Tuesday, 11 December 2012

Interpreting Regulations -- Kevin Stack

Kevin Stack has posted Interpreting Regulations on SSRN. Here is the abstract:
The age of statutes has given way to an era of regulations, but our jurisprudence has fallen behind. Despite the centrality of regulations to law, courts have no intelligible approach to regulatory interpretation. The neglect of regulatory interpretation is not only a shortcoming in interpretive theory but also a practical problem for administrative law. Canonical doctrines of administrative law — Chevron, Seminole Rock/Auer, and Accardi — involve interpreting regulations, and yet courts lack a consistent approach.

This Article develops a method for interpreting regulations and, more generally, situates regulatory interpretation within debates over legal interpretation. It argues that a purposive approach, not a textualist one, best suits the distinctive legal character of regulations. Administrative law requires agencies to produce detailed explanations of the grounds for their regulations, called statements of basis and purpose. Courts routinely use these statements to assess the validity of regulations. This Article argues that these statements should guide judicial interpretation of regulations as well. By relying on these statements as privileged sources for interpretation, courts not only grant deference to agencies but also treat these statements as creating commitments with respect to a regulation’s meaning. This approach justifies a framework for interpreting regulations under Chevron, Seminole Rock/Auer, and Accardi that is consistent with the deferential grounding of these doctrines, and provides more notice to those regulated than does relying on the regulation’s text alone.

This Article also shows how regulatory purposivism constitutes a new foothold for Henry Hart and Albert Sacks’s classic legal process account of purposivism. Hart and Sacks’s theory is vulnerable to the criticism that discerning statutory purpose is elusive because statutes do not often include enacted statements of purpose. Regulatory purposivism, however, avoids this concern because statements of basis and purpose offer a consistent and reliable source for discerning a regulation’s purpose. From this perspective, the best days for Hart and Sacks’s legal process theory may be ahead.
The rest can be downloaded, which I recommend, here. In particular, Stack sheds some much-needed light on the question of how best to characterize what an administrative agency has said (in a regulation) or done (in a decision). An understanding of this, on the part of a reviewing court, is essential and will often be critical to whether relief is granted or denied to the applicant.

From the paper itself comes a helpful overview of Stack's proposed method:
So what does this regulatory purposive technique look like? The central tenet of the approach is to read the text of the regulation in light of the regulation’s statement of basis and purpose. The D.C. Circuit’s decision in Secretary of Labor, Mine Safety & Health Administration ex rel. Bushnell v. Cannelton Industries, Inc., delivered by then–Judge Ruth Bader Ginsburg, provides a nice illustration.

The Secretary of Labor had issued regulations to protect miners with pneumoconiosis, a lung disease, providing that miners with evidence of pneumoconiosis could obtain a transfer to a position with lower dust concentrations. In addition, the regulations protected the miners’ compensation, providing that “[w]henever” such a miner is transferred “the operator shall compensate the miner at not less than the regular rate of pay received by that miner immediately before the transfer.” In the case at issue, the eligible miner had initially been transferred to work as a dispatcher at his mining wage, and then to an inside laborer position at a reduced wage as part of a general realignment due to economic conditions. The question was whether the regulations protected the miner from compensation decreases solely for transfers to meet the respiratory dust standards, as the employer maintained, or for all subsequent transfers, as the Secretary maintained.

The court agreed with the Secretary, finding the Secretary’s position “consistent” with the regulations’ text (“whenever”) and also “fully consonant” with the “administrative history and purposes.” The court relied on both the general and more specific purposes set forth in the Secretary’s statement of basis and purpose for the regulations. At a general level, the court noted that the Secretary had observed that existing law discouraged eligible miners from claiming protections, and had sought in the regulations to “provide eligible miners with significant additional protections against fears of job security, adverse economic consequences,” and other undesirable working and wage conditions. More specifically, as the court noted, the Secretary’s statement of basis and purpose had stated that an eligible miner, “ ‘should not suffer any loss in pay whenever an operator transfers the miner’ because ‘[i]f any eligible miner perceived that their rate of pay could be decreased upon any transfer, the incentive to exercise the Part 90 option would be reduced.’ ” The court found that these grounds “strongly support[ed]” the Secretary’s reading of the regulations to protect against wage decreases given that existing law already protected the miner’s rate of pay upon initial transfer to less dusty work. The court thus located a reading of the regulations that was both permitted by the text and that carried out the regulations’ purposes, which the court discerned from the regulations’ statement of basis and purpose.

This purposive technique, grounded in the distinctive character of regulations, builds on Hart and Sacks’s model. By treating the agency’s text and the statement of basis and purpose as the focus of interpretation, it respects the principle of institutional settlement. And because statements of basis and purpose are both more consistently produced and more detailed than enacted statutory statements of purpose, purposive regulatory interpretation more frequently dwells on inferences from those statements, and less frequently requires a broader-ranging, independent reconstruction of rational purpose.

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