[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]



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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