Penalty Settlement Procedure, 73955-73958 [2010-30117]

Agencies

• Federal Mine Safety and Health Review Commission

[Federal Register Volume 75, Number 229 (Tuesday, November 30, 2010)]
[Rules and Regulations]
[Pages 73955-73958]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-30117]


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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: Final rule.

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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 publishing a final rule 
to streamline the process for settling civil penalties assessed under 
the Mine Act.

DATES: The final rule takes effect on December 30, 2010. The Commission 
will accept written and electronic comments received on or before 
December 15, 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

    On April 27, 2010, the Commission published in the Federal Register 
an interim rule regarding the Commission's civil penalty settlement 
procedures. 75 FR 21987. The Commission explained that since 2006, the 
number of new cases filed with the Commission has dramatically 
increased, and that in order to deal with that burgeoning caseload, the 
Commission is considering methods to simplify how it processes civil 
penalty settlements. The interim rule became effective on May 27, 2010, 
and the Commission accepted comments on the rule through June 28, 2010. 
The Commission received comments from the Secretary of Labor (the 
``Secretary'') through the U.S. Department of Labor's Office of the 
Solicitor, individual Conference and Litigation Representatives 
(``CLRs''), and a few members of the mining community.
    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 practice prior to the effective date of the interim rule, 
a party submitted to a Commission Administrative Law Judge a motion to 
approve a penalty settlement that included for each violation the 
amount of the penalty proposed by the Department of Labor's Mine Safety 
and Health Administration (``MSHA''), 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) (2009). A Commission Judge considered the 
motion and evaluated 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 concluded that the settlement was consistent with the 
statutory criteria, the Judge issued a decision approving the 
settlement and setting forth the reasons for approval.
    The interim rule changed the current procedure by adding two new 
requirements. First, 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 
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

[[Page 73956]]

for content of a motion to approve settlement are relatively unchanged 
in that the interim rule requires that a movant include in the 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. The Commission explained in the preamble to 
the interim rule that 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 also includes a new requirement that the party 
filing the 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. In addition, the interim rule 
requires that, if a motion had been filed by a 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 Commission has made sample 
forms for proposed orders approving settlement available on the 
Commission's Web site (https://www.fmshrc.gov).
    The interim rule provides that in all penalty proceedings, except 
discrimination and section 110(c) proceedings, parties must file any 
settlement motion electronically in accordance with the rule and the 
Commission's Web site instructions. The Commission provides in the 
interim rule that a party may file non-electronically only with the 
permission of the Judge.
    The interim rule further requires that a copy of a motion and 
proposed order be served on the opposing party as expeditiously as 
possible. In recognition 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, the interim rule provides that, 
in such circumstances, the filing party may serve the motion and 
proposed order on the opposing party by mail.
    The interim rule also provides that if a party filing a motion to 
approve settlement and proposed order fails to include required 
information in the motion and proposed order, 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.
    As previously mentioned, before the interim rule became effective 
parties were required to include in a motion to approve settlement the 
amount of the proposed penalty, the amount of the penalty agreed to in 
settlement, and facts in support of the penalty agreed to by the 
parties. The final rule provides that such factual support must be 
submitted in the motion to approve settlement and proposed order. 
However, in order to minimize any extra work required of parties, the 
Commission has clarified in the final rule that a filing party need 
only submit the amount of the proposed penalty, the amount of the 
penalty agreed to in settlement, and facts in support of the penalty 
agreed to by the parties in the proposed order, and may incorporate 
that factual support by reference in the motion. Thus, the parties need 
to provide the factual support for a settlement only in one document 
filed with the Commission, as was the practice before the interim rule 
became effective.
    It is important to emphasize that the Commission intends for each 
proposed order to be able to stand alone as a description of the 
settlement and reasons for any approval of the settlement without 
reference to the motion. Thus, although the motion may be brief and 
incorporate by reference the factual support set forth in detail in the 
proposed order, the reverse is not true. A party may not submit a brief 
order that incorporates by reference the factual support set forth in 
detail in the motion. If a party submits a motion that contains 
detailed factual support and a proposed order that merely incorporates 
by reference the detailed information provided in the motion, the 
Commission will not accept the motion and proposed order for filing in 
accordance with the provisions of paragraph (f) of the final rule. The 
proposed order must set forth the amount of the proposed penalty, the 
amount of the penalty agreed to in settlement, and facts in support of 
the penalty agreed to by the parties.
    Although motions may be submitted in PDF format, it is important 
that proposed orders not be submitted in PDF format. Judges are unable 
to make electronic changes to proposed orders that are submitted in PDF 
format. The Commission will be able to process settlements more 
efficiently if orders are submitted in a format in which the Judge may 
easily make any necessary changes.
    Commenters have also complained that they are having technical 
difficulties with the forms available on the Commission's Web site, and 
that the interim rule is ambiguous as to whether parties are required 
to use the forms. The Secretary suggested that the final rule should 
clarify that the proposed order does not have to conform to one of the 
templates on the Commission's Web site as long as the proposed order 
includes the required information. The Secretary also commented that 
the final rule should require that the proposed order include language 
telling operators where to send penalty checks.
    The Commission has clarified in the final rule that parties are not 
required to use the proposed order forms available on the Commission's 
Web site. The final rule provides, however, that if a proposed order 
fails to include pertinent information, the motion and proposed order 
may be rejected for filing by the Commission in accordance with 
paragraph (f) of the final rule. The Commission has not included in the 
final rule a requirement that a proposed order must include language 
telling operators where to send penalty checks. Such language is 
provided in the Commission's proposed order forms, however. The 
Commission notes that parties may include such language in the proposed 
orders even if they do not use the forms.
    As to the certification requirement set forth in the interim rule, 
the Secretary commented that her attorneys and CLRs have difficulty 
verifying that operators have actually reviewed the settlement. She 
suggests that the purpose of the rule, i.e., streamlining the 
settlement of penalty proceedings, would be better served if the filing 
party were only required to certify that the opposing party has 
authorized the granting of the motion and the entry of the proposed 
order.
    In a related comment, a member of the mining community stated that 
on occasion CLRs have unilaterally filed ``joint'' settlement motions 
that have not been reviewed or approved by the operator. The commenter 
suggested that the Commission should require that any settlement 
motions must either be signed by both parties' representatives or, 
prior to filing, a settlement motion and proposed order must be 
submitted to the opposing party for review at least three business days 
prior to filing.
    The Commission agrees with these comments and has revised the 
language of the rule accordingly. The final rule provides that the 
party filing a motion must certify that the opposing party has 
authorized the granting of the motion and the entry of the proposed 
order. The final rule does not require a certification that the 
opposing party has reviewed the motion and proposed order. In order to 
ensure that an opposing party has reviewed the motion and proposed

[[Page 73957]]

order, the Commission has added a provision to the final rule requiring 
that a settlement motion and proposed order must be served on all 
parties or if the parties are represented, on their representatives, at 
least five business days before the motion and proposed order are filed 
with the Commission. The Commission has included a five-day requirement 
rather than a three-day requirement in order to provide as much review 
time as possible to the parties, particularly if the settlement motion 
and proposed order are served by mail. The Commission notes that both 
the five-day service requirement and the certification requirement 
apply in every case where a settlement motion and proposed order are 
filed.
    The Secretary commented that the final rule should clarify that 
before filing a settlement motion on behalf of the Secretary, a CLR 
does not need to have obtained Commission authorization to represent 
the Secretary in that proceeding. The Commission has included that 
change in the final rule.
    One commenter stated that section 110(c) proceedings are frequently 
consolidated with, and/or are settled with, the related civil penalty 
proceeding against the operator. The commenter stated that in such 
circumstances, it makes sense to discuss the settlement of both cases 
in a single motion. The commenter suggested that section 110(c) 
proceedings should be covered by the final rule and should not be 
specifically excluded. The Commission agrees and has made this change. 
Thus, discrimination cases are the only cases in which a party must 
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. In discrimination proceedings, a proposed order need not be 
submitted. Filing and service in discrimination proceedings shall be 
accomplished in accordance with the provisions of 29 CFR 2700.5 and 
2700.7.

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 final rule. The 
Commission will accept public comments until December 15, 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.

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 continues to read as follows:

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


0
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. Section 2700.31 is revised 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. In all penalty proceedings, except for discrimination 
proceedings arising under section 105(c) of the Mine Act, 30 U.S.C. 
815(c), a settlement motion must be accompanied by a proposed order 
approving settlement. In discrimination proceedings, a party shall file 
a motion to approve settlement that includes the factual support 
described in paragraph (b)(1) of this section, and that shall be filed 
and served in accordance with the provisions of 29 CFR 2700.5 and 
2700.7, respectively. In discrimination proceedings, a party need not 
file a proposed order.
    (b) Content of motion.
    (1) Factual support. 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. Rather than setting 
forth such information in detail, the motion may incorporate by 
reference the information which has been included in the accompanying 
proposed order as required by paragraph (c)(1) of this section.
    (2) Certification. The party filing a motion must certify that the 
opposing party 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.
    (c) Content of proposed order.
    (1) Factual support. A proposed order approving 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. Forms for proposed orders approving settlement are available 
on the Commission's Web site (https://www.fmshrc.gov). Although parties 
are not required to use the forms on the Commission's Web site, if 
proposed orders fail to include pertinent information, the motion and 
proposed order may be rejected for filing by the Commission in 
accordance with paragraph (f) of this section. Proposed

[[Page 73958]]

orders shall not be submitted in PDF format.
    (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. A CLR does not need to 
obtain authorization from the Commission to represent the Secretary 
before the CLR files a motion to approve settlement and proposed order.
    (d) Filing and service of motion accompanied by proposed order.
    (1) 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.
    (i) Signatures. 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.
    (ii) Status of documents. 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.
    (2) 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.
    (3) Service. A settlement motion and proposed order shall be served 
on all parties or, if parties are represented, upon their 
representatives, by the most expeditious means possible and at least 
five business days before the motion and proposed order are filed with 
the Commission. 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.
    (e) 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.
    (f) 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 motion and proposed order pertinent 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.
    (g) 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: November 23, 2010.
Mary Lu Jordan,
Chairman, Federal Mine Safety and Health Review Commission.
[FR Doc. 2010-30117 Filed 11-29-10; 8:45 am]
BILLING CODE 6735-01-P