American Min. Congress v. Mine Safety & Health Admin., s. 91-1501

• Decision Date: 15 June 1993
• Docket Number: 92-1331,Nos. 91-1501,92-1188,s. 91-1501
• Citation: 995 F.2d 1106,302 U.S. App. D.C. 38
• Parties: , 1993 O.S.H.D. (CCH) P 30,096 AMERICAN MINING CONGRESS and National Industrial Sand Association, Petitioners, v. MINE SAFETY & HEALTH ADMINISTRATION and U.S. Department of Labor, AMERICAN MINING CONGRESS, and National Industrial Sand Association, Petitioners, v. U.S. DEPARTMENT OF LABOR and William J. Tattersall, Assistant Secretary of Labor for Mine Safety and Health, and Mine Safety and Health Administration, Respondents.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1106

995 F.2d 1106

302 U.S.App.D.C. 38, 1993 O.S.H.D. (CCH) P 30,096

AMERICAN MINING CONGRESS and National Industrial Sand

Association, Petitioners, v. MINE SAFETY & HEALTH ADMINISTRATION and U.S. Department of Labor,

AMERICAN MINING CONGRESS, and National Industrial Sand

Association, Petitioners, v. U.S. DEPARTMENT OF LABOR and William J. Tattersall,

Assistant Secretary of Labor for Mine Safety and

Health, and Mine Safety and Health

Administration, Respondents.

Nos. 91-1501, 92-1188, 92-1331.

United States Court of Appeals District of Columbia Circuit.

Argued Nov. 10, 1992.

Decided June 15, 1993.

Rehearing and Suggestion for Rehearing

En Banc Denied in No. 91-1501

Sept. 8, 1993.

Petitions for Review of an Order of the Mine Safety and Health Administration.

Thomas C. Means, Washington, DC, argued the cause for petitioner. With him on the briefs were Edward M. Green, Mark G. Ellis, Timothy M. Biddle and Robert Timothy McCrum, Washington, DC.

Marshall J. Breger, Solicitor, Dept. of Labor, Washington, DC, argued the cause for respondent. With him on the brief were Allen H. Feldman, Nathaniel I. Spiller & Marks, Flynn, W. Christian Schumann and Jerald S. Feingold, Washington, DC.

Before: WILLIAMS, SENTELLE and RANDOLPH, Circuit Judges.

Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS.

STEPHEN F. WILLIAMS, Circuit Judge:

This case presents a single issue: whether Program Policy Letters of the Mine Safety and Health Administration, stating the agency's position that certain x-ray readings qualify as "diagnose[s]" of lung disease within the meaning of agency reporting regulations, are interpretive rules under the Administrative Procedure Act. We hold that they are.

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The Federal Mine Safety and Health Act, 30 U.S.C. § 801 et seq., extensively regulates health and safety conditions in the nation's mines and empowers the Secretary of Labor to enforce the statute and relevant regulations. See id. at §§ 811, 813-14. In addition, the Act requires "every operator of a ... mine ... [to] establish and maintain such records, make such reports, and provide such information, as the Secretary ... may reasonably require from time to time to enable him to perform his functions." Id. at § 813(h). The Act makes a general grant of authority to the Secretary to issue "such regulations as ... [he] deems appropriate to carry out" any of its provisions. Id. at § 957.

Pursuant to its statutory authority, the Mine Safety and Health Administration (acting on behalf of the Secretary of Labor) maintains regulations known as "Part 50" regulations, which cover the "Notification, Investigation, Reports and Records of Accidents, Injuries, Illnesses, Employment, and Coal Production in Mines." See 30 CFR Part 50. These were adopted via notice-and-comment rulemaking. See 42 Fed.Reg. 55568 (1977) (notice of proposed rulemaking); 42 Fed.Reg. 65534 (1977) (adopted rules). ¹ Subpart C deals with the "Reporting of Accidents, Injuries, and Illnesses" and requires mine operators to report to the MSHA within ten days "each accident, occupational injury, or occupational illness" that occurs at a mine. See 30 CFR § 50.20(a). Of central importance here, the regulation also says that whenever any of certain occupational illnesses are "diagnosed," the operator must similarly report the diagnosis within ten days. Id. (emphasis added). Among the occupational illnesses covered are "[s]ilicosis, asbestosis, coal worker's pneumoconiosis, and other pneumoconioses." Id. at § 50.20-6(b)(7)(ii). An operator's failure to report may lead to citation and penalty. See 30 U.S.C. §§ 814(a), 815(a) & (d), 816(a).

As the statute and formal regulations contain ambiguities, the MSHA from time to time issues Program Policy Letters ("PPLs") intended to coordinate and convey agency policies, guidelines, and interpretations to agency employees and interested members of the public. See MSHA Administrative Policy and Procedures Manual, Volume II, paragraph 112 (July 17, 1990); MSHA Program Information Bulletin No. 88-03 (August 19, 1988). One subject on which it has done so--apparently in response to inquiries from mine operators about whether certain x-ray results needed to be reported as "diagnos[es]"--has been the meaning of the term diagnosis for purposes of Part 50.

The first of the PPLs at issue here, PPL No. 91-III-2 (effective September 6, 1991), stated that any chest x-ray of a miner who had a history of exposure to pneumonoconiosis-causing dust that rated 1/0 or higher on the International Labor Office (ILO) classification system would be considered a "diagnosis that the x-rayed miner has silicosis or one of the other pneumonoconioses" for the purposes of the Part 50 reporting requirements. (The ILO classification system uses a 12-step scale to measure the concentration of opacities (i.e., areas of darkness or shading) on chest x-rays. A 1/0 rating is the fourth most severe of the ratings.) The 1991 PPL also set up a procedure whereby, if a mine operator had a chest x-ray initially evaluated by a relatively unskilled reader, the operator could seek a reading by a more skilled one; if the latter rated the x-ray below 1/0, the MSHA would delete the "diagnosis" from its files. We explain the multiple-reader rules further in the context of the third PPL, where they took their final form (so far).

The second letter, PPL No. P92-III-2 (effective May 6, 1992), superseded the 1991 PPL but largely repeated its view about a Part 50 diagnosis. In addition, the May 1992 PPL stated the MSHA's position that mere diagnosis of an occupational disease or illness within the meaning of Part 50 did not automatically entitle a miner to benefits for disability or impairment under a workers' compensation scheme. The PPL also said that the MSHA did not intend for an operator's mandatory reporting of an x-ray reading to be equated with an admission of liability for the reported disease.

The final PPL under dispute, PPL No. P92-III-2 (effective August 1, 1992), replaced the May 1992 PPL and again restated the MSHA's basic view that a chest x-ray rating above 1/0 on the ILO scale constituted a "diagnosis" of silicosis or some other pneumoconiosis. The August 1992 PPL also modified the MSHA's position on additional readings. Specifically, when the first reader is not a "B" reader (i.e., one certified by the National Institute of Occupational Safety and Health to perform ILO ratings), and the operator seeks a reading from a "B" reader, the MSHA will stay enforcement for failure to report the first reading. If the "B" reader concurs with the initial determination that the x-ray should be scored a 1/0 or higher, the mine operator must report the "diagnosis". If the "B" reader scores the x-ray below 1/0, the MSHA will continue to stay enforcement if the operator gets a third reading, again from a "B" reader; the MSHA then will accept the majority opinion of the three readers.

The MSHA did not follow the notice and comment requirements of 5 U.S.C. § 553 in issuing any of the three PPLs. In defending its omission of notice and comment, the agency relies solely on the interpretive rule exemption of § 553(b)(3)(A).

We note parenthetically that the agency also neglected to publish any of the PPLs in the Federal Register, but distributed them to all mine operators and independent contractors with MSHA identification numbers, as well as to interested operator associations and trade unions. Compare 5 U.S.C. § 552(a)(1)(D) (requiring publication in the Federal Register of all "interpretations of general applicability") with id. at § 552(a)(2)(B) (requiring agencies to make available for public inspection and copying "those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register"). Petitioners here make no issue of the failure to publish in the Federal Register.

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The distinction between those agency pronouncements subject to APA notice-and-comment requirements and those that are exempt has been aptly described as "enshrouded in considerable smog," General Motors Corporation v. Ruckelshaus, 742 F.2d 1561, 1565 (D.C.Cir.1984) (en banc) (quoting Noel v. Chapman, 508 F.2d 1023, 1030 (2d Cir.1975)); see also American Hospital Association v. Bowen, 834 F.2d 1037, 1046 (D.C.Cir.1987) (calling the line between interpretive and legislative rules "fuzzy"); Community Nutrition Institute v. Young, 818 F.2d 943, 946 (D.C.Cir.1987) (quoting authorities describing the present distinction between legislative rules and policy statements as "tenuous," "blurred" and "baffling").

Given the confusion, it makes some sense to go back to the origins of the distinction in the legislative history of the Administrative Procedure Act. Here the key document is the Attorney General's Manual on the Administrative Procedure Act (1947), which offers "the following working definitions":

Substantive rules--rules, other than organizational or procedural under section 3(a)(1) and (2), issued by an agency pursuant to statutory authority and which implement the statute, as, for example, the proxy rules issued by the Securities and Exchange Commission pursuant to section 14 of the Securities Exchange Act of 1934 (15 U.S.C. 78n). Such rules have the force and effect of law.

Interpretative rules--rules or statements issued by an agency to advise the public of the agency's construction of the statutes and rules which it administers....

General statements of policy--statements issued by an agency to advise the public prospectively of the manner in which the agency proposes to exercise a discretionary power.

Id. at 30 n. 3. See also Michael Asimow, Public Participation in the Adoption of Interpretive Rules and Policy Statements, 75 Mich.L.Rev. 520, 542 & n. 95 (1977) (reading legislative history of Administrative Procedure Act as "suggest[ing] an intent to adopt the legal effect test" as marking the line between...