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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

OFFICE OF THE GENERAL COUNSEL Tel: 202-434-9935

Fax: 202-434-9944

March 31, 2020

Donald J. Trump

President of the United States

ATTN: Tyler S. Clarkson

Acting Director

Executive Office of the President

Office of Management and Budget

Office of Information and Regulatory Affairs (OIRA)

tyler.s.clarkson@omb.eop.gov

CC: Stephanie Tatham

OIRA Desk Officer

Stephanie_J_Tatham@omb.eop.gov

Report of SBREFA Compliance Under Executive Order 13,892

Section 10 of Executive Order 13,892 provides that each agency shall submit a report to 

the President within 180 days addressing compliance with the Small Business Regulatory 

Enforcement Fairness Act of 1996 (Pub. L. No. 104-121, enacted March 29, 1996) (“SBREFA”), 

as amended by the Fair Minimum Wage Act of 2007 (Pub. L. No. 110-28, enacted May 25, 

2007) (“FMWA”), including section 223 of SBREFA. Executive Order 13,892 § 10. Section 

223 requires that agencies have a penalty reduction policy in place for small businesses. Section 

212(a) also requires agencies to produce small entity compliance guides for most of their rules. 

Finally, section 213(b) requires agencies regulating the activities of small entities to establish a 

program for responding to informal questions from small entities, utilizing existing functions and 

personnel of the agency to the extent practicable. The Executive Order requires agencies to post 

a copy of their SBREFA compliance reports, subject to redactions for any applicable privileges, 

on their websites. Executive Order 13,892 § 10.

The Federal Mine Safety and Health Review Commission (“Commission”) is an 

independent adjudicatory agency that provides administrative trial and appellate review of legal 

disputes arising under the Federal Mine Safety and Health Act of 1977 (“Act”). The 

Commission is entirely independent and is not a component of the Department of Labor or Mine 

Safety and Health Administration, which promulgates regulations and brings enforcement 

actions under the Act. 
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The Commission is in full compliance with SBREFA. The Commission already 

evaluates when small entities should be subject to reduced civil penalties and mitigates the 

penalties based upon the violator’s ability to pay. Section 110(i) of the Act states that the 

“Commission shall have authority to assess all civil penalties provided in this Act,” and that in 

“assessing civil monetary penalties, the Commission shall consider [in part] . . . the 

appropriateness of such penalty to the size of the business of the operator charged, . . . [and] the 

effect on the operator’s ability to continue in business.” 30 U.S.C. § 820(i). The Commission 

has also explicitly incorporated by reference these factors into its procedural rules, see 29 C.F.R. 

§ 2700.30(a), and routinely applies these factors when assessing penalties. See, e.g., John 

Richards Constr., 39 FMSHRC 959, 965 & n.10 (May 2017); Musser Eng’g, Inc., 32 FMSHRC 

1257, 1289–90 & n.38 (Oct. 2010); Broken Hill Mining Co., 19 FMSHRC 673, 676 & n.6 (Apr. 

1997); Georges Colliers, Inc., 23 FMSHRC 822, 824-25 n.3 (Aug. 2001).

The Commission is also in full compliance with section 212(a)’s requirement that 

agencies must produce small entity compliance guides for each rule for which an agency is 

required to prepare a final regulatory flexibility analysis. Under the exemption in 5 U.S.C. § 

553(b)(3)(A), the Commission is not required to publish a notice of rulemaking when it 

promulgates procedural rules. Because the Commission is not required to publish notices of 

rulemaking, it is also not required to prepare regulatory flexibility analyses or, consequently, 

small entity compliance guides. Nonetheless, the Commission already produces such guides on 

its website. The guides explain to parties in detail how Commission proceedings work and how 

to bring a case before the Commission, among other matters. See 

https://www.fmshrc.gov/guides. These guides are designed in large part to assist small mine 

operators, pro se parties, and other small entities in litigating their cases before the Commission. 

The Commission publishes these guides at a semi-regular interval, and is currently drafting some 

guidance to parties on how to make their electronic case filings text-searchable. 

Finally, the Commission does not regulate the activities of small entities. Rather, the 

Commission has very limited rulemaking authority to promulgate procedural rules governing its 

own adjudicatory proceedings. Such rules are not substantive, and do not impose any substantial 

economic impact on small businesses. As such, the requirements of section 213(b) do not apply 

here.

 Sincerely,

 Michael A. McCord

 General Counsel

 Federal Mine Safety and Health Review Commission