Penalty Settlement Procedure, 21987-21990 [2010-9689]
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Federal Register / Vol. 75, No. 80 / Tuesday, April 27, 2010 / Rules and Regulations
interpretation would be codified as a
part of CFR part 1450, where § 1450.1
would describe the scope of part 1450
and § 1450.2(a) would contain the
definition of ‘‘public accommodations
facility.’’ Thus, this rule adds the new
CFR part 1450, defines ‘‘unblockable
drain’’ at 1450.2(b) and indicates that
1450.1 and 1450.2(a) are reserved.
D. Effective Date
Section 1405 of the VGB Act directs
the Commission to establish a grant
program to provide assistance to eligible
States for specific uses related to pool
and spa safety. The Commission has
entered into an interagency agreement
with the Centers for Disease Control and
Prevention (CDC)/National Center for
Injury Control and Prevention (NCIPC)
to administer the grant program. CDC
will be publishing the Funding
Opportunity Announcement related to
the grant program in early April.
Because potential State applicants need
a definitive understanding of the law in
order to qualify for grant monies, and
because CDC intends to publish the
Funding Opportunity Announcement in
April, this final rule resulting is
effective upon publication. The rule
does not impose obligations on
regulated parties beyond those imposed
by the VGB Act. In addition, as
mentioned in the DATES section of this
preamble, the Commission has already
received and considered comments and/
or presentations with regard to this
issue on two separate occasions: (1) In
response to the ‘‘July 2009 Staff Draft
Technical Guidance on Unblockable
Drains’’ and (2) during the November 4,
2009 Commission public hearing.
Therefore, there is no need to provide a
delayed effective date in order to allow
for regulated parties to prepare for the
rule.
List of Subjects in 16 CFR Part 1450
Consumer protection, Incorporation
by reference, Infants and children, Law
enforcement.
For the reasons stated above, the
Commission adds part 1450 to
subchapter B of title 16 of the Code of
Federal Regulations to read as follows:
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■
PART 1450—VIRGINIA GRAEME
BAKER POOL AND SPA SAFETY ACT
REGULATIONS
Sec.
1450.1
1450.2
§ 1450.1
[Reserved]
§ 1450.2
Definitions.
FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION
(a) [Reserved]
(b) Unblockable drain includes a
suction outlet defined as all
components, including the sump and/or
body, cover/grate, and hardware such
that its perforated (open) area cannot be
shadowed by the area of the 18″ x 23″
Body Blocking Element of ASME/ANSI
A112.19.8–2007 and that the rated flow
through the remaining open area
(beyond the shadowed portion) cannot
create a suction force in excess of the
removal force values in Table 1 of that
Standard. All suction outlet covers,
manufactured or field-fabricated, shall
be certified as meeting the applicable
requirements of the ASME/ANSI
A112.19.8 standard. You must proceed
in accordance with ASME/ANSI
A112.19.8–2007 (issued March 30,
2007), including Addenda A112.19.8a–
2008 (August 11, 2008) and A112.19.8b–
2009 (approved October 22, 2009),
Suction Fittings for Use in Swimming
Pools, Wading Pools, Spas, and Hot
Tubs. ASME/ANSI A112.19.8–2007,
including Addenda A112.19.8a–2008
and A112.19.8b–2009 are incorporated
by reference. The Director of the Federal
Register approves this incorporation by
reference in accordance with 5 U.S.C.
552(a) and 1 CFR part 51. You may
obtain a copy from American Society of
Mechanical Engineers (ASME), ATTN:
Secretary, A112 Standards Committee,
Three Park Avenue, New York, New
York 10016–5990; www.asme.org,
telephone 800–843–2763. You may
inspect a copy at the Office of the
Secretary, U.S. Consumer Product
Safety Commission, Room 502, 4330
East West Highway, Bethesda, MD
20814, telephone 301–504–7923, or the
National Archives and Records
Administration (NARA). For
information on the availability of this
material at NARA, call 202–741–6030 or
go to: https://www.archives.gov/
federal_register/
code_of_federal_regulations/
ibr_locations.html.
Dated: April 6, 2010.
Todd A. Stevenson,
Secretary, Consumer Product Safety
Commission.
[FR Doc. 2010–8160 Filed 4–26–10; 8:45 am]
BILLING CODE 6355–01–P
[Reserved]
Definitions.
Authority: 15 U.S.C. 2051–2089, 86 Stat.
1207; 15 U.S.C. 8001–8008, 121 Stat. 1794.
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29 CFR Part 2700
Penalty Settlement Procedure
AGENCY: Federal Mine Safety and Health
Review Commission.
ACTION: Interim rule with request for
comments.
SUMMARY: The Federal Mine Safety and
Health Review Commission (the
‘‘Commission’’) is an independent
adjudicatory agency that provides
hearings and appellate review of cases
arising under the Federal Mine Safety
and Health Act of 1977, or Mine Act.
Hearings are held before the
Commission’s Administrative Law
Judges, and appellate review is provided
by a five-member Review Commission
appointed by the President and
confirmed by the Senate. The
Commission is adopting an interim rule
to streamline the process for settling
civil penalties assessed under the Mine
Act.
DATES: The interim rule takes effect on
May 27, 2010. The Commission will
accept written and electronic comments
received on or before June 28, 2010.
ADDRESSES: Written comments should
be mailed to Michael A. McCord,
General Counsel, Office of the General
Counsel, Federal Mine Safety and
Health Review Commission, 601 New
Jersey Avenue, NW., Suite 9500,
Washington, DC 20001, or sent via
facsimile to 202–434–9944. Persons
mailing written comments shall provide
an original and three copies of their
comments. Electronic comments should
state ‘‘Comments on Penalty Settlement
Rule’’ in the subject line and be sent to
mmccord@fmshrc.gov.
FOR FURTHER INFORMATION CONTACT:
Michael A. McCord, General Counsel,
Office of the General Counsel, 601 New
Jersey Avenue, NW., Suite 9500,
Washington, DC 20001; telephone 202–
434–9935; fax 202–434–9944.
SUPPLEMENTARY INFORMATION:
Background
Since 2006, the number of new cases
filed with the Commission has
dramatically increased. From 2000
through 2005, an average of
approximately 2300 cases were filed
with the Commission per year. In 2006
and 2007, between approximately 3000
and 4000 new cases were filed each
year, while in 2008 and 2009,
approximately 9000 cases were filed
each year.
In order to deal with its burgeoning
caseload, the Commission is considering
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various ways to streamline its
processing of cases. One approach the
Commission has explored is to simplify
how it processes civil penalty
settlements.
Under section 110(k) of the Mine Act,
30 U.S.C. 820(k), a proposed civil
penalty that has been contested before
the Commission may be settled only
with the approval of the Commission.
Under the Commission’s current
practice, a party submits to a
Commission Administrative Law Judge
a motion to approve a penalty
settlement that includes for each
violation the amount of the penalty
proposed by the Department of Labor’s
Mine Safety and Health Administration,
the amount of the penalty agreed to in
settlement, and facts in support of the
penalty agreed to by the parties. 29 CFR
2700.31(b). A Commission Judge
considers the motion and evaluates the
penalty agreed to by the parties based
on the criteria set forth in section 110(i)
of the Mine Act, 30 U.S.C. 820(i). If the
Judge concludes that the settlement is
consistent with the statutory criteria, the
Judge issues a decision approving the
settlement and setting forth the reasons
for approval.
In all penalty proceedings, except for
discrimination proceedings arising
under section 105(c) of the Mine Act, 30
U.S.C. 815(c), or proceedings against
individuals pursuant to section 110(c) of
the Mine Act, 30 U.S.C. 820(c), the
interim rule sets forth several new
requirements regarding how parties file
settlement motions with the agency.
First, it requires that a party filing a
motion to approve a penalty settlement
submit a proposed decision approving
settlement (‘‘proposed order’’) with the
motion. Second, it requires the filing
party to submit the motion and
proposed order electronically. The basic
requirements for content of a motion to
approve settlement still apply in that a
movant must include in a motion for
each violation the amount of the
proposed penalty, the amount of the
penalty agreed to in settlement, and
facts that support the penalty agreed to
by the parties. A filing party may set
forth this information in the proposed
order and incorporate the proposed
order by reference in the motion. The
interim rule includes a new requirement
that the party filing the motion certify
that the opposing party has reviewed
the motion and has authorized the filing
party to represent that the opposing
party consents to the granting of the
motion and the entry of the proposed
order approving settlement. The interim
rule also requires that, if a motion has
been filed by a Conference and
Litigation Representative (‘‘CLR’’) on
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behalf of the Secretary of Labor, the
accompanying proposed order must
include a provision in which the Judge
accepts the CLR to represent the
Secretary in accordance with the notice
of either limited or unlimited
appearance previously filed with the
Commission.
The content of orders approving
settlement will vary depending upon
the particular facts and circumstances of
each case. The Commission will make
sample forms for proposed orders
approving settlement available on the
Commission’s Web site (https://
www.fmshrc.gov).
In all penalty proceedings, except
discrimination and section 110(c)
proceedings, parties will file any
settlement motion electronically by
attaching electronic copies of the
motion and proposed order to an e-mail
to the Commission. The e-mail address
to which settlement motions must be
sent and instructions for filing are set
forth on the Commission’s Web site
(https://www.fmshrc.gov). The
Commission expects that the electronic
submission of such settlement motions
with proposed orders will significantly
reduce the amount of time it takes for
the Commission to dispose of settlement
motions.
Electronic filing is effective upon the
date of transmission. The transmitting
party has the responsibility of retaining
records showing the date of
transmission, including receipts. Filers
should request a delivery receipt when
filing electronically with the
Commission using the option for a
delivery receipt, if available on the
filer’s e-mail program. This receipt is
automatically generated when the email is delivered to the Commission’s email server. Parties may also use the
option of a read receipt, which is
generated when the e-mail is opened.
Any signature line set forth within a
motion to approve settlement submitted
electronically must include the notation
‘‘/s/’’ followed by the typewritten name
of the party or representative of the
party filing the document. The
Commission shall consider such a
representation of the signature to be the
original signature of the representative
for all purposes unless the party
representative shows that such
representation of the signature was
unauthorized. See 29 CFR 2700.6.
Although the interim rule requires
electronic filing, the Commission may
allow a party to file non-electronically
with the permission of the Judge.
The interim rule requires that a copy
of a motion and proposed order be
served on the opposing party as
expeditiously as possible. The
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Commission recognizes that some
parties may not have the capability of
being served with the motion and
proposed order by e-mail, facsimile
transmission, or commercial delivery.
Under such circumstances, the filing
party may serve the motion and
proposed order on the opposing party
by mail. Permission of the Judge is
unnecessary for service by nonelectronic means.
Currently, there are instances in
which the Secretary files a motion to
approve settlement before the Secretary
has filed a petition for assessment of
penalty. Some of those instances occur
when the Commission has granted the
Secretary an extension of time to file the
petition, and the case settles before the
petition is due under the extension.
When a case settles before the Secretary
has filed a petition, the Commission
requires the filing party to file a copy of
the proposed penalty assessment and
copies of the citations and/or orders
with the motion to approve settlement
and does not require the Secretary to file
the petition. The interim rule continues
this practice. Thus, under the interim
rule, if the filing party electronically
files a motion to approve settlement and
proposed order before the Secretary has
filed a petition for assessment of
penalty, the filing party must also file as
attachments electronic copies of the
proposed penalty assessment and
citations and orders at issue. Under
such circumstances, the Secretary need
not file a petition for assessment of
penalty.
The interim rule also provides that if
a party filing a motion to approve
settlement and proposed order fails to
include in the motion and proposed
order information required by this rule
and the Commission’s instructions on
its Web site, the Commission will not
accept for filing the motion and
proposed order. Rather, the Commission
will inform the filing party of the need
for correction and resubmission.
Discrimination proceedings and
section 110(c) proceedings are
specifically excepted from paragraph (b)
of the Commission’s new interim rule.
The Commission’s current practice shall
continue to apply to such proceedings.
Thus, in discrimination or section
110(c) proceedings, a party will submit
a hard paper copy of a motion to
approve settlement to the Judge that
includes for each violation the amount
of the proposed penalty, the amount of
the penalty agreed to in settlement, and
the supporting facts. Filing and service
in such proceedings shall be
accomplished in accordance with the
provisions of 29 CFR 2700.5 and 2700.7.
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Notice and Public Procedure
Although notice-and-comment
rulemaking requirements under the
Administrative Procedure Act (‘‘APA’’)
do not apply to rules of agency
procedure (see 5 U.S.C. 553(b)(3)(A)),
the Commission invites members of the
interested public to submit comments
on the interim rule in order to assist the
Commission in its deliberations
regarding the adoption of a permanent
rule. The Commission will accept
public comments until June 28, 2010.
The Commission is an independent
regulatory agency and, as such, is not
subject to the requirements of E.O.
12866, E.O. 13132, or the Unfunded
Mandates Reform Act, 2 U.S.C. 1501 et
seq.
The Commission has determined
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.) that this rule would
not have a significant economic impact
on a substantial number of small
entities. Therefore, a Regulatory
Flexibility Statement and Analysis has
not been prepared.
The Commission has determined that
the Paperwork Reduction Act (44 U.S.C.
3501 et seq.) does not apply because this
rule does not contain any information
collection requirements that require the
approval of the OMB.
The Commission has determined that
the Congressional Review Act, 5 U.S.C.
801, is not applicable here because,
pursuant to 5 U.S.C. 804(3)(C), this rule
‘‘does not substantially affect the rights
or obligations of non-agency parties.’’
List of Subjects in 29 CFR Part 2700
Administrative practice and
procedure, Mine safety and health,
Penalties, Whistleblowing.
■ 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
continues to read as follows:
■
Authority: 30 U.S.C. 815, 820, 823, and
876.
2. Section 2700.5 is amended by
revising paragraph (b) to read as follows:
■
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§ 2700.5 General requirements for
pleadings and other documents; status or
informational requests.
*
*
*
*
*
(b) Where to file. Unless otherwise
provided for in the Act, these rules, or
by order:
(1) Until a Judge has been assigned to
a case, all documents shall be filed with
the Commission. Documents filed with
the Commission shall be addressed to
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the Executive Director and mailed or
delivered to the Docket Office, Federal
Mine Safety and Health Review
Commission, 601 New Jersey Avenue,
NW., Suite 9500, Washington, DC
20001; facsimile delivery as allowed by
these rules (see section 2700.5(e)), shall
be transmitted to (202) 434–9954.
(2) After a Judge has been assigned,
and before a decision has been issued,
documents shall be filed with the Judge
at the address set forth on the notice of
the assignment.
(3) Documents filed in connection
with interlocutory review shall be filed
with the Commission in accordance
with section 2700.76.
(4) After the Judge has issued a final
decision, documents shall be filed with
the Commission as described in
paragraph (b)(1) of this section.
■ 3. Revise § 2700.31 to read as follows:
§ 2700.31
Penalty settlement.
(a) General. A proposed penalty that
has been contested before the
Commission may be settled only with
the approval of the Commission upon
motion. A motion to approve a penalty
settlement shall include for each
violation the amount of the penalty
proposed by the Secretary, the amount
of the penalty agreed to in settlement,
and facts in support of the penalty
agreed to by the parties.
(b) Motion accompanied by proposed
order. In all penalty proceedings, except
for discrimination proceedings arising
under section 105(c) of the Mine Act, 30
U.S.C. 815(c), or proceedings against
individuals pursuant to section 110(c) of
the Mine Act, 30 U.S.C. 820(c), a
settlement motion must be accompanied
by a proposed order approving
settlement. Forms for proposed orders
approving settlement are available on
the Commission’s Web site (https://
www.fmshrc.gov).
(1) Certification. The party filing a
motion must certify that the opposing
party has reviewed the motion, and has
authorized the filing party to represent
that the opposing party consents to the
granting of the motion and the entry of
the proposed order approving
settlement.
(2) Appearance by CLR. If a motion
has been filed by a Conference and
Litigation Representative (‘‘CLR’’) on
behalf of the Secretary, the proposed
order approving settlement
accompanying the motion shall include
a provision in which the Judge accepts
the CLR to represent the Secretary in
accordance with the notice of either
limited or unlimited appearance
previously filed with the Commission.
(3) Filing and service of motion
accompanied by proposed order.
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21989
(i) Electronic filing. A motion and
proposed order shall be filed
electronically according to the
requirements set forth in this rule and
instructions on the Commission’s Web
site (https://www.fmshrc.gov). Filing is
effective upon the date of the electronic
transmission of the motion and
proposed order. The transmitting party
is responsible for retaining records
showing the date of transmission,
including receipts. Any signature line
set forth within a motion to approve
settlement submitted electronically
shall include the notation ‘‘/s/’’ followed
by the typewritten name of the party or
representative of the party filing the
document. Such representation of the
signature shall be deemed to be the
original signature of the representative
for all purposes unless the party
representative shows that such
representation of the signature was
unauthorized. See 29 CFR 2700.6. A
motion and proposed order filed
electronically constitute written
documents for the purpose of applying
the Commission’s procedural rules (29
CFR part 2700), and such rules apply
unless an exception to those rules is
specifically set forth in this rule. Any
copies of the motion and proposed order
which have been printed and placed in
the official case file by the Commission
shall have the same force and effect as
original documents.
(ii) Filing by non-electronic means. A
party may file a motion to approve
settlement and an accompanying
proposed order by non-electronic means
only with the permission of the Judge.
(iii) Service. A settlement motion and
proposed order shall be served on all
parties or their representatives as
expeditiously as possible. If a party
cannot be served by e-mail, facsimile
transmission, or commercial delivery, a
copy of the motion and proposed order
may be served by mail. A certificate of
service shall accompany the motion and
proposed order setting forth the date
and manner of service.
(4) Filing of motion and proposed
order prior to filing of petition. If a
motion to approve settlement and
proposed order is filed with the
Commission before the Secretary has
filed a petition for assessment of
penalty, the filing party must also
submit as attachments electronic copies
of the proposed penalty assessment and
citations and orders at issue. If such
attachments are filed, the Secretary need
not file a petition for assessment of
penalty.
(5) Non-acceptance of motion and
proposed order. If a party filing a
motion to approve settlement and a
proposed order fails to include in the
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motion and proposed order information
required by this rule and the
Commission’s instructions posted on
the Commission’s Web site, the
Commission will not accept for filing
the motion and proposed order. Rather,
the Commission will inform the filing
party of the need for correction and
resubmission.
(c) Final order. Any order by the
Judge approving a settlement shall set
forth the reasons for approval and shall
be supported by the record. Such order
shall become the final order of the
Commission 40 days after issuance
unless the Commission has directed that
the order be reviewed. A Judge may
correct clerical errors in an order
approving settlement in accordance
with the provisions of 29 CFR
2700.69(c).
Dated: April 21, 2010.
Mary Lu Jordan,
Chairman, Federal Mine Safety and Health
Review Commission.
Agency intends that the phrase, ‘‘Any
other accident,’’ as used in paragraph (d)
of MSHA’s standard at § 50.10 refers to:
• An entrapment of an individual for
more than 30 minutes; and
• Any other accident as defined in
§ 50.2(h)(4)–(12).
After reviewing the comments, MSHA
determined that they were not
‘‘significant adverse comments.’’
Therefore, the Agency did not withdraw
the direct final rule.
The comments can be viewed on
MSHA’s Web site at
https://www.msha.gov/REGS/Comments/
E9-30608/immediatenotify.asp.
Dated: April 21, 2010.
Joseph A. Main,
Assistant Secretary of Labor for Mine Safety
and Health.
[FR Doc. 2010–9675 Filed 4–26–10; 8:45 am]
BILLING CODE 4510–43–P
DEPARTMENT OF HOMELAND
SECURITY
[FR Doc. 2010–9689 Filed 4–26–10; 8:45 am]
BILLING CODE 6735–01–P
Regulatory Information
Coast Guard
DEPARTMENT OF LABOR
33 CFR Part 165
Mine Safety and Health Administration
[Docket No. USCG–2010–0271]
RIN 1625–AA00
30 CFR Parts 50 and 100
RIN 1219–AB63
Criteria and Procedures for Proposed
Assessment of Civil Penalties/
Reporting and Recordkeeping:
Immediate Notification of Accidents
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AGENCY: Mine Safety and Health
Administration (MSHA), Labor.
ACTION: Direct final rule; confirmation of
effective date.
SUMMARY: MSHA published a direct
final rule for parts 50 and 100 on
December 29, 2009. MSHA stated that
the Agency would withdraw the direct
final rule if the Agency received
significant adverse comments. Because
the Agency did not receive any
significant adverse comment, the direct
final rule became effective. This notice
confirms the effective date.
DATES: Effective Date: March 29, 2010.
FOR FURTHER INFORMATION CONTACT:
Patricia W. Silvey, Director, Office of
Standards, Regulations, and Variances,
MSHA, at silvey.patricia@dol.gov (email), 202–693–9440 (voice), or 202–
693–9441 (facsimile).
SUPPLEMENTARY INFORMATION: MSHA
received comments on the direct final
rule indicating that some members of
the mining industry misunderstood the
Agency’s intent. For clarification, the
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Safety Zone; Extended Debris Removal
in the Lake Champlain Bridge
Construction Zone (Between Vermont
and New York), Crown Point, NY
Coast Guard, DHS.
Temporary final rule.
AGENCY:
ACTION:
SUMMARY: The Coast Guard is
establishing a temporary safety zone on
the navigable waters immediately
surrounding the Lake Champlain Bridge
construction zone between Chimney
Point, VT and Crown Point, NY. This
rule re-establishes a safety zone that was
scheduled to expire prior to the
completion of the removal of debris
from the old Crown Point bridge
demolition. The debris must be cleared
from the navigable waterway prior to
opening the channel to vessel traffic.
This rule is necessary to provide safety
of life on the navigable waters within
this area during the demolition and
debris removal of the bridge piers
within this construction zone.
DATES: This rule is effective in the CFR
on April 27, 2010. This rule is effective
with actual notice for purposes of
enforcement from 12:01 a.m. on Friday,
April 16, 2010 through 11:59 p.m. on
Saturday, May 15, 2010.
ADDRESSES: Documents indicated in this
preamble as being available in the
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docket are part of docket USCG–2010–
0271 and are available online by going
to https://www.regulations.gov, inserting
USCG–2010–0271 in the ‘‘Keyword’’
box, and then clicking ‘‘Search.’’ They
are also available for inspection or
copying at the Docket Management
Facility (M–30), U.S. Department of
Transportation, West Building Ground
Floor, Room W12–140, 1200 New Jersey
Avenue, SE., Washington, DC 20590,
between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: If
you have questions on this temporary
rule, call or e-mail Lieutenant Junior
Grade Laura van der Pol, Coast Guard
Sector Northern New England,
Waterways Management Division;
telephone 207–741–5421, e-mail
Laura.K.vanderPol1@uscg.mil. If you
have questions on viewing the docket,
call Renee V. Wright, Program Manager,
Docket Operations, telephone 202–366–
9826.
SUPPLEMENTARY INFORMATION:
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The Coast Guard is issuing this
temporary final rule without prior
notice and opportunity to comment
pursuant to authority under section 4(a)
of the Administrative Procedure Act
(APA) (5 U.S.C. 553(b)). This provision
authorizes an agency to issue a rule
without prior notice and opportunity to
comment when the agency for good
cause finds that those procedures are
‘‘impracticable, unnecessary, or contrary
to the public interest.’’ Under 5 U.S.C.
553(b)(B), the Coast Guard finds that
good cause exists for not publishing a
notice of proposed rulemaking (NPRM)
with respect to this rule. The New York
State Department of Transportation
recently requested an extension to
deadline for removing the concrete piers
(6 and 7) which line the main channel
in Crown Point, NY. These piers can
only be effectively removed by
explosive charges, and both the piers
and subsequent debris must be removed
before the Coast Guard can reopen the
channel to all vessel traffic. The Coast
Guard did not receive notification of
delays in the debris removal operations
in sufficient time to complete a
comment period prior to the expiration
of the existing safety zone. As delaying
the demolition and debris removal
process is contrary to public interest,
and there is continued need to protect
waterway users from hazardous debris
in the navigational channel, a comment
period is both impractical and
unnecessary.
Under 5 U.S.C. 553(d)(3), the Coast
Guard finds that good cause exists for
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[Federal Register Volume 75, Number 80 (Tuesday, April 27, 2010)]
[Rules and Regulations]
[Pages 21987-21990]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-9689]
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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
29 CFR Part 2700
Penalty Settlement Procedure
AGENCY: Federal Mine Safety and Health Review Commission.
ACTION: Interim rule with request for comments.
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SUMMARY: The Federal Mine Safety and Health Review Commission (the
``Commission'') is an independent adjudicatory agency that provides
hearings and appellate review of cases arising under the Federal Mine
Safety and Health Act of 1977, or Mine Act. Hearings are held before
the Commission's Administrative Law Judges, and appellate review is
provided by a five-member Review Commission appointed by the President
and confirmed by the Senate. The Commission is adopting an interim rule
to streamline the process for settling civil penalties assessed under
the Mine Act.
DATES: The interim rule takes effect on May 27, 2010. The Commission
will accept written and electronic comments received on or before June
28, 2010.
ADDRESSES: Written comments should be mailed to Michael A. McCord,
General Counsel, Office of the General Counsel, Federal Mine Safety and
Health Review Commission, 601 New Jersey Avenue, NW., Suite 9500,
Washington, DC 20001, or sent via facsimile to 202-434-9944. Persons
mailing written comments shall provide an original and three copies of
their comments. Electronic comments should state ``Comments on Penalty
Settlement Rule'' in the subject line and be sent to
mmccord@fmshrc.gov.
FOR FURTHER INFORMATION CONTACT: Michael A. McCord, General Counsel,
Office of the General Counsel, 601 New Jersey Avenue, NW., Suite 9500,
Washington, DC 20001; telephone 202-434-9935; fax 202-434-9944.
SUPPLEMENTARY INFORMATION:
Background
Since 2006, the number of new cases filed with the Commission has
dramatically increased. From 2000 through 2005, an average of
approximately 2300 cases were filed with the Commission per year. In
2006 and 2007, between approximately 3000 and 4000 new cases were filed
each year, while in 2008 and 2009, approximately 9000 cases were filed
each year.
In order to deal with its burgeoning caseload, the Commission is
considering
[[Page 21988]]
various ways to streamline its processing of cases. One approach the
Commission has explored is to simplify how it processes civil penalty
settlements.
Under section 110(k) of the Mine Act, 30 U.S.C. 820(k), a proposed
civil penalty that has been contested before the Commission may be
settled only with the approval of the Commission. Under the
Commission's current practice, a party submits to a Commission
Administrative Law Judge a motion to approve a penalty settlement that
includes for each violation the amount of the penalty proposed by the
Department of Labor's Mine Safety and Health Administration, the amount
of the penalty agreed to in settlement, and facts in support of the
penalty agreed to by the parties. 29 CFR 2700.31(b). A Commission Judge
considers the motion and evaluates the penalty agreed to by the parties
based on the criteria set forth in section 110(i) of the Mine Act, 30
U.S.C. 820(i). If the Judge concludes that the settlement is consistent
with the statutory criteria, the Judge issues a decision approving the
settlement and setting forth the reasons for approval.
In all penalty proceedings, except for discrimination proceedings
arising under section 105(c) of the Mine Act, 30 U.S.C. 815(c), or
proceedings against individuals pursuant to section 110(c) of the Mine
Act, 30 U.S.C. 820(c), the interim rule sets forth several new
requirements regarding how parties file settlement motions with the
agency. First, it requires that a party filing a motion to approve a
penalty settlement submit a proposed decision approving settlement
(``proposed order'') with the motion. Second, it requires the filing
party to submit the motion and proposed order electronically. The basic
requirements for content of a motion to approve settlement still apply
in that a movant must include in a motion for each violation the amount
of the proposed penalty, the amount of the penalty agreed to in
settlement, and facts that support the penalty agreed to by the
parties. A filing party may set forth this information in the proposed
order and incorporate the proposed order by reference in the motion.
The interim rule includes a new requirement that the party filing the
motion certify that the opposing party has reviewed the motion and has
authorized the filing party to represent that the opposing party
consents to the granting of the motion and the entry of the proposed
order approving settlement. The interim rule also requires that, if a
motion has been filed by a Conference and Litigation Representative
(``CLR'') on behalf of the Secretary of Labor, the accompanying
proposed order must include a provision in which the Judge accepts the
CLR to represent the Secretary in accordance with the notice of either
limited or unlimited appearance previously filed with the Commission.
The content of orders approving settlement will vary depending upon
the particular facts and circumstances of each case. The Commission
will make sample forms for proposed orders approving settlement
available on the Commission's Web site (https://www.fmshrc.gov).
In all penalty proceedings, except discrimination and section
110(c) proceedings, parties will file any settlement motion
electronically by attaching electronic copies of the motion and
proposed order to an e-mail to the Commission. The e-mail address to
which settlement motions must be sent and instructions for filing are
set forth on the Commission's Web site (https://www.fmshrc.gov). The
Commission expects that the electronic submission of such settlement
motions with proposed orders will significantly reduce the amount of
time it takes for the Commission to dispose of settlement motions.
Electronic filing is effective upon the date of transmission. The
transmitting party has the responsibility of retaining records showing
the date of transmission, including receipts. Filers should request a
delivery receipt when filing electronically with the Commission using
the option for a delivery receipt, if available on the filer's e-mail
program. This receipt is automatically generated when the e-mail is
delivered to the Commission's e-mail server. Parties may also use the
option of a read receipt, which is generated when the e-mail is opened.
Any signature line set forth within a motion to approve settlement
submitted electronically must include the notation ``/s/'' followed by
the typewritten name of the party or representative of the party filing
the document. The Commission shall consider such a representation of
the signature to be the original signature of the representative for
all purposes unless the party representative shows that such
representation of the signature was unauthorized. See 29 CFR 2700.6.
Although the interim rule requires electronic filing, the Commission
may allow a party to file non-electronically with the permission of the
Judge.
The interim rule requires that a copy of a motion and proposed
order be served on the opposing party as expeditiously as possible. The
Commission recognizes that some parties may not have the capability of
being served with the motion and proposed order by e-mail, facsimile
transmission, or commercial delivery. Under such circumstances, the
filing party may serve the motion and proposed order on the opposing
party by mail. Permission of the Judge is unnecessary for service by
non-electronic means.
Currently, there are instances in which the Secretary files a
motion to approve settlement before the Secretary has filed a petition
for assessment of penalty. Some of those instances occur when the
Commission has granted the Secretary an extension of time to file the
petition, and the case settles before the petition is due under the
extension. When a case settles before the Secretary has filed a
petition, the Commission requires the filing party to file a copy of
the proposed penalty assessment and copies of the citations and/or
orders with the motion to approve settlement and does not require the
Secretary to file the petition. The interim rule continues this
practice. Thus, under the interim rule, if the filing party
electronically files a motion to approve settlement and proposed order
before the Secretary has filed a petition for assessment of penalty,
the filing party must also file as attachments electronic copies of the
proposed penalty assessment and citations and orders at issue. Under
such circumstances, the Secretary need not file a petition for
assessment of penalty.
The interim rule also provides that if a party filing a motion to
approve settlement and proposed order fails to include in the motion
and proposed order information required by this rule and the
Commission's instructions on its Web site, the Commission will not
accept for filing the motion and proposed order. Rather, the Commission
will inform the filing party of the need for correction and
resubmission.
Discrimination proceedings and section 110(c) proceedings are
specifically excepted from paragraph (b) of the Commission's new
interim rule. The Commission's current practice shall continue to apply
to such proceedings. Thus, in discrimination or section 110(c)
proceedings, a party will submit a hard paper copy of a motion to
approve settlement to the Judge that includes for each violation the
amount of the proposed penalty, the amount of the penalty agreed to in
settlement, and the supporting facts. Filing and service in such
proceedings shall be accomplished in accordance with the provisions of
29 CFR 2700.5 and 2700.7.
[[Page 21989]]
Notice and Public Procedure
Although notice-and-comment rulemaking requirements under the
Administrative Procedure Act (``APA'') do not apply to rules of agency
procedure (see 5 U.S.C. 553(b)(3)(A)), the Commission invites members
of the interested public to submit comments on the interim rule in
order to assist the Commission in its deliberations regarding the
adoption of a permanent rule. The Commission will accept public
comments until June 28, 2010.
The Commission is an independent regulatory agency and, as such, is
not subject to the requirements of E.O. 12866, E.O. 13132, or the
Unfunded Mandates Reform Act, 2 U.S.C. 1501 et seq.
The Commission has determined under the Regulatory Flexibility Act
(5 U.S.C. 601 et seq.) that this rule would not have a significant
economic impact on a substantial number of small entities. Therefore, a
Regulatory Flexibility Statement and Analysis has not been prepared.
The Commission has determined that the Paperwork Reduction Act (44
U.S.C. 3501 et seq.) does not apply because this rule does not contain
any information collection requirements that require the approval of
the OMB.
The Commission has determined that the Congressional Review Act, 5
U.S.C. 801, is not applicable here because, pursuant to 5 U.S.C.
804(3)(C), this rule ``does not substantially affect the rights or
obligations of non-agency parties.''
List of Subjects in 29 CFR Part 2700
Administrative practice and procedure, Mine safety and health,
Penalties, Whistleblowing.
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For the reasons stated in the preamble, the Federal Mine Safety and
Health Review Commission amends 29 CFR part 2700 as follows:
PART 2700--PROCEDURAL RULES
0
1. The authority citation for part 2700 continues to read as follows:
Authority: 30 U.S.C. 815, 820, 823, and 876.
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2. Section 2700.5 is amended by revising paragraph (b) to read as
follows:
Sec. 2700.5 General requirements for pleadings and other documents;
status or informational requests.
* * * * *
(b) Where to file. Unless otherwise provided for in the Act, these
rules, or by order:
(1) Until a Judge has been assigned to a case, all documents shall
be filed with the Commission. Documents filed with the Commission shall
be addressed to the Executive Director and mailed or delivered to the
Docket Office, Federal Mine Safety and Health Review Commission, 601
New Jersey Avenue, NW., Suite 9500, Washington, DC 20001; facsimile
delivery as allowed by these rules (see section 2700.5(e)), shall be
transmitted to (202) 434-9954.
(2) After a Judge has been assigned, and before a decision has been
issued, documents shall be filed with the Judge at the address set
forth on the notice of the assignment.
(3) Documents filed in connection with interlocutory review shall
be filed with the Commission in accordance with section 2700.76.
(4) After the Judge has issued a final decision, documents shall be
filed with the Commission as described in paragraph (b)(1) of this
section.
0
3. Revise Sec. 2700.31 to read as follows:
Sec. 2700.31 Penalty settlement.
(a) General. A proposed penalty that has been contested before the
Commission may be settled only with the approval of the Commission upon
motion. A motion to approve a penalty settlement shall include for each
violation the amount of the penalty proposed by the Secretary, the
amount of the penalty agreed to in settlement, and facts in support of
the penalty agreed to by the parties.
(b) Motion accompanied by proposed order. In all penalty
proceedings, except for discrimination proceedings arising under
section 105(c) of the Mine Act, 30 U.S.C. 815(c), or proceedings
against individuals pursuant to section 110(c) of the Mine Act, 30
U.S.C. 820(c), a settlement motion must be accompanied by a proposed
order approving settlement. Forms for proposed orders approving
settlement are available on the Commission's Web site (https://www.fmshrc.gov).
(1) Certification. The party filing a motion must certify that the
opposing party has reviewed the motion, and has authorized the filing
party to represent that the opposing party consents to the granting of
the motion and the entry of the proposed order approving settlement.
(2) Appearance by CLR. If a motion has been filed by a Conference
and Litigation Representative (``CLR'') on behalf of the Secretary, the
proposed order approving settlement accompanying the motion shall
include a provision in which the Judge accepts the CLR to represent the
Secretary in accordance with the notice of either limited or unlimited
appearance previously filed with the Commission.
(3) Filing and service of motion accompanied by proposed order.
(i) Electronic filing. A motion and proposed order shall be filed
electronically according to the requirements set forth in this rule and
instructions on the Commission's Web site (https://www.fmshrc.gov).
Filing is effective upon the date of the electronic transmission of the
motion and proposed order. The transmitting party is responsible for
retaining records showing the date of transmission, including receipts.
Any signature line set forth within a motion to approve settlement
submitted electronically shall include the notation ``/s/'' followed by
the typewritten name of the party or representative of the party filing
the document. Such representation of the signature shall be deemed to
be the original signature of the representative for all purposes unless
the party representative shows that such representation of the
signature was unauthorized. See 29 CFR 2700.6. A motion and proposed
order filed electronically constitute written documents for the purpose
of applying the Commission's procedural rules (29 CFR part 2700), and
such rules apply unless an exception to those rules is specifically set
forth in this rule. Any copies of the motion and proposed order which
have been printed and placed in the official case file by the
Commission shall have the same force and effect as original documents.
(ii) Filing by non-electronic means. A party may file a motion to
approve settlement and an accompanying proposed order by non-electronic
means only with the permission of the Judge.
(iii) Service. A settlement motion and proposed order shall be
served on all parties or their representatives as expeditiously as
possible. If a party cannot be served by e-mail, facsimile
transmission, or commercial delivery, a copy of the motion and proposed
order may be served by mail. A certificate of service shall accompany
the motion and proposed order setting forth the date and manner of
service.
(4) Filing of motion and proposed order prior to filing of
petition. If a motion to approve settlement and proposed order is filed
with the Commission before the Secretary has filed a petition for
assessment of penalty, the filing party must also submit as attachments
electronic copies of the proposed penalty assessment and citations and
orders at issue. If such attachments are filed, the Secretary need not
file a petition for assessment of penalty.
(5) Non-acceptance of motion and proposed order. If a party filing
a motion to approve settlement and a proposed order fails to include in
the
[[Page 21990]]
motion and proposed order information required by this rule and the
Commission's instructions posted on the Commission's Web site, the
Commission will not accept for filing the motion and proposed order.
Rather, the Commission will inform the filing party of the need for
correction and resubmission.
(c) Final order. Any order by the Judge approving a settlement
shall set forth the reasons for approval and shall be supported by the
record. Such order shall become the final order of the Commission 40
days after issuance unless the Commission has directed that the order
be reviewed. A Judge may correct clerical errors in an order approving
settlement in accordance with the provisions of 29 CFR 2700.69(c).
Dated: April 21, 2010.
Mary Lu Jordan,
Chairman, Federal Mine Safety and Health Review Commission.
[FR Doc. 2010-9689 Filed 4-26-10; 8:45 am]
BILLING CODE 6735-01-P
