[Federal Register Volume 75, Number 97 (Thursday, May 20, 2010)]
[Proposed Rules]
[Pages 28223-28227]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-11739]
[[Page 28223]]
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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
29 CFR Part 2700
Simplified Proceedings
AGENCY: Federal Mine Safety and Health Review Commission.
ACTION: 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 (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 proposing a
rule to simplify the procedures for handling certain civil penalty
proceedings.
DATES: Written and electronic comments must be submitted on or before
June 21, 2010.
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, or sent via facsimile to 202-434-9944. Persons
mailing written comments shall provide an original and three copies of
their comments. Electronic comments should state ``Comments on
Simplified Proceedings'' in the subject line and be sent to
[email protected].
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:
Background
Sections 105(a) and (d) of the Mine Act, 30 U.S.C. 815(a) and (d),
set forth dual filing procedures, which are reflected in subparts B and
C of the Commission's Procedural Rules, 29 CFR part 2700. Under the
dual filing procedures, 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. The procedures for this type of
proceeding, referred to by the Commission as a ``contest proceeding,''
are found in subpart B. In addition, a party may contest a civil
penalty after a proposed penalty assessment has been issued. The
procedures for this type of proceeding, referred to by the Commission
as a ``civil penalty proceeding,'' are found in subpart C.
Since 2006, the number of new cases filed with the Commission has
dramatically increased. From 2000 through 2005, an average of
approximately 2300 cases were filed with the Commission per year. In
2006 and 2007, between approximately 3000 and 4000 new cases were filed
each year, while in 2008 and 2009, approximately 9200 cases were filed
each year.
In order to deal with its burgeoning caseload, the Commission is
considering various ways to streamline its processing of cases. One
approach the Commission has explored is to simplify and streamline the
procedures for handling certain civil penalty proceedings. The
Commission anticipates that such simplified proceedings will likely
reduce the amount of time between the docketing and disposition of a
case. The Commission also anticipates that simplified proceedings will
result in the expenditure of less time and resources by the parties who
practice before the Commission.
The major differences between the simplified procedures set forth
in the proposed rules (``Simplified Proceedings'') and conventional
procedures are that answers to petitions for assessment of penalty
would not be not required; motions would be eliminated to the greatest
extent practicable; early discussions among the parties and the
Commission Administrative Law Judge (``Judge'') would be required to
narrow and define the disputes between parties; parties would be
required to disclose certain materials early in the proceedings;
discovery would not be permitted except as ordered by the Judge;
interlocutory appeals would not be permitted; and post-hearing briefs
would not be allowed, except as ordered by the Judge. Although the
administrative process would be streamlined, hearings would remain full
due process hearings as they are under conventional procedures.
Eligibility
The Commission is proposing various characteristics to describe
which cases might be eligible for Simplified Proceedings. Under the
proposed rule, cases designated for Simplified Proceedings by the Chief
Judge or the Judge's designee would not involve complex issues of law
or fact and would generally include one or more of the following
characteristics: (1) Limited number of citations; (2) an aggregate
proposed penalty of not more than $15,000 per docket and not more than
$50,000 per proceeding; (3) no citation or order issued under sections
104(b), 104(d), 104(e), 105(c), 107(a), 110(b), 110(c), or 111 of the
Mine Act; (4) not involving a fatality; or (5) a hearing that is
expected to take not more than one day.
The Commission encountered a practical problem in attempting to
describe a dollar limit for cases eligible for Simplified Proceedings.
In considering which cases are appropriate for Simplified Proceedings,
it would be useful for the Commission to consider, at an early stage,
all of the contested civil penalties that might be at issue in a single
hearing. However, the Commission does not currently have access to
information that would allow it to group contested civil penalties in
such a fashion.
Under its current practice, the Department of Labor's Mine Safety
and Health Administration (``MSHA'') assesses a proposed civil penalty
for each violation alleged in a citation after the citation has been
terminated or 30 days after the citation was issued, whichever is
sooner. Each mine is on a 30-day billing cycle. On the 30th day in the
billing cycle, all violations that are ready to be assessed are
included on a proposed penalty assessment form that is sent to the
operator. Thus, a proposed penalty assessment form may include proposed
penalties from more than one inspection, and proposed penalties from
one inspection may be included on more than one proposed penalty
assessment form.
The operator must indicate which penalties it wishes to contest on
the proposed assessment form and return the form to MSHA within 30 days
of receipt. The Secretary then files a petition for assessment of civil
penalty with the Commission and attaches a copy of the proposed
assessment form to the petition. The petition for assessment of civil
penalty, with attached proposed penalty assessment, is typically the
first document filed in a civil penalty proceeding.
The Commission plans to review each petition and proposed penalty
assessment in its consideration of whether a case is appropriate for
Simplified Proceedings. Under MSHA's current practice for grouping
citations and proposed penalties in a proposed penalty assessment based
upon a 30-day billing cycle, the Commission may not have a complete
view of all of the contested penalties that may be relevant in a
particular hearing.
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The Commission requests suggestions regarding criteria that might
be used to better group proposed penalties and the underlying citations
and orders on a proposed penalty assessment form. In addition, the
Commission seeks suggestions regarding an appropriate dollar
demarcation for cases eligible for Simplified Proceedings, such as
whether there should be a dollar limit per citation and/or a limit on
the number of penalties that may be at issue in a case, and the amount
that should constitute the dollar limit.
Designation of Case for Simplified Proceedings
The Commission proposes that a civil penalty proceeding would be
designated for Simplified Proceedings by the Chief Judge or the Judge's
designee. After a case has been designated for Simplified Proceedings
under the proposed rule, the Commission would issue a notice of
designation to the parties, which would also provide certain
information, such as contact information for the Judge assigned to the
case, including the Judge's e-mail address. In addition, parties would
be required to file a notice of appearance providing specific contact
information for the counsel or representative acting on behalf of the
party, if that information has not already been provided. The operator
would not be required to file an answer to the petition for assessment
of civil penalty.
Even if a case has not been designated for Simplified Proceedings
by the Chief Judge or the Judge's designee, under the proposed rule,
any party would have the opportunity to request that a case be
designated. The Commission proposes that the request would need to be
in writing and state whether the request is opposed. The request should
also address the characteristics specified in the rule that make the
case appropriate for designation. If a request for designation is
granted, under the proposed rule, the parties would be required to file
and serve notices of appearance providing specific contact information
unless such contact information had already been provided. Under the
proposed rule, if a party requests Simplified Proceedings, the deadline
for filing an answer to a petition for assessment of penalty would be
suspended. If a request is denied, the time for filing an answer would
begin to run upon issuance of the Judge's order denying the request.
Discontinuance of Simplified Proceedings
Under the proposed rules, if it becomes apparent at any time that a
case is not appropriate for Simplified Proceedings, the assigned Judge
could discontinue Simplified Proceedings upon the Judge's own motion or
upon the motion of any party. A party would have the opportunity to
move to discontinue the Simplified Proceedings at any time during the
proceedings but no later than 30 days before the scheduled hearing. The
moving party would be required to confer with the other parties and
state in the motion if any other party opposes or does not oppose the
motion. Parties opposing the motion would have eight business days
after service of the motion to file an opposition. The Commission has
proposed that if Simplified Proceedings were discontinued, the Judge
would issue such orders as are necessary for an orderly continuation
under conventional rules.
Pre-Hearing Exchange of Information
Under Simplified Proceedings, the Commission proposes that
discovery would not be permitted except as ordered by the Judge. Rather
than requiring the disclosure of documents and materials through
discovery, the Commission has proposed a more expeditious means for
disclosure through the mandatory exchange of documents and materials
and through a pre-hearing conference. More specifically, the Commission
proposes that within 30 calendar days after a case has been designated
for Simplified Proceedings, each party would provide to all other
parties copies of all documents, electronically stored information and
tangible things that the disclosing party has and would use to support
its claims or defenses. Materials required to be disclosed under the
proposed rule would include, but would not be limited to, inspection
notes, citation documentation, narratives, photos, diagrams, preshift
and onshift reports, training documents, mine maps and witness
statements (subject to the provisions of 29 CFR 2700.61). Under the
proposed rule, as early as practicable after the parties received these
materials, the Judge would order and conduct a pre-hearing conference.
At the pre-hearing conference, the parties would discuss the following:
settlement of the case; the narrowing of issues; an agreed statement of
issues and facts; defenses; witnesses and exhibits; motions; and any
other pertinent matter. At the conclusion of the conference, the Judge
would issue an order setting forth any agreements reached by the
parties and would specify in the order the issues to be addressed by
the parties at the hearing.
Hearing
The Commission has proposed that as soon as practicable after the
conclusion of the pre-hearing conference, the Judge would hold a
hearing on any issue that remained in dispute. The hearing would be a
full due process hearing. Each party would present oral argument at the
close of the hearing, and post-hearing briefs would not be permitted
except by order of the Judge. The Judge would issue a written decision
that constitutes the final disposition of the proceedings within 60
calendar days after the hearing. If the Judge announced a decision
orally from the bench, it would be reduced to writing within 60
calendar days after the hearing.
Miscellaneous
The Commission has proposed conforming changes to Rule 5(c). The
proposed changes to Rule 5(c) conform the contact information required
in all proceedings with the contact information that would be required
under Simplified Proceedings.
Notice and Public Procedure
Although notice-and-comment rulemaking requirements under the
Administrative Procedure Act (``APA'') do not apply to rules of agency
procedure (see 5 U.S.C. 553(b)(3)(A)), the Commission invites members
of the interested public to submit comments on these proposed rules in
order to assist the Commission in its deliberations regarding the
adoption of final rules. The Commission will accept public comments
until June 21, 2010.
The Commission is an independent regulatory agency and, as such, is
not subject to the requirements of E.O. 12866, E.O. 13132, or the
Unfunded Mandates Reform Act, 2 U.S.C. 1501 et seq.
The Commission has determined under the Regulatory Flexibility Act
(5 U.S.C. 601 et seq.) that this rule would not have a significant
economic impact on a substantial number of small entities. Therefore, a
Regulatory Flexibility Statement and Analysis has not been prepared.
The Commission has determined that the Paperwork Reduction Act (44
U.S.C. 3501 et seq.) does not apply because this rule does not contain
any information collection requirements that require the approval of
the OMB.
The Commission has determined that the Congressional Review Act, 5
U.S.C. 801, is not applicable here because, pursuant to 5 U.S.C.
804(3)(C), this rule ``does not substantially affect the rights or
obligations of non-agency parties.''
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List of Subjects in 29 CFR Part 2700
Administrative practice and procedure, Mine safety and health,
Penalties, Whistleblowing.
For the reasons stated in the preamble, the Federal Mine Safety and
Health Review Commission proposes to amend 29 CFR part 2700 as follows:
PART 2700--PROCEDURAL RULES
1. The authority citation for part 2700 continues to read as
follows:
Authority: 30 U.S.C. 815, 820, 823, and 876.
2. Section 2700.5 is amended by revising paragraph (c) to read as
follows:
Sec. 2700.5 General requirements for pleadings and other documents;
status or informational requests.
* * * * *
(c) Necessary information. All documents shall be legible and shall
clearly identify on the cover page the filing party by name. All
documents shall be dated and shall include the assigned docket number,
page numbers, and the filing person's address, business telephone
number, cell telephone number if available, fax number if available,
and e-mail address if available. Written notice of any change in
contact information shall be given promptly to the Commission or the
Judge and all other parties.
3. A new subpart J is added to read as follows:
Subpart J--Simplified Proceedings
Sec.
2700.100 Purpose.
2700.101 Eligibility for Simplified Proceedings.
2700.102 Commission Commencement of Simplified Proceedings.
2700.103 Party Request for Simplified Proceedings.
2700.104 Discontinuance of Simplified Proceedings.
2700.105 Disclosure of Information by the Parties.
2700.106 Pre-hearing conference.
2700.107 Discovery.
2700.108 Hearing.
2700.110 Application.
Subpart J--Simplified Proceedings
Sec. 2700.100 Purpose.
(a) The purpose of this Simplified Proceedings subpart is to
provide simplified procedures for resolving civil penalty contests
under the Federal Mine Safety and Health Act of 1977, so that parties
before the Commission may reduce the time and expense of litigation
while being assured due process and a hearing that meets the
requirements of the Administrative Procedure Act, 5 U.S.C. 554. These
procedural rules will be applied to accomplish this purpose.
(b) Procedures under this subpart are simplified in a number of
ways. The major differences between these procedures and those that
would otherwise apply in subparts A, C, G, H, and I of the Commission's
rules of procedures are as follows.
(1) Answers to petitions for assessment of penalty are not
required.
(2) Motions are eliminated to the greatest extent practicable.
(3) Early discussions among the parties and the Administrative Law
Judge are required to narrow and define the disputes between the
parties.
(4) The parties are required to provide certain materials early in
the proceedings.
(5) Discovery is not permitted except as ordered by the
Administrative Law Judge.
(6) Interlocutory appeals are not permitted.
(7) The administrative process is streamlined, but hearings will be
full due process hearings. The parties will argue their case orally
before the Judge at the conclusion of the hearing instead of filing
briefs. In many instances, the Judge will render a decision from the
bench.
Sec. 2700.101 Eligibility for Simplified Proceedings.
Cases designated for Simplified Proceedings will not involve
complex issues of law or fact and will generally include one or more of
the following characteristics:
(a) Limited number of citations to be determined by the Chief
Judge.
(b) An aggregate proposed penalty of not more than $15,000 per
docket and not more than $50,000 per proceeding,
(c) No citation or order issued under sections 104(b), 104(d),
104(e), 105(c), 107(a), 110(b), 110(c), or 111 of the Mine Act,
(d) Not involving a fatality, or
(e) A hearing that is expected to take not more than one day.
Sec. 2700.102 Commission Commencement of Simplified Proceedings.
(a) Designation. Upon receipt of a petition for assessment of
penalty, the Chief Administrative Law Judge, or designee, has the
authority to designate an appropriate case for Simplified Proceedings.
(b) Notice of designation. After a case has been designated for
Simplified Proceedings, the Commission will issue a Notice of
Designation for Simplified Proceedings. The Notice will inform parties
that the case has been designated for Simplified Proceedings, state the
name and contact information for the Commission Administrative Law
Judge assigned to the case, provide instructions for filing a notice of
appearance in the Simplified Proceedings, and state that the operator
need not file an answer to the petition for assessment of penalty. The
Commission will send the notice of designation to the parties'
addresses listed on the petition for assessment of penalty.
(c) Notice of appearance. Unless the contact information described
in this paragraph has already been provided to the Judge, within 15
calendar days after receiving a notice of designation, the parties
shall file notices of appearance with the assigned Judge. Each notice
of appearance shall provide the following information for the counsel
or representative acting on behalf of the party: name, address,
business telephone number, cell telephone number if available, fax
number if available, and e-mail address if available. Notices of
appearance shall be served on all parties in accordance with the
provisions of Sec. 2700.7.
(d) Time for filing an answer under Subpart C. If a case has been
designated for Simplified Proceedings, the deadline for filing an
answer under Sec. 2700.29 is suspended.
Sec. 2700.103 Party Request for Simplified Proceedings.
(a) Party request. Any party may request that a case be designated
for Simplified Proceedings. The request must be in writing and should
address the characteristics specified in Sec. 2700.101. The request
must be filed with the Commission in accordance with the provisions of
Sec. 2700.5 and served on all parties in accordance with the
provisions of Sec. 2700.7. The requesting party shall confer or make
reasonable efforts to confer with the other parties and shall state in
the request if any other party opposes or does not oppose the request.
Parties opposing the request shall have eight business days after
service of the motion to file an opposition.
(b) Judge's ruling on request. The Chief Administrative Law Judge
or the Judge assigned to the case may grant a party's request and
designate a case for Simplified Proceedings at the Judge's discretion.
(c) Notice of appearance. Unless the contact information described
in this paragraph has already been provided to the Judge, within 15
calendar days after receiving an order granting a request for
Simplified Proceedings, the parties shall file notices of appearance
with the Judge. Each notice of appearance shall
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provide the following information for the counsel or representative
acting on behalf of the party: name, address, business telephone
number, cell telephone number if available, fax number if available,
and e-mail address if available. Notices of appearance shall be served
on all parties in accordance with the provisions of Sec. 2700.7.
(d) Time for filing an answer under Subpart C. If a party has
requested Simplified Proceedings, the deadline for filing an answer
under Sec. 2700.29 is suspended. If a request for Simplified
Proceedings is denied, the period for filing an answer will begin to
run upon issuance of the Judge's order denying Simplified Proceedings.
Sec. 2700.104 Discontinuance of Simplified Proceedings.
(a) Procedure. If it becomes apparent at any time that a case is
not appropriate for Simplified Proceedings, the Judge assigned to the
case may, upon motion by any party or upon the Judge's own motion,
discontinue Simplified Proceedings and order the case to continue under
conventional rules.
(b) Party motion. At any time during the proceedings but no later
than 30 days before the scheduled hearing, any party may move that
Simplified Proceedings be discontinued and that the matter continue
under conventional procedures. A motion to discontinue must explain why
the case is inappropriate for Simplified Proceedings. The moving party
shall confer or make reasonable efforts to confer with the other
parties and shall state in the motion if any other party opposes or
does not oppose the motion. Parties opposing the motion shall have
eight business days after service of the motion to file an opposition.
(c) Ruling. If Simplified Proceedings are discontinued, the Judge
may issue such orders as are necessary for an orderly continuation
under conventional rules.
Sec. 2700.105 Disclosure of Information by the Parties.
Within 30 calendar days after a case has been designated for
Simplified Proceedings, each party shall provide to all other parties
copies of all documents, electronically stored information and tangible
things that the disclosing party has in its possession, custody, or
control and may use to support its claims or defenses. Any material or
object that cannot be copied, or the copying of which would be unduly
burdensome, shall be described and its location specified. Materials
required to be disclosed include, but are not limited to, inspection
notes, citation documentation, narratives, photos, diagrams, preshift
and onshift reports, training documents, mine maps, witness statements
(subject to the provisions of 29 CFR 2700.61), and written opinions of
expert witnesses, if any. If any items are withheld from disclosure on
grounds of privilege, the disclosing party shall provide a log
describing each item and stating the reason(s) why it was not produced.
Sec. 2700.106 Pre-hearing conference.
(a) When held. As early as practicable after the parties have
received the materials set forth in Sec. 2700.105, the presiding Judge
will order and conduct a pre-hearing conference. At the discretion of
the Judge, the pre-hearing conference may be held in person, by
telephone, or electronic means.
(b) Content. At the pre-hearing conference, the parties will
discuss the following: settlement of the case; the narrowing of issues;
an agreed statement of issues and facts; defenses; witnesses and
exhibits; motions; and any other pertinent matter. Within a time
determined by the Judge during the pre-hearing conference, the parties
must provide each other with documents or materials intended for
submission as exhibits at the hearing that have not already been
provided in accordance with the provisions of Sec. 2700.105. At the
conclusion of the conference, the Judge will issue an order setting
forth any agreements reached by the parties and will specify in the
order the issues to be addressed by the parties at hearing.
Sec. 2700.107 Discovery.
Discovery will only be allowed under the conditions and time limits
set by the Judge.
Sec. 2700.108 Hearing.
(a) Procedures. As soon as practicable after the conclusion of the
pre-hearing conference, the Judge will hold a hearing on any issue that
remains in dispute. The hearing will be in accordance with subpart G of
these rules, except for Sec. Sec. 2700.56, 2700.57, 2700.58, 2700.59,
2700.65, and 2700.67, which will not apply.
(b) Agreements. At the beginning of the hearing, the Judge will
enter into the record all agreements reached by the parties as well as
defenses raised during the pre-hearing conference. The parties and the
Judge then will attempt to resolve or narrow the remaining issues. The
Judge will enter into the record any further agreements reached by the
parties.
(c) Evidence. The Judge will receive oral, physical, or documentary
evidence that is relevant, and not unduly repetitious or cumulative.
Testimony will be given under oath or affirmation. The parties are
reminded that the Federal Rules of Evidence do not apply in Commission
proceedings. Any evidence not disclosed as required by sections
2700.105 and 2700.106(b), including the testimony of witnesses not
identified pursuant to section 2700.106(b), shall be inadmissible at
the hearing, except where extraordinary circumstances are established
by the party seeking to offer such evidence.
(d) Court reporter. A court reporter will be present at the
hearing. An official verbatim transcript of the hearing will be
prepared and filed with the Judge.
(e) Oral and written argument. Each party may present oral argument
at the close of the hearing. Post-hearing briefs will not be allowed
except by order of the Judge.
(f) Judge's decision. The Judge shall make a decision that
constitutes the final disposition of the proceedings within 60 calendar
days after the hearing. The decision shall be in writing and shall
include all findings of fact and conclusions of law; the reasons or
bases for them on all the material issues of fact, law, or discretion
presented by the record; and an order. If a decision is announced
orally from the bench, it shall be reduced to writing within 60
calendar days after the hearing. An order by a Judge approving a
settlement proposal is a decision of the Judge.
Sec. 2700.109 Review of Judge's decision.
After the issuance of the Judge's written decision, any party may
petition the Commission for review of the Judge's written decision as
provided for in subpart H.
Sec. 2700.110 Application.
The rules in this subpart will govern proceedings before a Judge in
a case designated for Simplified Proceedings under Sec. Sec. 2700.102
and 2700.103. The provisions of subparts A and I apply to Simplified
Proceedings when consistent with these rules in subpart J. The
provisions of subpart C apply to Simplified Proceedings except for
Sec. 2700.29, which does not apply. The provisions of subpart G apply
to Simplified Proceedings except for Sec. Sec. 2700.56, 2700.57,
2700.58, 2700.59, 2700.65, and 2700.67, which do not apply. The
provisions of subpart H apply to Simplified Proceedings except for
Sec. 2700.76, which does not apply. The provisions of subparts B, D, E
and F do not apply to Simplified Proceedings.
[[Page 28227]]
Dated: May 11, 2010.
Mary Lu Jordan,
Chairman, Federal Mine Safety and Health Review Commission.
[FR Doc. 2010-11739 Filed 5-19-10; 8:45 am]
BILLING CODE 6735-01-P