Rock Products

AUG 2019

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www.rockproducts.com ROCK products • August 2019 • 121 two alternative methods of compliance, MSHA can no longer claim it interprets the regulation to mean only one of those alternatives is acceptable. Second If, after that close examination, the courts find that the regu- lation was ambiguous, they must examine the character and context of the interpretation to determine whether it was of "controlling weight." The majority took some pains to point out that to be entitled to "controlling weight" the agency's interpretation must be one that is "authoritative" (that is, it could be relied upon) or its "official position." In other words, MSHA cannot simply come up with interpretations for the first time in an enforce- ment action or in litigation. Instead, MSHA will have to rely on established interpretations, well known to the industry. Third Courts will have to examine whether the agency's interpre- tation implicated its substantive expertise, rather than being simply a different reading of the regulation that has no real impact on the regulation's purpose. Finally, the majority required that, before accepting the agen- cy's interpretation, courts must find that the interpretation is the agency's "fair and considered judgment" and not just a convenient litigation position. Additionally, courts should not defer to an agency interpretation that constituted an "unfair surprise" on the regulated community. By imposing this four-part test, the majority transformed Auer deference from a doctrine requiring courts to adopt agency interpretations of their own rules into a mecha- nism through which courts exercise their own independent judgment in spite of agency interpretations. Thus, while not explicitly overturning Auer, the majority essentially stripped it of all of its power. What does this have to do with a zombie apocalypse? In a concurring opinion, Justice Gorsuch characterized the majority's ruling this way: …[T]he majority proceed[ed] to impose so many new and nebulous qualifications and limitations on Auer that THE CHIEF JUSTICE claims to see little practical difference between keeping it on life support in this way or overruling it entirely. So the doctrine emerges maimed and enfeebled – in truth zombified." (empha- sis added). There is a growing sentiment among Supreme Court justices (led by Justice Gorsuch) who make no secret of their desire to do away with a series of decisions that expanded agency power, and return that power to the court. In other words, this could be the beginning of a kind of zombie apocalypse that the regulators may fear, but the regulated community should not. Final Message Back to Humpty Dumpty and Alice, a final message: The issue here was directly addressed by Alice after Humpty allowed himself to dictate the meaning of any word he used. "The question is," said Alice, "whether you can make words mean so many different things." "The question is," said Humpty Dumpty,"which is to be master, that's all." The Supreme Court just told us who is to be master – and it's not MSHA. WWW.ROCKPRODUCTS.COM Leading the Industry for More than 120 Years Visit Rock Products online for newsletters, subscription information and more! Law Aggregates Industry Almanac

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