[Federal Register Volume 71, Number 137 (Tuesday, July 18, 2006)]
[Rules and Regulations]
[Pages 40654-40656]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-11300]


=======================================================================
-----------------------------------------------------------------------

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

29 CFR Part 2700


Rule Implementing the Mine Improvement and New Emergency Response 
Act of 2006

AGENCY: Federal Mine Safety and Health Review Commission.

ACTION: Interim rule with request for comments.

-----------------------------------------------------------------------

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 implement the Mine Improvement and New Emergency Response Act of 
2006, or MINER Act, which amended the Mine Act to improve the safety of 
miners and mining. The MINER Act provides for Commission review of 
disputes arising over the accident response plans of underground coal 
mine operators. The interim rule establishes procedures for the 
submission and consideration of such disputes. The Commission invites 
public comments on the interim rule.

DATES: The interim rule takes effect on July 18, 2006. The Commission 
will accept written and electronic comments received on or before 
August 17, 2006.

ADDRESSES: Written comments should be mailed to Thomas A. Stock, 
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 Rule 
Implementing the MINER Act'' in the subject line and be sent to 
[email protected].

[[Page 40655]]


FOR FURTHER INFORMATION CONTACT: Thomas A. Stock, 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 June 15, 2006, President George W. Bush signed into law the Mine 
Improvement and New Emergency Response Act of 2006, Public Law 109-236, 
120 Stat. 493 (2006) (the ``MINER Act''), which amended the Federal 
Mine Safety and Health Act of 1977, 30 U.S.C. 801 et seq. (2000) (the 
``Mine Act''). Section 2 of the MINER Act amends section 316 of the 
Mine Act (30 U.S.C. 876) by adding a new section (b), entitled 
``Accident Preparedness and Response.'' Section 316(b)(2)(A) requires 
that, within 60 days of enactment, each underground coal mine operator 
adopt an accident response plan for each mine. Section 316(b)(2)(B) 
requires plans to provide for the evacuation of all persons in a mine 
emergency, and the ``maintenance'' of persons trapped underground who 
are unable to be evacuated. Under section 316(b)(2)(C), all plans are 
subject to review and approval by the Secretary of Labor, and must 
ensure that miners receive protection consistent with existing 
standards; take into account the most recent credible scientific 
research; use feasible, commercially available technology; be tailored 
to the specific physical characteristics of the mine; and reflect mine 
safety improvements gained from experience under the Mine Act and other 
worker safety and health laws. Section 316(b)(2)(D) directs the 
Secretary to review plans at least every 6 months. Sections 
316(b)(2)(E) and (F) set forth plan content requirements, including a 
provision allowing the Secretary to require additional plan provisions 
as deemed necessary.
    Section 316(b)(2)(G), entitled ``Plan Dispute Resolution,'' 
provides for Commission review of plan disputes. Section 
316(b)(2)(G)(i) requires the Commission to resolve disputes arising 
between operators and the Secretary over plan contents on an expedited 
basis. Section 316(b)(2)(G)(ii) provides that when a dispute arises, 
the Secretary shall issue a citation which will be referred immediately 
to the Commission, whereupon the parties will have 15 days within which 
to submit to the Commission any materials relevant to the dispute. 
Within 15 days of the receipt of any such materials, a Commission 
Administrative Law Judge shall issue a decision, which may include an 
order staying the effect of the disputed plan provision while an appeal 
is taken. Section 316(b)(2)(G)(iii) provides that any party adversely 
affected by a Judge's decision may pursue an appeal to the Commission 
or courts as provided in the Mine Act.
    The purpose of the interim rule is to implement section 
316(b)(2)(G), providing for Commission hearings and appellate review of 
plan disputes. The Commission has chosen to establish an interim rule 
because it is needed to effectuate the MINER Act.

Explanation of Provisions

    The Commission's interim Procedural Rule 24, in subparagraph (a), 
requires that the Secretary refer to the Commission any citation issued 
when a dispute arises over the content of an underground coal mine 
operator's accident response plan. In keeping with the requirement of 
section 316(b)(2)(G)(i) of the MINER Act that any such dispute be 
adjudicated on an expedited basis, subparagraph (a) requires the 
Secretary to refer to the Commission any accident plan citation within 
one business day of its issuance.
    Subparagraph (b) provides that the referral of an accident plan 
citation shall consist of a notice of plan dispute, which is analogous 
to a notice of contest made under section 105(d) of the Mine Act, 30 
U.S.C. 815(d). It further specifies the contents of a notice of plan 
dispute. Upon the filing of such a notice, the Commission shall assign 
the notice a docket number, and the Chief Administrative Law Judge 
shall promptly assign the case to a Judge.
    Subparagraph (d)(2) affords the parties in an accident plan dispute 
the opportunity for a hearing before a Commission Administrative Law 
Judge, either at the request of a party or by order of the Judge. 
Although the MINER Act does not explicitly provide for hearings on 
accident plan disputes, section 105(d) of the Mine Act requires the 
Commission to afford an opportunity for a hearing on any notice of 
contest. 30 U.S.C. 815(d).
    Section 316(b)(2)(G)(iii) of the MINER Act states that when a 
Judge's decision in an accident plan dispute is appealed, the disputed 
provision in the plan will take effect unless a party asks the Judge to 
stay its effect pending any appeals, and the Judge grants such relief. 
Subparagraph (e)(1) of interim Rule 24 implements this provision and 
provides that a Judge's decision shall include a ruling on any such 
stay motion.

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 August 17, 2006.
    The Commission has determined that this rule is not subject to the 
Office of Management and Budget (``OMB'') review under Executive Order 
12866, 58 FR 51735, September 30, 1993.
    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.

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 on an interim basis to 
add Commission Procedural Rule 24 (29 CFR 2700.24) as follows:

PART 2700--PROCEDURAL RULES

0
1. The authority citation for part 2700 is revised to read as follows:

    Authority: 30 U.S.C. 815, 820, 823, and 876.


0
2. Section 2700.24 is added to subpart B to read as follows:


Sec.  2700.24  Accident response plan dispute proceedings.

    (a) Referral by the Secretary. The Secretary shall immediately 
refer to the Commission any citation arising from a dispute between the 
Secretary and an operator with respect to the content of the operator's 
accident response plan, or any refusal by the Secretary to approve such 
a plan. Any referral made pursuant to this subsection shall be made 
within one business day of the issuance of any such citation.
    (b) Contents of referral. A referral shall consist of a notice of 
plan dispute describing the nature of the dispute; a copy of the 
citation issued by the Secretary; a short and plain statement of

[[Page 40656]]

the Secretary's position with respect to any disputed plan provision; 
and a copy of the accident response plan indicating all disputed and 
agreed-upon provisions.
    (c) Filing and service of pleadings. Filing with the Commission of 
any document in an accident response plan dispute proceeding is 
effective upon receipt. A copy of each document filed with the 
Commission in such a proceeding shall be expeditiously served on all 
parties, such as by personal delivery, including courier service, by 
express mail, or by facsimile transmission.
    (d) Submission of materials. 
    (1) Within 15 calendar days of the referral, the parties shall 
submit to the Judge assigned to the matter all relevant materials 
regarding the dispute. Such submissions shall include a motion for any 
relief sought, including any request to stay the effect of a disputed 
provision pending any appeal taken pursuant to paragraph (f) of this 
section, and may include proposed findings of fact and conclusions of 
law. Such materials may be supported by affidavits or other verified 
documents, and shall specify the grounds upon which the party seeks 
relief. Supporting affidavits shall be made on personal knowledge and 
shall show affirmatively that the affiant is competent to testify to 
the matters stated.
    (2) Hearing.
    (i) Within 5 calendar days following the Secretary's referral, any 
party may request a hearing and shall so advise the Commission's Chief 
Administrative Law Judge or his designee, and simultaneously notify the 
other parties.
    (ii) Within 5 calendar days following the Secretary's referral, the 
Commission's Chief Administrative Law Judge or his designee may issue 
an order scheduling a hearing on the Judge's own motion, and must 
immediately so notify the parties.
    (iii) If a hearing on the referral is requested or ordered, the 
hearing shall be held within 15 calendar days of the referral. The 
scope of a hearing on an accident response plan dispute referral is 
limited to the disputed plan provision or provisions. If no hearing is 
held, the Judge assigned to the matter shall review the materials 
submitted by the parties pursuant to paragraph (d)(1) of this section, 
and shall issue a decision pursuant to paragraph (e) of this section.
    (e) Decision of the Judge.
    (1) Within 15 calendar days following receipt by the Judge of all 
submissions and testimony made pursuant to paragraph (d) of this 
section, the Judge shall issue a decision that constitutes the Judge's 
final disposition of the proceedings. The decision shall be in writing 
and shall include all findings of fact and conclusions of law, and the 
reasons or bases for them, on all the material issues of fact, law or 
discretion presented by the record, and an order. The decision shall 
include a ruling, if a party has so moved, on whether inclusion of the 
disputed provision in the plan shall be limited, and its effect stayed, 
by any appeal taken pursuant to paragraph (f) of this section. As far 
as is practicable, the decision of the Judge shall otherwise be subject 
to the provisions of Sec.  2700.69.
    (2) The parties shall be notified of the Judge's decision by the 
most expeditious means reasonably available. Service of the decision 
shall be by certified or registered mail, return receipt requested.
    (f) Review of decision. Any party may seek review of a Judge's 
decision by filing with the Commission a petition for discretionary 
review pursuant to Sec.  2700.70 and Sec.  2700.75. The Commission 
shall act upon a petition on an expedited basis. If review is granted, 
the Commission shall issue a briefing order. Except under extraordinary 
circumstances, the Commission will not grant motions for extension of 
time for filing briefs.

    Dated: July 12, 2006.
Michael F. Duffy,
Chairman, Federal Mine Safety and Health Review Commission.
 [FR Doc. E6-11300 Filed 7-17-06; 8:45 am]
BILLING CODE 6735-01-P