[Federal Register Volume 75, Number 80 (Tuesday, April 27, 2010)]
[Rules and Regulations]
[Pages 21987-21990]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-9689]
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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
29 CFR Part 2700
Penalty Settlement Procedure
AGENCY: Federal Mine Safety and Health Review Commission.
ACTION: Interim rule with request for comments.
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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 adopting an interim rule
to streamline the process for settling civil penalties assessed under
the Mine Act.
DATES: The interim rule takes effect on May 27, 2010. The Commission
will accept written and electronic comments received on or before June
28, 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 Penalty
Settlement Rule'' 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
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 9000 cases were filed
each year.
In order to deal with its burgeoning caseload, the Commission is
considering
[[Page 21988]]
various ways to streamline its processing of cases. One approach the
Commission has explored is to simplify how it processes civil penalty
settlements.
Under section 110(k) of the Mine Act, 30 U.S.C. 820(k), a proposed
civil penalty that has been contested before the Commission may be
settled only with the approval of the Commission. Under the
Commission's current practice, a party submits to a Commission
Administrative Law Judge a motion to approve a penalty settlement that
includes for each violation the amount of the penalty proposed by the
Department of Labor's Mine Safety and Health Administration, the amount
of the penalty agreed to in settlement, and facts in support of the
penalty agreed to by the parties. 29 CFR 2700.31(b). A Commission Judge
considers the motion and evaluates the penalty agreed to by the parties
based on the criteria set forth in section 110(i) of the Mine Act, 30
U.S.C. 820(i). If the Judge concludes that the settlement is consistent
with the statutory criteria, the Judge issues a decision approving the
settlement and setting forth the reasons for approval.
In all penalty proceedings, except for discrimination proceedings
arising under section 105(c) of the Mine Act, 30 U.S.C. 815(c), or
proceedings against individuals pursuant to section 110(c) of the Mine
Act, 30 U.S.C. 820(c), the interim rule sets forth several new
requirements regarding how parties file settlement motions with the
agency. First, it requires that a party filing a motion to approve a
penalty settlement submit a proposed decision approving settlement
(``proposed order'') with the motion. Second, it requires the filing
party to submit the motion and proposed order electronically. The basic
requirements for content of a motion to approve settlement still apply
in that a movant must include in a motion for each violation the amount
of the proposed penalty, the amount of the penalty agreed to in
settlement, and facts that support the penalty agreed to by the
parties. A filing party may set forth this information in the proposed
order and incorporate the proposed order by reference in the motion.
The interim rule includes a new requirement that the party filing the
motion certify that the opposing party has reviewed the motion and has
authorized the filing party to represent that the opposing party
consents to the granting of the motion and the entry of the proposed
order approving settlement. The interim rule also requires that, if a
motion has been filed by a Conference and Litigation Representative
(``CLR'') on behalf of the Secretary of Labor, the accompanying
proposed order must include a provision in which the Judge accepts the
CLR to represent the Secretary in accordance with the notice of either
limited or unlimited appearance previously filed with the Commission.
The content of orders approving settlement will vary depending upon
the particular facts and circumstances of each case. The Commission
will make sample forms for proposed orders approving settlement
available on the Commission's Web site (http://www.fmshrc.gov).
In all penalty proceedings, except discrimination and section
110(c) proceedings, parties will file any settlement motion
electronically by attaching electronic copies of the motion and
proposed order to an e-mail to the Commission. The e-mail address to
which settlement motions must be sent and instructions for filing are
set forth on the Commission's Web site (http://www.fmshrc.gov). The
Commission expects that the electronic submission of such settlement
motions with proposed orders will significantly reduce the amount of
time it takes for the Commission to dispose of settlement motions.
Electronic filing is effective upon the date of transmission. The
transmitting party has the responsibility of retaining records showing
the date of transmission, including receipts. Filers should request a
delivery receipt when filing electronically with the Commission using
the option for a delivery receipt, if available on the filer's e-mail
program. This receipt is automatically generated when the e-mail is
delivered to the Commission's e-mail server. Parties may also use the
option of a read receipt, which is generated when the e-mail is opened.
Any signature line set forth within a motion to approve settlement
submitted electronically must include the notation ``/s/'' followed by
the typewritten name of the party or representative of the party filing
the document. The Commission shall consider such a representation of
the signature to be the original signature of the representative for
all purposes unless the party representative shows that such
representation of the signature was unauthorized. See 29 CFR 2700.6.
Although the interim rule requires electronic filing, the Commission
may allow a party to file non-electronically with the permission of the
Judge.
The interim rule requires that a copy of a motion and proposed
order be served on the opposing party as expeditiously as possible. The
Commission recognizes that some parties may not have the capability of
being served with the motion and proposed order by e-mail, facsimile
transmission, or commercial delivery. Under such circumstances, the
filing party may serve the motion and proposed order on the opposing
party by mail. Permission of the Judge is unnecessary for service by
non-electronic means.
Currently, there are instances in which the Secretary files a
motion to approve settlement before the Secretary has filed a petition
for assessment of penalty. Some of those instances occur when the
Commission has granted the Secretary an extension of time to file the
petition, and the case settles before the petition is due under the
extension. When a case settles before the Secretary has filed a
petition, the Commission requires the filing party to file a copy of
the proposed penalty assessment and copies of the citations and/or
orders with the motion to approve settlement and does not require the
Secretary to file the petition. The interim rule continues this
practice. Thus, under the interim rule, if the filing party
electronically files a motion to approve settlement and proposed order
before the Secretary has filed a petition for assessment of penalty,
the filing party must also file as attachments electronic copies of the
proposed penalty assessment and citations and orders at issue. Under
such circumstances, the Secretary need not file a petition for
assessment of penalty.
The interim rule also provides that if a party filing a motion to
approve settlement and proposed order fails to include in the motion
and proposed order information required by this rule and the
Commission's instructions on its Web site, the Commission will not
accept for filing the motion and proposed order. Rather, the Commission
will inform the filing party of the need for correction and
resubmission.
Discrimination proceedings and section 110(c) proceedings are
specifically excepted from paragraph (b) of the Commission's new
interim rule. The Commission's current practice shall continue to apply
to such proceedings. Thus, in discrimination or section 110(c)
proceedings, a party will submit a hard paper copy of a motion to
approve settlement to the Judge that includes for each violation the
amount of the proposed penalty, the amount of the penalty agreed to in
settlement, and the supporting facts. Filing and service in such
proceedings shall be accomplished in accordance with the provisions of
29 CFR 2700.5 and 2700.7.
[[Page 21989]]
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 the interim rule in
order to assist the Commission in its deliberations regarding the
adoption of a permanent rule. The Commission will accept public
comments until June 28, 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.''
List of Subjects in 29 CFR Part 2700
Administrative practice and procedure, Mine safety and health,
Penalties, Whistleblowing.
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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.
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2. Section 2700.5 is amended by revising paragraph (b) to read as
follows:
Sec. 2700.5 General requirements for pleadings and other documents;
status or informational requests.
* * * * *
(b) Where to file. Unless otherwise provided for in the Act, these
rules, or by order:
(1) Until a Judge has been assigned to a case, all documents shall
be filed with the Commission. Documents filed with the Commission shall
be addressed to the Executive Director and mailed or delivered to the
Docket Office, Federal Mine Safety and Health Review Commission, 601
New Jersey Avenue, NW., Suite 9500, Washington, DC 20001; facsimile
delivery as allowed by these rules (see section 2700.5(e)), shall be
transmitted to (202) 434-9954.
(2) After a Judge has been assigned, and before a decision has been
issued, documents shall be filed with the Judge at the address set
forth on the notice of the assignment.
(3) Documents filed in connection with interlocutory review shall
be filed with the Commission in accordance with section 2700.76.
(4) After the Judge has issued a final decision, documents shall be
filed with the Commission as described in paragraph (b)(1) of this
section.
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3. Revise Sec. 2700.31 to read as follows:
Sec. 2700.31 Penalty settlement.
(a) General. A proposed penalty that has been contested before the
Commission may be settled only with the approval of the Commission upon
motion. A motion to approve a penalty settlement shall include for each
violation the amount of the penalty proposed by the Secretary, the
amount of the penalty agreed to in settlement, and facts in support of
the penalty agreed to by the parties.
(b) Motion accompanied by proposed order. In all penalty
proceedings, except for discrimination proceedings arising under
section 105(c) of the Mine Act, 30 U.S.C. 815(c), or proceedings
against individuals pursuant to section 110(c) of the Mine Act, 30
U.S.C. 820(c), a settlement motion must be accompanied by a proposed
order approving settlement. Forms for proposed orders approving
settlement are available on the Commission's Web site (http://www.fmshrc.gov).
(1) Certification. The party filing a motion must certify that the
opposing party has reviewed the motion, and has authorized the filing
party to represent that the opposing party consents to the granting of
the motion and the entry of the proposed order approving settlement.
(2) Appearance by CLR. If a motion has been filed by a Conference
and Litigation Representative (``CLR'') on behalf of the Secretary, the
proposed order approving settlement accompanying the motion shall
include a provision in which the Judge accepts the CLR to represent the
Secretary in accordance with the notice of either limited or unlimited
appearance previously filed with the Commission.
(3) Filing and service of motion accompanied by proposed order.
(i) Electronic filing. A motion and proposed order shall be filed
electronically according to the requirements set forth in this rule and
instructions on the Commission's Web site (http://www.fmshrc.gov).
Filing is effective upon the date of the electronic transmission of the
motion and proposed order. The transmitting party is responsible for
retaining records showing the date of transmission, including receipts.
Any signature line set forth within a motion to approve settlement
submitted electronically shall include the notation ``/s/'' followed by
the typewritten name of the party or representative of the party filing
the document. Such representation of the signature shall be deemed to
be the original signature of the representative for all purposes unless
the party representative shows that such representation of the
signature was unauthorized. See 29 CFR 2700.6. A motion and proposed
order filed electronically constitute written documents for the purpose
of applying the Commission's procedural rules (29 CFR part 2700), and
such rules apply unless an exception to those rules is specifically set
forth in this rule. Any copies of the motion and proposed order which
have been printed and placed in the official case file by the
Commission shall have the same force and effect as original documents.
(ii) Filing by non-electronic means. A party may file a motion to
approve settlement and an accompanying proposed order by non-electronic
means only with the permission of the Judge.
(iii) Service. A settlement motion and proposed order shall be
served on all parties or their representatives as expeditiously as
possible. If a party cannot be served by e-mail, facsimile
transmission, or commercial delivery, a copy of the motion and proposed
order may be served by mail. A certificate of service shall accompany
the motion and proposed order setting forth the date and manner of
service.
(4) Filing of motion and proposed order prior to filing of
petition. If a motion to approve settlement and proposed order is filed
with the Commission before the Secretary has filed a petition for
assessment of penalty, the filing party must also submit as attachments
electronic copies of the proposed penalty assessment and citations and
orders at issue. If such attachments are filed, the Secretary need not
file a petition for assessment of penalty.
(5) Non-acceptance of motion and proposed order. If a party filing
a motion to approve settlement and a proposed order fails to include in
the
[[Page 21990]]
motion and proposed order information required by this rule and the
Commission's instructions posted on the Commission's Web site, the
Commission will not accept for filing the motion and proposed order.
Rather, the Commission will inform the filing party of the need for
correction and resubmission.
(c) Final order. Any order by the Judge approving a settlement
shall set forth the reasons for approval and shall be supported by the
record. Such order shall become the final order of the Commission 40
days after issuance unless the Commission has directed that the order
be reviewed. A Judge may correct clerical errors in an order approving
settlement in accordance with the provisions of 29 CFR 2700.69(c).
Dated: April 21, 2010.
Mary Lu Jordan,
Chairman, Federal Mine Safety and Health Review Commission.
[FR Doc. 2010-9689 Filed 4-26-10; 8:45 am]
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