Second Quarterly Progress Report:
 

Targeted Caseload
 

Backlog Reduction
 

Submitted by:
 

The Federal Mine Safety and Health Review
 

Commission
 

And
 

The United States Department of Labor
 

April 14, 2011
 
Introduction: 

This is the second quarterly progress report by the Federal Mine Safety and Health 

Review Commission (FMSHRC or “Commission”) and the Department of Labor (DOL 

or “Department”) on the status of the case backlog reduction project described in the 

Joint Operating Plan submitted to Congress on September 7, 2010. This report covers the 

period of October 29, 2010 through January 28, 2011. 

Pursuant to Chapter 7 of Public Law 111-212, the “Supplemental Appropriations Act, 

2010,” the Department received an appropriation of $18,200,000 and the Commission 

received an appropriation of $3,800,000, both of which are available for one year from 

the date of enactment (July 29, 2010 through July 28, 2011) for the purpose of reducing 

the existing case backlog before the Commission, and other purposes related to mine 

safety. 

Of the $18,200,000 provided to DOL, $10,940,750 is being utilized by the Office of the 

Solicitor (SOL) to undertake additional litigation and related legal work to reduce the 

case backlog. The remaining $7,259,250 has been transferred to the Mine Safety and 

Health Administration (MSHA) to be used in the backlog reduction effort and for the 

investigation of the Upper Big Branch Mine disaster. 

FMSHRC Quarterly Activities 

Obligations of Supplemental Funds and Additional Staffing for FMSHRC: 

During the period of October 29, 2010 through January 28, 2011, the Commission 

obligated $929,646 of supplemental funding, of which $593,229 was for salaries and 

benefits, and $336,417 for operational expenses, travel, office space, supplies, equipment, 

and start up costs for its new satellite office on H Street, NW in Washington, DC. The 

Commission cancelled its previous space agreement in Rosslyn and shifted funding to the 

more cost effective H Street location, which resulted in savings of $197,280. Ten staff 

members are now stationed at the H Street office. 

As of January 28, 2011, the Commission had obligated a total of $2,211,528 from its 

supplemental appropriation. 

Case Processing and Targeted Backlog Case/Citation Dispositions: 

The targeted backlog addressed by these quarterly reports is made up of the 10,424 

penalty cases pending at the Commission on July 29, 2010 that had been contested on or 

after October 1, 2007 through February 28, 2010.1 From October 29, 2010 through 

1 Some of those cases are more complex, and therefore DOL will not assign them to supplemental staff. 

However, the agencies have agreed that all penalty cases contested during the identified time period will be 

included in the targeted backlog, regardless of where they are assigned in DOL. 

2
 
January 28, 2011, FMSHRC disposed of 1,206 targeted backlog cases involving 7,001 

citations. 

Case Priorities: 

FMSHRC’s Office of Administrative Law Judges (OALJ) continues to prioritize cases 

involving fatalities, injuries, flagrant violations, emergency response plans, and 

discrimination complaints. Commission judges will give backlog cases with a high 

number of unwarrantable failure citations/orders the highest priority and cases with a 

large number of significant and substantial citations the second highest priority. The 

SOL team leaders identified 547 of these priority backlog cases. As of January 28, 2011, 

461 of those cases have been assigned, and 46 have been disposed of. 

Administrative Actions to Facilitate Disposal of Cases 

1.	 Global Settlements and Calendar Calls: FMSHRC is working to increase the 

number of dispositions through global settlement conferences and calendar calls. 

Both are proving to be highly effective ways of expeditiously disposing of cases, in 

that they require the parties to engage on the issues early in the process. Both global 

settlement conferences and calendar calls involve more than one docket; however, 

they differ in a number of ways. 

Global settlement conferences are meetings presided over by an ALJ, scheduled for 

the express purpose of discussing settlements. The conferences are held either inperson, or via conference call, and those cases that do not settle are scheduled for 

hearing at a future date. During the reporting period, 13 global settlement 

conferences were scheduled, involving 113 cases and 714 citations. As of the end of 

the period, 75 of these cases, involving 600 citations, had reached settlement. 

Calendar calls are hearings scheduled in one location sequentially during a specified 

timeframe, generally one or two weeks. During this reporting period, 19 calendar 

calls were scheduled, involving 144 cases and 1003 citations. As of the end of the 

quarter, the vast majority of those cases were still pending. Since these calendar calls 

are all scheduled for later in the year, it is likely that many more of the cases involved 

will be disposed of as their scheduled hearing dates approach. 

2.	 Rulemaking: 

Simplified proceedings rule: On December 28, 2010, the Commission published in 

the Federal Register a final Simplified Proceedings rule. See 75 Fed. Reg. 81459. 

The final rule sets forth procedures that simplify and streamline the processing of 

certain civil penalty proceedings. The major differences between the simplified 

procedures set forth in the final rule and conventional procedures are that, under the 

simplified procedures: 

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 answers to petitions for assessment of penalty are not required:
 

 motions are eliminated to the greatest extent practicable;
 

 early discussions among the parties and the Commission Administrative Law
 

Judge are required to narrow and define the disputes between parties; 

 parties are required to disclose certain materials early in the proceedings; 

 discovery is not permitted except as ordered by the Judge; 

 interlocutory appeals are not permitted; and 

 post-hearing briefs are not allowed, except as ordered by the Judge. 

Although the administrative processes in these cases are streamlined, hearings remain 

full due process hearings, as they are under conventional procedures. The final rule 

became effective on March 1, 2011. 

Settlement procedure rule: On November 30, 2010, the Commission published in 

the Federal Register a final rule on settlement procedures. See 75 Fed. Reg. 73955. 

Under the final rule, parties who file motions to approve settlement are required to 

submit a proposed decision approving settlement with the motion. The final rule 

generally requires the filing party to submit the motion and proposed order 

electronically. The goal of the new rule is to make the settlement of cases more 

efficient and less time-consuming for Commission judges. The final rule took effect 

on December 30, 2010. 

Electronic Filing: 

FMSHRC continues to explore electronic products and system designs to replace or 

upgrade its current data management system. Ultimately, a new or upgraded system will 

permit electronic filing, fully electronic case files, electronic assignment and distribution 

of cases, automated notifications to parties, case tracking and other utilities. In order to 

ensure that FMSHRC is aware of the systems available in the marketplace and to 

ascertain an accurate price range for implementation of the system, FMSHRC published a 

Request for Information (RFI) in FedBizOpps on November 24, 2010. The RFI asked 

vendors to inform the Commission about market solutions that could fulfill the 

requirements identified in the RFI, demonstrate the experience of the vendor in providing 

secure electronic filing systems to federal agencies, and provide price information for 

implementing the solution. The Commission submitted a report to the Congress on 

March 23, 2011, describing the options, costs and timelines associated with this project. 

DOL Quarterly Activities 

Allocation of the DOL Appropriation: 

Between October 29 and January 28, DOL records reflect that SOL obligated 

approximately $1,714,716 for this project, of which $1,308,797 is for staff salaries and 

benefits, and $405,919 is for office space, equipment and supplies, and other operational 

expenses. 

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Between October 29 and January 28, MSHA obligated approximately $320,123 for work 

on cases in the targeted backlog, of which $261,233 was for staff salaries and benefits, 

and $58,890 was for operational expenses. As of January 28, MSHA obligated 

approximately $686,874 in supplemental funding for the Upper Big Branch mine disaster 

accident investigation and internal review. Additional charges for the investigation are 

expected to be recorded before the end of the current calendar quarter. 

Additional Staffing for SOL and MSHA: 

The five new offices SOL established during the first quarter of this project to handle the 

backlog reduction litigation (Nashville, Denver, Atlanta, Philadelphia, and Arlington, 

Virginia) have been fully operational through this quarter. Approximately 80 additional 

temporary or term employees were hired by the end of the second quarter of operation of 

this project. The vast majority are attorneys. Staffing distribution at present is as follows: 

Arlington: 10; Atlanta: 8; Nashville: 17; Denver: 23; Philadelphia: 15; as well as 1 staff 

in Dallas, 1 in SOL’s Mine Safety and Health Division, and 2 administrative staff in 

SOL’s national office. The term and temporary FTE usage rate (defined as one full-time 

staff person for one full year) in the project is about 70.5. 

Because the cost of those FTE and other project costs have been lower than SOL initially 

projected, SOL is in the process of hiring an additional 6 temporary staff to increase the 

project’s overall level of effort and prepare for expected attrition among the term and 

temporary staff as the remaining period of funding grows shorter. It is contemplated that 

these additional staff will be hired across most of the SOL offices, and will raise the 

effective FTE usage rate for the project to about 72.5 FTE, pending further attrition. 

In addition, SOL is ensuring the continuing concentration of its existing regional staff on 

disposition of these targeted backlog cases by applying up to $1,100,000 of SOL’s 

backlog reduction funds to the ongoing targeted backlog reduction work of those staff. 

The MSHA staff distribution as of January 28, 2011 is as follows: 

2 Coal technical advisors (TAs) in Philadelphia 

1 Coal TA in Arlington 

1 Coal and 1 M/NM TA in Atlanta 

1 Coal TA in Nashville 

1 Coal and 1 M/NM TA in Denver 

In addition, four clerical staff were hired as of that date to work in the Metal and Nonmetal districts, including supporting the orderly transfer of metal-non-metal cases to the 

backlog project. 

The costs of the UBB investigation are not only higher than anticipated due to the length 

and scale of the investigation, but have now extended beyond the December 31, 2010 

date in the original plan. At the same time, MSHA is projecting a surplus of 

supplemental funding for its role in the “backlog project,” given the scope of MSHA’s 

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current role under the joint operating plan. This surplus is attributable to slower than 

expected spending in the first and second quarters of the backlog project during the startup phase of the program and significant savings in inspector overtime and travel costs 

originally anticipated for the project. While these costs are expected to ramp up now that 

staff has been hired and as hearings are scheduled, spending will not increase to a rate at 

which MSHA will obligate all the funds transferred to it for the backlog project. 

To address the need for additional UBB investigation funding, as well as these lower 

spending projections for backlog project activities, MSHA is redirecting $2.1 million 

that is currently budgeted for inspector overtime to participate in case preparation and 

backlog hearings to help offset costs of the Upper Big Branch investigation. It is also 

expanding the use of supplemental funding to make available approximately $1.1 million 

to increase resources to address the rapidly growing number of non-targeted backlog 

cases contested after February, 2010. The $1.1 million will be used to fund overtime for 

the Conference and Litigation Representatives (CLRs) and inspectors; in coal, hiring 

annuitants to serve as Technical Specialists assisting CLRs on cases; and additional 

clerical support for CLRs in Metal and Nonmetal. 

DOL Case Processing Activities: 

Approximately 66,000 citations were originally estimated in the Joint Operating Report 

as the total targeted backlog of all citations contested between October 1, 2007 and 

February 28, 2010. As a result of more refined records review, the total targeted backlog 

has been revised to be approximately 67,300. As was reported in our first quarterly 

report, from July 29, 2010 through October 28, 2010, the targeted backlog reduction 

project resulted in the disposition of 1,901 cases involving 8,901 citations. 

As is reflected in the FMSHRC portion of this report above, between October 29, 2010 

and January 28, 2011, SOL and MSHA disposed of 1,206 additional cases and 7,001 

additional citations, for a total of 3,107 cases and 15,902 citations during the first two 

quarters of this project. Therefore, assuming the rate of disposition achieved during the 

second quarter of this project continues, approximately 5,519 cases and 29,904 citations 

will have been disposed of by July 29, 2011, which is about 53% of the total initial 

targeted case backlog of 10,500 cases, and about 44% of the total number of 67,300 

citations. 

For the first two quarters of the project, SOL attorneys recovered approximately $13 

million in penalties, and they have taken the legal actions necessary to reach settlement 

agreements that will result in the recovery of additional penalties of approximately $10 

million following the Commission’s disposition of the settlement motions filed by SOL. 

Between March 1, 2010 and January 28, 2011, 8,006 new cases including 41,501 

citations were contested. Therefore, in about 11 months, a time frame 38% as long as the 

29 month time frame of the targeted backlog (October 1, 2007 – February 28, 2010), 

approximately 44% as many cases and 40% as many citations were contested.2 This 

2 There were 18,373 cases with 104,295 violations contested between 10/1/2007 and 2/28/2010. 

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suggests that the rate of increase in cases and citations has continued during the period 

since February 28, 2010. Therefore, MSHA is devoting a larger portion of the available 

backlog reduction funding to addressing disposition of the non-targeted backlog, and 

SOL is ensuring that the entire $400,000 in funding for non-targeted backlog cases is 

expended. 

Conclusion 

The Commission and DOL have made significant strides in the continuing effort to 

reduce the targeted case backlog. In the first quarter, both agencies opened new offices 

and hired additional staff to tackle the backlog. Even with this focus on start-up, 

significant progress was made on disposition of cases in the targeted backlog. 

In the second quarter, the project has been in full and robust operation, has achieved a 

successful level of productivity, and is producing further significant reductions in the 

targeted backlog. However, both the Commission and DOL are concerned that the 

number of citations being contested since the end of the targeted backlog period 

(February 28, 2010), is resulting in an increasing non-targeted caseload, despite efforts by 

the Commission and the Department to address this growing caseload, as well as the 

targeted backlog. 

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APPENDIX TO SECOND QUARTERLY REPORT
 

ON CASE BACKLOG REDUCTION
 

During the second quarter of the Supplemental Appropriation, FMSHRC disposed of 

1,924 cases. As reported in this Quarterly Report, 1,206 of these dispositions were from 

the targeted backlog. The remaining 718 cases were either non-targeted cases in the 

FMSHRC inventory as of July 29, 2010 or were cases filed after that date. 

FMSHRC Case Dispositions 

During Supplemental Quarters 

Supplemental Quarter 2 

1206 718 

Targeted 

Backlog Cases 

Other Cases 

Supplemental Quarter 1 

1901 418 

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The chart below illustrates that, despite a significant number of dispositions in the 

quarter, the FMSHRC case inventory grew to 19,137 as a result of 5,787 cases that were 

filed subsequent to July 29, 2010. Forty of those newly-filed cases had been disposed of 

by January 28, 2011. 

FMSHRC Case Inventory
 

at passage of Supplemental Appropriation
 

and at end Supplemental Quarters
 

10424 

7167 

3304 

6759 

8523 

5747 

6071 

7317 

Cases Filed 

After 29-Jul-10 

Other Cases in 

29-Jul-10 

Inventory 

Targeted
 

Backlog
 

29-Jul-10 28-Oct-10 28-Jan-11 

* Note: Targeted backlog includes only penalty cases. Other categories of FMSHRC’s case inventory 

include contest and other cases, as well as penalty cases. 

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