Aggregates Manager Digital Magazine
Issue link: http://read.dmtmag.com/i/531447
41 AGGREGATES MANAGER July 2015 regulations, according to Justice Scalia, courts have allowed agencies "to control the extent of its notice-and-comment- free domain" — a domain they expand by writing "substantive rules more broadly and vaguely, leaving plenty of gaps to be filled in later, using interpretive rules unchecked by notice and comment." Justice Thomas, like Justice Scalia, criticizes "a doctrine of deference that has taken on a life of its own." Deference, according to Justice Thomas, gives "legal effect to the in- terpretations rather than the regulations themselves." This raises "constitutional concerns" as it transfers "the judicial power to an executive agency." Thus, deference allows agen- cies to change the meaning of regulations at their discretion and without any advance notice to the parties, which under- mines the "obligation to provide a judicial check on the other branches." While the decision in Mortgage Bankers answered the question of whether changes in interpretative rules require notice and comment rulemaking, the decision did not ad- dress what constitutes an interpretive rule versus a legisla- tive rule and whether a change in a rule is legislative, if it has the effect of amending a prior legislative rule. In fact, as Justice Sotomayor recognized, the parties in Mortgage Bankers litigated the suit on the understanding that the rule at issue was interpretive, not legislative. 135 S. Ct. 1199, 575 U.S. ___, 14 (2015). Which brings us back to the October 2011 article mentioned above: the Commission's deci- sion in Tilden Mining, Co., 36 FMSHRC 1965 (Review Commission, August 2014), is cur- rently pending appeal before the United States Court of Appeals for the District of Columbia Circuit. MSHA's current application of Section 56.12028 contradicts its prior position, and Tilden has argued before both the ALJ and Commis- sion that the change is legislative, not interpretive. Thus, in light of the Mortgage Bankers decision, it will be interesting to see whether the D.C. Circuit provides a judicial check on MSHA's rulemaking authority and attempt to change the law without formal procedures. Stay tuned. AM ROCKLAW Deference gives "legal effect to the interpretations rather than the regulations themselves," – Justice Thomas B E K A - L U B R I C A T I O N S P E C I A L I S T S S I N C E 1 9 2 7 1 . 8 8 8 . 8 6 2 . 7 4 6 1 w w w. b e k a - l u b e . c o m The extra uptime is FREE! Lower costs for parts and service will pay back your investment fast with Beka-Max automatic lubrication systems... and there's no extra charge for the added productivity from your equipment! • More production, less unscheduled downtime • Longer life for critical components • Expert factory support with dealers nationwide 026-033A EW 4.5x4.5 4C.indd 1 2014-01-24 5:39 PM