American Mining Congress v. Mine Safety and Health Administration

United States Court of Appeals for the District of Columbia Circuit · 1993 · Administrative Law

Administrative LawAPA rulemakinginterpretive rulesAdministrative Procedure Actnotice and commentinterpretive rulelegislative rulelegal effect

Facts

The Mine Act authorizes the Secretary of Labor to require mine operators to keep records and make reports, and MSHA's duly promulgated Part 50 regulations require operators to report certain occupational illnesses and any diagnosis of specified diseases, including silicosis and other pneumoconioses. MSHA issued three Program Policy Letters without notice and comment stating that a chest x-ray of a miner exposed to relevant dust, if rated 1/0 or higher on the ILO scale, constitutes a diagnosis of pneumoconiosis for Part 50 reporting purposes. The later letters also explained that such reporting did not automatically establish entitlement to compensation or admit liability, and the final letter provided a multi-reader process involving B readers and a majority-of-three approach. MSHA defended the lack of notice and comment on the ground that the letters were interpretive rules exempt under 5 U.S.C. § 553(b)(3)(A).

Issue

Whether MSHA's Program Policy Letters stating that certain x-ray readings count as diagnoses of pneumoconiosis under Part 50 are interpretive rules exempt from APA notice-and-comment requirements, or instead legislative rules requiring those procedures.

Rule

A purported interpretive rule is legislative, not interpretive, if it has legal effect. Legal effect is best ascertained by asking whether: (1) without the rule there would be no adequate legislative basis for enforcement action or other agency action to confer benefits or ensure performance of duties; (2) the agency has published the rule in the Code of Federal Regulations; (3) the agency has explicitly invoked its general legislative authority; or (4) the rule effectively amends a prior legislative rule. If any of these is true, the rule is legislative; otherwise, it may be interpretive even if it draws crisp, bright-line guidance from an existing duty.

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The Colorado Workplace Health Board has a regulation, adopted through notice and comment, requiring factories in Denver to report any employee "chemical burn" within seven days. Later, without notice and comment, the Board issues a guidance bulletin stating that any emergency-room diagnosis of skin damage from an industrial solvent qualifies as a "chemical burn" for reporting purposes.

If a factory challenges the bulletin as invalid for lack of notice and comment, how should a court most likely classify the bulletin?

Explanation. The key inquiry is whether the agency action has legal effect. A rule is legislative if, without it, there would be no adequate legislative basis for enforcement, or if other markers of legislative action are present. Here, the reporting duty already exists in the regulation; the bulletin simply interprets the term "chemical burn." A bright-line interpretation does not become legislative merely because it is specific, and mandatory wording does not itself decide the issue in the interpretive-rule context. The substantive correctness of the interpretation is a separate question. (Derived from American Mining Congress v. Mine Safety and Health Administration (1993).)