E6-15582. Procedural Rules

AGENCY:

Federal Mine Safety and Health Review Commission.

ACTION:

Final rule; technical amendments.

SUMMARY:

This document makes technical amendments to the Federal Mine Safety and Health Review Commission's procedural rules and regulations implementing the Equal Access to Justice Act and Privacy Act.

DATES:

Effective October 3, 2006.

FOR FURTHER INFORMATION CONTACT:

Thomas A. Stock, General Counsel, Office of the General Counsel, Federal Mine Safety and Health Review Commission, 601 New Jersey Avenue, NW., Suite 9500, Washington, DC 20001; telephone [phone]; facsimile 202-434-9944.

SUPPLEMENTARY INFORMATION:

Background

On August 4, 2006, the Federal Mine Safety and Health Review Commission published a final rule in the Federal Register, setting forth revisions to its procedural rules (29 CFR part 2700) and regulations implementing the Equal Access to Justice Act (“EAJA”) (29 CFR part 2704) and Privacy Act (29 CFR part 2705). 71 FR 44190. This rule in part makes technical amendments that conform with changes made in the August 4 publication. In the August 4 final rule, the Commission amended 29 CFR 2704.104 by removing paragraph (b)(2), which provided for the aggregation of assets or employees of affiliates of a prevailing party to determine eligibility for an EAJA award. 71 FR 44203, 44210. The Commission also in part redesignated paragraphs (b)(3) and (b)(4) of § 2704.104 as paragraphs (b)(2) and (b)(3). 71 FR 44210. In these technical amendments, the Commission is revising 29 CFR 2704.202(b) and (c) to remove references to former section 2704.104(b)(2), and to “affiliates” described in former § 2704.104(b)(2).

In addition, this technical amendment corrects errors made in publications of prior years. Specifically, the Commission is revising the reference to “§ 1700.5(d)” set forth in 29 CFR 2700.5(b) to correctly state a reference to “§ 2700.5(e).” The Commission is also revising 29 CFR 2704.106(a) to insert the word “or” so that the paragraph reads in part that “[a]wards will be based on rates customarily charged by persons engaged in the business of or acting as attorneys, agents and expert witnesses.” Further, the Commission is making three minor punctuation changes. First, the Commission is revising 29 CFR 2704.103(a)(3) by replacing the semi-colon at the end of the paragraph with a period. Second, the Commission is revising 29 CFR 2704.104(b)(1) by replacing the semi-colon at the end of the paragraph with a period. Third, the Commission is revising 29 CFR 2705.2(c) by replacing the period at the end of the paragraph with a semi-colon. Finally, the Commission is replacing the term “system or records” in 29 CFR 2705.2(d) with “system of records.” All of the changes in this technical amendment are non-substantive.

List of Subjects

29 CFR Part 2700

• Administrative practice and procedure
• Mine safety and health
• Penalties
• Whistleblowing

29 CFR Part 2704

• Claims
• Equal access to justice
• Lawyers

29 CFR Part 2705

• Privacy

For the reasons stated in the preamble, the Commission amends 29 CFR parts 2700, 2704, and 2705 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 and 823.

2. The second sentence of paragraph (b) of § 2700.5 is revised to read as follows:

§ 2700.5

General requirements for pleadings and other documents; status or informational requests.

* * * * *

(b) * * * 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 § 2700.5(e)), shall be transmitted to [phone]. * * *

* * * * *

PART 2704—IMPLEMENTATION OF THE EQUAL ACCESS TO JUSTICE ACT IN COMMISSION PROCEEDINGS

3. The authority citation for part 2704 continues to read as follows:

Authority: 5 U.S.C. 504(c)(1); Pub. L. 99-80, 99 Stat. 183; Pub. L. 104-121, 110 Stat. 862.

4. Section 2704.103 is amended by revising paragraph (a)(3) to read as follows:

§ 2704.103

Proceedings covered.

(a) * * *

(3) Challenges to claims of discrimination under section 105(c) of the Mine Act (30 U.S.C. 815(c)) where the Secretary of Labor represents the miner.

* * * * *

5. Section 2704.104 is amended by revising paragraph (b)(1) to read as follows:

§ 2704.104

Eligibility of applicants.

* * * * *

(b) * * *

(1) The employees of an applicant include all persons who regularly perform services for remuneration for the applicant, under the applicant's direction and control. Part-time employees shall be included on a proportional basis.

* * * * *

6. Paragraph (a) of § 2704.106 is revised to read as follows:

§ 2704.106

Allowable fees and expenses.

(a) Awards will be based on rates customarily charged by persons engaged in the business of or acting as attorneys, agents and expert witnesses, even if the services were made available without charge or at a reduced rate to the applicant.

* * * * *

7. Paragraphs (b) and (c) of § 2704.202 are revised to read as follows:

§ 2704.202

Contents of application—where the applicant has prevailed.

* * * * *

(b) The application also shall include a statement that the applicant's net worth does not exceed $2 million (if an individual) or $7 million (for all other applicants).

(c) Each applicant must provide with its application a detailed exhibit showing the net worth of the applicant when the underlying proceeding was initiated. The exhibit may be in any form convenient to the applicant that provides full disclosure of the applicant's assets and liabilities and is sufficient to determine whether the applicant qualifies under the standards in this part. The administrative law judge may require an applicant to file additional information to determine its eligibility for an award.

PART 2705—PRIVACY ACT IMPLEMENTATION

8. The authority citation for part 2705 continues to read as follows:

Authority: 5 U.S.C. 552a; Pub. L. 93-579, 88 Stat. 1896.

9. Paragraphs (c) and (d) of § 2705.2 are revised to read as follows:

§ 2705.2

Definitions.

* * * * *

(c) The term record means any item, collection or grouping of information about an individual that is maintained by the Commission, including, but not limited to, his or her employment history, payroll information, and financial transactions and that contains his or her name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as social security number;

(d) The term system of records means a group of any records under control of the Commission from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual; and

* * * * *

Dated: September 12, 2006.

Michael F. Duffy,

Chairman, Federal Mine Safety and Health Review Commission.