Emergency Response Plan Dispute Proceedings and Related Procedural Rules, 2187-2192 [E7-557]
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Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Rules and Regulations
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PART 91—GRANTS FOR
CORRECTIONAL FACILITIES
Accordingly, OJP is adopting as a final
rule, without change, the second interim
rule that amended 28 CFR part 91 and
that was published at 69 FR 2298 on
January 15, 2004.
I
Regina B. Schofield,
Assistant Attorney General, Office of Justice
Programs.
[FR Doc. E7–619 Filed 1–17–07; 8:45 am]
BILLING CODE 4410–18–P
FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION
29 CFR Part 2700
Emergency Response Plan Dispute
Proceedings and Related Procedural
Rules
Federal Mine Safety and Health
Review Commission.
ACTION: Final rule.
AGENCY:
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 (the ‘‘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. On July 18,
2006, the Commission published an
interim rule to implement the Mine
Improvement and New Emergency
Response Act of 2006 (the ‘‘MINER
Act’’), which amended the Mine Act to
improve the safety of miners,
particularly in underground coal mines.
The MINER Act provides for
Commission review of disputes arising
over emergency response plans for
underground coal mines. The interim
rule established procedures for the
submission and consideration of such
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disputes. The Commission invited
public comment on the interim rule.
The Commission has reviewed the
comments on the interim rule and has
decided to make certain changes in the
rule. This publication makes final
changes to Rule 24, the rule designed to
implement the MINER Act. In
connection with revising Rule 24, the
Commission is also amending four of its
other procedural rules to make them
consistent with Rule 24.
DATES: This final rule will take effect on
January 18, 2007.
ADDRESSES: Comments and questions
may 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.
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 final
rules will apply to cases initiated after
the rules take effect. The final rules also
apply to proceedings pending on the
effective date, except to the extent that
such application would not be feasible,
or would work injustice, in which event
the former rules of procedure would
continue to apply.
I. Background
On June 15, 2006, President George
W. Bush signed into law the MINER
Act, Pub. L. 109–236, 120 Stat. 493
(2006). 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)
provides that, within 60 days of
enactment, each underground coal mine
operator is required to develop and
adopt a ‘‘written accident response
plan.’’ Section 316(b)(2)(B) requires the
plan to provide for the evacuation of all
individuals endangered by an
emergency and the maintenance of
individuals trapped underground in the
event that miners are not able to
evacuate the mine. Under section
316(b)(2)(C), all plans shall be subject to
review and approval by the Secretary of
Labor (the ‘‘Secretary’’), and must: (i)
Afford miners a level of safety
protection at least consistent with the
existing standards; (ii) reflect the most
recent credible scientific research; (iii)
be technologically feasible, make use of
current commercially available
technology, and account for the specific
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physical characteristics of the mine; and
(iv) reflect the improvements in mine
safety gained from experience under
this Act and other worker safety and
health laws. Section 316(b)(2)(D)
specifies that the Secretary shall review
plans periodically, but at least every 6
months. Sections 316(b)(2)(E) and (F) set
forth plan content requirements,
including a provision allowing the
Secretary to make additional plan
requirements with respect to any of the
content matters.
Section 316(b)(2)(G), entitled ‘‘Plan
Dispute Resolution,’’ provides for
Commission resolution and
administrative appellate review of
emergency response plan disputes.
Section 316(b)(2)(G)(i) states that any
dispute between the Secretary and an
operator with respect to the content of
the operator’s plan or any refusal by the
Secretary to approve such a plan shall
be resolved on an ‘‘expedited basis.’’
Section 316(b)(2)(G)(ii) further provides
that, in the event of a dispute or refusal
described in clause (i), the Secretary
shall issue a citation which shall be
immediately referred to a Commission
Administrative Law Judge, and the
Secretary and the operator shall submit
all relevant material regarding the
dispute to the Administrative Law Judge
within 15 days of the date of the
referral. The section concludes by
providing that the Administrative Law
Judge shall render his or her decision
with respect to the plan content dispute
within 15 days of the receipt of the
submission. Section 316(b)(2)(G)(iii)
states that a party adversely affected by
a decision under clause (ii) may pursue
all further available appeal rights with
respect to the citation involved, except
that inclusion of the disputed provision
in the plan will not be limited by such
appeal unless such relief is requested by
the operator and permitted by the
Administrative Law Judge.
On July 18, 2006, the Commission
published Interim Rule 24 to implement
section 316(b)(2)(G), providing for
Commission hearings and
administrative appellate review of
emergency response plan disputes. The
Commission chose to establish an
interim rule and then request public
comments on the rule in order to
implement the MINER Act as soon as
possible after the Act became effective.
Although the interim rule was
procedural in nature and did not require
notice-and-comment rulemaking under
the Administrative Procedure Act, 5
U.S.C. 551, 553(b)(3)(A), the
Commission invited public comment.
The comment period on the interim rule
closed on August 17, 2006. The
Commission received comments from
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the Secretary through the U.S.
Department of Labor’s Office of the
Solicitor; the United Mine Workers of
America (the ‘‘UMWA’’); and other
individual members of the mining
community or bar who practice before
the Commission.
The final rule retains the same
approach as the interim rule; however,
the text of the rule has changed in
several areas in response to comments
received. In addition, the Commission
on its own has made several changes
upon further consideration of the
interim rule. Finally, the Commission
has made conforming changes to four of
its other procedural rules.
II. Section-by-Section Analysis and
Summary of Comments to Rule 24
The title of the interim rule is
‘‘Accident response plan dispute
proceedings.’’ One commenter stated
that the title is confusing because
section 2 of the MINER Act, which Rule
24 implements, is entitled ‘‘Emergency
Response.’’ Congress used both terms—
‘‘accident response plan’’ and
‘‘emergency response plan’’—in section
2 in referring to the plans and
apparently viewed the terms as
interchangeable. Nevertheless, the term,
‘‘emergency response plans,’’ is broader
in scope than the current title used in
the interim rule and provides a more
precise description of the variety of
plans covered by section 2, which Rule
24 implements. Therefore, in agreement
with the comment, the Commission has
revised the title of Rule 24 to
‘‘Emergency response plan dispute
proceedings.’’ Consistent with the
change in the title, all other references
in Rule 24 to the plans have been
changed to ‘‘emergency response
plans.’’
Interim Rule 24(a) requires that the
Secretary refer to the Commission,
within one day of its issuance, any
citation arising from a dispute over the
content of an emergency response plan.
In her comment, the Secretary states
that the one-day period provided in the
interim rule for referral of the dispute to
the Commission is insufficient to
complete her administrative review of
the documents in the referral. The
Commission, however, is constrained by
the mandate of section 316(b)(2)(G)(ii) of
the MINER Act, which requires that a
citation issued by the Secretary shall be
referred to the Commission
‘‘immediately.’’ In addition, section
316(b)(2)(G)(i) also states that any such
dispute ‘‘shall be resolved on an
expedited basis.’’ The Commission has
determined that a period of two
business days should address, to some
degree, the Secretary’s concerns, while
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adhering to the strictures of the MINER
Act. In addition, the Commission notes
that preparation and review of the
documentation needed for a referral can
occur concurrently with the preparation
of the citation, thus alleviating the need
for additional time to prepare the
documents after issuance of the citation.
The Secretary also suggested that Rule
24(a) specify that filing, as well as
service, of the referral can be
accomplished through facsimile
transmission. The Commission
concluded that Rule 24(c) and its other
applicable procedural rules (Rules
5(e)(1) and 7(c)(1)) are sufficiently
specific on allowing filing and service
via facsimile, and that no clarification is
needed in subparagraph (a). However,
the Commission is separately amending
Rules 5(e)(1) and 7(c)(1) to provide that
filing of referrals by facsimile
transmission is an exception to the
prohibition in those rules against filing
or serving by facsimile documents that
are more than 15 pages in length. Thus,
filing or service of documents under
Rule 24 may be accomplished through
facsimile transmission even though
such documents exceed 15 pages in
length.
Interim Rule 24(b) specifies that the
Secretary is required to file, as part of
a referral: The citation; a notice
describing the dispute; a short and plain
statement of her position on the
disputed provision; and a copy of the
emergency response plan. The Secretary
states that the rule should not require
her to submit a copy of the entire
emergency response plan, noting that
the plan is likely to be lengthy and
include many undisputed provisions.
The Commission agrees, and the rule
has been revised to provide that copies
of only the disputed plan provisions
shall be submitted with the referral.
The Secretary also commented that
subparagraph (b) does not require a
‘‘short and plain statement’’ from the
operator, as it does from the Secretary.
The Secretary reasoned that such a
statement from the operator would
assist in framing the issues for
resolution and assist the parties and the
Judge in determining the need for a
hearing. The Commission agrees with
the Secretary’s position. The
Commission has revised the interim rule
to add a new subparagraph (c) to require
the operator to file a ‘‘short and plain
statement’’ of its position with respect
to the disputed plan provision within
five calendar days after the referral. The
addition of this subparagraph requires
the redesignation of the subsequent
subparagraphs.
Interim Rule 24(c) currently specifies
that the filing of any document with the
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Commission is effective upon receipt
and that copies shall be expeditiously
served on parties, such as by courier
service or facsimile transmission.
Subparagraph (c) is redesignated as (d).
One commenter suggested that the
paragraph be clarified to specify that the
referral is effective upon receipt. The
Commission intends that the filing of all
documents in emergency response plan
dispute proceedings, including the
referral, is effective upon receipt and
has explicitly included a reference to
the referral in the final rule.
The UMWA proposed that present
subparagraph (c) also require service of
the referral on miners’ representatives.
Further, the UMWA stated that Rule 4
(Parties, intervenors, and amici curiae)
should be amended to provide that any
miners and miners’ representatives who
submitted comments during the
emergency plan review process will be
designated as parties in the Commission
proceeding. Finally, the UMWA
recommended that the Commission
require that the operator, after service of
the referral, post the referral on its
bulletin board at the mine.
The Commission recognizes the
importance of miner participation in the
formulation of emergency response
plans. In light of that consideration, the
Commission is revising the interim rule
to provide for service of the referral on
any miners and miners’ representatives
who have participated in the plan
review process. Regarding the
suggestion that miners and miners’
representatives who submitted
comments be designated as parties, the
Commission believes that its current
intervention rule provides a sufficient
mechanism for their participation. The
Commission does not view the
requirements of Rule 4, which governs
the process for gaining intervenor status
in a Commission proceeding, as
burdensome; nor does the Commission
view the interests of miners and miners’
representatives in an emergency plan
dispute proceeding as sufficiently
different to require an additional rule of
intervention. As to the suggestion
regarding posting of the referral, the
Commission has concluded that, as with
other Mine Act violations, posting the
citation underlying the referral would
sufficiently inform miners of the dispute
over the emergency response plan
provision and that posting the referral
itself, which may be unwieldy in size,
would be unnecessary.
Interim Rule 24(d) has been
redesignated as (e), and the heading that
follows has been revised to read,
‘‘Proceedings before the Judge,’’ to more
accurately describe the content of the
provision. Interim Rule 24(d)(1)
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presently requires parties to submit to
the Judge ‘‘all relevant materials
regarding the dispute’’ within 15 days of
the referral. The subparagraph further
requires that a party who seeks to stay
the operation of the disputed plan
provision, pending an appeal of the
Judge’s decision, should file a request
for a stay when its materials are
submitted to the Judge. Two
commenters stated that the MINER Act
provides that only an operator can seek
a stay of the Judge’s decision. One of the
commenters also added that seeking a
stay of the disputed plan provision
before the Judge’s decision has been
issued might be problematic because the
dispute regarding the plan provision
would be, as yet, unresolved, and it
might be difficult to know what relief to
request from the Judge.
Upon review of the MINER Act and
the comments, the Commission has
concluded that the comments have
merit. The Commission has clarified
that only an operator can seek a stay of
the disputed plan provision, as is
provided for in section 316(b)(2)(G)(iii)
of the MINER Act. The Commission has
also deleted the requirement that a party
seek a stay before the Judge has issued
his decision from Interim Rule 24(d)(1)
and moved the procedure for seeking a
stay to newly designated subparagraph
(f).
Interim Rule 24(d)(2) afforded the
parties the opportunity for a hearing
before a Commission Administrative
Law Judge, either at the request of a
party or by order of the Judge. The
preamble accompanying the interim
rule, 71 FR 40655, stated that, although
the MINER Act does not explicitly
provide for hearings on emergency plan
disputes, section 105(d) of the Mine Act
states, ‘‘the Commission shall afford an
opportunity for a hearing [on any notice
of contest].’’ 30 U.S.C. 815(d). One
commenter disagreed with the
Commission’s rationale for requiring a
hearing upon a party’s request. The
commenter stated that section 105(d)
applies to orders and citations issued
under section 104 or to proposed
penalty assessments issued under
section 105. The commenter noted that
citations relating to emergency response
plans are issued under section 316,
which is silent regarding the right to a
hearing.
Upon further consideration of the
interim rule, the Mine Act, and the
MINER Act, the Commission agrees that
the mandatory hearing procedures
specified in section 105(d) of the Mine
Act are not directly applicable to
emergency response plan dispute
proceedings. The Commission has
revised the interim rule to provide in
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the final rule that, when a party requests
a hearing on an emergency response
plan dispute, the Judge has discretion
whether to grant the request. The
commenter further suggested that the
Judge should order a hearing only when
there are factual issues in dispute.
However, the Commission views the
standard governing the need for a
hearing more broadly: That is, the Judge
should order a hearing whenever it
would assist in resolving the issues. In
any event, the Commission expects that
the question of whether a hearing
should be held and the question of the
precise form that such a hearing will
take will be resolved consistent with
due process considerations.
Another commenter objected to the
reference in the interim rule to the
‘‘hearing on the referral.’’ The
commenter explained that the hearing
more accurately involves the emergency
response plan dispute. The Commission
agrees with the commenter and has
clarified in the final rule that the
hearing concerns the disputed plan
provision. Contrary to another
comment, the Commission sees no need
to define ‘‘disputed plan provision.’’
The Commission believes that a broad
definition of what constitutes a
‘‘disputed plan provision’’ would likely
not be useful and that any issue as to
whether a particular provision is
disputed could best be answered in the
specific context of an actual case. The
same commenter also asked the
Commission to specify the legal
standard that would be applied in
reviewing plan provisions. The
Commission has concluded that it
would be inappropriate to specify in its
procedural rules the standard for
resolving disputes over emergency
response plan provisions. The
commenter also requested that the
Commission specify which party bears
the burden of proof. While the
Commission concludes that the burden
of proof in establishing a violation
alleged in a citation is on the Secretary,
the Commission believes it is
unnecessary to address this well-settled
principle in its procedural rules.
Upon further consideration of the
requirement in the interim rule
regarding the Judge’s authority to sua
sponte order a hearing, the Commission
has increased the time for a Judge to
issue such an order from 5 days to 10
days following the filing of the referral,
so that the Judge has sufficient time to
review the record in the proceeding and
evaluate the need for a hearing.
Final Rule 24(e)(2)(iii) states that, if a
hearing on the referral is ordered, the
hearing shall be held within 15 calendar
days of the filing of the referral. The
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Commission anticipates that such a
hearing shall be scheduled so as to be
completed within that time period.
Interim Rule 24(e) has been
redesignated as (f), the heading has been
changed to more accurately reflect the
content of the section (including the
procedure for requesting a stay), and
subheadings have been added for
clarity. Interim Rule 24(e)(1) presently
provides for the issuance of the Judge’s
decision, including a disposition on the
request for a stay of the inclusion of the
disputed provision in the emergency
response plan, and Interim Rule 24(e)(2)
addresses notification and service of the
decision. In light of the change to delete
the requirement that a party
prospectively seek a stay at the time
materials are submitted to the Judge,
newly designated Rule 24(f)(1) has also
been revised to delete the reference to
the Judge’s issuance of a ruling on the
stay at the time of the decision. Further,
the specifics of the issuance and
notification of the Judge’s decision have
been moved into this subparagraph from
Interim Rule 24(e)(2).
Subparagraph (e)(1) of the interim
rule states that, within 15 calendar days
following receipt by the Judge of all
submissions and testimony, the Judge
shall issue his or her decision. The
Secretary commented that this provision
arguably conflicts with section
2(b)(2)(G)(ii) of the MINER Act, 30
U.S.C. 316(b)(2)(G)(ii), which requires
the parties to submit all relevant
material regarding the dispute to the
judge within 15 days of the referral and
requires the Judge to issue his or her
decision ‘‘within 15 days of the receipt
of the submission.’’ The Secretary stated
that, to the extent a hearing may last
longer than one day, the requirement in
Rule 24(e) that the Judge issue a
decision within 15 calendar days
following receipt of all submissions and
testimony arguably conflicts with this
statutory provision. She suggested that
the final rule should conform to the
statute.
Because the Commission expects that
hearings shall be scheduled to be
completed within 15 calendar days of
the referral, the Commission concludes
that the language of the rule is
consistent with the statute, and
therefore retains the relevant language
without further revision.
Newly designated Rule 24(f)(2)
specifies the procedures for seeking a
stay from the Judge after issuance of the
decision on the disputed plan provision.
Initially, the rule provides that,
notwithstanding the provisions of Rule
69(b), 29 CFR 2700.69(b), the judge
retains jurisdiction over a request for a
stay after the issuance of the decision.
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The subparagraph provides that an
operator may seek from the Judge,
within two business days after service of
the decision, a stay of the inclusion of
the disputed provision in the emergency
response plan during the pendency of
an appeal with the Commission. The
Secretary has two business days to
respond to the stay request following
service of the operator’s motion. The
Judge, in turn, has two business days
following filing of the Secretary’s
response to issue an order granting or
denying the stay. One commenter
requested that the Commission place in
the rule the standard under which a
Judge would issue a stay. The
Commission declines to do so because
the determination of the appropriate
standard involves substantive legal
analysis that is best resolved through
individual case disposition.
Interim Rule 24(f) has been
redesignated as (g). The interim rule
specifies that Commission rules
governing petitions for discretionary
review of Mine Act cases apply to
appeals from Judges’ decisions in
proceedings involving emergency
response plan disputes. Newly
designated subparagraph (g) contains a
new provision clarifying that a Judge’s
order granting or denying an operator’s
request for a stay may also be reviewed
in conjunction with the Judge’s
disposition of the underlying disputed
plan provision. One commenter
suggested that the interim rule did not
clearly state whether the procedures in
the rules that are applicable to a case on
appeal before the Commission governed
emergency response dispute
proceedings. In response, the reference
in Rule 24 to Rule 75, 29 CFR 2700.75,
which governs the filing of briefs with
the Commission, has been modified to
clarify that the provisions in that rule
apply except to the extent that they are
superseded by a Commission briefing
order. Such orders are specifically
provided for in the rule, and it may be
anticipated that, in some instances, the
order will modify the page limits or
time periods for filing in Rule 75.
Finally, one commenter requested
that the Commission incorporate into
the subparagraph a ‘‘good cause’’
standard for extending the time for
filing briefs, when all parties have
agreed to such an extension. However,
the Commission believes that the
‘‘extraordinary circumstances’’ test in
the interim rule should be retained
because a more lenient standard would
undermine the time-sensitive scheme
that Congress embodied in the MINER
Act for resolving disputes over plan
provisions in emergency response plans.
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III. Summary of Changes to Other
Procedural Rules in Light of Rule 24
The Commission is also amending
four of its other Procedural Rules to
make them consistent with Rule 24.
Procedural Rules 5 and 7, 29 CFR
2700.5 and 2700.7, govern the filing and
service of documents by facsimile
transmission, respectively. Presently,
those rules prohibit the use of fax for
filing or service when the document is
more than 15 pages in length.
Accordingly, subparagraph (1) of Rule
5(e), Manner and effective date of filing,
is revised to add Rule 24 proceedings to
the list of enumerated exceptions to the
15-page limitation on documents that
can be filed by fax. Subparagraph (1) of
Rule 7(c), Methods of service, is also
revised to add Rule 24 proceedings to
the list of enumerated exceptions to the
15-page limitation on documents that
can be served by fax. These revisions
will permit parties to fax documents
exceeding 15 pages in Rule 24
proceedings, so that parties may file and
serve lengthy pleadings and other
documents expeditiously.
The Commission is revising
Procedural Rule 8, 29 CFR 2700.8,
governing time computation, to
expressly except Rule 24, in addition to
Rule 45, 29 CFR 2700.45, from the
provisions of Rule 8(a). In the proposed
change to Rule 8, the language
excluding the application of Rule 8(a) is
moved from the prefatory language of
Rule 8 to subsection (a), where it is
more appropriate. In order to clarify
time computation under Rule 24, the
Commission has described time periods
in Rule 24 in terms of ‘‘calendar’’ and
‘‘business’’ days, similar to the language
in Rule 45. In addition, a third example
discussing the application of Rule 8 to
a Rule 24 proceeding has been added to
further clarify the application of Rule 8.
Finally, Rule 69(b), 29 CFR 2700.69(b),
is revised to recognize that Rule 24(f)(2)
creates an exception to the general
principle that a Judge no longer has
jurisdiction over an emergency response
plan dispute proceeding following the
issuance of his decision on the merits.
Rule 24(f)(2) specifies that a Judge
retains jurisdiction over the proceeding
to dispose of a stay request from the
operator.
Public Comment
The Commission, which is always
open to comments and suggestions,
welcomes comment on this procedural
rule.
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List of Subjects in 29 CFR Part 2700
Administrative practice and
procedure, Mine safety and health,
Penalties, Whistleblowing.
I 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
1. The authority citation for part 2700
is revised to read as follows:
I
Authority: 30 U.S.C. 815, 820, 823, and
876.
2. Section 2700.5 is amended by
revising the second sentence of
paragraph (e)(1) and the second and
third sentences of paragraph (e)(2) to
read as follows:
I
§ 2700.5 General requirements for
pleadings and other documents; status or
information requests.
*
*
*
*
*
(e) Manner and effective date of filing.
* * *
(1) * * * With the exception of
documents filed pursuant to §§ 2700.70
(Petitions for discretionary review),
2700.45 (Temporary reinstatement
proceedings), 2700.24 (Emergency
response plan dispute proceedings), or
Subpart F (Applications for temporary
relief), documents filed by facsimile
transmission shall not exceed 15 pages,
excluding the facsimile cover sheet.
* * *
(2) * * * When filing is by mail,
filing is effective upon mailing, except
that the filing of a motion for extension
of time, any document in an emergency
response plan dispute proceeding, a
petition for review of a temporary
reinstatement order, a motion for
summary decision, a petition for
discretionary review, a motion to exceed
page limit is effective upon receipt. See
§§ 2700.9(a), 2700.24(d), 2700.45(f),
2700.67(a), 2700.70(a), (f), and
2700.75(f).
*
*
*
*
*
I 3. Section 2700.7 is amended by
revising the second sentence of
paragraph (c)(1) to read as follows:
§ 2700.7
Service.
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*
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(c) Methods of service. * * *
(1) * * * With the exception of
documents served pursuant to
§§ 2700.70 (Petitions for discretionary
review), 2700.45 (Temporary
reinstatement proceedings), 2700.24
(Emergency response plan dispute
proceedings), or subpart F (Applications
for temporary relief), documents served
by facsimile transmission shall not
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16:35 Jan 17, 2007
Jkt 211001
exceed 15 pages, excluding the facsimile
cover sheet. * * *
*
*
*
*
*
I 4. Section 2700.8 is amended by
revising its introductory text and
paragraph (a) and adding Example 3 to
read as follows:
§ 2700.8
Computation of time.
The due date for a pleading or other
deadline for party or Commission action
(hereinafter ‘‘due date’’) is determined
sequentially as follows:
(a) Except to the extent otherwise
provided herein (see, e.g., §§ 2700.24
and 2700.45), when the period of time
prescribed for action is less than 11
days, Saturdays, Sundays, and federal
holidays shall be excluded in
determining the due date.
*
*
*
*
*
Example 3: Pursuant to § 2700.24(a), the
Secretary of Labor files a referral of a citation
arising out of a dispute over the content of
an operator’s emergency response plan.
Certain subsequent deadlines in such cases
are specifically established by reference to
calendar days, and thus paragraph (a) of this
section would not necessarily apply in
determining due dates. For instance, if the
referral was filed on Thursday, January 4,
2007, the short and plain statement the
operator must file in response within 5
calendar days would be due Tuesday,
January 9, 2007, because the intervening
weekend days would not be excluded in
determining the due date. If the fifth calendar
day were to fall on a weekend, holiday, or
other day on which the Commission is not
open however, the terms of paragraph (c)
would apply and the due date would be the
next day the Commission is open.
5. Section 2700.24 is revised to read
as follows:
I
§ 2700.24 Emergency 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 emergency response plan,
or any refusal by the Secretary to
approve such a plan. Any referral made
pursuant to this paragraph shall be
made within two business days 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
the Secretary’s position with respect to
any disputed plan provision; and a copy
of the disputed provision of the
emergency response plan.
(c) Short and plain statement by the
operator. Within five calendar days
following the filing of the referral, the
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Sfmt 4700
2191
operator shall file with the Commission
a short and plain statement of its
position with respect to the disputed
plan provision.
(d) Filing and service of pleadings.
The filing with the Commission of any
document in an emergency response
plan dispute proceeding, including the
referral, is effective upon receipt. A
copy of each document filed with the
Commission in such a proceeding shall
be expeditiously served on all parties
and on any miner or miners’
representative who has participated in
the emergency response plan review
process, such as by personal delivery,
including courier service, by express
mail, or by facsimile transmission.
(e) Proceedings before the Judge.
(1) Submission of materials. 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 request for
any relief sought 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 filing of 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 10 calendar days following
the filing of 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 is ordered under
paragraphs (e)(2)(i) or (ii) of this section,
the hearing shall be held within 15
calendar days of the filing of the
referral. The scope of such a hearing 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 (e)(1) of
this subsection, and shall issue a
decision pursuant to paragraph (f) of
this section.
(f) Disposition.
(1) Decision of the Judge. Within 15
calendar days following receipt by the
Judge of all submissions and testimony
made pursuant to paragraph (e) of this
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Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Rules and Regulations
subsection, 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 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.
(2) Stay of plan provision.
Notwithstanding § 2700.69(b), a Judge
shall retain jurisdiction over a request
for a stay in an emergency response plan
dispute proceeding. Within two
business days following service of the
decision, the operator may file with the
judge a request to stay the inclusion of
the disputed provision in the plan
during the pendency of an appeal to the
Commission pursuant to paragraph (g)
of this section. The Secretary shall
respond to the operator’s motion within
two business days following service of
the motion. The judge shall issue an
order granting or denying the relief
sought within two business days after
the filing of the Secretary’s response.
(g) Review of decision. Any party may
seek review of a Judge’s decision,
including the Judge’s order granting or
denying a stay, by filing with the
Commission a petition for discretionary
review pursuant to § 2700.70. Neither an
operator’s request for a stay nor the
issuance of an order addressing the stay
request affects the time limits for filing
a petition for discretionary review of a
Judge’s decision with the Commission
under this subparagraph. The
Commission shall act upon a petition on
an expedited basis. If review is granted,
the Commission shall issue a briefing
order. Except as otherwise ordered or
provided for herein, the provisions of
§ 2700.75 apply. The Commission will
not grant motions for extension of time
for filing briefs, except under
extraordinary circumstances.
6. Section 2700.69 is amended by
revising paragraph (b) to read as follows:
I
§ 2700.69
Decision of the Judge.
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*
*
(b) Termination of the Judge’s
jurisdiction. Except to the extent
otherwise provided herein, the
jurisdiction of the Judge terminates
when his decision has been issued.
*
*
*
*
*
VerDate Aug<31>2005
16:35 Jan 17, 2007
Jkt 211001
Dated: January 11, 2007.
Michael F. Duffy,
Chairman, Federal Mine Safety and Health
Review Commission.
[FR Doc. E7–557 Filed 1–17–07; 8:45 am]
BILLING CODE 6735–01–P
DEPARTMENT OF THE TREASURY
Fiscal Service
31 CFR Part 356
[Docket No. BPD GSRS 06–03]
Sale and Issue of Marketable BookEntry Treasury Bills, Notes and
Bonds—Securities Eligible for
Purchase in Legacy Treasury Direct
Bureau of the Public Debt,
Fiscal Service, Treasury.
ACTION: Final rule.
AGENCY:
SUMMARY: This final rule provides that
the Department of the Treasury may
announce that certain marketable
Treasury securities to be offered will not
be eligible for purchase or holding in
the Legacy Treasury Direct system.
Treasury is issuing this amendment to
the auction rules because the Legacy
Treasury Direct system will eventually
be phased out.
DATES: Effective January 18, 2007.
ADDRESSES: You may download this
final rule from the Bureau of the Public
Debt’s Web site at https://
www.treasurydirect.gov or from the
Electronic Code of Federal Regulations
(e-CFR) Web site at https://
www.gpoaccess.gov/ecfr. It is also
available for public inspection and
copying at the Treasury Department
Library, Room 1428, Main Treasury
Building, 1500 Pennsylvania Avenue,
NW., Washington, DC 20220. To visit
the library, call (202) 622–0990 for an
appointment.
Lori
Santamorena (Executive Director) or
Chuck Andreatta (Associate Director),
Bureau of the Public Debt, Government
Securities Regulations Staff, (202) 504–
3632 or e-mail us at
govsecreg@bpd.treas.gov.
FOR FURTHER INFORMATION CONTACT:
The
Uniform Offering Circular (‘‘UOC’’), in
conjunction with the announcement for
each auction, provides the terms and
conditions for the sale and issuance in
an auction to the public of marketable
Treasury bills, notes and bonds.1 There
SUPPLEMENTARY INFORMATION:
1 The Uniform Offering Circular was published as
a final rule on January 5, 1993 (58 FR 412). The
circular, as amended, is codified at 31 CFR part 356.
A final rule converting the UOC to plain language
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are three book-entry securities
systems—the commercial book-entry
system, TreasuryDirect , and Legacy
Treasury Direct —into which we issue
marketable Treasury securities.2 The
current UOC generally authorizes
purchases of all types of marketable
Treasury securities in any of the three
book-entry systems. The Legacy
Treasury Direct system, which was
implemented in 1986, will eventually be
phased out, leaving only the newer, online TreasuryDirect system as the
system for purchasing marketable
Treasury securities directly on the
records of the Bureau of the Public Debt,
Department of the Treasury.3 The
commercial book-entry system will
remain an option for all securities for
those investors who want to purchase
and hold their securities through a
depository institution or dealer.
As we begin phasing out Legacy
Treasury Direct, we plan to discontinue
the practice of generally allowing all
marketable Treasury securities being
offered by Treasury to be purchased and
held in this system. This final rule
amendment states explicitly that we
may announce that certain marketable
securities to be offered will not be
eligible for purchase or holding in
Legacy Treasury Direct. Any such
restriction will be included in that
security’s offering announcement. This
change will not affect any outstanding
securities currently held in Legacy
Treasury Direct.
Procedural Requirements
This final rule is not a significant
regulatory action for purposes of
Executive Order 12866. The notice and
public procedures and delayed effective
date requirements of the Administrative
Procedure Act do not apply, under 5
U.S.C. 533(a)(2).
Since a notice of proposed rulemaking
is not required, the provisions of the
Regulatory Flexibility Act (5 U.S.C. 601
et seq.) do not apply.
The Office of Management and Budget
previously approved the collections of
information in this final amendment in
accordance with the Paperwork
Reduction Act under control number
and making certain other minor changes was
published in the Federal Register on July 28, 2004
(69 FR 45202).
2 On September 30, 2005, Treasury issued a final
amendment to the UOC to make the changes
necessary to accommodate participation in Treasury
marketable auctions for securities to be held in
either the TreasuryDirect or the Legacy Treasury
Direct system (70 FR 57347).
3 Legacy Treasury Direct was called
TreasuryDirect from 1986 to 2005. The regulations
for Legacy Treasury Direct are found at 31 CFR part
357. The regulations for TreasuryDirect are found
at 31 CFR part 363.
E:\FR\FM\18JAR1.SGM
18JAR1
]]>Agencies
[Federal Register Volume 72, Number 11 (Thursday, January 18, 2007)]
[Rules and Regulations]
[Pages 2187-2192]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-557]
=======================================================================
-----------------------------------------------------------------------
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
29 CFR Part 2700
Emergency Response Plan Dispute Proceedings and Related
Procedural Rules
AGENCY: Federal Mine Safety and Health Review Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
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 (the ``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. On July 18, 2006, the Commission
published an interim rule to implement the Mine Improvement and New
Emergency Response Act of 2006 (the ``MINER Act''), which amended the
Mine Act to improve the safety of miners, particularly in underground
coal mines. The MINER Act provides for Commission review of disputes
arising over emergency response plans for underground coal mines. The
interim rule established procedures for the submission and
consideration of such disputes. The Commission invited public comment
on the interim rule. The Commission has reviewed the comments on the
interim rule and has decided to make certain changes in the rule. This
publication makes final changes to Rule 24, the rule designed to
implement the MINER Act. In connection with revising Rule 24, the
Commission is also amending four of its other procedural rules to make
them consistent with Rule 24.
DATES: This final rule will take effect on January 18, 2007.
ADDRESSES: Comments and questions may 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.
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 final rules will apply to cases
initiated after the rules take effect. The final rules also apply to
proceedings pending on the effective date, except to the extent that
such application would not be feasible, or would work injustice, in
which event the former rules of procedure would continue to apply.
I. Background
On June 15, 2006, President George W. Bush signed into law the
MINER Act, Pub. L. 109-236, 120 Stat. 493 (2006). 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) provides that, within 60 days of enactment, each
underground coal mine operator is required to develop and adopt a
``written accident response plan.'' Section 316(b)(2)(B) requires the
plan to provide for the evacuation of all individuals endangered by an
emergency and the maintenance of individuals trapped underground in the
event that miners are not able to evacuate the mine. Under section
316(b)(2)(C), all plans shall be subject to review and approval by the
Secretary of Labor (the ``Secretary''), and must: (i) Afford miners a
level of safety protection at least consistent with the existing
standards; (ii) reflect the most recent credible scientific research;
(iii) be technologically feasible, make use of current commercially
available technology, and account for the specific
[[Page 2188]]
physical characteristics of the mine; and (iv) reflect the improvements
in mine safety gained from experience under this Act and other worker
safety and health laws. Section 316(b)(2)(D) specifies that the
Secretary shall review plans periodically, but at least every 6 months.
Sections 316(b)(2)(E) and (F) set forth plan content requirements,
including a provision allowing the Secretary to make additional plan
requirements with respect to any of the content matters.
Section 316(b)(2)(G), entitled ``Plan Dispute Resolution,''
provides for Commission resolution and administrative appellate review
of emergency response plan disputes. Section 316(b)(2)(G)(i) states
that any dispute between the Secretary and an operator with respect to
the content of the operator's plan or any refusal by the Secretary to
approve such a plan shall be resolved on an ``expedited basis.''
Section 316(b)(2)(G)(ii) further provides that, in the event of a
dispute or refusal described in clause (i), the Secretary shall issue a
citation which shall be immediately referred to a Commission
Administrative Law Judge, and the Secretary and the operator shall
submit all relevant material regarding the dispute to the
Administrative Law Judge within 15 days of the date of the referral.
The section concludes by providing that the Administrative Law Judge
shall render his or her decision with respect to the plan content
dispute within 15 days of the receipt of the submission. Section
316(b)(2)(G)(iii) states that a party adversely affected by a decision
under clause (ii) may pursue all further available appeal rights with
respect to the citation involved, except that inclusion of the disputed
provision in the plan will not be limited by such appeal unless such
relief is requested by the operator and permitted by the Administrative
Law Judge.
On July 18, 2006, the Commission published Interim Rule 24 to
implement section 316(b)(2)(G), providing for Commission hearings and
administrative appellate review of emergency response plan disputes.
The Commission chose to establish an interim rule and then request
public comments on the rule in order to implement the MINER Act as soon
as possible after the Act became effective. Although the interim rule
was procedural in nature and did not require notice-and-comment
rulemaking under the Administrative Procedure Act, 5 U.S.C. 551,
553(b)(3)(A), the Commission invited public comment. The comment period
on the interim rule closed on August 17, 2006. The Commission received
comments from the Secretary through the U.S. Department of Labor's
Office of the Solicitor; the United Mine Workers of America (the
``UMWA''); and other individual members of the mining community or bar
who practice before the Commission.
The final rule retains the same approach as the interim rule;
however, the text of the rule has changed in several areas in response
to comments received. In addition, the Commission on its own has made
several changes upon further consideration of the interim rule.
Finally, the Commission has made conforming changes to four of its
other procedural rules.
II. Section-by-Section Analysis and Summary of Comments to Rule 24
The title of the interim rule is ``Accident response plan dispute
proceedings.'' One commenter stated that the title is confusing because
section 2 of the MINER Act, which Rule 24 implements, is entitled
``Emergency Response.'' Congress used both terms--``accident response
plan'' and ``emergency response plan''--in section 2 in referring to
the plans and apparently viewed the terms as interchangeable.
Nevertheless, the term, ``emergency response plans,'' is broader in
scope than the current title used in the interim rule and provides a
more precise description of the variety of plans covered by section 2,
which Rule 24 implements. Therefore, in agreement with the comment, the
Commission has revised the title of Rule 24 to ``Emergency response
plan dispute proceedings.'' Consistent with the change in the title,
all other references in Rule 24 to the plans have been changed to
``emergency response plans.''
Interim Rule 24(a) requires that the Secretary refer to the
Commission, within one day of its issuance, any citation arising from a
dispute over the content of an emergency response plan. In her comment,
the Secretary states that the one-day period provided in the interim
rule for referral of the dispute to the Commission is insufficient to
complete her administrative review of the documents in the referral.
The Commission, however, is constrained by the mandate of section
316(b)(2)(G)(ii) of the MINER Act, which requires that a citation
issued by the Secretary shall be referred to the Commission
``immediately.'' In addition, section 316(b)(2)(G)(i) also states that
any such dispute ``shall be resolved on an expedited basis.'' The
Commission has determined that a period of two business days should
address, to some degree, the Secretary's concerns, while adhering to
the strictures of the MINER Act. In addition, the Commission notes that
preparation and review of the documentation needed for a referral can
occur concurrently with the preparation of the citation, thus
alleviating the need for additional time to prepare the documents after
issuance of the citation.
The Secretary also suggested that Rule 24(a) specify that filing,
as well as service, of the referral can be accomplished through
facsimile transmission. The Commission concluded that Rule 24(c) and
its other applicable procedural rules (Rules 5(e)(1) and 7(c)(1)) are
sufficiently specific on allowing filing and service via facsimile, and
that no clarification is needed in subparagraph (a). However, the
Commission is separately amending Rules 5(e)(1) and 7(c)(1) to provide
that filing of referrals by facsimile transmission is an exception to
the prohibition in those rules against filing or serving by facsimile
documents that are more than 15 pages in length. Thus, filing or
service of documents under Rule 24 may be accomplished through
facsimile transmission even though such documents exceed 15 pages in
length.
Interim Rule 24(b) specifies that the Secretary is required to
file, as part of a referral: The citation; a notice describing the
dispute; a short and plain statement of her position on the disputed
provision; and a copy of the emergency response plan. The Secretary
states that the rule should not require her to submit a copy of the
entire emergency response plan, noting that the plan is likely to be
lengthy and include many undisputed provisions. The Commission agrees,
and the rule has been revised to provide that copies of only the
disputed plan provisions shall be submitted with the referral.
The Secretary also commented that subparagraph (b) does not require
a ``short and plain statement'' from the operator, as it does from the
Secretary. The Secretary reasoned that such a statement from the
operator would assist in framing the issues for resolution and assist
the parties and the Judge in determining the need for a hearing. The
Commission agrees with the Secretary's position. The Commission has
revised the interim rule to add a new subparagraph (c) to require the
operator to file a ``short and plain statement'' of its position with
respect to the disputed plan provision within five calendar days after
the referral. The addition of this subparagraph requires the
redesignation of the subsequent subparagraphs.
Interim Rule 24(c) currently specifies that the filing of any
document with the
[[Page 2189]]
Commission is effective upon receipt and that copies shall be
expeditiously served on parties, such as by courier service or
facsimile transmission. Subparagraph (c) is redesignated as (d). One
commenter suggested that the paragraph be clarified to specify that the
referral is effective upon receipt. The Commission intends that the
filing of all documents in emergency response plan dispute proceedings,
including the referral, is effective upon receipt and has explicitly
included a reference to the referral in the final rule.
The UMWA proposed that present subparagraph (c) also require
service of the referral on miners' representatives. Further, the UMWA
stated that Rule 4 (Parties, intervenors, and amici curiae) should be
amended to provide that any miners and miners' representatives who
submitted comments during the emergency plan review process will be
designated as parties in the Commission proceeding. Finally, the UMWA
recommended that the Commission require that the operator, after
service of the referral, post the referral on its bulletin board at the
mine.
The Commission recognizes the importance of miner participation in
the formulation of emergency response plans. In light of that
consideration, the Commission is revising the interim rule to provide
for service of the referral on any miners and miners' representatives
who have participated in the plan review process. Regarding the
suggestion that miners and miners' representatives who submitted
comments be designated as parties, the Commission believes that its
current intervention rule provides a sufficient mechanism for their
participation. The Commission does not view the requirements of Rule 4,
which governs the process for gaining intervenor status in a Commission
proceeding, as burdensome; nor does the Commission view the interests
of miners and miners' representatives in an emergency plan dispute
proceeding as sufficiently different to require an additional rule of
intervention. As to the suggestion regarding posting of the referral,
the Commission has concluded that, as with other Mine Act violations,
posting the citation underlying the referral would sufficiently inform
miners of the dispute over the emergency response plan provision and
that posting the referral itself, which may be unwieldy in size, would
be unnecessary.
Interim Rule 24(d) has been redesignated as (e), and the heading
that follows has been revised to read, ``Proceedings before the
Judge,'' to more accurately describe the content of the provision.
Interim Rule 24(d)(1) presently requires parties to submit to the Judge
``all relevant materials regarding the dispute'' within 15 days of the
referral. The subparagraph further requires that a party who seeks to
stay the operation of the disputed plan provision, pending an appeal of
the Judge's decision, should file a request for a stay when its
materials are submitted to the Judge. Two commenters stated that the
MINER Act provides that only an operator can seek a stay of the Judge's
decision. One of the commenters also added that seeking a stay of the
disputed plan provision before the Judge's decision has been issued
might be problematic because the dispute regarding the plan provision
would be, as yet, unresolved, and it might be difficult to know what
relief to request from the Judge.
Upon review of the MINER Act and the comments, the Commission has
concluded that the comments have merit. The Commission has clarified
that only an operator can seek a stay of the disputed plan provision,
as is provided for in section 316(b)(2)(G)(iii) of the MINER Act. The
Commission has also deleted the requirement that a party seek a stay
before the Judge has issued his decision from Interim Rule 24(d)(1) and
moved the procedure for seeking a stay to newly designated subparagraph
(f).
Interim Rule 24(d)(2) afforded the parties the opportunity for a
hearing before a Commission Administrative Law Judge, either at the
request of a party or by order of the Judge. The preamble accompanying
the interim rule, 71 FR 40655, stated that, although the MINER Act does
not explicitly provide for hearings on emergency plan disputes, section
105(d) of the Mine Act states, ``the Commission shall afford an
opportunity for a hearing [on any notice of contest].'' 30 U.S.C.
815(d). One commenter disagreed with the Commission's rationale for
requiring a hearing upon a party's request. The commenter stated that
section 105(d) applies to orders and citations issued under section 104
or to proposed penalty assessments issued under section 105. The
commenter noted that citations relating to emergency response plans are
issued under section 316, which is silent regarding the right to a
hearing.
Upon further consideration of the interim rule, the Mine Act, and
the MINER Act, the Commission agrees that the mandatory hearing
procedures specified in section 105(d) of the Mine Act are not directly
applicable to emergency response plan dispute proceedings. The
Commission has revised the interim rule to provide in the final rule
that, when a party requests a hearing on an emergency response plan
dispute, the Judge has discretion whether to grant the request. The
commenter further suggested that the Judge should order a hearing only
when there are factual issues in dispute. However, the Commission views
the standard governing the need for a hearing more broadly: That is,
the Judge should order a hearing whenever it would assist in resolving
the issues. In any event, the Commission expects that the question of
whether a hearing should be held and the question of the precise form
that such a hearing will take will be resolved consistent with due
process considerations.
Another commenter objected to the reference in the interim rule to
the ``hearing on the referral.'' The commenter explained that the
hearing more accurately involves the emergency response plan dispute.
The Commission agrees with the commenter and has clarified in the final
rule that the hearing concerns the disputed plan provision. Contrary to
another comment, the Commission sees no need to define ``disputed plan
provision.'' The Commission believes that a broad definition of what
constitutes a ``disputed plan provision'' would likely not be useful
and that any issue as to whether a particular provision is disputed
could best be answered in the specific context of an actual case. The
same commenter also asked the Commission to specify the legal standard
that would be applied in reviewing plan provisions. The Commission has
concluded that it would be inappropriate to specify in its procedural
rules the standard for resolving disputes over emergency response plan
provisions. The commenter also requested that the Commission specify
which party bears the burden of proof. While the Commission concludes
that the burden of proof in establishing a violation alleged in a
citation is on the Secretary, the Commission believes it is unnecessary
to address this well-settled principle in its procedural rules.
Upon further consideration of the requirement in the interim rule
regarding the Judge's authority to sua sponte order a hearing, the
Commission has increased the time for a Judge to issue such an order
from 5 days to 10 days following the filing of the referral, so that
the Judge has sufficient time to review the record in the proceeding
and evaluate the need for a hearing.
Final Rule 24(e)(2)(iii) states that, if a hearing on the referral
is ordered, the hearing shall be held within 15 calendar days of the
filing of the referral. The
[[Page 2190]]
Commission anticipates that such a hearing shall be scheduled so as to
be completed within that time period.
Interim Rule 24(e) has been redesignated as (f), the heading has
been changed to more accurately reflect the content of the section
(including the procedure for requesting a stay), and subheadings have
been added for clarity. Interim Rule 24(e)(1) presently provides for
the issuance of the Judge's decision, including a disposition on the
request for a stay of the inclusion of the disputed provision in the
emergency response plan, and Interim Rule 24(e)(2) addresses
notification and service of the decision. In light of the change to
delete the requirement that a party prospectively seek a stay at the
time materials are submitted to the Judge, newly designated Rule
24(f)(1) has also been revised to delete the reference to the Judge's
issuance of a ruling on the stay at the time of the decision. Further,
the specifics of the issuance and notification of the Judge's decision
have been moved into this subparagraph from Interim Rule 24(e)(2).
Subparagraph (e)(1) of the interim rule states that, within 15
calendar days following receipt by the Judge of all submissions and
testimony, the Judge shall issue his or her decision. The Secretary
commented that this provision arguably conflicts with section
2(b)(2)(G)(ii) of the MINER Act, 30 U.S.C. 316(b)(2)(G)(ii), which
requires the parties to submit all relevant material regarding the
dispute to the judge within 15 days of the referral and requires the
Judge to issue his or her decision ``within 15 days of the receipt of
the submission.'' The Secretary stated that, to the extent a hearing
may last longer than one day, the requirement in Rule 24(e) that the
Judge issue a decision within 15 calendar days following receipt of all
submissions and testimony arguably conflicts with this statutory
provision. She suggested that the final rule should conform to the
statute.
Because the Commission expects that hearings shall be scheduled to
be completed within 15 calendar days of the referral, the Commission
concludes that the language of the rule is consistent with the statute,
and therefore retains the relevant language without further revision.
Newly designated Rule 24(f)(2) specifies the procedures for seeking
a stay from the Judge after issuance of the decision on the disputed
plan provision. Initially, the rule provides that, notwithstanding the
provisions of Rule 69(b), 29 CFR 2700.69(b), the judge retains
jurisdiction over a request for a stay after the issuance of the
decision. The subparagraph provides that an operator may seek from the
Judge, within two business days after service of the decision, a stay
of the inclusion of the disputed provision in the emergency response
plan during the pendency of an appeal with the Commission. The
Secretary has two business days to respond to the stay request
following service of the operator's motion. The Judge, in turn, has two
business days following filing of the Secretary's response to issue an
order granting or denying the stay. One commenter requested that the
Commission place in the rule the standard under which a Judge would
issue a stay. The Commission declines to do so because the
determination of the appropriate standard involves substantive legal
analysis that is best resolved through individual case disposition.
Interim Rule 24(f) has been redesignated as (g). The interim rule
specifies that Commission rules governing petitions for discretionary
review of Mine Act cases apply to appeals from Judges' decisions in
proceedings involving emergency response plan disputes. Newly
designated subparagraph (g) contains a new provision clarifying that a
Judge's order granting or denying an operator's request for a stay may
also be reviewed in conjunction with the Judge's disposition of the
underlying disputed plan provision. One commenter suggested that the
interim rule did not clearly state whether the procedures in the rules
that are applicable to a case on appeal before the Commission governed
emergency response dispute proceedings. In response, the reference in
Rule 24 to Rule 75, 29 CFR 2700.75, which governs the filing of briefs
with the Commission, has been modified to clarify that the provisions
in that rule apply except to the extent that they are superseded by a
Commission briefing order. Such orders are specifically provided for in
the rule, and it may be anticipated that, in some instances, the order
will modify the page limits or time periods for filing in Rule 75.
Finally, one commenter requested that the Commission incorporate
into the subparagraph a ``good cause'' standard for extending the time
for filing briefs, when all parties have agreed to such an extension.
However, the Commission believes that the ``extraordinary
circumstances'' test in the interim rule should be retained because a
more lenient standard would undermine the time-sensitive scheme that
Congress embodied in the MINER Act for resolving disputes over plan
provisions in emergency response plans.
III. Summary of Changes to Other Procedural Rules in Light of Rule 24
The Commission is also amending four of its other Procedural Rules
to make them consistent with Rule 24. Procedural Rules 5 and 7, 29 CFR
2700.5 and 2700.7, govern the filing and service of documents by
facsimile transmission, respectively. Presently, those rules prohibit
the use of fax for filing or service when the document is more than 15
pages in length. Accordingly, subparagraph (1) of Rule 5(e), Manner and
effective date of filing, is revised to add Rule 24 proceedings to the
list of enumerated exceptions to the 15-page limitation on documents
that can be filed by fax. Subparagraph (1) of Rule 7(c), Methods of
service, is also revised to add Rule 24 proceedings to the list of
enumerated exceptions to the 15-page limitation on documents that can
be served by fax. These revisions will permit parties to fax documents
exceeding 15 pages in Rule 24 proceedings, so that parties may file and
serve lengthy pleadings and other documents expeditiously.
The Commission is revising Procedural Rule 8, 29 CFR 2700.8,
governing time computation, to expressly except Rule 24, in addition to
Rule 45, 29 CFR 2700.45, from the provisions of Rule 8(a). In the
proposed change to Rule 8, the language excluding the application of
Rule 8(a) is moved from the prefatory language of Rule 8 to subsection
(a), where it is more appropriate. In order to clarify time computation
under Rule 24, the Commission has described time periods in Rule 24 in
terms of ``calendar'' and ``business'' days, similar to the language in
Rule 45. In addition, a third example discussing the application of
Rule 8 to a Rule 24 proceeding has been added to further clarify the
application of Rule 8. Finally, Rule 69(b), 29 CFR 2700.69(b), is
revised to recognize that Rule 24(f)(2) creates an exception to the
general principle that a Judge no longer has jurisdiction over an
emergency response plan dispute proceeding following the issuance of
his decision on the merits. Rule 24(f)(2) specifies that a Judge
retains jurisdiction over the proceeding to dispose of a stay request
from the operator.
Public Comment
The Commission, which is always open to comments and suggestions,
welcomes comment on this procedural rule.
[[Page 2191]]
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 is revised to read as follows:
Authority: 30 U.S.C. 815, 820, 823, and 876.
0
2. Section 2700.5 is amended by revising the second sentence of
paragraph (e)(1) and the second and third sentences of paragraph (e)(2)
to read as follows:
Sec. 2700.5 General requirements for pleadings and other documents;
status or information requests.
* * * * *
(e) Manner and effective date of filing. * * *
(1) * * * With the exception of documents filed pursuant to
Sec. Sec. 2700.70 (Petitions for discretionary review), 2700.45
(Temporary reinstatement proceedings), 2700.24 (Emergency response plan
dispute proceedings), or Subpart F (Applications for temporary relief),
documents filed by facsimile transmission shall not exceed 15 pages,
excluding the facsimile cover sheet. * * *
(2) * * * When filing is by mail, filing is effective upon mailing,
except that the filing of a motion for extension of time, any document
in an emergency response plan dispute proceeding, a petition for review
of a temporary reinstatement order, a motion for summary decision, a
petition for discretionary review, a motion to exceed page limit is
effective upon receipt. See Sec. Sec. 2700.9(a), 2700.24(d),
2700.45(f), 2700.67(a), 2700.70(a), (f), and 2700.75(f).
* * * * *
0
3. Section 2700.7 is amended by revising the second sentence of
paragraph (c)(1) to read as follows:
Sec. 2700.7 Service.
* * * * *
(c) Methods of service. * * *
(1) * * * With the exception of documents served pursuant to
Sec. Sec. 2700.70 (Petitions for discretionary review), 2700.45
(Temporary reinstatement proceedings), 2700.24 (Emergency response plan
dispute proceedings), or subpart F (Applications for temporary relief),
documents served by facsimile transmission shall not exceed 15 pages,
excluding the facsimile cover sheet. * * *
* * * * *
0
4. Section 2700.8 is amended by revising its introductory text and
paragraph (a) and adding Example 3 to read as follows:
Sec. 2700.8 Computation of time.
The due date for a pleading or other deadline for party or
Commission action (hereinafter ``due date'') is determined sequentially
as follows:
(a) Except to the extent otherwise provided herein (see, e.g.,
Sec. Sec. 2700.24 and 2700.45), when the period of time prescribed for
action is less than 11 days, Saturdays, Sundays, and federal holidays
shall be excluded in determining the due date.
* * * * *
Example 3: Pursuant to Sec. 2700.24(a), the Secretary of Labor
files a referral of a citation arising out of a dispute over the
content of an operator's emergency response plan. Certain subsequent
deadlines in such cases are specifically established by reference to
calendar days, and thus paragraph (a) of this section would not
necessarily apply in determining due dates. For instance, if the
referral was filed on Thursday, January 4, 2007, the short and plain
statement the operator must file in response within 5 calendar days
would be due Tuesday, January 9, 2007, because the intervening
weekend days would not be excluded in determining the due date. If
the fifth calendar day were to fall on a weekend, holiday, or other
day on which the Commission is not open however, the terms of
paragraph (c) would apply and the due date would be the next day the
Commission is open.
0
5. Section 2700.24 is revised to read as follows:
Sec. 2700.24 Emergency 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
emergency response plan, or any refusal by the Secretary to approve
such a plan. Any referral made pursuant to this paragraph shall be made
within two business days 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 the
Secretary's position with respect to any disputed plan provision; and a
copy of the disputed provision of the emergency response plan.
(c) Short and plain statement by the operator. Within five calendar
days following the filing of the referral, the operator shall file with
the Commission a short and plain statement of its position with respect
to the disputed plan provision.
(d) Filing and service of pleadings. The filing with the Commission
of any document in an emergency response plan dispute proceeding,
including the referral, is effective upon receipt. A copy of each
document filed with the Commission in such a proceeding shall be
expeditiously served on all parties and on any miner or miners'
representative who has participated in the emergency response plan
review process, such as by personal delivery, including courier
service, by express mail, or by facsimile transmission.
(e) Proceedings before the Judge.
(1) Submission of materials. 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 request for any relief sought 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 filing of 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 10 calendar days following the filing of 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 is ordered under paragraphs (e)(2)(i) or (ii) of
this section, the hearing shall be held within 15 calendar days of the
filing of the referral. The scope of such a hearing 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 (e)(1) of this subsection, and shall
issue a decision pursuant to paragraph (f) of this section.
(f) Disposition.
(1) Decision of the Judge. Within 15 calendar days following
receipt by the Judge of all submissions and testimony made pursuant to
paragraph (e) of this
[[Page 2192]]
subsection, 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 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.
(2) Stay of plan provision. Notwithstanding Sec. 2700.69(b), a
Judge shall retain jurisdiction over a request for a stay in an
emergency response plan dispute proceeding. Within two business days
following service of the decision, the operator may file with the judge
a request to stay the inclusion of the disputed provision in the plan
during the pendency of an appeal to the Commission pursuant to
paragraph (g) of this section. The Secretary shall respond to the
operator's motion within two business days following service of the
motion. The judge shall issue an order granting or denying the relief
sought within two business days after the filing of the Secretary's
response.
(g) Review of decision. Any party may seek review of a Judge's
decision, including the Judge's order granting or denying a stay, by
filing with the Commission a petition for discretionary review pursuant
to Sec. 2700.70. Neither an operator's request for a stay nor the
issuance of an order addressing the stay request affects the time
limits for filing a petition for discretionary review of a Judge's
decision with the Commission under this subparagraph. The Commission
shall act upon a petition on an expedited basis. If review is granted,
the Commission shall issue a briefing order. Except as otherwise
ordered or provided for herein, the provisions of Sec. 2700.75 apply.
The Commission will not grant motions for extension of time for filing
briefs, except under extraordinary circumstances.
0
6. Section 2700.69 is amended by revising paragraph (b) to read as
follows:
Sec. 2700.69 Decision of the Judge.
* * * * *
(b) Termination of the Judge's jurisdiction. Except to the extent
otherwise provided herein, the jurisdiction of the Judge terminates
when his decision has been issued.
* * * * *
Dated: January 11, 2007.
Michael F. Duffy,
Chairman, Federal Mine Safety and Health Review Commission.
[FR Doc. E7-557 Filed 1-17-07; 8:45 am]
BILLING CODE 6735-01-P
