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SUPREME COURT OF THE UNITED STATES
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No. 93-744
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DIRECTOR, OFFICE OF WORKERS' COMPENSA-
TION PROGRAMS, DEPARTMENT OF LABOR,
PETITIONER v. GREENWICH COLLIERIES

DIRECTOR, OFFICE OF WORKERS' COMPENSA-
TION PROGRAMS, DEPARTMENT OF
LABOR, PETITIONER v. MAHER
TERMINALS, INC., et al.
on writ of certiorari to the united states court
of appeals for the third circuit
[June 20, 1994]

  Justice Souter, with whom Justice Blackmun and
Justice Stevens join, dissenting.
  For more than 50 years, in adjudicating benefits
claims under the Longshore and Harbor Workers'
Compensation Act (LHWCA), 44 Stat. 1424, as amended,
33 U. S. C. 901 et seq., and for more than 15 years
under the Black Lung Benefits Act (BLBA), 83 Stat. 792,
as amended, 30 U. S. C. 901 et seq. (1988 ed. and
Supp. IV), the Department of Labor has applied the
-true doubt- rule, providing that when the evidence
submitted by a claimant and by a party opposing the
award is of equal weight, the claimant wins.  The rule
thus places the risk of nonpersuasion on the opponent of
the benefits claim.  Today, the Court strikes the rule
down as conflicting with 7(c) of the Administrative
Procedure Act (APA), 5 U. S. C. 556(d), passed by
Congress in 1946.  I respectfully dissent.

                            I
  So far as relevant, 7(c) of the APA states that
-[e]xcept as otherwise provided by statute, the
proponent of a rule or order has the burden of proof.
Any oral or documentary evidence may be received,
but the agency as a matter of policy shall provide
for the exclusion of irrelevant, immaterial, or unduly
repetitious evidence.  A sanction may not be im-
posed or rule or order issued except on consideration
of the whole record or those parts thereof cited by
a party and supported by and in accordance with
the reliable, probative, and substantial evidence.-  5
U. S. C. 556(d).
  The majority's holding that -burden of proof- in the
first sentence of this provision means -burden of persua-
sion- surely carries the force of the preferred meaning
of the term in today's general usage, as the Court's
opinion demonstrates.  But we are concerned here not
with the commonly preferred meaning of the term today,
but with its meaning as understood and intended by
Congress in enacting 7(c) of the APA in 1946.  That is
not a matter about which preference has been constant,
or Congress silent, or even a subject of first impression
for this Court.
  The phrase -burden of proof- has been used in two
ways, to mean either the burden of persuasion (the risk
of nonpersuasion), see 9 J. Wigmore, Evidence 2486 (J.
Chadbourn rev. ed. 1981) (Wigmore), or the burden of
production (of going forward with evidence), see id.,
2487.  The latter sense arose from the standard
common law rule that in order -to keep the jury within
the bounds of reasonable action,- the party bearing the
burden of production had to put forth enough evidence
to make a prima facie case in order to get to the jury.
Ibid.  At the turn of the century, Thayer noted that
burden of proof, in the sense of -going forward with
argument or evidence,- is -the meaning of the term in
common speech . . . [and] also a familiar legal usage
. . . .-  J. Thayer, A Preliminary Treatise on Evidence at
the Common Law 385-386 (1898).  Thayer described
Chief Justice Shaw's unsuccessful attempts to restrict
the Massachusetts courts to the other (burden of
persuasion) meaning of the phrase, id., at 355-357,
385-387, and n. 1, and argued that since the -widest
legal usage- of the phrase and -the use of the phrase in
ordinary discourse- was to mean burden of production,
burden of proof should only be used in that sense, see
Thayer, The Burden of Proof, 4 Harv. L. Rev. 45, 69
(1890).
  Although the Court works hard to show that the
phrase had acquired a settled meaning in the alternative
sense by the time the APA was passed in 1946, there is
good evidence that the courts were still using the term
either way and that Congress followed Thayer.  Indeed,
just nine years after Hill v. Smith, 260 U. S. 592 (1923),
in which Justice Holmes is said to have firmed up the
use of -burden of proof- to mean burden of persuasion,
this Court reverted to using the phrase in its burden of
production sense instead.  See Heiner v. Donnan, 285
U. S. 312, 329 (1932) (-A rebuttable [prima facie]
presumption clearly is a rule of evidence which has the
effect of shifting the burden of proof-) (citing Mobile, J.
& K. C. R. Co. v. Turnipseed, 219 U. S. 35, 43 (1910)
(stating that -[t]he only legal effect of this [presumption]
is to cast upon [defendant] the duty of producing some
evidence to the contrary-)).  In such usage Heiner
appears in line with Hawes v. Georgia, 258 U. S. 1
(1922) (upholding rebuttable presumption casting
-burden of proof- on defendant in criminal case); see Tot
v. United States, 319 U. S. 463, 470-471 (1943) (describ-
ing Hawes as involving statutory provision that permissi-
bly -shift[ed] the burden of proof- once a prima facie
case was made by prosecution).  And courts just three
years before the passage of the APA held that burden of
proof was at least sometimes used by Congress to mean
-burden of going forward with the evidence,- and not
burden of persuasion.  Northwestern Elec. Co. v. Federal
Power Comm'n, 134 F. 2d 740, 743 (CA9 1943) (inter-
preting -burden of proof- in Federal Power Act, 16
U. S. C. 825(a)), aff'd, 321 U. S. 119 (1944).
  Contrary to the Court's understanding, commentators
did not think the ambiguity of the phrase had disap-
peared before passage of the APA, and, at the time,
some even thought it unsettled whether burden of
persuasion or of going forward with the evidence was
the primary meaning of the phrase.  As one commenta-
tor (relied on by the majority here) explained in 1938,
although in its -strict primary sense, `burden of proof'
signifies- burden of persuasion, -[i]n its secondary sense,
the expression `burden of proof' signifies the duty that
rests upon a party of going forward with the evidence at
any given stage of the case-although eminent authority
holds that this is, or should be, its primary sense.-  1 B.
Jones, Law of Evidence in Civil Cases 176, p. 310 (4th
ed. 1938) (citing Thayer).  He noted, -The expression
`burden of proof' has not a fixed and unvarying meaning
and application.  On the contrary, it is used, at times
indiscriminately, to signify one or both of two distinct
and separate ideas.  Courts and commentators have
striven to correct this variable usage and bring clarity
and uniformity to the subject, but without noticeable
success.-  Id., 176, p. 309 (footnote omitted).  That
commentary retained substantially the same description
20 years later, and thereafter, see 1 B. Jones, Law of
Evidence, Civil and Criminal, 204, pp. 361-363 (5th ed.
1958); 1 S. Gard, Jones on Evidence 5:1, pp. 519-520
(6th ed. 1972).  Other commentators noted the persistent
confusion of the terms in the 1940's.  See, e.g., W.
Richardson, Law of Evidence 172 (6th ed. 1944)
(-`burden of proof' is frequently misused by our courts-);
J. Maguire, Evidence, Common Sense and Common Law
175 (1947) (-Under our law the term burden of proof has
been used to express two rather different ideas, and as
might be expected this usage has led to a jumble-).
Further, at the time of the APA's passage, the American
Law Institute, Model Code of Evidence (1942) noted both
meanings, see 9 Wigmore, 2485, p. 284, comments.
Thus, courts and commentators continued to note the
two meanings both before and long after the enactment
of the APA, and use of -burden of proof- in either of its
senses continued to create -the lamentable ambiguity of
phrase and confusion of terminology under which our
law has so long suffered,- 9 Wigmore 2485.
  Although standard usage had not made a choice of
meanings by 1946, Congress did make one, and the
meaning it chose for the phrase as used in 7(c) was
-burden of production.-  In extensive reports on the
pending legislation, both the Senate and the House
explained the meaning of 7(c):
      -That the proponent of a rule or order has the
burden of proof means not only that the party
initiating the proceeding has the general burden of
coming forward with a prima facie case but that
other parties, who are proponents of some different
result, also for that purpose have a burden to
maintain.  Similarly the requirement that no sanc-
tion be imposed or rule or order be issued except
upon evidence of the kind specified means that the
proponents of a denial of relief must sustain such
denial by that kind of evidence. . . .-  S. Rep. No.
752, 79th Cong., 1st Sess., 22 (1945), reprinted in
Legislative History of the Administrative Procedure
Act, S. Doc. No. 248, 79th Cong., 2d Sess., 208
(1946) (hereinafter Leg. Hist.); H. R. Rep. No. 1980,
79th Cong., 2d Sess. 36-37 (1946), Leg. Hist.
270-271.
The House Report added that,
-[i]n other words, this section means that every
proponent of a rule or order or the denial thereof
has the burden of coming forward with sufficient
evidence therefor . . . .
             .        .        .       .        .
      -The first and second sentences of the section
therefore mean that, where a party having the
burden of proceeding has come forward with a prima
facie and substantial case, he will prevail unless his
evidence is discredited or rebutted.-  Id., at 36-37,
Leg. Hist. 270-271.
Because Congress stated that -burden of proof means- a
-burden of coming forward,- and further explained that
the burden could be shouldered by both proponents and
opponents of a rule or order, the strong probability is
that Congress meant to use -burden of proof- to mean
burden of coming forward and not burden of persuasion,
for a burden of persuasion cannot simultaneously rest on
both parties.  See generally, 9 Wigmore 2489.  The
commentators agree.  -The legislative history suggests
that the term `burden of proof' was intended to denote
the `burden of going forward.'-  1 C. Koch, Administra-
tive Law and Practice, 6.42, p. 486 (1985); -The legisla-
tive history of the A. P. A. burden of proof provision
states that the party initiating the proceeding has, at a
minimum, the burden of establishing a prima facie case,
but a burden of proof may also rest on other parties
seeking a different decision by the agency.-  4 J. Stein,
G. Mitchell, & B. Mezines, Administrative Law 24.02,
p. 24-25 (1994); accord, 3 K. Davis, Administrative Law
Treatise 16.9, pp. 257-258 (2d ed. 1980) (citing a lower
court's -analysis of the Senate and House reports on the
APA and the Attorney General's Manual-).
  The congressional choice of the burden of production
meaning was in fact understood from the first and was
the subject of some lament by commentators, who criti-
cized the first sentence of 7(c) (already in its current
formulation as -the proponent of a rule or order has the
burden of proof-) as unhelpful:
      -The first sentence is confusing, and is at best un-
important. . . . For example, where a hearing is
called to determine whether or not a license applica-
tion should be granted, the `proponent' of the `order'
would seem to be the applicant if the order turns
out to be an order granting the application, or the
agency if the order turns out to be an order denying
the application.  We conclude that this sentence
should be eliminated from the bill.-  Committee on
Administrative Law of New York State Bar Assn.
and Association of the Bar of the City of New York,
Joint Report on Proposed Federal Administrative
Procedure Act 16 (Dec. 26, 1945).
It was certainly not their understanding that this provi-
sion established a uniform burden of persuasion.

                           II
  Until today, this Court's reading of 7(c) has been
consonant with the congressional understanding.  In
NLRB v. Transportation Management Corp., 462 U. S.
393 (1983), this Court considered the phrase -burden of
proof- as used in that section and rejected the position
the Court now takes.  In Transportation Management,
the Court upheld the rule of the National Labor Rela-
tions Board (Board), that its General Counsel has the
burden of persuading the Board that antiunion animus
contributed to an employer's decision to fire the em-
ployee, and that the burden of persuasion then shifts to
the employer to prove that the employee would have
been fired even without involvement in protected union
activities.  Confronting the employer's argument that
7(c) barred the Board from ever shifting the burden of
persuasion to the employer, the Court rejected it, on the
ground that 7(c) -determines only the burden of going
forward, not the burden of persuasion,- Transportation
Management, supra, at 404, n. 7 (citing Environmental
Defense Fund, Inc. v. EPA, 548 F. 2d 998, 1004,
1013-1015 (CADC 1976) (Leventhal, J.)).
  Today's abandonment of Transportation Management's
holding is not only a mistake, but one that puts the
Court at odds with that fundamental principle of prece-
dent that -[c]onsiderations of stare decisis have special
force in the area of statutory interpretation, for . . .
Congress remains free to alter what we have done.-
Patterson v. McLean Credit Union, 491 U. S. 164,
172-173 (1989); accord, Square D Co. v. Niagara Fron-
tier Tariff Bureau, Inc., 476 U. S. 409, 424 (1986);
Illinois Brick Co. v. Illinois, 431 U. S. 720, 736 (1977).
Even on the assumption that the conclusion reached in
Transportation Management was debatable at the time
the case was decided, it was undoubtedly a reasonable
construction of a phrase that (as shown above) was
ambiguous in the general usage of 1946, and in the 11
years since the construction was settled by Transporta-
tion Management, Congress has not seen fit to disturb
it by amending 7(c).  Compare, e.g., Johnson v. Trans-
portation Agency, Santa Clara County, 480 U. S. 616,
629-630, n. 7 (1987), with Califano v. Sanders, 430
U. S. 99, 105-107 (1977).  The settled construction
should therefore stand.
  This Court, like the court below, tries to avoid Trans-
portation Management by implying that the Court's
definition of burden of proof in 7(c) as burden of pro-
duction was inessential to its holding, since the Court
only allowed the burden of persuasion to be placed on
the employer after the NLRB had met its burden of
persuasion on the elements of an unfair labor practice.
992 F. 2d 1277, 1281-1284 (CA3 1993); cf. ante, at 11
(-the holding in that case remains intact-).  The prob-
lem with this reading of Transportation Management,
however, is that it is not at all what this Court said, or
could have said.  The reasoning chosen by the Court to
justify its conclusion was that burden of proof in 7(c)
means burden of production, and thus is no impediment
to the Board's rule.  And in so explaining, the Court
cited the leading case from the Court of Appeals for the
District of Columbia Circuit that had held -proof- synon-
ymous with -production- in the text under examination.
Environmental Defense Fund, supra.
  The Court also reasons that the burden of proof hold-
ing of Transportation Management should be abandoned
as conflicting with Steadman v. SEC, 450 U. S. 91
(1981), a decision announced just two Terms prior to
Transportation Management.  But Steadman and Trans-
portation Management are simply not inconsistent with
each other.  Indeed, neither the parties to Transporta-
tion Management nor the Court itself saw Steadman as
even relevant to the questions presented in Transporta-
tion Management.  In Steadman, a mutual funds man-
ager argued that in a disciplinary proceeding to deter-
mine whether he had violated the federal securities
laws, the Securities and Exchange Commission had no
choice but to use the clear-and-convincing standard of
proof, rather than the standard of preponderance of the
evidence.  Steadman read the third sentence of 7(c) (a
rule or order must be -supported by and in accordance
with the reliable, probative, and substantial evidence-),
to mean that preponderance of the evidence, not the
clear-and-convincing standard, applies in adjudications
under the APA.  Steadman thus holds that the party
with the burden of persuasion must satisfy it by a
preponderance, but does not purport to define -burden of
proof- under the APA or to decide who bears the burden
of persuasion, since it was uncontested in that case that
the burden of persuasion was on the Government in a
securities disciplinary proceeding.  Transportation Man-
agement, on the other hand, holds that -burden of proof-
in 7(c) means burden of production.  The question left
open by each decision is who bears the burden of per-
suasion.  As to that, 7(c) is silent.
  It is also worth remarking that Transportation Man-
agement came as no surprise when it was decided, other
federal courts having anticipated this Court's reading of
the 7(c) burden as one of production.  See, e.g., Envi-
ronmental Defense Fund, Inc. v. EPA, 548 F. 2d 998,
1013 (CADC 1976) (-`burden of proof' [7(c)] casts upon
the `proponent' is the burden of coming forward with
proof, and not the ultimate burden of persuasion-); Old
Ben Coal Corp. v. Interior Bd. of Mine Operations Ap-
peals, United States Dept. of Interior, 523 F. 2d 25, 40
(CA7 1975) (-burden of putting forth a prima facie
case-); Maine v. United States Dept. of Labor, 669 F. 2d
827, 829 (CA1 1982) (burden -of producing sufficient
evidence to make out a prima facie case-); but cf. Kerner
v. Flemming, 283 F. 2d 916, 921-922, and n. 8 (CA2
1960) (assuming arguendo the term meant burden of
persuasion).  And at least since Transportation Man-
agement, every Court of Appeals (except the one below
in this case) to have reached the issue has understood
that the question was firmly settled by Transportation
Management and its predecessor in the District of Co-
lumbia Circuit, Environmental Defense Fund.  See, e.g.,
Freeman United Coal Min. Co. v. Office of Workers'
Compensation Programs, 988 F. 2d 706, 711 (CA7 1993)
(-The Supreme Court has resolved this ambiguity [in
7(c)].  `Burden of proof' as that term is used in the
APA means the burden of going forward, not the burden
of persuasion-); Hazardous Waste Treatment Council v.
EPA, 886 F. 2d 355, 366 (CADC 1989) (per curiam)
(-initial burden of going forward with a prima facie
case-), cert. denied, 498 U. S. 849 (1990); Merritt v.
United States, 960 F. 2d 15, 18 (CA2 1992) (-refers only
to the burden of going forward with evidence, not the
burden of persuasion-); Bosma v. United States Dept. of
Agriculture, 754 F. 2d 804, 810 (CA9 1984) (-burden of
going forward with evidence-); Alameda Cty. Training
and Employment Bd./Associated Community Action
Program v. Donovan, 743 F. 2d 1267, 1269 (CA9 1984)
(-merely places the burden of production on [proponent],
not the ultimate burden of persuasion-); Dazzio v. FDIC,
970 F. 2d 71, 77 (CA5 1992) (-refers only to the burden
of going forward with evidence, not the ultimate burden
of persuasion-); Skukan v. Consolidation Coal Co., 993
F. 2d 1228, 1236-1238 (CA6 1993) (-burden of produc-
tion-).  Moreover, the lower courts' views were in accord
with the commentators.  See, e.g., 3 K. Davis, Adminis-
trative Law Treatise 16.9, p. 257 (burden of proof in
7(c) means only -burden of going forward- and not
burden of persuasion) (citing Environmental Defense
Fund, supra); 1 C. Koch, Administrative Law and Prac-
tice 6.42, p. 245 (1994 Supplement) (-The phrase `bur-
den of proof' as used in the APA 556(d) means the bur-
den of going forward with evidence.  That phrase in the
context of the APA does not mean the ultimate burden
of persuasion-) (footnote omitted); 4 J. Stein, G. Mitch-
ell, & B. Mezines, Administrative Law 24.02, p. 24-21,
n. 3 (1994) (7(c) -only directs that the [proponent] has
the burden of production-); G. Edles & J. Nelson, Feder-
al Regulatory Process 6.7, pp. 151-152 (2d ed. 1992)
(-the burden of proof under the APA refers only to the
burden of going forward with evidence-) (each citing
Transportation Management, 462 U. S., at 403, n. 7).
  Nor is there any argument that the vitality has gone
out of Transportation Management over the last 11
years.  This Court, indeed, has cited the case for the
very proposition that the Court now repudiates, in the
course of explaining that we ourselves had used the
term -burden of proof- in Title VII suits to mean bur-
den of production, not burden of persuasion:
-[T]o the extent that those cases speak of an em-
ployer's `burden of proof' with respect to a legiti-
mate business justification defense . . . they should
have been understood to mean an employer's pro-
duction-but not persuasion-burden.  Cf., e.g.,
NLRB v. Transportation Management Corp., 462
U. S. 393, 404, n. 7 (1983).-  Ward's Cove Packing
Co. v. Atonio, 490 U. S. 642, 660 (1989).
If the Ward's Cove Court could rely on Transportation
Management to hold that in innumerable Title VII
disparate-impact cases over many years we (and the
lower courts) had used the term -burden of proof- to
mean only -burden of production- it is hard to place
much weight on the majority's reference to a consistent
practice to the contrary since 1923.
  Today's decision to repudiate Transportation
Management is made more regrettable by the fact that
the Court's adherence to the case in Ward's Cove came
after the Court had been made aware of the role of the
true doubt rule in black lung litigation, which presup-
posed Transportation Management's reading of 7(c).  In
Mullins Coal Co. v. Director, Office of Workers' Compen-
sation Programs, Dept. of Labor, 484 U. S. 135 (1987),
upholding the Secretary of Labor's interpretation of a
BLBA interim regulation about the prima facie standard
for invoking a statutory presumption of eligibility, this
Court explicitly noted the operation of the true doubt
rule once both parties' evidence had been introduced
and (as here) the presumption had dropped out of the
case.  See id., at 144, n. 12 (true doubt rule -ensures
that the employer will win, on invocation or rebuttal,
only when its evidence is stronger than the claimant's-).
We acknowledged the Secretary's position that the
BLBA -embodies the principle that doubt is to be re-
solved in favor of the claimant, [which] plays an impor-
tant role in claims determinations . . . ,- id., at 156, n.
29 (quoting 43 Fed. Reg. 36826 (1978)), and that the
Benefits Review Board -has consistently upheld the
principle that, where true doubt exists, that doubt shall
be resolved in favor of the claimant,- 484 U. S., at 144,
n. 12 (internal quotation marks and citation omitted).
  Had we, indeed, suggested otherwise, we would have
been bucking the strong tide that the Court turns back
today, for the other federal courts have been applying
some form of the true doubt rule, either as judicial
statutory interpretation or as the agency's rule, in adju-
dicating claims after enactment of the APA, as well as
before it, for a good 50 years.  See, e.g., Friend v.
Britton, 220 F. 2d 820, 821 (CADC 1955) (-Doubts,
including the factual, are to be resolved in favor of the
employee or his dependent family-); Bath Iron Works
Corp. v. White, 584 F. 2d 569, 574 (CA1 1978) (-the
judicial policy [is] that `all doubtful questions are to be
resolved in favor of the injured employee' . . . in order
to place the burden of possible error on the employer
who is better able to bear it-); Volpe v. Northeast Ma-
rine Terminals, 671 F. 2d 697, 701 (CA2 1982) (-all
doubtful questions of fact [are to] be resolved in favor of
the injured employee-); Adkins v. Director, Office of
Workers' Compensation Programs, Dept. of Labor, 958 F.
2d 49, 52, n. 4 (CA4 1992) (-Equally probative evidence
creates a `true doubt,' which must be resolved in favor
of the miner-); Greer v. Director, Office of Workers'
Compensation Programs, Dept. of Labor, 940 F. 2d 88,
91 (CA4 1991) (-We have a true doubt.  We give [claim-
ant] the benefit of that doubt-); Army & Air Force Ex-
change Serv. v. Greenwood, 585 F. 2d 791, 794 (CA5
1978) (-the judicial policy has long been to resolve all
doubts in favor of the employee and his family-); Sku-
kan v. Consolidation Coal Co., supra, at 1239 (CA6)
(-true doubt rule is utilized to have equally probative
but conflicting evidence weighed in favor of the claim-
ant-); Freeman United Coal Min. Co. v. Office of Work-
ers' Compensation Programs, 988 F. 2d, at 711 (CA7)
(applying true doubt rule as -judicial assignment of the
burden of persuasion to the employer-); Jones v. Direc-
tor, Office of Workers' Compensation Programs, Dept. of
Labor, 977 F. 2d 1106, 1109 (CA7 1992) (true doubt
rule places -burden of possible error on those best able
to bear it,- i.e., employers); Ware v. Director, Office of
Workers' Compensation Programs, Dept. of Labor, 814 F.
2d 514, 517 (CA8 1987) (-any doubts should be resolved
in favor of the disabled miner-); Parsons Corp. of Cal. v.
Director, Office of Workers' Compensation Programs,
Dept. of Labor, 619 F. 2d 38, 41 (CA9 1980) (-statutory
policy that all doubtful questions of fact be resolved in
favor of the injured employee-); Hansen v. Director,
Office of Workers' Compensation Programs, Dept. of
Labor, 984 F. 2d 364, 369 (CA10 1993) (-`true doubt'
rule applies where equally probative but contradictory
medical documentation exists-); Bosco v. Twin Pines
Coal Co., 892 F. 2d 1473, 1476 (CA10 1989) (-doubts
should be resolved in favor of the disabled miner-);
Stomps v. Director, Office of Workers' Compensation
Programs, Dept. of Labor, 816 F. 2d 1533, 1534 (CA11
1987) (same); for a sampling of the pre-APA cases, see,
e.g., F. H. McGraw & Co v. Lowe, 145 F. 2d 886, 887,
n. 2, 888 (CA2 1944) (upholding agency policy that
-doubtful questions incapable of scientific resolution are
to be resolved in favor of the workman- under LHWCA);
Southern S. S. Co. v. Norton, 101 F. 2d 825, 827 (CA3
1939) (-doubts should be resolved in [claimant's] favor-
under LHWCA); Southern Pac. Co. v. Sheppeard, 112 F.
2d 147, 148 (CA5 1940) (-where there is doubt it should
be resolved in favor of the injured employee or his
family- under LHWCA).

                           III
  Because 7(c) is silent on the burden of persuasion,
the job of placing it is left to the bounded discretion of
the agencies, subject to judicial review, when interpret-
ing their organic statutes, by customary reference to
statutory text, congressional intent, experience, policy,
and relevant evidentiary probabilities.  See 3 K. Davis,
Administrative Law Treatise 16.9, pp. 257-258 (2d ed.
1980).  This is only to be expected, since the issue of
who bears the risk of nonpersuasion raises a traditional
-question of policy and fairness based on experience in
. . . different situations.-  Keyes v. School Dist. No. 1,
Denver, Colo., 413 U. S. 189, 209 (1973) (quoting 9 J.
Wigmore, Evidence 2486, p. 275 (3d ed. 1940)); accord,
J. Strong, McCormick on Evidence 337, p. 427 (4th ed.
1992), not a matter readily lumped in with the formali-
ties of procedure.  While the APA was meant to provide
for uniform procedures in administrative adjudications,
it is unremarkable that it stopped short of making a
substantive policy choice that in every formal hearing
the burden of persuasion must rest on one party or the
other.
  Nor, apart from 7(c), are the choices made under the
statutes in question here vulnerable on judicial scrutiny.
In LHWCA cases over the last 50 years, the assignment
to the employer of the risk of nonpersuasion can be
seen as placing it on -those best able to bear it,- F. H.
McGraw & Co., 145 F. 2d, at 887, 888, and as comport-
ing with both the remedial nature of the Act, see North-
east Marine Terminal Co. v. Caputo, 432 U. S. 249, 268
(1977), and the dangerous nature of longshore work, see
S. Rep. No. 92-1125, p. 2 (1972).  As to the BLBA,
there is no question about the consistency of congressio-
nal intent with the recitation in the Secretary's regula-
tion, 20 CFR 718.3(c) (1993), that -Congress intended
that [BLBA] claimants be given the benefit of all rea-
sonable doubt as to the existence of total or partial
disability or death due to pneumoconiosis.-  As Congress
explained, the BLBA -is intended to be a remedial
law. . . . In the absence of definitive medical conclusions
there is a clear need to resolve doubts in favor of the
disabled miner or his survivors.-  S. Rep. No. 92-743,
p. 11 (1972).  The true doubt rule has been applied in
these benefits adjudications for more than 15 years, see,
e.g., Black Lung-A Study in Occupational Disease
Compensation (1976), reprinted in Black Lung Benefits
Reform Act, 1976: Hearings on H. R. 10760 and S. 3183
before the Subcommittee on Labor of the Senate Com-
mittee on Labor and Public Welfare, 94th Cong., 2d
Sess., 459, 488-489 (1976) (-conflicts in the evidence are
required to be resolved by the adjudicator in favor of
the claimant-); Provance v. United States Steel Corp., 1
Black Lung Rep. 1-483, 485-486 (Ben. Rev. Bd. 1978),
and the Secretary's true doubt rule fully comports with
Congress's -expectation that the Secretary of Labor will
promulgate standards which give the benefit of any
doubt to the coal miner.-  S. Rep. No. 95-209, p. 13
(1977); see 43 Fed. Reg. 36826 (1978).
  The court below did not deny the harmony of the true
doubt rule with congressional policy in these cases, but
it held instead that the use of the true doubt rule in
BLBA cases conflicts with 20 CFR 718.403 (1993), a
Department of Labor regulation providing that -[e]xcept
as provided in this subchapter, the burden of proving a
fact alleged in connection with any provision of this part
shall rest with the party making such allegation.-  But
the phrase -burden of proving,- like its cognate, -burden
of proof,- is susceptible of two meanings, including the
meaning given by the agency interpretation, as imposing
only the burden of producing evidence.  The Department
of Labor is entitled to -substantial deference- in the
interpretation of its own regulations, and the agency's
interpretation need only be reasonable in light of the
regulations' text and purpose, Martin v. Occupational
Safety and Health Review Comm'n, 499 U. S. 144,
150-151 (1991); accord, Bowles v. Seminole Rock &
Sand Co., 325 U. S. 410, 414 (1945).  The agency's
interpretation of its regulation is surely reasonable here,
given our own prior interpretation of -burden of proof-
as referring only to production.
  The Department of Labor's decision in the true doubt
rule, to assign the burden of persuasion to the employer
in cases involving harms to workers in the longshore
and coal mining industries, is thus permissible and free
from conflict with 7(c) of the APA.  I would sustain
the Department's rule, and accordingly offer this re-
spectful dissent.