BP West Coast Products, LLP v. Oregon Department of Justice

SERCOMBE, P. J.,

concurring.

INTRODUCTION

The issue in this case is whether the rule amendments adopted by the Attorney General exceeded the Attorney *738General’s rulemaking authority because those amendments went beyond the rulemaking authority delegated by Oregon Laws 1985, chapter 751, to the Attorney General, or because the amended rules conflict with the operation of ORS 646.930 and are preempted for that reason. The majority largely ignores the first issue and decides the rule/statute conflict by determining that the rules are consistent with the “primary purpose” of ORS 646.930 as evidenced primarily by its legislative history. It opines that “the text, context, and legislative history of ORS 646.930 indicate that the primary purpose of ORS 646.930 has been to protect consumers from deceptive fuel pricing by establishing minimum requirements for a service station’s posting of fuel prices,” and further that “[t]he parameters for conditions established by OAR 137-020-0150(1)(b) are entirely consistent with that statutory policy.” 284 Or App at 734.

With respect, the majority barks up the wrong tree, even though it is in the right forest. We generally decide issues of whether a rule exceeds an agency’s authority to implement a statute by examining whether the operation of the rule conflicts with the express operation of the statute. To the extent, however, that the rule supplements the statutory policies, the analysis requires a determination of whether those supplementary policies are otherwise within the rulemaking authority of the agency.

That analysis requires focus on the substance of the statute and the rules to determine if a conflict exists, and not—as the majority posits—an examination of whether the rules are consistent with the broad purpose of the statute or the aspirations of the legislators who adopted the statute. Those latter considerations, of course, are relevant to determining the meaning of a statute when that is unclear. And, as noted below, I disagree with the majority on the meaning of ORS 646.930(2)(b) based on the plain meaning of the statute. The majority’s recitation of the legislative history of the statute or its broad purpose might be relevant to construe the meaning of ORS 646.930(2)(b). Once that construction is made, the issue becomes whether the text of the statute conflicts with the text of the rules and not whether the rule is consistent with the primary purpose of the statute as shown by its legislative history.

*739The parties use the methodology that I describe to frame their arguments on review. Petitioner contends that the rule amendments conflict with the statutory policies by regulating differently the content of a service station street sign face and the display of dispensing devices, and imposing new regulations on the content of price sign displays. Petitioner further asserts that the rulemaking authority of the Attorney General is limited to rules that implement the statutory policies, and does not include rules that change or supplement those policies. The Attorney General denies that the statute and rules conflict and asserts that the rule amendments are within the scope of the 2010 changes to the statute and the delegated authority to the Attorney General to adopt rules to define unfair trade practices.

Resolving those contentions requires a detailed analysis of the statute and the rules to determine if a textual conflict exists; again an analysis eschewed by the majority in favor of a comparison of the purpose of the statute and the meaning of “condition” under the rules. Based on the following textual analysis, I conclude that the amended rules are not expressly preempted by the delegated rulemaking authority in Oregon Laws 1985, chapter 751, section 2, to “adopt rules to aid in the implementation of’ the act.. Nor are the rules implicitly preempted because they are irreconcilable or inconsistent with the statute. For those reasons, and because any supplementary rules are within the authority of the Attorney General under ORS 646.608(l)(u) to regulate “any other unfair or deceptive conduct in trade or commerce,” the rules are valid.

THE CONTENT OF THE STATUTE AND THE RULES

In a nutshell, the administrative rules under review regulate the displays of three different types of signs at a service station: street signs (signs “visible from a street or highway”), OAR 137-020-0150(1)(l); the price displayed on dispensing devices that a customer pays, OAR 137-020-0150(4); and “price signs,” a “sign on top of the dispensing device (‘pump topper’), on the island or on the side of the retailer’s building[,]” OAR 137-020-0150(5)(c). The 1985 statute regulated the content of a street sign display, allowing that sign to display the lowest cash prices charged for *740the sale of all grades of fuel and requiring the display of any conditions if “a cash price displayed on a sign is available only under some conditions [.] ” ORS 646.930 (1985).

The Attorney General then adopted rules requiring the display of that cash price and conditions on street and price signs. In 2010, the statute was amended to require less display on a street sign, requiring only the display of the lowest cash price charged for the sale of the lowest grade of fuel. The 2010 amendments, however, also required that, if a street sign is used, the retailer must “display on a sign visible at or near any dispensing device [i.e., price signs] all prices charged for the sale of all grades of gasoline, diesel or other fuel offered for sale.” ORS 646.930(1)(b). The Attorney General then expanded the rules to require the display of any condition of sale for the prices charged for any grade of fuel on price signs, and rewrote the rules on the display of conditions on street signs. The issue between the parties is whether those expanded rules require additional content for street signs beyond that required by statute, and whether the price sign regulations are within the scope of the Attorney General’s rulemaking authority. A more specific history of the statute and rules follows.

Oregon Laws 1985, chapter 751, amended ORS 646.875, which was subsequently renumbered as ORS 646.930, to include the following text:1

“(1) A person who operates a service station, business or other place for the purpose of retailing and delivering gasoline, diesel or other fuel into the tanks of motor vehicles may display on a sign visible from the street the lowest cash prices charged for the sale of all grades of gasoline, diesel or other fuel.
“(2) The following apply to a sign displaying prices under this section:
“(a) The price per unit of measurement and the unit of measurement for a particular kind of fuel must be the same *741on the sign as on any dispensing device used for delivering that kind of fuel into the tanks of motor vehicles.
“(b) If a cash price displayed on a sign is available only under some conditions, the sign and the dispensing device must clearly state the conditions.
“(c) If a price displayed on a sign is available only in a certain area of the service station or business, the area where the price displayed is available must be clearly identified.
“(3) A person who displays a cash price that is available only under some conditions may not require, as a condition of buying fuel at the displayed price, that the buyer fill the fuel tank of the buyer’s vehicle.”

The act also mandated that, “[o]n or before January 1,1986, the Attorney General shall adopt rules to aid in the implementation of’ the act. Or Laws 1985, ch 751, § 2.

Pursuant to that direction from the legislature, the Attorney General adopted OAR 137-020-0150, which became effective on January 1, 1986. In that rule, the Attorney General adopted a variety of policies related to the content of the information that must be included on fuel price signs, and the manner in which that information must be displayed. In particular, the rule required that service stations must “[djisplay clearly and conspicuously on each sign the lowest cash price for each grade of gasoline or diesel fuel offered for sale[,]” OAR 137-020-0150(3)(a) (Jan 1, 1986), and that the sign must “[s]tate clearly and conspicuously on the dispensing device and on the sign all conditions applying to the lowest cash price[,]” OAR 137-020-0150(3)(d) (Jan 1, 1986). At the same time, the Attorney General adopted OAR 137-020-0160. In that rule, the Attorney General declared a violation of OAR 137-020-0150 to be “a violation of the Unfair Trade Practices Act,” citing ORS 646.608(1)(u). OAR 137-020-0160(3) (Jan 1, 1986). See also ORS 646.608(1)(u) (providing that “ [a] person engages in an unlawful practice if in the course of the person’s business, vocation or occupation” the person “[e]ngages in any other unfair or deceptive conduct in trade or commerce”); ORS 646.608(4) (providing that the Attorney General must “first establish!] a rule in accordance with ORS chapter 183 declaring conduct to be *742unfair or deceptive in trade or commerce” before initiating a suit under ORS 646.608(1)(u)).

In 2010, the legislature adopted limited amendments to ORS 646.930. In Oregon Laws 2010, chapter 19, section 1, the legislature modified ORS 646.930(1)(a) to require that fuel price signs visible from the street display the lowest cash price for only the “lowest grades” of fuel available, rather than “all grades.” Additionally, the act inserted ORS 646.930(1)(b), which states that, if a street sign is displayed, then the service station “shall display on a sign visible at or near any dispensing device all prices charged for the sale of all grades of gasoline, diesel or other fuel offered for sale.” The legislature did not alter ORS 646.930(2).2

After the legislature adopted those statutory amendments, the Attorney General amended OAR 137-020-0150, citing the authority originally designated to the Attorney General in Oregon Laws 1985, chapter 751, section 2, to adopt rules to implement that act, as well as the Attorney General’s authority under ORS 646.608 to regulate “any other unfair or deceptive conduct in trade or commerce.” Oregon Bulletin, Volume 50, No. 2, p. 169 (February 2011). See also ORS 646.608(1)(u); ORS 646.608(4). The Attorney General explained that the purpose of the amendments was to address complaints received by the Department of Justice “that allege unfair or deceptive conduct pertaining to disclosure of full service and added fees to use credit or debit cards,” in addition to “changes in the past 25 years [that] include different types of motor vehicle fuel, significant use of electronic dispensers, and loyalty cards,” and issues related to “where and when gasoline prices and any conditions to the lowest cash price may be displayed and charged.” Oregon Bulletin, Volume 50, No. 2, p. 167 (February 2011); Oregon Bulletin, Volume 49, No. 12, p. 14 *743(December 2010). The new rule came into effect on January 1, 2011.

As amended, OAR 137-020-0150 expands the regulation of service station signs beyond the statutory requirement to display the lowest cash price for the lowest grade of fuel and conditions for the availability of that lowest cash price. The rule continues to require that street and price signs display any conditions to receive the lowest cash price for fuel, albeit restricted to the lowest cash price for the lowest grade of fuel. But, for at least price signs (and possibly street signs), the rule defines “condition” to not only include conditions for the availability of the lowest cash price for fuel, but also conditions for the availability of any other price charged for fuel. “‘Condition’ means any payment method (e.g., credit), service level (e.g., full service or mini service), or any other modifying circumstance affecting the price per unit of measurement of motor vehicle fuel from the lowest cash price[.]” OAR 137-020-0150(1)(b).

OAR 137-020-0150(3) regulates the displayed prices on signs addressed by the statute. It first sets out the amended statutory requirement that a street sign display “the lowest cash prices charged for the sale of the lowest grade of each type of motor vehicle fuel sold or offered for sale to all customers or potential customers,” OAR 137-020-0150(3)(a), and that a price sign display “all prices charged for the sale of all grades of motor vehicle fuel sold or offered for sale,” OAR 137-020-0150(3)(c).

OAR 137-020-0150(3)(d)(A) then provides that,

“If the lowest cash prices are available only under some conditions:
“(A) The retailer must clearly and conspicuously display all conditions on each street sign, price sign and dispensing device (e.g., cash only, mini serve) ***.”

I construe this part of the rule to require only the display of all conditions to obtain the lowest cash price. The requirement to “display all conditions” is prefaced by a specific reference to “some conditions” for the availability of the lowest cash price. The reference to “some conditions” in the predicate phrase confines the required display of “all conditions” *744to just those conditions. Moreover, the examples of conditions to be displayed, “cash only, mini serve,” refer to conditions to obtain the lowest cash price and not conditions to obtain other prices. Thus, this part of the rule refers to a narrow set of conditions to obtain the lowest cash price, and not to the full set of conditions as defined by OAR 137-020-0150(l)(b). For street signs, then, that display requirement is the same as the display required by ORS 646.930(2)(b)—that street signs set out the conditions for the availability of the lowest cash price. OAR 137-020-0150(3)(d)(A) also requires the display of lowest cash price conditions on price signs and dispensing devices.3

As noted, other portions of the rule require the display of conditions other than those to receive the lowest cash price for price signs, and petitioner contends that those supplementary requirements exceed the Attorney General’s rulemaking authority.4 Specifically, petitioner points to the following parts of OAR 137-020-0150(5):

“Price signs:
********
“(d) If the price sign is on top of the dispensing device, the retailer must ensure:
"*****
“(B) That the following information is displayed on the price sign:
“(i) All words or symbols of condition; and
“(ii) Immediately adjacent to the words or symbols of condition, either:
*745“(I) The whole unit price of any condition for each grade of motor fuel; or
“(II) The additional price per unit of measurement for any condition in whole cents (e.g., ‘credit price + 3c/gal’ or ‘full service additional 10c/gal’) for each grade of motor vehicle fuel. If the additional price per unit of measurement for a specific condition (e.g., credit) for each grade of motor vehicle fuel is the same, then only one price reference is required under this subparagraph.
“(e) If the price sign is on the island or on the side of the retailer’s building, the retailer must ensure:
«‡‡‡‡⅜
“(B) That the following information is displayed on the price sign:
“(i) All words or symbols of condition; and
“(ii) Immediately adjacent to the words or symbols of condition, the whole unit price of any condition for each grade of motor vehicle fuel.”

Thus, petitioner’s claim that the rule conflicts with the statute amounts to two contentions: (1) that the Attorney General’s rulemaking authority is limited by Oregon Laws 1985, chapter 751, section 2, “to adopt rules to aid in the implementation of’ ORS 646.930 and that the rules imper-missibly regulate signs in other ways; and (2) that the regulations requiring the posting of any condition to obtain any fuel price on the price sign, expanding the statute’s required posting on street signs of conditions to obtain the lowest cash price, are outside the scope of the Attorney General’s rulemaking authority under ORS 646.608. I turn then to the necessary legal analysis to resolve those contentions.

PREEMPTION ANALYSIS

As noted, in rule validity cases where a rule is challenged as inconsistent with a statute, the validity challenge will be sustained if the operation of the rule directly conflicts with the substance of the statute or if the rule supplements the statute in excess of the agency’s rulemaking authority. For example, in Planned Parenthood Assn. v. Dept. of Human Res., 297 Or 562, 564, 573, 687 P2d 785 (1984), a DHS rule was challenged as unconstitutional. The court held that *746challenge to be premature because it found that the rule exceeded the statutory authority of the agency. After concluding that the rule was within the general rulemaking authority of the agency, and that proper rulemaking procedures were followed, the court explained that “the next question is whether the substance of the action, though within the scope of the agency’s or official’s general authority, departed from a legal standard expressed or implied in the particular law being administered, or contravened some other applicable statute.” Id. at 565.

Similarly, in Managed Healthcare Northwest v. DCBS, 338 Or 92, 95, 106 P3d 624 (2005), the court framed the rule validity issue as whether “an otherwise valid rule * * * conflicts with clearly stated statutory policy.” In order to determine the “clearly stated statutory policy,” the court “examine [d] the applicable statutory wording in its context to determine the legislature’s intent.” Id. at 96. See also Garrison v. Dept. of Rev., 345 Or 544, 549, 200 P3d 126 (2008) (“[A] rule created within a statutory scheme cannot amend, alter, enlarge upon, or limit statutory wording so that it has the effect of undermining the legislative intent.”); Miller v. Employment Division, 290 Or 285, 288, 620 P2d 1377 (1980) (framing the rule validity issue as whether the rule “conflicts with the clear, unambiguous words of [the statute]”); Oregon Firearms v. Board of Higher Education, 245 Or App 713, 723, 264 P3d 160 (2011) (agency rule prohibiting possessing firearms on institutional property preempted by ORS 161.170(1), which vested sole authority to regulate firearms with the legislative assembly).

OAR 137-020-0150 does not conflict with the words of ORS 646.930. As noted, the rule imposes the same requirements for cash price displays on a street sign that the statute does, requiring the display of conditions to obtain the lowest cash price. Like the statute, the rule requires price signs to display “all prices charged for the sale of all grades of gasoline, diesel or other fuel offered for sale.” The rule “aid[s] in the implementation of’ those statutory requirements under the express rulemaking authority in Oregon Laws 1985, chapter 751, section 2, by regulating the manner of price displays, requiring the display of all conditions for prices on price signs, and making violations of those limitations *747“unfair or deceptive conduct in trade or commerce” under ORS 646.608(1)(u).

Importantly, ORS 646.930 does not expressly provide that the only restrictions on signage in service stations are those set out in the statute or that the rulemak-ing authority to “aid in the implementation” of the statute precludes any other rulemaking on service station signage by the Attorney General. Thus, there is no express conflict between the wording of the statute and the text of the rule.

That should be the end of the conflict analysis. Petitioner, however, argues that the statute impliedly preempts the rules because the legislature intended the statutory policies to state the only requirements for the display of pricing on service station signs and the exclusive scope of the Attorney General’s rulemaking authority related to service station signs. That implied intent, however, is inconsistent with the text of the statute. As the majority notes, the statute plainly directs the Attorney General to adopt rules to impose additional limitations on signage to “aid in the implementation” of the statute’s price display requirements for street signs, dispensing devices, and price signs.

Moreover, we do not construe statutes that delegate particular rulemaking authority to an agency (such as Oregon Laws 1985, chapter 751, section 2) to limit the agency’s rulemaking authority under different statutes (such as the Attorney General’s rulemaking authority under ORS 646.608) unless that limitation is explicit in the statute. The fact that the legislature has specifically directed an administrative agency to take certain actions does not preclude the agency from drawing on a broader delegation of statutory authority to take related, nonconflicting actions. See Deupree v. ODOT, 180 Or App 395, 403, 43 P3d 1122 (2002) (concluding that the fact that a statute expressly allowed ODOT to cancel permits in specific circumstances did not preclude ODOT from drawing on its statutory authority to cancel permits for other reasons where, in its judgment, it is “in the best interest of the public for the protection of the highway or road and the traveling public”); Pacific Northwest Bell Telephone Co. v. Katz, 116 Or App 302, 309-11, 841 P2d 652 (1992), rev den, 316 Or 528 (1993) (concluding that a *748statute requiring the PUC to provide refunds in specific circumstances did not preclude the PUC from making refunds in other circumstances under its statutory authority to protect customers and the general public).

Petitioner does not dispute that the rules are consistent with the Attorney General’s broad authority under ORS 646.608 to adopt rules defining unfair and deceptive trade practices or that the Attorney General complied with the proper procedures in amending OAR 137-020-0150.

Thus, there is no conflict between the substance of ORS 646.930 and the substance of the rules. Both policies require the display of the lowest cash price for the lowest grade of fuel on a street sign and the conditions to obtain that price. Both policies require the display of prices for all grades of fuel on price signs. The rule regulates the manner in which those prices are displayed, including the display of conditions to obtain any price displayed on a price sign. Regulation of the manner by which prices are displayed aids in the implementation of the statutory directives on pricing. To whatever extent the rule expands the statutory requirements in nonimplementing ways, that policymaking is authorized under ORS 646.608.

CONCLUSION

I concur with the majority that the portions of OAR 137-020-0150 relating to “conditions” for any price of fuel on price signs, including OAR 137-020-0150(1)(b), are not inconsistent with ORS 646.930 and are otherwise within the Attorney General’s rulemaking authority under Oregon Laws 1985, chapter 751, section 2, and ORS 646.608(1)(u).

ORS 646.875 was originally promulgated in 1981. Or Laws 1981, ch 807, § 1. That act did not reference the display of the “lowest cash price” for fuel or the posting of “conditions” to obtain that price. That act also did not require the Attorney General to make rules to aid in its implementation.

The majority appears to construe the reference to “a cash price that is available only under some conditions” in ORS 646.930 (2)(b) to refer to all conditions— whether to obtain the cash price for the lowest grade or to obtain a special price other than the cash price. The majority rests this construction of the statute based on the dictionary meaning of “conditions” and the broad purpose of the statute “to protect consumers from deceptive fuel pricing by requiring the disclosure of additional information.” 284 Or App at 730. With respect, that construction of ORS 646.930 is inconsistent with its text, which regulates only conditions on the availability of a cash price.

That requirement for dispensing devices is aped by OAR 137-020-0150(4)(f), which requires that, if “the lowest cash prices are available only under some conditions, *** the dispensing device [must] clearly and conspicuously state[] all conditions.” Again, I read that portion of the rule to require the display only of conditions to obtain the lowest cash price. That requirement is the same as ORS 646.930 (2)(b) (“If a cash price displayed on a [street] sign is available only under some conditions, the sign and the dispensing device must clearly state the conditions.”).

I understand this to be the thesis of petitioner’s conflict claim. Petitioner’s criticism of other parts of the rule that use the term “condition” to describe the manner that a condition is displayed (size, use of symbols, visibility, the whole unit price, clarity, and conspicuousness) is immaterial to the analysis of that conflict claim. Similarly, petitioner’s references to the rule’s requirements for the displayed price for dispensed fuel are inapposite. See OAR 137-020-0150(4).