[Federal Register Volume 75, Number 248 (Tuesday, December 28, 2010)]
[Rules and Regulations]
[Pages 81459-81464]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-32417]
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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: Final rule.
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SUMMARY: The Federal Mine Safety and Health Review Commission (the
``Commission'') is an independent adjudicatory agency that provides
hearings and appellate review of cases arising under the Federal Mine
Safety and Health Act of 1977, or Mine Act. Hearings 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 publishing a final rule
to simplify the procedures for handling certain civil penalty
proceedings.
DATES: The final rule takes effect on March 1, 2011. The Commission
will accept written and electronic comments received on or before
January 12, 2011.
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
On May 20, 2010, the Commission published in the Federal Register a
rule proposing Simplified Proceedings in certain civil penalty
proceedings. 75 FR 28223. The Commission explained that since 2006, the
number of new cases filed with the Commission has dramatically
increased, and that in order to deal with that burgeoning caseload, the
Commission is considering methods to simplify and streamline its
procedures for handling certain civil penalty proceedings.
The Commission invited comments on the proposed rule through June
21, 2010. The Commission received comments from: (1) The Law Offices of
Adele L. Abrams; (2) the United Mine Workers of America; (3) the
Secretary of Labor through the Office of the Solicitor (``MSHA'' or the
``Secretary''); (4) Public Citizen; (5) Industrial Minerals
Association-North America; (6) Alliance Coal, LLC; (7) Chris Barber;
(8) Arch Coal, Inc.; (9) Jackson Kelly PLLC; and (10) Imerys.
The major differences between the simplified procedures set forth
in the proposed rule and current conventional
[[Page 81460]]
procedures were that, under the proposed simplified procedures, answers
to petitions for assessment of penalty would not be 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. The proposed rule is unchanged in
many ways, and the characteristics of Simplified Proceedings described
above also are present in this final rule.
Pilot Program
A commenter suggested that the Commission should implement
Simplified Proceedings as a pilot program and then conduct an
independent evaluation of whether the new procedures were successful in
streamlining and simplifying cases before finalizing the Simplified
Proceedings rule. The Commission agrees that Simplified Proceedings
should be implemented as a pilot program for a finite period of time.
Accordingly, this final rule shall be implemented as a pilot program
for nine to twelve months. During the pilot program, the Commission
will gather information to assess the success of Simplified Proceedings
(e.g., comparing how long it takes to process cases under Simplified
Proceedings compared to processing under conventional procedures, and
whether there is any beneficial impact on the Commission's backlog of
undecided cases). The Commission intends to publish the results of its
pilot program and request comments regarding the regulated community's
experience with Simplified Proceedings. These comments and the
information gathered from the Commission during the pilot program will
form the basis of any future final Simplified Proceedings rule.
Eligibility
The Commission proposed 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.
In the preamble to the proposed rule, the Commission discussed the
difficulty in describing the criteria for eligibility for Simplified
Proceedings, noting that 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. The Commission explained that it
plans to review each petition for assessment of penalty and proposed
penalty assessment form in its consideration of whether a case is
appropriate for Simplified Proceedings. MSHA currently groups citations
and orders and their proposed penalties on a proposed penalty
assessment form based upon a 30-day billing cycle. Under MSHA's current
practice for grouping citations and orders, the Commission would not
have a complete view of all of the contested penalties that may be
relevant in a particular hearing. Accordingly, the Commission requested
suggestions regarding criteria that might be used to better group
proposed penalties and the underlying citations and orders.
Industry commenters suggested that citations and orders should be
grouped by inspection on a proposed assessment form. MSHA agreed that
citations and orders should be grouped by inspection (which MSHA
designates by an ``event number''), and further by inspector where more
than one inspector is involved in an inspection.
The Commission also received comments suggesting that some factors
should be added to make more cases eligible for Simplified Proceedings,
such as that cases should be included in which parties mutually agree
to opt-in to Simplified Proceedings. The Commission received other
suggestions for excluding cases from Simplified Proceedings, such as
that cases should be excluded if they involve special assessments, pure
legal issues, expert witnesses, and the occurrence of injury or
illness. Commenters had varying opinions on the number of citations,
penalty amount, and hearing length that should make a case eligible for
Simplified Proceedings.
The Commission agrees that, prior to docketing, citations and
orders for some cases should be grouped by inspection, and further by
inspector where more than one inspector is involved in an inspection.
The Commission should then have a clearer picture of the citations and
orders that might be at issue in a hearing and whether the case is
appropriate for Simplified Proceedings. The Commission has conferred
with MSHA regarding the grouping of citations and orders. We expect
this grouping to occur prior to the effective date of this final rule.
As to eligibility criteria for Simplified Proceedings, the
Commission has concluded that cases designated for Simplified
Proceedings shall not involve fatalities or the occurrence of injuries
or illnesses. Furthermore, cases designated for Simplified Proceedings
will generally include one or more of the following characteristics:
(1) The case involves only citations issued under section 104(a) of the
Mine Act; (2) the proposed penalties were not specially assessed under
30 CFR 100.5; (3) the case does not involve complex issues of law or
fact; (4) the case involves a limited number of citations to be
determined by the Chief Judge or his designee; (5) the case involves a
limited penalty amount to be determined by the Chief Judge or his
designee; (6) the case will involve a hearing of limited duration to be
determined by the Chief Judge or his designee; (7) the case does not
involve only legal issues; and (8) the case does not involve expert
witnesses. Information gathered during the pilot program may better
clarify appropriate criteria for Simplified Proceedings eligibility.
Designation of Case for Simplified Proceedings
The Commission proposed that a civil penalty proceeding would be
designated for Simplified Proceedings by the Chief Judge or the Judge's
designee. Under proposed section 2700.102, after a case has been
designated for Simplified Proceedings, 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 had not already been provided. The operator
would not be required to file an answer to the petition for assessment
of civil penalty.
[[Page 81461]]
Under proposed section 2700.103, even if a case had not been
designated for Simplified Proceedings by the Chief Judge or the Judge's
designee, a party had the opportunity to request that a case be
designated. The Commission proposed that the request would need to be
in writing and state whether the request is opposed. The request would
also address the characteristics specified in the rule that make the
case appropriate for designation. If a request for designation were
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 requested Simplified Proceedings, the
deadline for filing an answer to a petition for assessment of penalty
would be suspended. If a request were denied, the time for filing an
answer would begin to run upon issuance of the Judge's order denying
the request.
The Commission received comments suggesting that the decision to
opt-in to Simplified Proceedings should be exclusively controlled by
the parties. Some commenters also suggested that parties should be able
to opt-in to Simplified Proceedings at any time, that all cases should
be eligible for Simplified Proceedings, and that any request to opt-in
should be consented to by all parties.
The Commission has declined to adopt these suggestions and has made
very few changes to proposed sections 2700.102 and 2700.103. Similar to
the Simplified Proceedings rule adopted by the Occupational Safety and
Health Review Commission (``OSHRC'') (see 29 CFR 2200.203), the
Commission concludes that some cases that meet certain criteria should
be designated for Simplified Proceedings by the Commission, and that
the decision to opt-in should not be within the exclusive control of
the parties. If a party disagrees with a case's designation for
Simplified Proceedings, the party may file a motion to opt-out pursuant
to section 2700.104. The Commission has further determined that parties
should not be able to automatically opt-in to Simplified Proceedings in
any type of case even with the mutual consent of all parties. However,
a mutual request to opt-in involving a case that does not meet the
eligibility criteria may be granted at the discretion of the Judge.
Regarding the timing of a party's request for Simplified Proceedings,
proposed section 2700.103 did not set forth a specific time for when a
party must file its request for Simplified Proceedings, and a deadline
has not been set forth in the final rule. The Commission is not
requiring that all requests to opt-in must be consented to by all
parties. Finally, the Commission has determined that paragraph (d)
should be revised to conform more closely with the language of section
2700.100(b)(1).
Discontinuance of Simplified Proceedings
Under proposed section 2700.104, if it became apparent at any time
that a case was 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 proposed that if Simplified Proceedings were
discontinued, the Judge would issue such orders as are necessary for an
orderly continuation under conventional rules.
The Commission received some comments suggesting that opting-out of
Simplified Proceedings should be exclusively controlled by the parties,
while other comments expressed agreement with the language proposing
that opting-out should be within the discretion of the Judge. Another
commenter suggested that more information should be provided regarding
the grounds for a Judge's decision to discontinue Simplified
Proceedings.
The Commission has concluded that the rule should be adopted as
proposed. However, if the pilot program reveals that revisions should
be made to the process for discontinuing Simplified Proceedings, the
Commission will consider making those revisions.
Pre-Hearing Exchange of Information
The Commission proposed in section 2700.107 that discovery would
``only be allowed under the conditions and time limits set by the
Judge.'' Rather than requiring the disclosure of documents and
materials through discovery, the Commission proposed a more expeditious
means for disclosure through the mandatory exchange of documents and
materials and through a pre-hearing conference. More specifically,
proposed section 2700.105 provided that within 30 calendar days after a
case had 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 had
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 proposed section 2700.106, as early as practicable
after the parties received these materials, the Judge would order and
conduct a pre-hearing conference. Proposed section 2700.106 further
provided that 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.
The industry commenters generally suggested that there should not
be a ban on discovery, and that they should be permitted to depose the
inspector who issued the contested citations and orders. MSHA, on the
other hand, commented that discovery should be allowed only in
extraordinary circumstances. The Commission believes that the limit on
discovery is a key provision to simplifying and streamlining cases
designated for Simplified Proceedings. The final rule replaces the
language in proposed section 2700.107 with the language of proposed
section 2700.100(b)(5), which more clearly articulates that discovery
is generally prohibited.
Regarding the mandatory disclosure of information by parties set
forth in proposed section 2700.105, commenters suggested that the time-
frame for disclosure of documents should be changed from 30 to 45 days.
Commenters also suggested expanding the information which must be
disclosed to include all documents related to a matter that are in a
party's possession (and not just those that it would use in litigation)
and the disclosure of documents supporting the opposing party's claims.
The final rule changes the time-frame for disclosure to 45 days and
requires the exchange of information suggested in the comments. The
Commission has
[[Page 81462]]
further expanded disclosure to include rebuttal forms and to specify
requirements for privilege logs. An expanded exchange of information
balances the lack of discovery permitted by the Simplified Proceedings
rule.
Regarding proposed section 2700.106, the Commission received
comments stating that, since admissions made in the interest of
settlement are not intended to be admissible in formal proceedings, a
Judge assigned to a Simplified Proceedings case, who will ultimately
decide the case, should not hear settlement discussions during a pre-
hearing conference. A commenter also suggested that the hearing date
should be set during the pre-hearing conference.
The Commission agrees that the Judge assigned to a Simplified
Proceedings case should not hear the content of the settlement
discussions during the pre-hearing conference, and that the rule should
clarify that only settlement efforts by the parties (not the actual
content of settlement) will be discussed during pre-hearing
conferences. The final rule further requires that a settlement
discussion occur between parties before the pre-hearing conference. In
order to allow as much flexibility as possible, the rule has not been
revised to require a hearing date to be set at the end of the pre-
hearing conference.
Hearing
The Commission proposed in section 2700.108 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 would constitute 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.
The Commission received no comments on proposed section 2700.108
and adopts the rule without change.
Miscellaneous
The Commission proposed conforming changes to Rule 5(c), 29 CFR
2700.5(c). Those changes conform the contact information required in
Simplified Proceedings with the contact information required in all
proceedings. The Commission received no comments on the proposed
changes to Rule 5(c) and adopts the rule as proposed.
The Commission received a comment suggesting that rulemaking
comments should be posted on the Commission's Web site. The Commission
agrees and shall make rulemaking comments, including those to this
final rule, available on the Commission's Web site (http://www.fmshrc.gov).
A commenter stated that the Commission should provide sufficient
information to allow the commenter to assess whether the Simplified
Proceedings rule is sufficient to help draw down the Commission's
backlog of undecided cases quickly. The Commission intends to provide
such information after it conducts the pilot program.
The Commission received comments that it should adopt settlement
procedures similar to those found in OSHRC's rules at 29 CFR part 2200,
subpart H. The Commission will consider the appropriateness of
promulgating a settlement subpart after the conclusion of the pilot
program for 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 this final rule. The
Commission will accept public comments until January 12, 2011.
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 Office of Management and Budget.
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.''
List of Subjects in 29 CFR Part 2700
Administrative practice and procedure, Mine safety and health,
Penalties, Whistleblowing.
0
For the reasons stated in the preamble, the Federal Mine Safety and
Health Review Commission amends 29 CFR part 2700 as follows:
PART 2700--PROCEDURAL RULES
0
1. The authority citation for part 2700 continues to read as follows:
Authority: 30 U.S.C. 815, 820, 823, and 876.
0
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.
* * * * *
0
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.
2700.109 Review of Judge's Decision.
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
[[Page 81463]]
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 this part 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
fatalities, injuries or illnesses, and will generally include one or
more of the following characteristics:
(a) The case involves only citations issued under section 104(a) of
the Mine Act.
(b) The proposed penalties were not specially assessed under 30 CFR
100.5.
(c) The case does not involve complex issues of law or fact.
(d) The case involves a limited number of citations to be
determined by the Chief Judge or designee.
(e) The case involves a limited penalty amount to be determined by
the Chief Judge or designee.
(f) The case will involve a hearing of limited duration to be
determined by the Chief Judge or designee.
(g) The case does not involve only legal issues.
(h) The case does not involve expert witnesses.
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) No filing of an answer under Subpart C of this part. If a case
has been designated for Simplified Proceedings, an answer pursuant to
Sec. 2700.29 is not required to be filed.
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 with the Judge notices
of appearance described in Sec. 2700.102(c). Notices of appearance
shall be served on all parties in accordance with the provisions of
Sec. 2700.7.
(d) No filing of an answer under Subpart C of this part. If a case
has been designated for Simplified Proceedings, an answer pursuant to
Sec. 2700.29 is not required to be filed. 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.
(a) Within 45 calendar days after a case has been designated for
Simplified Proceedings, the parties shall provide any information in a
party's possession, custody, or control that the disclosing party or
opposing party 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
[[Page 81464]]
required to be disclosed include, but are not limited to, inspection
notes from the entire subject inspection, rebuttal forms, citation
documentation, narratives, photos, diagrams, preshift and onshift
reports, training documents, mine maps, witness statements (subject to
the provisions of Sec. 2700.61), witness lists, and written opinions
of expert witnesses, if any.
(b) 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. The privilege
log shall provide an index, identifying the allegedly privileged
documents and shall provide sufficient detail to permit an informed
decision as to whether the document is at least potentially privileged.
Specifically, the index must include: A description of the document,
including its subject matter and the purpose for which it was created;
the date the document was created; the name and job title of the author
of the document; and if applicable, the name and job title of the
recipient(s) of the document. The judge may order an in camera
inspection of the privileged documents, if necessary, to determine the
proper application of the privilege.
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. After receipt of the materials set
forth in Sec. 2700.105 and prior to the pre-hearing conference,
parties are required to engage in a discussion to explore the
possibility of settlement.
(b) Content. At the pre-hearing conference, the parties will
discuss the following: Settlement efforts in 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 is not permitted except as ordered by the Administrative
Law 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
this part, 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 Sec. Sec.
2700.105 and 2700.106(b), including the testimony of witnesses not
identified pursuant to Sec. 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 of this part.
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 of this part apply to Simplified Proceedings
except for Sec. 2700.29, which does not apply. The provisions of
subpart G of this part 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 of this part apply to
Simplified Proceedings except for Sec. 2700.76, which does not apply.
The provisions of subparts B, D, E and F of this part do not apply to
Simplified Proceedings.
Dated: December 20, 2010.
Mary Lu Jordan,
Chairman, Federal Mine Safety and Health Review Commission.
[FR Doc. 2010-32417 Filed 12-27-10; 8:45 am]
BILLING CODE 6735-01-P