshore's method of opening and
locking/tagging out of circuit breakers, rather than opening and locking/tagging out
the knife switches as insisted on by MSHA, violated 30 C.F.R. § 56.12016. The
parties also challenged whether the cited regulation covered the violative condition
sought to be abated by the inspector in the citation–i.e., whether § 56.12016 was
drafted to abate mechanical movement at all. On that issue, the ALJ held that 30




                                          -3-
C.F.R. § 56.12016 and 30 C.F.R. § 56.141051 (the regulation Northshore claimed was
more suited to the citation conditions, if any violations existed) are not mutually
exclusive and that MSHA did not err in proceeding under the former regulation. The
Commission denied discretionary review. Northshore petitions for review, seeking
reversal of the final decision.

II.   DISCUSSION

       This dispute involves the interpretation of MSHA regulations, a matter of law
that we review de novo. Pattison Sand Co. v. Fed. Mine Safety and Health Review
Comm'n, 688 F.3d 507, 512 (8th Cir. 2012). "When Congress has delegated authority
to an administrative agency to interpret and implement a federal statute, we give the
agency's interpretation deference pursuant to Chevron, U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984)." Beeler v. Astrue, 651 F.3d
954, 959, 960 (8th Cir. 2011) (reviewing both an agency's interpretation of its own
regulations and additionally whether the regulations at issue were based on a
permissible construction of the relevant statute and finding "no latent ambiguity" in
the former), cert. denied, 132 S. Ct. 2679 (2012). In the usual review, we are guided
by the maxim that where "Congress has not 'directly spoken to the precise question
at issue,' we must sustain the Secretary's approach so long as it is 'based on a
permissible construction of the statute.'" Auer v. Robbins, 519 U.S. 452, 457 (1997)
(quoting Chevron, 467 U.S. at 842-43)). But, to be accurate, the parties do not
challenge the meaning of the Mine Act's statutory language here, nor whether
MSHA's regulations are a reasonable interpretation of the enacted statute, both of
which considerations directly invoke the Chevron rubric. Rather, we are only faced
with reviewing MSHA's interpretation of its own regulatory language, including the


      1
      Section 56.14105 reads, in relevant part: "Repairs or maintenance of
machinery or equipment shall be performed only after the power is off, and the
machinery or equipment blocked against hazardous motion."

                                         -4-
force and reach of the language itself, as promulgated by the Secretary in the first
instance under a general congressional charge in the Mine Act.2 While this means
that we do not concern ourselves with the interpretation of the language in the Mine
Act, it ultimately changes our analysis only slightly.

       At least as they are relevant to the instant analysis, the facts of this case are not
in dispute. Nor do the parties dispute that the inspector's concern underlying the
issued citation was hazards created by mechanical movement of the shovel. Thus,
Northshore's challenge on appeal is twofold. First, Northshore challenges whether
§ 56.12016 was the appropriate regulation to apply in these circumstances.
Alternatively, assuming that the Secretary cited the appropriate regulation,
Northshore claims that the procedure it employed complied with the standard set out
in the first sentence of § 56.12016. If we agree that the Secretary erred in issuing the
citation under § 56.12016 we need not address Northshore's second claim. We hold
that MSHA erred in relying upon 30 C.F.R. § 56.12016 under the circumstances at
issue here.

      When reviewing a challenged interpretation of regulatory language, the
Secretary's interpretation of its own regulation is "controlling unless plainly
erroneous or inconsistent with the regulation." Auer, 519 U.S. at 461 (internal
quotation omitted). "Nonetheless, 'Auer deference is warranted only when the
language of the regulation is ambiguous.'" Fast v. Applebee's Int'l, Inc., 638 F.3d
872, 878 (8th Cir. 2011) (quoting Christensen v. Harris County, 529 U.S. 576, 588
(2000)), cert. denied, 132 S. Ct. 1094 (2012). The starting point in this case, then, is
determining the plain meaning of § 56.12016.


       2
       As previously stated, the Secretary promulgated this regulatory scheme under
the Mine Act's general command to "develop, promulgate, and revise as may be
appropriate, improved mandatory health or safety standards for the protection of life
and prevention of injuries in coal or other mines." 30 U.S.C. § 811(a).

                                            -5-
      The citation at issue charged Northshore of violating § 56.12016, which
provides in part:

      Electrically powered equipment shall be deenergized before mechanical
      work is done on such equipment. Power switches shall be locked out or
      other measures taken which shall prevent the equipment from being
      energized without the knowledge of the individuals working on it.

        The question now before us is whether § 56.12016 addresses the violative
condition sought to be abated by this citation. The text of § 56.12016 is ambiguous
as to the crucial interpretive question regarding whether the section applies to abate
the hazard of mechanical movement. In light of this ambiguity, we consider its title,
as well as its context, or placement, in the subchapter and regulatory scheme as a
whole to discern the reach and application of this regulation. United States v. May,
535 F.3d 912, 918 (8th Cir. 2008) ("At the very least, [an additional possible meaning
of the statutory language] creates an ambiguity, and triggers the permissible reference
to the title."), abrogated on other grounds by Reynolds v. United States, 132 S. Ct.
975 (2012). To resolve the ambiguity, in addition to looking to the agency's own
interpretation of the regulation for guidance, we utilize established rules of statutory
construction. See Chase Bank USA v. McCoy, 131 S. Ct. 871, 878-80 (2011)
(applying rules of statutory construction and finding an ambiguity in a regulation).

       Reviewing the placement of the regulation at issue within the regulatory
scheme itself is instructive. Doing so assists in the basic determination as to whether
the agency's interpretation is inconsistent or plainly erroneous. Auer, 519 U.S. at 462
(explaining the importance of ensuring that the agency's interpretation, if it is worthy
of deference, must not be a post hoc rationalization advanced by the agency seeking
to defend past agency action against attack, and should represent an agency's fair and
considered judgment on the matter in question); Advanta USA, Inc. v. Chao, 350 F.3d
726, 729-31 (8th Cir. 2003) (construing an ambiguous regulation and holding that,


                                          -6-
when placed in context using the regulation's preamble, the agency's interpretation
of its regulation was unworthy of deference).

       Certainly, the title or heading of a section or other such organization of
regulatory language cannot be used to alter the meaning of a regulation, find a
regulation ambiguous, or limit the plain meaning of its text. Bhd. of R.R. Trainmen
v. Baltimore & Ohio R.R. Co., 331 U.S. 519, 529 (1947). Yet such aids are of use
to shed light on an ambiguity in the regulation under review. Id. "They are but tools
available for the resolution of a doubt," not inroads to "undo or limit that which the
text makes plain." Id.; see also Almendarez-Torres v. United States, 523 U.S. 224,
234 (1998) (noting that "the title of a statute and the heading of a section are tools
available for the resolution of a doubt about the meaning of a statute") (internal
quotation omitted)).

       Regulatory language "cannot be construed in a vacuum." Davis v. Michigan
Dep't of the Treasury, 489 U.S. 803, 809 (1989). "It is a fundamental canon of
statutory construction that the words of a statute must be read in their context and
with a view to their place in the overall statutory scheme." Id. (applying established
rules of statutory construction to discern the plain language of the statute at issue).
Thus, while not dispositive, the placement of a provision in a particular subchapter,
for example, suggests that its terms should be interpreted consistently with its
context. See, e.g., Fla. Dep't of Revenue v. Piccadilly Cafeterias, Inc., 554 U.S. 33,
46-52 (2008) (analyzing the statutory text at issue according to its natural language,
the context of its placement within the United States Code, and applicable substantive
canons of construction; but refraining from actually finding the statutory language at
issue ambiguous because under all applicable interpretations, one party's
interpretation prevailed); Advanta, 350 F.3d at 728-29 (utilizing rules of statutory
construction with equal force to discern an issue of regulatory construction).




                                         -7-
       Placing § 56.12016 in context resolves any ambiguity raised by this action and
leads to the conclusion that MSHA's interpretation of the regulation's reach in this
case is inconsistent with its text and placement in the regulatory scheme. See Pattison
Sand, 688 F.3d at 513 (looking to the Secretary's position before the Commission to
determine whether, in context, her proposed interpretation of the ambiguous
regulatory language was reasonable). The overall thrust of § 56.12016 is
unmistakable when placed in context: it is written to abate the risk of electrocution.
Section 56.12016 applies to the hazard of electrical shock, not the injuries sought to
be avoided here from mechanical movement. Phelps Dodge Corp. v. Fed. Mine
Safety and Health Review Comm'n, 681 F.2d 1189 (9th Cir. 1982). We thus disagree
with MSHA's conclusion that § 56.12016 was designed to target both mechanical
movement and electrocution.

       We are not alone in this conclusion. In Phelps Dodge, the Ninth Circuit
invalidated a civil penalty issued under the Mine Act pursuant to the regulation at
issue here. Id. at 1193. The fine was issued for hazards caused by rocks and stones
clogging a drop chute, which necessitated the use of manual labor to clear the chute.
Id. at 1191. The cited corporation, as here, challenged whether MSHA properly
applied the regulation in that particular factual setting. Id. at 1191-92. The court held
that MSHA's regulation was enacted "to protect workers from the hazards of electrical
shock, not such hazards as may attend removal of rocks from the chute." Id. at 1192.
In fact, the court noted the regulation was placed under the heading "Electricity" and
"sandwiched between regulations whose purpose is manifestly to prevent the
accidental electrocution of mine workers." Id.

       The regulations in subpart K, of which § 56.12016 is a part, are directed to
abatement of the danger of electrical shock. "They simply do not address the hazards
arising from the accidental movement of electrical equipment while mechanical work
is being done thereon." Id. In a footnote, the Ninth Circuit surmised that
interestingly, another regulation more clearly addressed the problem of accidental

                                          -8-
equipment start-ups. Id. at 1192 n.4. Likewise, Northshore advances that § 56.14105
is the particular regulation drafted to abate mechanical movement and could have
more appropriately been cited by the inspector.3 Utilizing the definition of the word
"deenergize" contained in § 56.12016, read in conjunction with the other regulations
of the subpart, the Phelps Dodge court concluded that the cited regulation's main
concern was protection from electrical shock. Id. at 1192-93.

       Since Phelps Dodge, the Commission has discussed its holding in various
circumstances, but the Secretary has not amended § 56.12016 to address the position
taken by the Ninth Circuit.4 "The Supreme Court has repeatedly held that agencies
may validly amend regulations to respond to adverse judicial decisions, or for other
reasons, so long as the amended regulation is a permissible interpretation of the
statute." Mayo Found. for Med. Educ. and Research v. United States, 568 F.3d 675,
683 (8th Cir. 2009), aff'd, 131 S. Ct. 704 (2011). Thus, while MSHA's failure to take
the opportunity post-Phelps Dodge to clarify the issue is certainly not dispositive, the
fact that it has not done so is at the very least relevant to the query, especially given
the context of § 56.12016. Id. In this case, MSHA has not changed the regulation


      3
       We do not weigh in on this discussion, however, as suggesting an alternate
regulation under which to proceed is a matter not before us, nor is it a question we are
equipped to address in the first instance.
      4
        See e.g., Empire Iron Mining P'ship, 29 FMSHRC 999 (2007) (discussing
Phelps Dodge and the viability of citing alternative violations and noting in a footnote
its agreement with the dissenting judge in Phelps Dodge); Suburban Sand & Gravel,
28 FMSHRC 359 (2006) (reversing a citation issued under § 56.12016 because there
was no risk that anyone would be exposed to an electrical hazard while doing the
work in question); Leo Journagan Constr. Co., Inc., 18 FMSHRC 892 (1996)
(favorably discussing the dissenting opinion in Phelps Dodge); Arkhola Sand &
Gravel, Inc., 17 FMSHRC 593, 597 (1995) (holding that § 56.12016 was improperly
cited by the inspector because "[t]he basic purpose of section 56.12016, which is
contained in Subpart K under the heading 'electricity,' is to protect miners from
electrical hazards rather than mechanical hazards.").

                                          -9-
even when it had the opportunity to do so, despite a longstanding judicial
interpretation and ongoing discussion in administrative cases regarding the
regulation's applicability in these circumstances. This further convinces us that
MSHA's interpretation is unworthy of deference in this instance.

III.   CONCLUSION

       For the reasons stated herein, we vacate the Commission's decision and set
aside the citation.
                       ______________________________




                                      -10-
