Federal Register / Vol. 75, No. 248 / Tuesday, December 28, 2010 / Rules and Regulations 81459 

Unfunded Mandates Reform Act of 

1995 

The rules will not cause State, local, 

or tribal governments, or the private 

sector, to spend $100,000,000 or more in 

any one year, and it will not 

significantly or uniquely affect small 

governments. No action under the 

Unfunded Mandates Reform Act of 1995 

is necessary. 

Small Business Regulatory Enforcement 

Fairness Act of 1996 (Subtitle E— 

Congressional Review Act) 

These rules are not ‘‘major rules’’ as 

defined by Section 804 of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996 Subtitle E— 

Congressional Review Act), now 

codified at 5 U.S.C. 804(2). The rules 

will not result in an annual effect on the 

economy of $100,000,000 or more; a 

major increase in costs or prices; or 

significant adverse effects on the ability 

of United States-based companies to 

compete with foreign-based companies. 

Moreover, these are rules of agency 

practice or procedure that do not 

substantially affect the rights or 

obligations of non-agency parties, and 

do not come within the meaning of the 

term ‘‘rule’’ as used in Section 804(3)(C), 

now codified at 5 U.S.C. 804(3)(C). 

Therefore, the reporting requirement of 

5 U.S.C. 801 does not apply. 

List of Subjects in 28 CFR Part 2 

Administrative practice and 

procedure, Prisoners, Probation and 

parole. 

The Final Rule 

■ Accordingly, the U. S. Parole 

Commission is adopting the following 

amendment to 28 CFR part 2. 

PART 2—[AMENDED] 

■ 1. The authority citation for 28 CFR 

part 2 continues to read as follows: 

Authority: 18 U.S.C. 4203(a)(1) and 

4204(a)(6). 

■ 2. Revise § 2.17 (b) to read as follows: 

§ 2.17 Original jurisdiction cases. 

(a) * * * 

(b) A Commissioner may designate a 

case as an original jurisdiction case if 

the case involves an offender: 

(1) Who committed a serious crime 

against the security of the nation; 

(2) Whose offense behavior included 

an unusual degree of sophistication or 

planning or was part of a large scale 

criminal conspiracy or continuing 

criminal enterprise; 

(3) Who received national or unusual 

attention because of the nature of the 

crime, arrest, trial, or prisoner status, or 

because of the community status of the 

offender or a victim of the crime; 

(4) Whose offense behavior caused the 

death of a law enforcement officer while 

the officer was in the line of duty; or 

(5) Who was sentenced to a maximum 

term of at least 45 years or life 

imprisonment. 

* * * * * 

■ 3. Revise § 2.63 by designating the 

existing text as paragraph (a) and adding 

paragraph (b) as follows: 

§ 2.63 Quorum. 

(a) * * * 

(b)(1) In the event of a tie vote of the 

Commission’s membership on a matter, 

the matter that is the subject of the vote 

is not adopted by the Commission. 

(2) If the matter that is the subject of 

the tie vote is the disposition of an 

offender’s case, then the result of the tie 

vote is the offender’s status quo ante, 

i.e., no action is taken that is more 

favorable or more adverse regarding the 

offender. If in an earlier decision the 

Commission has given an offender a 

presumptive release date or a date for a 

15-year reconsideration hearing, then 

the result of the tie vote is no change in 

the presumptive date or the date of the 

15-year reconsideration hearing. If an 

offender is facing possible parole 

rescission or revocation, the result of the 

tie vote is the offender’s retention of the 

parole effective date or the offender’s 

return to supervision. Exception: If there 

is a tie vote in making one of the 

findings required by § 2.53 in a 

mandatory parole determination, the 

result of the tie vote is that the prisoner 

must be granted mandatory parole. 

(3) The Commission may re-vote on a 

case disposition to resolve a tie vote or 

other impasse in satisfying a voting 

requirement of these rules. 

Dated: December 21, 2010. 

Isaac Fulwood, 

Chairman, United States Parole Commission. 

[FR Doc. 2010–32596 Filed 12–27–10; 8:45 am] 

BILLING CODE 4410–31–P 

FEDERAL MINE SAFETY AND HEALTH 

REVIEW COMMISSION 

29 CFR Part 2700 

Simplified Proceedings 

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, 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 

simplify the procedures for handling 

certain civil penalty proceedings. 

DATES: The final rule takes effect on 

March 1, 2011. The Commission will 

accept written and electronic comments 

received on or before January 12, 2011. 

ADDRESSES: Written comments should 

be mailed to Michael A. McCord, 

General Counsel, Office of the General 

Counsel, Federal Mine Safety and 

Health Review Commission, 601 New 

Jersey Avenue, NW., Suite 9500, 

Washington, DC 20001, or sent via 

facsimile to 202–434–9944. Persons 

mailing written comments shall provide 

an original and three copies of their 

comments. Electronic comments should 

state ‘‘Comments on Simplified 

Proceedings’’ in the subject line and be 

sent to 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 May 20, 2010, the Commission 

published in the Federal Register a rule 

proposing Simplified Proceedings in 

certain civil penalty proceedings. 75 FR 

28223. 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 and streamline its 

procedures for handling certain civil 

penalty proceedings. 

The Commission invited comments 

on the proposed rule through June 21, 

2010. The Commission received 

comments from: (1) The Law Offices of 

Adele L. Abrams; (2) the United Mine 

Workers of America; (3) the Secretary of 

Labor through the Office of the Solicitor 

(‘‘MSHA’’ or the ‘‘Secretary’’); (4) Public 

Citizen; (5) Industrial Minerals 

Association-North America; (6) Alliance 

Coal, LLC; (7) Chris Barber; (8) Arch 

Coal, Inc.; (9) Jackson Kelly PLLC; and 

(10) Imerys. 

The major differences between the 

simplified procedures set forth in the 

proposed rule and current conventional 


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81460 Federal Register / Vol. 75, No. 248 / Tuesday, December 28, 2010 / Rules and Regulations 

procedures were that, under the 

proposed simplified procedures, 

answers to petitions for assessment of 

penalty would not be required; motions 

would be eliminated to the greatest 

extent practicable; early discussions 

among the parties and the Commission 

Administrative Law Judge (‘‘Judge’’) 

would be required to narrow and define 

the disputes between parties; parties 

would be required to disclose certain 

materials early in the proceedings; 

discovery would not be permitted 

except as ordered by the Judge; 

interlocutory appeals would not be 

permitted; and post-hearing briefs 

would not be allowed, except as ordered 

by the Judge. Although the 

administrative process would be 

streamlined, hearings would remain full 

due process hearings as they are under 

conventional procedures. The proposed 

rule is unchanged in many ways, and 

the characteristics of Simplified 

Proceedings described above also are 

present in this final rule. 

Pilot Program 

A commenter suggested that the 

Commission should implement 

Simplified Proceedings as a pilot 

program and then conduct an 

independent evaluation of whether the 

new procedures were successful in 

streamlining and simplifying cases 

before finalizing the Simplified 

Proceedings rule. The Commission 

agrees that Simplified Proceedings 

should be implemented as a pilot 

program for a finite period of time. 

Accordingly, this final rule shall be 

implemented as a pilot program for nine 

to twelve months. During the pilot 

program, the Commission will gather 

information to assess the success of 

Simplified Proceedings (e.g., comparing 

how long it takes to process cases under 

Simplified Proceedings compared to 

processing under conventional 

procedures, and whether there is any 

beneficial impact on the Commission’s 

backlog of undecided cases). The 

Commission intends to publish the 

results of its pilot program and request 

comments regarding the regulated 

community’s experience with 

Simplified Proceedings. These 

comments and the information gathered 

from the Commission during the pilot 

program will form the basis of any 

future final Simplified Proceedings rule. 

Eligibility 

The Commission proposed various 

characteristics to describe which cases 

might be eligible for Simplified 

Proceedings. Under the proposed rule, 

cases designated for Simplified 

Proceedings by the Chief Judge or the 

Judge’s designee would not involve 

complex issues of law or fact and would 

generally include one or more of the 

following characteristics: (1) Limited 

number of citations; (2) an aggregate 

proposed penalty of not more than 

$15,000 per docket and not more than 

$50,000 per proceeding; (3) no citation 

or order issued under sections 104(b), 

104(d), 104(e), 105(c), 107(a), 110(b), 

110(c), or 111 of the Mine Act; (4) not 

involving a fatality; or (5) a hearing that 

is expected to take not more than one 

day. 

In the preamble to the proposed rule, 

the Commission discussed the difficulty 

in describing the criteria for eligibility 

for Simplified Proceedings, noting that 

it would be useful for the Commission 

to consider, at an early stage, all of the 

contested civil penalties that might be at 

issue in a single hearing. The 

Commission explained that it plans to 

review each petition for assessment of 

penalty and proposed penalty 

assessment form in its consideration of 

whether a case is appropriate for 

Simplified Proceedings. MSHA 

currently groups citations and orders 

and their proposed penalties on a 

proposed penalty assessment form 

based upon a 30-day billing cycle. 

Under MSHA’s current practice for 

grouping citations and orders, the 

Commission would not have a complete 

view of all of the contested penalties 

that may be relevant in a particular 

hearing. Accordingly, the Commission 

requested suggestions regarding criteria 

that might be used to better group 

proposed penalties and the underlying 

citations and orders. 

Industry commenters suggested that 

citations and orders should be grouped 

by inspection on a proposed assessment 

form. MSHA agreed that citations and 

orders should be grouped by inspection 

(which MSHA designates by an ‘‘event 

number’’), and further by inspector 

where more than one inspector is 

involved in an inspection. 

The Commission also received 

comments suggesting that some factors 

should be added to make more cases 

eligible for Simplified Proceedings, such 

as that cases should be included in 

which parties mutually agree to opt-in 

to Simplified Proceedings. The 

Commission received other suggestions 

for excluding cases from Simplified 

Proceedings, such as that cases should 

be excluded if they involve special 

assessments, pure legal issues, expert 

witnesses, and the occurrence of injury 

or illness. Commenters had varying 

opinions on the number of citations, 

penalty amount, and hearing length that 

should make a case eligible for 

Simplified Proceedings. 

The Commission agrees that, prior to 

docketing, citations and orders for some 

cases should be grouped by inspection, 

and further by inspector where more 

than one inspector is involved in an 

inspection. The Commission should 

then have a clearer picture of the 

citations and orders that might be at 

issue in a hearing and whether the case 

is appropriate for Simplified 

Proceedings. The Commission has 

conferred with MSHA regarding the 

grouping of citations and orders. We 

expect this grouping to occur prior to 

the effective date of this final rule. 

As to eligibility criteria for Simplified 

Proceedings, the Commission has 

concluded that cases designated for 

Simplified Proceedings shall not 

involve fatalities or the occurrence of 

injuries or illnesses. Furthermore, cases 

designated for Simplified Proceedings 

will generally include one or more of 

the following characteristics: (1) The 

case involves only citations issued 

under section 104(a) of the Mine Act; (2) 

the proposed penalties were not 

specially assessed under 30 CFR 100.5; 

(3) the case does not involve complex 

issues of law or fact; (4) the case 

involves a limited number of citations to 

be determined by the Chief Judge or his 

designee; (5) the case involves a limited 

penalty amount to be determined by the 

Chief Judge or his designee; (6) the case 

will involve a hearing of limited 

duration to be determined by the Chief 

Judge or his designee; (7) the case does 

not involve only legal issues; and (8) the 

case does not involve expert witnesses. 

Information gathered during the pilot 

program may better clarify appropriate 

criteria for Simplified Proceedings 

eligibility. 

Designation of Case for Simplified 

Proceedings 

The Commission proposed that a civil 

penalty proceeding would be designated 

for Simplified Proceedings by the Chief 

Judge or the Judge’s designee. Under 

proposed section 2700.102, after a case 

has been designated for Simplified 

Proceedings, the Commission would 

issue a notice of designation to the 

parties, which would also provide 

certain information, such as contact 

information for the Judge assigned to the 

case, including the Judge’s e-mail 

address. In addition, parties would be 

required to file a notice of appearance 

providing specific contact information 

for the counsel or representative acting 

on behalf of the party, if that 

information had not already been 

provided. The operator would not be 

required to file an answer to the petition 

for assessment of civil penalty. 


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Federal Register / Vol. 75, No. 248 / Tuesday, December 28, 2010 / Rules and Regulations 81461 

Under proposed section 2700.103, 

even if a case had not been designated 

for Simplified Proceedings by the Chief 

Judge or the Judge’s designee, a party 

had the opportunity to request that a 

case be designated. The Commission 

proposed that the request would need to 

be in writing and state whether the 

request is opposed. The request would 

also address the characteristics specified 

in the rule that make the case 

appropriate for designation. If a request 

for designation were granted, under the 

proposed rule, the parties would be 

required to file and serve notices of 

appearance providing specific contact 

information unless such contact 

information had already been provided. 

Under the proposed rule, if a party 

requested Simplified Proceedings, the 

deadline for filing an answer to a 

petition for assessment of penalty would 

be suspended. If a request were denied, 

the time for filing an answer would 

begin to run upon issuance of the 

Judge’s order denying the request. 

The Commission received comments 

suggesting that the decision to opt-in to 

Simplified Proceedings should be 

exclusively controlled by the parties. 

Some commenters also suggested that 

parties should be able to opt-in to 

Simplified Proceedings at any time, that 

all cases should be eligible for 

Simplified Proceedings, and that any 

request to opt-in should be consented to 

by all parties. 

The Commission has declined to 

adopt these suggestions and has made 

very few changes to proposed sections 

2700.102 and 2700.103. Similar to the 

Simplified Proceedings rule adopted by 

the Occupational Safety and Health 

Review Commission (‘‘OSHRC’’) (see 29 

CFR 2200.203), the Commission 

concludes that some cases that meet 

certain criteria should be designated for 

Simplified Proceedings by the 

Commission, and that the decision to 

opt-in should not be within the 

exclusive control of the parties. If a 

party disagrees with a case’s designation 

for Simplified Proceedings, the party 

may file a motion to opt-out pursuant to 

section 2700.104. The Commission has 

further determined that parties should 

not be able to automatically opt-in to 

Simplified Proceedings in any type of 

case even with the mutual consent of all 

parties. However, a mutual request to 

opt-in involving a case that does not 

meet the eligibility criteria may be 

granted at the discretion of the Judge. 

Regarding the timing of a party’s request 

for Simplified Proceedings, proposed 

section 2700.103 did not set forth a 

specific time for when a party must file 

its request for Simplified Proceedings, 

and a deadline has not been set forth in 

the final rule. The Commission is not 

requiring that all requests to opt-in must 

be consented to by all parties. Finally, 

the Commission has determined that 

paragraph (d) should be revised to 

conform more closely with the language 

of section 2700.100(b)(1). 

Discontinuance of Simplified 

Proceedings 

Under proposed section 2700.104, if it 

became apparent at any time that a case 

was not appropriate for Simplified 

Proceedings, the assigned Judge could 

discontinue Simplified Proceedings 

upon the Judge’s own motion or upon 

the motion of any party. A party would 

have the opportunity to move to 

discontinue the Simplified Proceedings 

at any time during the proceedings but 

no later than 30 days before the 

scheduled hearing. The moving party 

would be required to confer with the 

other parties and state in the motion if 

any other party opposes or does not 

oppose the motion. Parties opposing the 

motion would have eight business days 

after service of the motion to file an 

opposition. The Commission proposed 

that if Simplified Proceedings were 

discontinued, the Judge would issue 

such orders as are necessary for an 

orderly continuation under 

conventional rules. 

The Commission received some 

comments suggesting that opting-out of 

Simplified Proceedings should be 

exclusively controlled by the parties, 

while other comments expressed 

agreement with the language proposing 

that opting-out should be within the 

discretion of the Judge. Another 

commenter suggested that more 

information should be provided 

regarding the grounds for a Judge’s 

decision to discontinue Simplified 

Proceedings. 

The Commission has concluded that 

the rule should be adopted as proposed. 

However, if the pilot program reveals 

that revisions should be made to the 

process for discontinuing Simplified 

Proceedings, the Commission will 

consider making those revisions. 

Pre-Hearing Exchange of Information 

The Commission proposed in section 

2700.107 that discovery would ‘‘only be 

allowed under the conditions and time 

limits set by the Judge.’’ Rather than 

requiring the disclosure of documents 

and materials through discovery, the 

Commission proposed a more 

expeditious means for disclosure 

through the mandatory exchange of 

documents and materials and through a 

pre-hearing conference. More 

specifically, proposed section 2700.105 

provided that within 30 calendar days 

after a case had been designated for 

Simplified Proceedings, each party 

would provide to all other parties copies 

of all documents, electronically stored 

information and tangible things that the 

disclosing party had and would use to 

support its claims or defenses. Materials 

required to be disclosed under the 

proposed rule would include, but would 

not be limited to, inspection notes, 

citation documentation, narratives, 

photos, diagrams, preshift and onshift 

reports, training documents, mine maps 

and witness statements (subject to the 

provisions of 29 CFR 2700.61). Under 

proposed section 2700.106, as early as 

practicable after the parties received 

these materials, the Judge would order 

and conduct a pre-hearing conference. 

Proposed section 2700.106 further 

provided that at the pre-hearing 

conference, the parties would discuss 

the following: Settlement of the case; 

the narrowing of issues; an agreed 

statement of issues and facts; defenses; 

witnesses and exhibits; motions; and 

any other pertinent matter. At the 

conclusion of the conference, the Judge 

would issue an order setting forth any 

agreements reached by the parties and 

would specify in the order the issues to 

be addressed by the parties at the 

hearing. 

The industry commenters generally 

suggested that there should not be a ban 

on discovery, and that they should be 

permitted to depose the inspector who 

issued the contested citations and 

orders. MSHA, on the other hand, 

commented that discovery should be 

allowed only in extraordinary 

circumstances. The Commission 

believes that the limit on discovery is a 

key provision to simplifying and 

streamlining cases designated for 

Simplified Proceedings. The final rule 

replaces the language in proposed 

section 2700.107 with the language of 

proposed section 2700.100(b)(5), which 

more clearly articulates that discovery is 

generally prohibited. 

Regarding the mandatory disclosure 

of information by parties set forth in 

proposed section 2700.105, commenters 

suggested that the time-frame for 

disclosure of documents should be 

changed from 30 to 45 days. 

Commenters also suggested expanding 

the information which must be 

disclosed to include all documents 

related to a matter that are in a party’s 

possession (and not just those that it 

would use in litigation) and the 

disclosure of documents supporting the 

opposing party’s claims. 

The final rule changes the time-frame 

for disclosure to 45 days and requires 

the exchange of information suggested 

in the comments. The Commission has 


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81462 Federal Register / Vol. 75, No. 248 / Tuesday, December 28, 2010 / Rules and Regulations 

further expanded disclosure to include 

rebuttal forms and to specify 

requirements for privilege logs. An 

expanded exchange of information 

balances the lack of discovery permitted 

by the Simplified Proceedings rule. 

Regarding proposed section 2700.106, 

the Commission received comments 

stating that, since admissions made in 

the interest of settlement are not 

intended to be admissible in formal 

proceedings, a Judge assigned to a 

Simplified Proceedings case, who will 

ultimately decide the case, should not 

hear settlement discussions during a 

pre-hearing conference. A commenter 

also suggested that the hearing date 

should be set during the pre-hearing 

conference. 

The Commission agrees that the Judge 

assigned to a Simplified Proceedings 

case should not hear the content of the 

settlement discussions during the prehearing conference, and that the rule 

should clarify that only settlement 

efforts by the parties (not the actual 

content of settlement) will be discussed 

during pre-hearing conferences. The 

final rule further requires that a 

settlement discussion occur between 

parties before the pre-hearing 

conference. In order to allow as much 

flexibility as possible, the rule has not 

been revised to require a hearing date to 

be set at the end of the pre-hearing 

conference. 

Hearing 

The Commission proposed in section 

2700.108 that as soon as practicable 

after the conclusion of the pre-hearing 

conference, the Judge would hold a 

hearing on any issue that remained in 

dispute. The hearing would be a full 

due process hearing. Each party would 

present oral argument at the close of the 

hearing, and post-hearing briefs would 

not be permitted except by order of the 

Judge. The Judge would issue a written 

decision that would constitute the final 

disposition of the proceedings within 60 

calendar days after the hearing. If the 

Judge announced a decision orally from 

the bench, it would be reduced to 

writing within 60 calendar days after 

the hearing. 

The Commission received no 

comments on proposed section 

2700.108 and adopts the rule without 

change. 

Miscellaneous 

The Commission proposed 

conforming changes to Rule 5(c), 29 CFR 

2700.5(c). Those changes conform the 

contact information required in 

Simplified Proceedings with the contact 

information required in all proceedings. 

The Commission received no comments 

on the proposed changes to Rule 5(c) 

and adopts the rule as proposed. 

The Commission received a comment 

suggesting that rulemaking comments 

should be posted on the Commission’s 

Web site. The Commission agrees and 

shall make rulemaking comments, 

including those to this final rule, 

available on the Commission’s Web site 

(http://www.fmshrc.gov). 

A commenter stated that the 

Commission should provide sufficient 

information to allow the commenter to 

assess whether the Simplified 

Proceedings rule is sufficient to help 

draw down the Commission’s backlog of 

undecided cases quickly. The 

Commission intends to provide such 

information after it conducts the pilot 

program. 

The Commission received comments 

that it should adopt settlement 

procedures similar to those found in 

OSHRC’s rules at 29 CFR part 2200, 

subpart H. The Commission will 

consider the appropriateness of 

promulgating a settlement subpart after 

the conclusion of the pilot program for 

Simplified Proceedings. 

Notice and Public Procedure 

Although notice-and-comment 

rulemaking requirements under the 

Administrative Procedure Act (‘‘APA’’) 

do not apply to rules of agency 

procedure (see 5 U.S.C. 553(b)(3)(A)), 

the Commission invites members of the 

interested public to submit comments 

on this final rule. The Commission will 

accept public comments until January 

12, 2011. 

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 Office of Management 

and Budget. 

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 (c) to read as follows: 

§ 2700.5 General requirements for 

pleadings and other documents; status or 

informational requests. 

* * * * * 

(c) Necessary information. All 

documents shall be legible and shall 

clearly identify on the cover page the 

filing party by name. All documents 

shall be dated and shall include the 

assigned docket number, page numbers, 

and the filing person’s address, business 

telephone number, cell telephone 

number if available, fax number if 

available, and e-mail address if 

available. Written notice of any change 

in contact information shall be given 

promptly to the Commission or the 

Judge and all other parties. 

* * * * * 

■ 3. A new subpart J is added to read 

as follows: 

Subpart J—Simplified Proceedings 

Sec. 

2700.100 Purpose. 

2700.101 Eligibility for Simplified 

Proceedings. 

2700.102 Commission Commencement of 

Simplified Proceedings. 

2700.103 Party Request for Simplified 

Proceedings. 

2700.104 Discontinuance of Simplified 

Proceedings. 

2700.105 Disclosure of Information by the 

Parties. 

2700.106 Pre-Hearing Conference. 

2700.107 Discovery. 

2700.108 Hearing. 

2700.109 Review of Judge’s Decision. 

2700.110 Application. 

Subpart J—Simplified Proceedings 

§ 2700.100 Purpose. 

(a) The purpose of this Simplified 

Proceedings subpart is to provide 

simplified procedures for resolving civil 

penalty contests under the Federal Mine 

Safety and Health Act of 1977, so that 

parties before the Commission may 

reduce the time and expense of 

litigation while being assured due 

process and a hearing that meets the 


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Federal Register / Vol. 75, No. 248 / Tuesday, December 28, 2010 / Rules and Regulations 81463 

requirements of the Administrative 

Procedure Act, 5 U.S.C. 554. These 

procedural rules will be applied to 

accomplish this purpose. 

(b) Procedures under this subpart are 

simplified in a number of ways. The 

major differences between these 

procedures and those that would 

otherwise apply in subparts A, C, G, H, 

and I of this part are as follows. 

(1) Answers to petitions for 

assessment of penalty are not required. 

(2) Motions are eliminated to the 

greatest extent practicable. 

(3) Early discussions among the 

parties and the Administrative Law 

Judge are required to narrow and define 

the disputes between the parties. 

(4) The parties are required to provide 

certain materials early in the 

proceedings. 

(5) Discovery is not permitted except 

as ordered by the Administrative Law 

Judge. 

(6) Interlocutory appeals are not 

permitted. 

(7) The administrative process is 

streamlined, but hearings will be full 

due process hearings. The parties will 

argue their case orally before the Judge 

at the conclusion of the hearing instead 

of filing briefs. In many instances, the 

Judge will render a decision from the 

bench. 

§ 2700.101 Eligibility for Simplified 

Proceedings. 

Cases designated for Simplified 

Proceedings will not involve fatalities, 

injuries or illnesses, and will generally 

include one or more of the following 

characteristics: 

(a) The case involves only citations 

issued under section 104(a) of the Mine 

Act. 

(b) The proposed penalties were not 

specially assessed under 30 CFR 100.5. 

(c) The case does not involve complex 

issues of law or fact. 

(d) The case involves a limited 

number of citations to be determined by 

the Chief Judge or designee. 

(e) The case involves a limited 

penalty amount to be determined by the 

Chief Judge or designee. 

(f) The case will involve a hearing of 

limited duration to be determined by 

the Chief Judge or designee. 

(g) The case does not involve only 

legal issues. 

(h) The case does not involve expert 

witnesses. 

§ 2700.102 Commission Commencement 

of Simplified Proceedings. 

(a) Designation. Upon receipt of a 

petition for assessment of penalty, the 

Chief Administrative Law Judge, or 

designee, has the authority to designate 

an appropriate case for Simplified 

Proceedings. 

(b) Notice of designation. After a case 

has been designated for Simplified 

Proceedings, the Commission will issue 

a Notice of Designation for Simplified 

Proceedings. The Notice will inform 

parties that the case has been designated 

for Simplified Proceedings, state the 

name and contact information for the 

Commission Administrative Law Judge 

assigned to the case, provide 

instructions for filing a notice of 

appearance in the Simplified 

Proceedings, and state that the operator 

need not file an answer to the petition 

for assessment of penalty. The 

Commission will send the notice of 

designation to the parties’ addresses 

listed on the petition for assessment of 

penalty. 

(c) Notice of appearance. Unless the 

contact information described in this 

paragraph has already been provided to 

the Judge, within 15 calendar days after 

receiving a notice of designation, the 

parties shall file notices of appearance 

with the assigned Judge. Each notice of 

appearance shall provide the following 

information for the counsel or 

representative acting on behalf of the 

party: Name, address, business 

telephone number, cell telephone 

number if available, fax number if 

available, and e-mail address if 

available. Notices of appearance shall be 

served on all parties in accordance with 

the provisions of § 2700.7. 

(d) No filing of an answer under 

Subpart C of this part. If a case has been 

designated for Simplified Proceedings, 

an answer pursuant to § 2700.29 is not 

required to be filed. 

§ 2700.103 Party Request for Simplified 

Proceedings. 

(a) Party request. Any party may 

request that a case be designated for 

Simplified Proceedings. The request 

must be in writing and should address 

the characteristics specified in 

§ 2700.101. The request must be filed 

with the Commission in accordance 

with the provisions of § 2700.5 and 

served on all parties in accordance with 

the provisions of § 2700.7. The 

requesting party shall confer or make 

reasonable efforts to confer with the 

other parties and shall state in the 

request if any other party opposes or 

does not oppose the request. Parties 

opposing the request shall have eight 

business days after service of the motion 

to file an opposition. 

(b) Judge’s ruling on request. The 

Chief Administrative Law Judge or the 

Judge assigned to the case may grant a 

party’s request and designate a case for 

Simplified Proceedings at the Judge’s 

discretion. 

(c) Notice of appearance. Unless the 

contact information described in this 

paragraph has already been provided to 

the Judge, within 15 calendar days after 

receiving an order granting a request for 

Simplified Proceedings, the parties shall 

file with the Judge notices of appearance 

described in § 2700.102(c). Notices of 

appearance shall be served on all parties 

in accordance with the provisions of 

§ 2700.7. 

(d) No filing of an answer under 

Subpart C of this part. If a case has been 

designated for Simplified Proceedings, 

an answer pursuant to § 2700.29 is not 

required to be filed. If a request for 

Simplified Proceedings is denied, the 

period for filing an answer will begin to 

run upon issuance of the Judge’s order 

denying Simplified Proceedings. 

§ 2700.104 Discontinuance of Simplified 

Proceedings. 

(a) Procedure. If it becomes apparent 

at any time that a case is not appropriate 

for Simplified Proceedings, the Judge 

assigned to the case may, upon motion 

by any party or upon the Judge’s own 

motion, discontinue Simplified 

Proceedings and order the case to 

continue under conventional rules. 

(b) Party motion. At any time during 

the proceedings but no later than 30 

days before the scheduled hearing, any 

party may move that Simplified 

Proceedings be discontinued and that 

the matter continue under conventional 

procedures. A motion to discontinue 

must explain why the case is 

inappropriate for Simplified 

Proceedings. The moving party shall 

confer or make reasonable efforts to 

confer with the other parties and shall 

state in the motion if any other party 

opposes or does not oppose the motion. 

Parties opposing the motion shall have 

eight business days after service of the 

motion to file an opposition. 

(c) Ruling. If Simplified Proceedings 

are discontinued, the Judge may issue 

such orders as are necessary for an 

orderly continuation under 

conventional rules. 

§ 2700.105 Disclosure of Information by 

the Parties. 

(a) Within 45 calendar days after a 

case has been designated for Simplified 

Proceedings, the parties shall provide 

any information in a party’s possession, 

custody, or control that the disclosing 

party or opposing party may use to 

support its claims or defenses. Any 

material or object that cannot be copied, 

or the copying of which would be 

unduly burdensome, shall be described 

and its location specified. Materials 


srobinson on DSKHWCL6B1PROD with RULES
81464 Federal Register / Vol. 75, No. 248 / Tuesday, December 28, 2010 / Rules and Regulations 

required to be disclosed include, but are 

not limited to, inspection notes from the 

entire subject inspection, rebuttal forms, 

citation documentation, narratives, 

photos, diagrams, preshift and onshift 

reports, training documents, mine maps, 

witness statements (subject to the 

provisions of § 2700.61), witness lists, 

and written opinions of expert 

witnesses, if any. 

(b) If any items are withheld from 

disclosure on grounds of privilege, the 

disclosing party shall provide a log 

describing each item and stating the 

reason(s) why it was not produced. The 

privilege log shall provide an index, 

identifying the allegedly privileged 

documents and shall provide sufficient 

detail to permit an informed decision as 

to whether the document is at least 

potentially privileged. Specifically, the 

index must include: A description of the 

document, including its subject matter 

and the purpose for which it was 

created; the date the document was 

created; the name and job title of the 

author of the document; and if 

applicable, the name and job title of the 

recipient(s) of the document. The judge 

may order an in camera inspection of 

the privileged documents, if necessary, 

to determine the proper application of 

the privilege. 

§ 2700.106 Pre-Hearing Conference. 

(a) When held. As early as practicable 

after the parties have received the 

materials set forth in § 2700.105, the 

presiding Judge will order and conduct 

a pre-hearing conference. At the 

discretion of the Judge, the pre-hearing 

conference may be held in person, by 

telephone, or electronic means. After 

receipt of the materials set forth in 

§ 2700.105 and prior to the pre-hearing 

conference, parties are required to 

engage in a discussion to explore the 

possibility of settlement. 

(b) Content. At the pre-hearing 

conference, the parties will discuss the 

following: Settlement efforts in the case; 

the narrowing of issues; an agreed 

statement of issues and facts; defenses; 

witnesses and exhibits; motions; and 

any other pertinent matter. Within a 

time determined by the Judge during the 

pre-hearing conference, the parties must 

provide each other with documents or 

materials intended for submission as 

exhibits at the hearing that have not 

already been provided in accordance 

with the provisions of § 2700.105. At the 

conclusion of the conference, the Judge 

will issue an order setting forth any 

agreements reached by the parties, and 

will specify in the order the issues to be 

addressed by the parties at hearing. 

§ 2700.107 Discovery. 

Discovery is not permitted except as 

ordered by the Administrative Law 

Judge. 

§ 2700.108 Hearing. 

(a) Procedures. As soon as practicable 

after the conclusion of the pre-hearing 

conference, the Judge will hold a 

hearing on any issue that remains in 

dispute. The hearing will be in 

accordance with subpart G of this part, 

except for §§ 2700.56, 2700.57, 2700.58, 

2700.59, 2700.65, and 2700.67, which 

will not apply. 

(b) Agreements. At the beginning of 

the hearing, the Judge will enter into the 

record all agreements reached by the 

parties as well as defenses raised during 

the pre-hearing conference. The parties 

and the Judge then will attempt to 

resolve or narrow the remaining issues. 

The Judge will enter into the record any 

further agreements reached by the 

parties. 

(c) Evidence. The Judge will receive 

oral, physical, or documentary evidence 

that is relevant, and not unduly 

repetitious or cumulative. Testimony 

will be given under oath or affirmation. 

The parties are reminded that the 

Federal Rules of Evidence do not apply 

in Commission proceedings. Any 

evidence not disclosed as required by 

§§ 2700.105 and 2700.106(b), including 

the testimony of witnesses not 

identified pursuant to § 2700.106(b), 

shall be inadmissible at the hearing, 

except where extraordinary 

circumstances are established by the 

party seeking to offer such evidence. 

(d) Court reporter. A court reporter 

will be present at the hearing. An 

official verbatim transcript of the 

hearing will be prepared and filed with 

the Judge. 

(e) Oral and written argument. Each 

party may present oral argument at the 

close of the hearing. Post-hearing briefs 

will not be allowed except by order of 

the Judge. 

(f) Judge’s decision. The Judge shall 

make a decision that constitutes the 

final disposition of the proceedings 

within 60 calendar days after the 

hearing. The decision shall be in writing 

and shall include all findings of fact and 

conclusions of law; the reasons or bases 

for them on all the material issues of 

fact, law, or discretion presented by the 

record; and an order. If a decision is 

announced orally from the bench, it 

shall be reduced to writing within 60 

calendar days after the hearing. An 

order by a Judge approving a settlement 

proposal is a decision of the Judge. 

§ 2700.109 Review of Judge’s Decision. 

After the issuance of the Judge’s 

written decision, any party may petition 

the Commission for review of the 

Judge’s written decision as provided for 

in subpart H of this part. 

§ 2700.110 Application. 

The rules in this subpart will govern 

proceedings before a Judge in a case 

designated for Simplified Proceedings 

under §§ 2700.102 and 2700.103. The 

provisions of subparts A and I apply to 

Simplified Proceedings when consistent 

with these rules in subpart J. The 

provisions of subpart C of this part 

apply to Simplified Proceedings except 

for § 2700.29, which does not apply. 

The provisions of subpart G of this part 

apply to Simplified Proceedings except 

for §§ 2700.56, 2700.57, 2700.58, 

2700.59, 2700.65, and 2700.67, which 

do not apply. The provisions of subpart 

H of this part apply to Simplified 

Proceedings except for § 2700.76, which 

does not apply. The provisions of 

subparts B, D, E and F of this part do 

not apply to Simplified Proceedings. 

Dated: December 20, 2010. 

Mary Lu Jordan, 

Chairman, Federal Mine Safety and Health 

Review Commission. 

[FR Doc. 2010–32417 Filed 12–27–10; 8:45 am] 

BILLING CODE 6735–01–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[Docket No. USCG–2010–1109] 

RIN 1625–AA00 

Safety Zone; Columbia River, The 

Dalles Lock and Dam 

AGENCY: Coast Guard, DHS. 

ACTION: Temporary final rule. 

SUMMARY: The Coast Guard is 

establishing a temporary safety zone on 

the waters of the Columbia River in the 

vicinity of The Dalles Lock and Dam 

while the Army Corps of Engineers 

completes repairs to the lock. The safety 

zone is necessary to help ensure the 

safety of workers conducting the repairs 

as well as the maritime public and will 

do so by prohibiting all persons and 

vessels from entering the construction 

zone. 

DATES: This rule is effective in the CFR 

on December 28, 2010 through April 1, 

2011. This rule is effective with actual 

notice for purposes of enforcement 


srobinson on DSKHWCL6B1PROD with RULES