[Federal Register: September 2, 2008 (Volume 73, Number 170)]
[Proposed Rules]
[Page 51256-51257]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02se08-17]
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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
29 CFR Part 2700
Procedural Rules
AGENCY: Federal Mine Safety and Health Review Commission.
ACTION: Advanced notice of proposed rulemaking.
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SUMMARY: The Federal Mine Safety and Health Review Commission (the
``Commission'') is an independent adjudicatory agency that provides
trials and appellate review of cases arising under the Federal Mine
Safety and Health Act of 1977 (2000) (the ``Mine Act''). Trials are
held before the Commission's Administrative Law Judges, and appellate
review is provided by a five-member Review Commission appointed by the
President and confirmed by the Senate. The Commission is seeking
suggestions for improving its procedures for processing requests for
relief from default and reducing the number of cases in which a party
seeks relief before the Commission after default.
DATES: Written and electronic comments must be submitted on or before
November 3, 2008.
ADDRESSES: Written comments should be mailed to Michael A. McCord,
General Counsel, Office of the General Counsel, Federal Mine Safety and
Health Review Commission, 601 New Jersey Avenue, NW., Suite 9500,
Washington, DC 20001. Persons submitting written comments shall provide
an original and three copies of their comments. Electronic comments
should state ``Comments on Advanced Notice of Proposed Rulemaking'' in
the subject line and be sent to mmccord@fmshrc.gov.
FOR FURTHER INFORMATION CONTACT: Michael A. McCord, General Counsel,
Office of the General Counsel, 601 New Jersey Avenue, NW., Suite 9500,
Washington, DC 20001, telephone 202-434-9935; FAX: 202-434-9944.
SUPPLEMENTARY INFORMATION: The Mine Act sets forth dual filing
requirements for parties' contests of citations and orders and their
associated proposed civil penalties. 30 U.S.C. 815(a), (d). The
Commission has implemented these requirements in 29 CFR part 2700
subparts B and C. Subpart B sets forth the manner in which a party may
contest a citation or order before the Secretary has proposed a civil
penalty for the alleged violation described in the citation or order.
Subpart C sets forth the manner in which a party may contest a civil
penalty after a proposed penalty assessment has been issued. If a party
chooses not to file a contest of a citation or order under subpart B,
it may nonetheless contest the proposed penalty assessment under
subpart C. In such circumstances, in addition to contesting the
proposed penalty assessment, the party may challenge the fact of
violation and any special findings alleged in the citation or order.
See 29 CFR 2700.21(b) (``An operator's failure to file a notice of
contest of a citation or order * * * shall not preclude the operator
from challenging, in a penalty proceeding, the fact of violation or any
special findings * * *.''); Quinland Coals, Inc., 9 FMSHRC 1614, 1621-
23 (Sept. 1987) (holding that fact of violation and special findings
may be placed in issue by the operator in a civil penalty proceeding
regardless of whether the operator has availed itself of the
opportunity to file a contest proceeding under subpart B). However, if
a party files a contest of a citation or order under subpart B, it must
also file additional pleadings under subpart C in order to challenge
the proposed penalty assessment related to the citation or order.
The Mine Act's dual filing requirements have often led to confusion
by parties who may fail to timely file required documents and have
their cases result in default. The Commission receives requests for
relief from default that generally fall into two categories. Requests
in the first category involve circumstances in which a party has failed
to file a timely contest of a proposed penalty assessment and the
proposed penalty thereby becomes a final order of the Commission by
operation of section 105(a) of the Mine Act, 30 U.S.C. 815(a). Requests
in the second category involve circumstances in which a Commission
Administrative Law Judge issues a default order because a party has
failed to file an answer to a petition for assessment of penalty filed
by the Secretary of Labor. Currently, the large majority of requests
for relief received by the Commission fall within the first category.
Under the Commission's present practice, requests for relief from
default are directed to the Review Commission. In evaluating requests
for relief from default, the Review Commission finds guidance in Rule
60(b) of the Federal Rules of Civil Procedure (``Rule 60(b)''). See 29
CFR 2700.1(b) (``the Commission and its Judges shall be guided so far
as practicable by the Federal Rules of Civil Procedure''); Jim Walter
Res., Inc., 15 FMSHRC 782, 787 (May 1993). The Review Commission has
recognized that Rule 60(b) ``is a tool which * * * courts are to use
sparingly * * *.'' Id. at 789 (citation omitted); Atlanta Sand and
Supply Co., 30 FMSHRC--, slip op. at 4, No. SE 2008-327-M (July 16,
2008). The Review Commission has also observed that default is a harsh
remedy and that, if the defaulting party can make a showing of good
cause for a failure to timely respond, the case may be reopened and
appropriate proceedings on the merits permitted. See Coal Prep. Servs.,
Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Upon application of this standard, if the Review Commission
concludes that a request for relief is potentially sufficient on its
face to support reopening, but cannot conclusively determine from the
record whether relief should be granted, it remands the matter to the
Chief Administrative Law Judge. The Chief Administrative Law Judge
exercises his discretion to engage in any further fact-finding and
determines whether good cause exists for a failure to timely respond.
If the
[[Page 51257]]
Judge finds good cause, the case proceeds pursuant to the Mine Act and
the Commission's Procedural Rules in 29 CFR part 2700.
In January 2006, while considering changes to its procedural rules,
the Commission determined that its procedures for processing requests
for relief should be made more efficient through informal means rather
than through the rulemaking process. 71 FR 553, 554, Jan. 5, 2006. The
Commission explained that such informal means include making available
a summary of the Commission's procedural rules described in simple
terms and placing on the Commission's Web site (www.fmshrc.gov) a page
of frequently asked questions and answers regarding Commission
procedure. Id.
The Commission has since employed a number of informal means in an
effort to reduce the number of cases resulting in default. For
instance, it has worked with the Department of Labor's Mine Safety and
Health Administration (``MSHA'') to clarify instructions provided to
parties for the filing of various documents, including the filing of a
contest of a proposed penalty assessment. The Commission did so
believing that if such instructions were clearer, parties would be more
likely to timely file their documents and avoid default.
In addition, the Commission has created and made available three
guides to Commission proceedings intended to clarify Commission
procedure. The first guide, ``How a Case Proceeds before the
Commission,'' provides charts and summaries of procedural requirements
for different types of proceedings before the Commission. The second
guide, ``Frequently Asked Questions,'' provides a wide variety of
information pertaining to Commission procedure in question and answer
format. It includes a section devoted to problems in contesting
penalties and provides parties with information for seeking relief from
a proposed penalty assessment that becomes a final Commission order
after the party failed to file a timely contest of a proposed penalty
assessment. The third guide, ``Guide to Commission Proceedings,''
describes Commission proceedings in simple terms. The Commission has
made these guides available on its Web site (http://www.fmshrc.gov/
guides/guides.html ). It intends to publish and distribute a paper
compilation of the three guides in the near future.
Although the Commission has taken such actions, it has been
receiving an increasingly large number of requests for relief from
operators large and small, who have failed to file a timely contest of
a proposed penalty assessment. As a result, the Commission is exploring
additional means for improving its handling of requests for relief and
for decreasing the number of cases that result in default.
One of the Commission's key considerations is whether it should set
forth requirements for requesting relief from default in a rule, or
whether further guidance should be provided in an informal document. In
order to aid its consideration, the Commission is requesting comment
from members of the interested public. In considering the feasibility
of promulgating a rule pertaining to requests for relief from default,
the Commission invites the public to consider any or all of the
following questions. Members of the public are not limited to
commenting on these questions and may offer any suggestion related to
the subject.
Scope of Rule: Should a rule be limited to requests for relief from
citations and orders that have become final by operation of section
105(a) of the Mine Act when a party failed to timely file a contest of
a proposed penalty assessment? Should the rule also address requests
for relief from a default order issued by an administrative law judge
after a party has failed to timely file an answer to the Secretary of
Labor's petition for assessment of penalty? To what extent should the
rule be modeled on Rule 60(b)?
Time Limitations: When should a request for relief be filed? To
what extent should a rule follow the time limitations set forth in Rule
60(b)? How should the Commission interpret the ``reasonable time''
requirement of Rule 60(b)? Should the one-year time limitation
pertaining to Rule 60(b)(1), (2), and (3) be applied in certain
circumstances? When an order becomes final by operation of Mine Act
section 105(a), what effect should an operator's receipt of a
delinquency notice from MSHA have on the time within which the operator
should file a motion to reopen?
Standard for Relief: What standard should apply to entitle a party
to relief? In determining whether to grant relief, how closely should
the Commission be guided by federal case law interpreting Rule 60(b)?
Should the Commission require a movant to set forth specific facts
which support the grounds alleged under Rule 60(b) and, if so, what
level of specificity should be required? Should the Commission require
a movant to show a meritorious claim or defense as a prerequisite to
granting relief? Should the Commission also be guided by the standard
for setting aside defaults in Rule 55(c) of the Federal Rules of Civil
Procedure? Should the Commission apply a different standard depending
upon certain factors relating to the movant, such as whether the movant
is represented by counsel, or the size of an operator?
Documentation: Should a rule require that allegations be
established by sworn written statements by individuals with personal
knowledge of the facts and/or other sufficiently reliable
documentation? Should a rule require that the movant include in its
request for relief copies of all relevant documents in its possession
including, but not limited to, the proposed penalty assessment? Should
the signature of an attorney on a request for relief be treated as a
substitute for any required documentation?
Process: Should requests for relief be filed directly with the
Chief Administrative Law Judge or with the Review Commission? What
service requirements should apply?
Public Review of Comments
All comments responding to this notice will be a matter of public
record and available for public inspection and copying by appointment
with Ella Waymer, between the hours of 9 a.m. and 5 p.m. on business
days at the Federal Mine Safety and Health Review Commission, 601 New
Jersey Avenue, NW., 9th Floor, Room 9536, Washington, DC 20001;
telephone 202-434-9935.
Dated: August 27, 2008.
Michael F. Duffy,
Chairman, Federal Mine Safety and Health Review Commission.
[FR Doc. E8-20235 Filed 8-29-08; 8:45 am]
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