[Federal Register Volume 73, Number 170 (Tuesday, September 2, 2008)]
[Proposed Rules]
[Pages 51256-51257]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-20235]


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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

29 CFR Part 2700


Procedural Rules

AGENCY: Federal Mine Safety and Health Review Commission.

ACTION: Advanced notice of proposed rulemaking.

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SUMMARY: The Federal Mine Safety and Health Review Commission (the 
``Commission'') is an independent adjudicatory agency that provides 
trials and appellate review of cases arising under the Federal Mine 
Safety and Health Act of 1977 (2000) (the ``Mine Act''). Trials are 
held before the Commission's Administrative Law Judges, and appellate 
review is provided by a five-member Review Commission appointed by the 
President and confirmed by the Senate. The Commission is seeking 
suggestions for improving its procedures for processing requests for 
relief from default and reducing the number of cases in which a party 
seeks relief before the Commission after default.

DATES: Written and electronic comments must be submitted on or before 
November 3, 2008.

ADDRESSES: Written comments should be mailed to Michael A. McCord, 
General Counsel, Office of the General Counsel, Federal Mine Safety and 
Health Review Commission, 601 New Jersey Avenue, NW., Suite 9500, 
Washington, DC 20001. Persons submitting written comments shall provide 
an original and three copies of their comments. Electronic comments 
should state ``Comments on Advanced Notice of Proposed Rulemaking'' in 
the subject line and be sent to [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: The Mine Act sets forth dual filing 
requirements for parties' contests of citations and orders and their 
associated proposed civil penalties. 30 U.S.C. 815(a), (d). The 
Commission has implemented these requirements in 29 CFR part 2700 
subparts B and C. Subpart B sets forth the manner in which a party may 
contest a citation or order before the Secretary has proposed a civil 
penalty for the alleged violation described in the citation or order. 
Subpart C sets forth the manner in which a party may contest a civil 
penalty after a proposed penalty assessment has been issued. If a party 
chooses not to file a contest of a citation or order under subpart B, 
it may nonetheless contest the proposed penalty assessment under 
subpart C. In such circumstances, in addition to contesting the 
proposed penalty assessment, the party may challenge the fact of 
violation and any special findings alleged in the citation or order. 
See 29 CFR 2700.21(b) (``An operator's failure to file a notice of 
contest of a citation or order * * * shall not preclude the operator 
from challenging, in a penalty proceeding, the fact of violation or any 
special findings * * *.''); Quinland Coals, Inc., 9 FMSHRC 1614, 1621-
23 (Sept. 1987) (holding that fact of violation and special findings 
may be placed in issue by the operator in a civil penalty proceeding 
regardless of whether the operator has availed itself of the 
opportunity to file a contest proceeding under subpart B). However, if 
a party files a contest of a citation or order under subpart B, it must 
also file additional pleadings under subpart C in order to challenge 
the proposed penalty assessment related to the citation or order.
    The Mine Act's dual filing requirements have often led to confusion 
by parties who may fail to timely file required documents and have 
their cases result in default. The Commission receives requests for 
relief from default that generally fall into two categories. Requests 
in the first category involve circumstances in which a party has failed 
to file a timely contest of a proposed penalty assessment and the 
proposed penalty thereby becomes a final order of the Commission by 
operation of section 105(a) of the Mine Act, 30 U.S.C. 815(a). Requests 
in the second category involve circumstances in which a Commission 
Administrative Law Judge issues a default order because a party has 
failed to file an answer to a petition for assessment of penalty filed 
by the Secretary of Labor. Currently, the large majority of requests 
for relief received by the Commission fall within the first category.
    Under the Commission's present practice, requests for relief from 
default are directed to the Review Commission. In evaluating requests 
for relief from default, the Review Commission finds guidance in Rule 
60(b) of the Federal Rules of Civil Procedure (``Rule 60(b)''). See 29 
CFR 2700.1(b) (``the Commission and its Judges shall be guided so far 
as practicable by the Federal Rules of Civil Procedure''); Jim Walter 
Res., Inc., 15 FMSHRC 782, 787 (May 1993). The Review Commission has 
recognized that Rule 60(b) ``is a tool which * * * courts are to use 
sparingly * * *.'' Id. at 789 (citation omitted); Atlanta Sand and 
Supply Co., 30 FMSHRC--, slip op. at 4, No. SE 2008-327-M (July 16, 
2008). The Review Commission has also observed that default is a harsh 
remedy and that, if the defaulting party can make a showing of good 
cause for a failure to timely respond, the case may be reopened and 
appropriate proceedings on the merits permitted. See Coal Prep. Servs., 
Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
    Upon application of this standard, if the Review Commission 
concludes that a request for relief is potentially sufficient on its 
face to support reopening, but cannot conclusively determine from the 
record whether relief should be granted, it remands the matter to the 
Chief Administrative Law Judge. The Chief Administrative Law Judge 
exercises his discretion to engage in any further fact-finding and 
determines whether good cause exists for a failure to timely respond. 
If the

[[Page 51257]]

Judge finds good cause, the case proceeds pursuant to the Mine Act and 
the Commission's Procedural Rules in 29 CFR part 2700.
    In January 2006, while considering changes to its procedural rules, 
the Commission determined that its procedures for processing requests 
for relief should be made more efficient through informal means rather 
than through the rulemaking process. 71 FR 553, 554, Jan. 5, 2006. The 
Commission explained that such informal means include making available 
a summary of the Commission's procedural rules described in simple 
terms and placing on the Commission's Web site (www.fmshrc.gov) a page 
of frequently asked questions and answers regarding Commission 
procedure. Id.
    The Commission has since employed a number of informal means in an 
effort to reduce the number of cases resulting in default. For 
instance, it has worked with the Department of Labor's Mine Safety and 
Health Administration (``MSHA'') to clarify instructions provided to 
parties for the filing of various documents, including the filing of a 
contest of a proposed penalty assessment. The Commission did so 
believing that if such instructions were clearer, parties would be more 
likely to timely file their documents and avoid default.
    In addition, the Commission has created and made available three 
guides to Commission proceedings intended to clarify Commission 
procedure. The first guide, ``How a Case Proceeds before the 
Commission,'' provides charts and summaries of procedural requirements 
for different types of proceedings before the Commission. The second 
guide, ``Frequently Asked Questions,'' provides a wide variety of 
information pertaining to Commission procedure in question and answer 
format. It includes a section devoted to problems in contesting 
penalties and provides parties with information for seeking relief from 
a proposed penalty assessment that becomes a final Commission order 
after the party failed to file a timely contest of a proposed penalty 
assessment. The third guide, ``Guide to Commission Proceedings,'' 
describes Commission proceedings in simple terms. The Commission has 
made these guides available on its Web site (http://www.fmshrc.gov/guides/guides.html ). It intends to publish and distribute a paper 
compilation of the three guides in the near future.
    Although the Commission has taken such actions, it has been 
receiving an increasingly large number of requests for relief from 
operators large and small, who have failed to file a timely contest of 
a proposed penalty assessment. As a result, the Commission is exploring 
additional means for improving its handling of requests for relief and 
for decreasing the number of cases that result in default.
    One of the Commission's key considerations is whether it should set 
forth requirements for requesting relief from default in a rule, or 
whether further guidance should be provided in an informal document. In 
order to aid its consideration, the Commission is requesting comment 
from members of the interested public. In considering the feasibility 
of promulgating a rule pertaining to requests for relief from default, 
the Commission invites the public to consider any or all of the 
following questions. Members of the public are not limited to 
commenting on these questions and may offer any suggestion related to 
the subject.
    Scope of Rule: Should a rule be limited to requests for relief from 
citations and orders that have become final by operation of section 
105(a) of the Mine Act when a party failed to timely file a contest of 
a proposed penalty assessment? Should the rule also address requests 
for relief from a default order issued by an administrative law judge 
after a party has failed to timely file an answer to the Secretary of 
Labor's petition for assessment of penalty? To what extent should the 
rule be modeled on Rule 60(b)?
    Time Limitations: When should a request for relief be filed? To 
what extent should a rule follow the time limitations set forth in Rule 
60(b)? How should the Commission interpret the ``reasonable time'' 
requirement of Rule 60(b)? Should the one-year time limitation 
pertaining to Rule 60(b)(1), (2), and (3) be applied in certain 
circumstances? When an order becomes final by operation of Mine Act 
section 105(a), what effect should an operator's receipt of a 
delinquency notice from MSHA have on the time within which the operator 
should file a motion to reopen?
    Standard for Relief: What standard should apply to entitle a party 
to relief? In determining whether to grant relief, how closely should 
the Commission be guided by federal case law interpreting Rule 60(b)? 
Should the Commission require a movant to set forth specific facts 
which support the grounds alleged under Rule 60(b) and, if so, what 
level of specificity should be required? Should the Commission require 
a movant to show a meritorious claim or defense as a prerequisite to 
granting relief? Should the Commission also be guided by the standard 
for setting aside defaults in Rule 55(c) of the Federal Rules of Civil 
Procedure? Should the Commission apply a different standard depending 
upon certain factors relating to the movant, such as whether the movant 
is represented by counsel, or the size of an operator?
    Documentation: Should a rule require that allegations be 
established by sworn written statements by individuals with personal 
knowledge of the facts and/or other sufficiently reliable 
documentation? Should a rule require that the movant include in its 
request for relief copies of all relevant documents in its possession 
including, but not limited to, the proposed penalty assessment? Should 
the signature of an attorney on a request for relief be treated as a 
substitute for any required documentation?
    Process: Should requests for relief be filed directly with the 
Chief Administrative Law Judge or with the Review Commission? What 
service requirements should apply?

Public Review of Comments

    All comments responding to this notice will be a matter of public 
record and available for public inspection and copying by appointment 
with Ella Waymer, between the hours of 9 a.m. and 5 p.m. on business 
days at the Federal Mine Safety and Health Review Commission, 601 New 
Jersey Avenue, NW., 9th Floor, Room 9536, Washington, DC 20001; 
telephone 202-434-9935.

    Dated: August 27, 2008.
Michael F. Duffy,
Chairman, Federal Mine Safety and Health Review Commission.
 [FR Doc. E8-20235 Filed 8-29-08; 8:45 am]
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