[41] TAMM, Circuit Judge, dissenting:

I must respectfully dissent. Although I recognize the attractiveness of the majority's result, I believe it impermissibly crosses the line that divides construction of a statute to effectuate the will of Congress from construction intended to achieve the preferable policy conclusion. Indeed, there are aspects of the majority opinion one might be inclined to take cum grano salis in light of the language Judge Greene employs. While rejecting the result reached by three of five Commissioners of the Federal Mine Safety and Health Review Commission (Commission) and two of the three administrative law judges who ruled on the issue, the majority offers in acknowledgment of possible contrary interpretations of the provisions in question only the grudging concession that the statute "is not wholly unambiguous. . . ." believe that the Commission's construction of the relevant sections of the Federal Mine Safety and Health Act of 1977 (FMSA) is the one most consonant with the intent of Congress, and I would accordingly affirm the Commission's rulings in these cases.

I.

As the majority correctly notes, the central question we face today is whether under the FMSA miner representatives who accompany federal officials on inspection tours are entitled to the payment of their regular wages for the time spent away from their normal work. The resolution of this question turns on the construction of two subsections of the FMSA that, inter alia, authorize the Secretary of Labor to conduct certain mine inspections and require mine operators to compensate with their regular wages the miner representatives who accompany the Secretary's inspectors.

The provision of the FMSA that sets forth the obligation of operators to permit miner representatives to accompany inspectors and to provide "walkaround pay" is subsection 103(f). In pertinent part, the subsection states:

Subject to regulations issued by the Secretary, a representative of the operator and a representative authorized by his miners shall be given an opportunity to accompany the Secretary or his authorized representative during the physical inspection of any coal or other mine made pursuant to the provisions of subsection (a) of [section 103]. . . . Such representative of miners who is also an employee of the operator shall suffer no loss of pay during the period of his participation in the inspection made under this subsection.

30 U.S.C. § 813(f) (Supp. II 1978) (emphasis added). Subsection 103(a) in turn requires the Secretary of Labor to conduct inspections for certain stated purposes. It provides, again in pertinent part:

Authorized representatives of the Secretary . . . shall make frequent inspections and investigations in coal or other mines each year for the purpose of (1) obtaining, utilizing, and disseminating information relating to health and safety conditions, the causes of accidents, and the causes of diseases and physical impairments originating in such mines, (2) gathering information with respect to mandatory health or safety standards, (3) determining whether an imminent danger exists, and (4) determining whether there is compliance with the mandatory health or safety standards or with any citation, order, or decision issued under this subchapter or other requirements of this chapter. . . . In carrying out the requirements of clauses (3) and (4) of this subsection, the Secretary shall make inspections of each underground . . . mine in its entirety at least four times a year, and of each surface . . . mine in its entirety at least two times a year.

30 U.S.C. § 813(a) (Supp. II 1978) (emphasis added).

In a thoughtful, detailed opinion, the Commission held that the interplay of these two subsections requires that mine operators provide walkaround pay only for the "regular" mine inspections mandated by subsection 103(a). Secretary of Labor v. Helen Mining Co., Docket No. PITT 79-11-P (Nov. 21, 1979), Appendix (App.) at 17. Although miner representatives are entitled, according to the Commission, to accompany federal investigators during most "spot" inspections, the mine operators are not obligated to supply walkaround pay to the miner representatives for those inspections. Rejecting the more extreme viewpoints of the mine operators on one hand and the Secretary of Labor on the other, the Commission found support for its construction of the FMSA in the language of the statute and in the remarks of Representative Carl Perkins, the chairman of the House committee that drafted the House bill and the chief House conferee on the FMSA.

II.

Although somewhat more complex rhetoric is employed, the majority's rejection of the Commission's analysis in Helen Mining Co. is predicated fundamentally on a neat syllogism:

(1) As the right to walkaround pay under the FMSA is "clearly coextensive" with the right to accompany federal inspectors on investigative tours; and

(2) As the Congress could not possibly have intended to cut back on the pre-existing right of miner representatives to accompany federal inspectors during all mine inspections;

Q.E.D. — Miner representatives are entitled to walkaround pay for all such inspections, and not only for the regular ones mandated by subsection 103(a).

Although the matter is not, strictly speaking, before the court, I tend to agree with the majority's "principle 2": in light of the broad safety goals of the FMSA, it is unlikely that the draftsmen intended to circumscribe miner rights that antedated the Act. As the majority notes, miner representatives were entitled to accompany federal inspectors during all inspections under the mining legislation that preceded the FMSA. Subsection 103(h) of the Federal Coal Mine Health and Safety Act of 1969 provided that an authorized miner representative was permitted to accompany federal investigators during all mine inspections, and the Report that accompanied the Senate version of the current FMSA specifically acknowledged the connection between the 1969 provision and the new one. There is no suggestion either in the FMSA itself or in the legislative history that the draftsmen intended to limit walkaround rights, and I agree with the majority and the Commission that the 1977 statute did not achieve this result.

I part ways with the majority, however, when we turn to "principle 1." I do not believe that the FMSA inextricably links miner compensation rights with walkaround rights, and I respectfully submit that the reasoning the majority employs to deduce that link is simplistic. The majority opinion contends that there can be no "bifurcation of participation and compensation rights"; the two must stand or fall together. I believe, however, that the majority's conclusion in this regard is the product of a myopic concentration on a single sentence in the FMSA and a concomitant failure to take adequate account of the structure and history of the Act.

My major criticism of the majority opinion centers on what I believe is its objectionable methodology. The majority recognizes that there are three ways to read the relevant language in subsection 103(f). The opinion then dismisses the Commission's interpretation of that subsection by focusing narrowly on the sentence that establishes compensation rights, and by glossing over the ambiguities that pervade the subsection as a whole. This is a deft strategy, for it permits the court to eliminate the plausible middle ground position of the Commission; instead, the court is left with two alternatives, one of which may easily be eliminated in light of its clear inconsonance with the aims of the FMSA and with the statutory predecessors of that Act.

Let us, however, turn this methodology around and begin the analysis by determining the compensation rights of the miner representatives, for it is those rights that are properly at the center of this litigation. The relevant language in subsection 103(f) provides that such a representative "shall suffer no loss of pay during the period of his participation in [inspections] made under this subsection." 30 U.S.C. § 813(f) (Supp. II 1978). The inspections made under "this subsection" are, in turn, the "physical inspection[s] of any coal or other mine made pursuant to the provisions of subsection (a) of [section 103]. . . ." Id. Thus, the question we must resolve is which inspections are made "pursuant to the provisions of subsection (a). . . ."

This issue is not a simple one to resolve, though in my opinion the better view is the one adopted by the Commission in Helen Mining Co. Although there is language in subsection 103(a) that speaks of "frequent inspections" for certain general purposes, the only type of inspection specifically mandated by that provision is the regular inspection of the entire mine. It is beyond cavil that only two of the four sets of purposes for which mine inspections are to be conducted fall under the aegis of the Secretary of Labor, and as to those purposes, subsection (a) states that "the Secretary shall make inspections of each underground . . . mine in its entirety at least four times a year. . . ." Accordingly, the logic of the language of subsection 103(a) itself would lead me to conclude, as it did the Commission, that the only inspections made "pursuant to" that subsection are the regular ones.

This conclusion is fortified when we step back and examine in detail the structure and history of the FMSA. Put most simply, the majority's construction of the "pursuant to" language renders that whole phrase substantively meaningless in the context of subsection (f). If Congress had intended that subsection 103(a) was to constitute the general authorization for all inspections — and, hence, that the "pursuant to" language brought within its ambit all inspections — then it strikes me as peculiar that the simple and inclusive language "any inspection" was not used in subsection 103(f). As the Commission noted, the argument adopted by today's majority fails to explain why Congress altered the general "any inspection" language used in the walkaround provision of the 1969 mine safety statute. The draftsmen of the FMSA were clearly aware of the phrase; indeed, they employed it no fewer than six times in related provisions of the Act to denote general powers or authorizations of general applicability. Clearly, the "pursuant to" language was intended to have a limiting effect that the majority simply reads out of the statute.

The weaknesses in the majority's construction of the FMSA are further evident upon examination of the various types of inspections provided for in provisions other than subsection 103(a). "Special" or "spot" inspections are mandated by several other sections of the FMSA; the inspection in Helen Mining Co. was such a "spot" inspection. It is true, as the majority notes, that there are inspections conducted by the Secretary of Labor that are neither regular nor specifically authorized by another provision. Yet to me, this fact does not lead to the conclusions drawn by the majority that the "basic authority" for virtually all inspections is subsection 103(a) and that all inspections are thereby conducted "pursuant to" that provision. Rather, I find persuasive the Commission's observation that, even if all inspections could be conducted for one of the purposes in subsection (a), the "pursuant to" language "was intended to accord the right to walkaround pay to the only inspection specifically and exclusively described in section 103(a) — the regular inspection."

To be sure, no law professor will ever use the FMSA as a model of draftsmanship; the confusing interrelationship of general and specific authorizations of inspections renders the determination of the scope of the walkaround pay right a most difficult one. Hence, resort to relevant legislative history is perforce appropriate. The majority opinion takes note of several observations made by committees of the Congress or by individual members on the floor that demonstrate the importance attached to miner participation in inspections and walkaround pay. These observations are irrefutable, but they are at best marginally relevant to the question posed by these cases, which is the scope of the walkaround pay right. As the intervening mine operators note, the nonprovision of walkaround pay in cases of spot inspections is not inconsistent with the safety and health aims that underlie the FMSA. Spot inspections are typically highly technical in nature and limited in time and scope; it is clear that the Congress could quite reasonably have decided that walkaround pay was not needed as an incentive to encourage miner participation in these sorts of inspections.

There is, admittedly, little in the legislative record on the specific question of walkaround pay. As the Commission noted, the House and Senate bills considered at Conference diverged in their walkaround pay provisions; the Senate bill included a walkaround pay provision attaching to the physical inspections of mines "under subsection (a)," while the House bill simply continued the walkaround rights of miners under the 1969 legislation without the provision of compensation for the time so expended. The written report of the conferees stated that "[t]he conference substitute conforms to the Senate bill." The relevant language was, however, changed from that noted above to the "pursuant to" language of subsection 103(f), without additional comment.

No member of the Senate made relevant observations on the scope of the right to walkaround pay after the Conference. One member of the House did, however, address this issue specifically and unambiguously. Representative Carl Perkins, chief sponsor of the House version of the FMSA and chief House conferee, made the customary oral report to the House setting forth the details of the Conference substitute. Given the unambiguous and unconditional nature of his remarks, they are worth quoting at some length:

Mr. Speaker, before concluding my remarks I would like to address one aspect of the conference report that seems to be somewhat ambiguous.

* * * * * *

Section 103(f) provides that a miners' representative authorized by the operator's miners shall be given an opportunity to accompany the inspector during the physical inspection and pre- and post-inspection conferences pursuant to the provisions of subsection (a). Since the conference report reference is limited to the inspections conducted pursuant to section 103(a), and not to those pursuant to section 103(g)(1) or 103(i), the intention of the conference committee is to assure that a representative of the miners shall be entitled to accompany the Federal inspector, including pre- and post-conferences, at no loss of pay only during the four regular inspections of each underground mine and two regular inspections of each surface mine in its entirety, including pre- and post-inspection conferences.

* * * * * *

Since the conference report does not refer to any inspection, as did section 103(h) of the 1969 act, but, rather to an inspection of any mine pursuant to subsection (a), it is the intent of the committee to require an opportunity to accompany the inspector at no loss of pay only for the regular inspections mandated by subsection (a), and not for the additional inspections otherwise required or permitted by the act. Beyond these requirements regarding no loss of pay, a representative authorized by the miners shall be entitled to accompany inspectors during any other inspection exclusive of the responsibility for payment by the operator.

It is apparent, as the Commission noted, that Representative Perkins believed that the conferees intended "to preserve the right under the 1969 Act to accompany the inspector on all inspections, but to accord a walkaround pay right only for regular inspections."

The majority discounts, as it must to preserve its position, the remarks of Representative Perkins. Judge Greene's first complaint with them is that the statute is so clear and Representative Perkins so off the mark that the comments may not even be considered. Although I will address later this ostrich-like use of the plain language doctrine, suffice it here to say that I find it difficult to believe that any objective reader could fail to conclude that subsections 103(a) and (f) are so ambiguity-ridden as to call out for clarification.

Turning to the matter of the proper weight to be accorded Representative Perkins' statement, the majority faults the Commission for attributing "overwhelming weight" to the remarks. Citing the usual litany of authorities employed to explain away the contradictory comments of a legislator, the majority effectively reads Mr. Perkins' observations out of the record; far from attributing any significant weight to his remarks, the majority attaches no weight to them whatsoever.

I share the Commission's view, however, that Representative Perkins' remarks are the best index of congressional intent in this case. He was, of course, not simply stating his personal viewpoint on the construction of subsection 103(f); he was, rather, conveying his understanding of the intention of both the House and Senate conferees on the agreed-upon meaning of the revised walkaround pay provision. As the Commission noted, Mr. Perkins' statement was detailed, unambiguous, and uncontradicted, and was delivered "solely to inform the House of the conferees' agreement."

How, then, does the majority avoid the otherwise devastating thrust of Representative Perkins' statement? It does so largely through adoption of a blindly chronological approach: because the Perkins statement was delivered three weeks after the Senate had acted on the Conference substitute, his remarks could not "in any sense" be regarded as reflecting the will of the Senate. That conclusion, any way one examines it, is flatly wrong. It is, to begin with, wrong as a matter of fact; Mr. Perkins was attempting to explain to a confused House what the conferees perceived the meaning of subsection 103(f) to be. By definition, some of the conferees were from the Senate, and, though hardly dispositive, not one of them has ever taken issue with Representative Perkins' remarks. Thus, the Congressman's statement might well reflect precisely the will of the Senate conferees — that the Senate had already voted on the Conference substitute is irrelevant in evaluating the significance of Mr. Perkins' perception of the understandings reached at the Conference.

Second, the majority's chronological observations prove a bit too much. There are, we should remember, two Houses of Congress, and Representative Perkins made his remarks at a crucial stage in the House deliberations on the FMSA. As such, we must assume that his remarks were familiar to the representatives and influenced their voting decisions on the Conference bill. Accordingly, we have a situation in which, at the very least, one House of Congress has acted on the basis of a certain understanding of statutory language. It would seem incumbent on the majority to respond directly in refutation of Representative Perkins' remarks, instead of using maxims of statutory construction to dodge difficult issues. Indeed, I find this reluctance to accord any weight to Representative Perkins' remarks puzzling in light of a recent observation made by a member of today's majority on a similar matter of construction.

The majority also dismisses Mr. Perkins' statement on the ground that acceptance of it would permit the views of a single legislator to alter unilaterally the "meaning of the bill." I find this objection somewhat peculiar, inasmuch as it is rather clear that in the congressional process one House always acts first; by so acting, the chamber that first takes action does not deprive the other of the right to hold meaningful views on the construction properly accorded the statutory language. The two Houses of Congress often act independently, and the views of one body do not bind the legislators in the second. Each member of both Houses has the opportunity to comment on pending provisions, and statements so made are entitled to weight regardless of their chronological order.

Finally, the majority's citation of National Small Shipments Traffic Conference, Inc. v. CAB, 618 F.2d 819, 828 (D.C. Cir. 1980), is inapposite. This is not a case in which an "interest group" has succeeded in having a self-serving statement inserted in some oblique corner of the legislative record; rather, we have the leading House sponsor of the proposed legislation commenting on the meaning he believes the Conference members ascribed to certain language.

Having considered the majority's analysis of the weaknesses of Representative Perkins' statements, let us consider briefly why the Commission ruled that his remarks should be given considerable weight in this process of construction. First, Representative Perkins hardly made his remarks as the quintessential uninvolved, "single legislator"; rather, he acted as chairman of the House committee that reported the bill and as leader of the House conferees who participated in its revision. Mr. Perkins was the chief House conferee and as such was intimately familiar with the legislation; his statement was made on the basis of his understanding of the intentions of both the House and Senate members of the Conference. It is well-established that statements on the floor by the committee member in charge of a bill "are regarded as being in the nature of supplemental committee reports and are accorded the same weight as formal committee reports." Mr. Perkins' remarks fit squarely in this category, and the majority's conclusory attempt to diminish their significance plainly fails.

Second, we should not forget the role played by Representative Perkins in the area of mine safety and health regulation. As the Commission noted in Helen Mining Co., Mr. Perkins has for many years been a leader in this field, and was a principal sponsor of both the 1969 and 1977 mine safety bills. As such, the majority's attempt, in effect, to contradict Mr. Perkins on this score is somewhat akin to art critics attempting to explain to Michelangelo the "meaning" of the scenes on the ceiling of the Sistine Chapel.

By way of summary, I believe that Representative Perkins' remarks were properly weighted by the Commission. His statement was clear, directly on point, and prepared with great care; equally important, there is not the slightest contradiction of the details of his remarks at any place in the legislative history.

III.

We come, then, to the final and critical issue in this case: is the majority correct in its use of the plain language doctrine to reject the Commission's "middleground" construction of the FMSA? As a threshold matter, I believe that the majority fails to accord sufficient deference to the interpretation given by the Commission to the statute it has been charged to interpret. The Congress clearly divided the lawmaking and policymaking functions between the Secretary of Labor and the Commission, and it is apparent that some deference is owed a decision of the Commission even when it diverges from the position of the Secretary. The analogy noted by the Commission between the policymaking structure under the FMSA and that under the Occupational Safety and Health Act (OSHA) is distinct, and cases articulating the relationship between the Secretary of Labor and the Occupational Safety and Health Review Commission are accordingly apposite in the FMSA context. The Commission concluded that the Secretary's views were to be accorded "special weight," and that standard seems about right, albeit a bit amorphous. The critical point, however, is that the Commission's construction of its governing statute must be accorded some weight, even when its position differs from that of the Secretary's; otherwise, the Commission would be "little more than a specialized jury, an agency charged only with fact finding." I believe that Congress intended a more active role for the Commission.

The majority renders the Commission's decision devoid of weight in this case, however, by concluding that its construction is "plainly incorrect and unsupportable," and therefore not entitled to deference. It bases this conclusion on the ground, discussed above, that the scope of walkaround pay is "clearly coextensive" with the basic walkaround right itself, and that the Commission's bifurcation of the two rights is erroneous.

I disagree. In my opinion the majority's focus on, in effect, a single sentence masks more of the meaning of subsection 103(f) than it reveals. I understand fully how the relevant sentence could alone be construed in the way that my colleagues and a dissenting member of the Commission understood it. I submit, however, that when one examines the language of the entire section — as I believe should be done — it is apparent that the "plain language" is not at all plain and that the FMSA does not mandate congruence of compensation and walkaround rights. We have recently had occasion to note that courts, in construing statutory language, should "`not be guided by a single sentence or member of a sentence, but [should] look to the provisions of the whole law, and to its object and policy.'" Looking at the "whole law," I believe that the bifurcation so emphatically condemned by the majority is, in fact, consistent with the statutory language.

To be sure, my interpretation of the relevant wording is but a simple conclusion, as is, I might note, the majority's construction. Like the Commission, however, I simply do not read the words in question as inextricably linking compensation and walkaround rights. The confusing language employed by Congress throughout section 103 makes decisive reliance on a single sentence in that provision, without the guiding assistance of relevant observations by a member of Congress, a risky endeavor, and I decline to join my colleagues in following that course. Ambiguity pervades subsection 103(f), and it seems to be most strange that the court turns away in this case from the legislative materials most relevant to the clarification of the ambiguity. The plain language doctrine does not require studied ignorance of enlightening congressional statements.

More could be said, but enough already has. I believe that the Commission correctly construed the FMSA, and I accordingly dissent.