Rule2025-00703
Procedural Rules
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
January 17, 2025
Effective
March 3, 2025
Issuing agencies
Federal Mine Safety and Health Review Commission
Abstract
The Federal Mine Safety and Health Review Commission (the "Commission") is an independent adjudicatory agency that provides trials and appellate review of cases arising under the Federal Mine Safety and Health Act of 1977 (the "Mine Act"). Trials 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. This rule makes final revisions to many of the Commission's procedural rules. The Commission makes these changes in a continued effort to ensure the just, speedy, and inexpensive determination of all proceedings before the Commission.
Full Text
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<title>Federal Register, Volume 90 Issue 11 (Friday, January 17, 2025)</title>
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[Federal Register Volume 90, Number 11 (Friday, January 17, 2025)]
[Rules and Regulations]
[Pages 5610-5628]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-00703]
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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
29 CFR Part 2700
Procedural Rules
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
trials and appellate review of cases arising under the Federal Mine
Safety and Health Act of 1977 (the ``Mine Act''). Trials 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. This rule makes final revisions
to many of the Commission's procedural rules. The Commission makes
these changes in a continued effort to ensure the just, speedy, and
inexpensive determination of all proceedings before the Commission.
DATES: These final rules are effective on March 3, 2025. The Commission
will accept written and electronic comments received on or before
February 18, 2025.
ADDRESSES: Written comments should be mailed to Michael A. McCord,
General Counsel, Office of the General Counsel, Federal Mine Safety and
Health Review Commission, 1331 Pennsylvania Ave. NW, Suite 520N,
Washington, DC 20004-1710. Electronic comments should state ``Comments
on Procedural Rules'' in the subject line and be sent to
<a href="/cdn-cgi/l/email-protection#4311362f2630002c2e2e262d373003252e302b31206d242c35"><span class="__cf_email__" data-cfemail="b3e1c6dfd6c0f0dcdeded6ddc7c0f3d5dec0dbc1d09dd4dcc5">[email protected]</span></a>.
FOR FURTHER INFORMATION CONTACT: Sarah Stewart, Deputy General Counsel,
Office of the General Counsel, Federal Mine Safety and Health Review
Commission, at (202) 434-9935.
SUPPLEMENTARY INFORMATION: The final rules will apply to cases
initiated after the rules take effect. The final rules also will apply
to further proceedings in cases pending on the effective date, except
to the extent that such application would be infeasible or unfair, in
which event the former procedural rules would continue to apply.
I. Background
In October 2020, the Commission published a Notice of Proposed
Rulemaking (``NPRM''). 85 FR 63,047 (Oct. 6, 2020). In the notice, the
Commission explained that it proposed both new rules and revisions to
its current rules that reflect the Commission's practices. The
Commission proposed adding new Commission Procedural Rule 32 which
pertained to motions to reopen orders that have become final as the
result of a failure to make a timely filing. The Commission also
proposed new Commission Procedural Rule 72 which described the method
by which the Commission empanels Commissioners, as authorized by
section 113(c) of the Mine Act, 30 U.S.C. 823(c). The Commission
proposed adding provisions to Sec. 2700.5(e) for protecting sensitive
commercial information, and for placing sensitive documents under
Commission seal. In addition, the Commission proposed numerous changes
with respect to Sec. 2700.80, which more fully describe the
Commission's process for investigating and making determinations in
disciplinary proceedings. Finally, the Commission proposed more
technical changes, including those necessitated by the evolution of the
Commission's electronic management of its dockets, as well as other
corrections and stylistic changes.
Although the proposed rules were procedural in nature and did not
require notice and comment publication under
[[Page 5611]]
the Administrative Procedure Act (``APA''), 5 U.S.C. 551, 553(b)(3)(A),
the Commission invited comment from the interested public until
December 7, 2020. The Commission received comments from the Secretary
of Labor through the U.S. Department of Labor's Office of the Solicitor
(``the Secretary''), the United Mine Workers of America (``the UMWA''),
and another member of the mining bar who practices before the
Commission. As discussed in the section-by-section analysis below, some
changes have been made in response to the comments received.
II. Section-By-Section Analysis
Set forth below is an analysis of the comments received on the
Commission's proposed rules and the final actions taken.
A. Changes Related to the Commission's Paperless Docketing System
In 2014, the Commission began using an electronic case management
system (``eCMS'') in order to more efficiently manage its caseload. In
late 2013, the Commission published interim rules permitting parties to
file and serve documents electronically. 78 FR 77354 (Dec. 23, 2013).
The Commission later adopted those interim rules as final rules. 84 FR
59931 (Nov. 7, 2019). Although parties may continue to file documents
non-electronically with the Commission as they have in the past, unless
otherwise directed by the Commission in response to emergencies and
special circumstances such as the COVID-19 considerations, experience
has shown that a vast majority of documents are filed electronically
through eCMS.
The Commission proposed changes to its procedural rules in
recognition that most documents are filed electronically and that eCMS
will likely evolve. For instance, it is likely that in the future, eCMS
will allow parties to serve documents electronically through the
system. Currently, parties may serve documents electronically only
through the use of email. The Commission proposed changing its service
requirements to allow parties to serve documents electronically by
other means in addition to email in anticipation of such changes to
eCMS. These proposed changes appear identically in Sec. Sec. 2700.7(c)
(general service requirements); 2700.9(a) (motions for extensions of
time); 2700.24(d) (filing and service of documents in emergency
response plan dispute proceedings; 2700.45(a) and 2700.45(f) (service
in temporary reinstatement proceedings); 2700.46(d) (service of
documents in temporary relief proceedings); 2700.70(f) (motions for
leave to exceed page limit relating to petitions for discretionary
review); and 2700.75(f) (motions for leave to exceed page limit
relating to briefs).
In addition, documents issued by the Commission may be offered in
electronic format rather than in paper format to parties. Consequently,
the Commission proposed deleting provisions in Sec. Sec. 2700.4(b)(1),
2700.24(f)(1), 2700.45(e)(3), 2700.54, 2700.66(a) that specify a method
of postal mail for the issuance of documents by the Commission under
those provisions. Although the Mine Act does not specify the method by
which the Commission must distribute its issuances, the Commission
intends to use the most expeditious means reasonably available which is
appropriate under the circumstances. Because Commission Procedural
Rules 24 (emergency response plan dispute proceedings) and 45
(temporary reinstatement proceedings) deal with expedited proceedings,
they shall retain their current language stating that the parties shall
be notified of the Judge's decision or determination by the ``most
expeditious means reasonably available.'' The Commission proposed
adding similar language to Commission Procedural Rule 66 (summary
disposition of proceedings) in paragraph (a) stating that the order to
show cause shall be provided to the party who has failed to comply by
``the most expeditious means reasonably available.''
The Commission received no comments regarding these proposed
changes and adopts them as proposed.
B. Gender-Specific Pronouns
The masculine gender is currently used throughout the Commission's
Procedural Rules. The Commission proposed changing the gender-specific
pronouns in its rules to more gender-neutral language. Conforming
changes were proposed for Sec. Sec. 2700.4(a); 2700.6(a)(1),
(a)(2)(ii) and (b); 2700.8 (Example 2); 2700.20(d); 2700.24(e)(2)(i)
and (ii); 2700.25; 2700.26; 2700.27; 2700.41(a); 2700.45(b), (c), (d)
and (g); 2700.55(h); 2700.56(c); 2700.58(c); 2700.61; 2700.62;
2700.63(b); 2700.68(a) and (b); 2700.69(a), (b) and (c); 2700.73(b);
2700.75(a)(1) and (e); and 2700.76(a)(1)(i); 2700.81(a) and (c). The
Commission also proposed deleting the provision in Procedural Rule 1(c)
that currently states that ``[w]herever the masculine gender is used in
these rules, the feminine gender is also implied.'' 29 CFR 2700.1(c).
In addition, the Commission proposed revising references in Sec.
2700.83 from ``Chairman'' to ``Chair.''
The Commission received no comments regarding these proposed
changes and adopts them as proposed.
C. Consistency in Use of Language
1. References to Pleadings
The term ``pleading'' generally refers to those documents filed in
the beginning stage of proceedings in which parties formally submit
their claims and defenses (i.e., petitions, answers). The Commission's
rules sometimes erroneously use the term ``pleading,'' when the use of
a more generic term, such as ``document'' or ``filing'' is intended.
The Commission proposed changing the term ``pleading'' to the term
``document'' or ``filing'' when the more generic term is intended in
Sec. Sec. 2700.4(c), 2700.5(h), 2700.8(b) and Example 2, 2700.10(b),
2700.11, 2700.24(d), 2700.45(a) and (f), 2700.46(d), and 2700.53(a)(4).
The Commission received no comments regarding these proposed
changes and adopts them as proposed.
2. References to Website
The Commission proposed changing all references from ``website'' to
``website,'' in keeping with current accepted usage. Such changes are
proposed with respect to Sec. Sec. 2700.1(a)(1), and 2700.5(b),
(c)(1), (f)(1), and (j).
The Commission received no comments regarding these proposed
changes and adopts them as proposed.
3. References to Judge and Secretary of Labor
The Commission proposed capitalizing the word ``Judge'' wherever it
appears in the Commission's Procedural Rules. Such changes were
proposed with respect to Sec. Sec. 2700.24(f)(2) and 2700.67(e).
The Commission also proposed making changes to references to the
Secretary of Labor, noting that the rules variously refer to the
Secretary of Labor as ``Secretary'' and ``Secretary of Labor.'' The
Commission proposed that the first reference in the text of a rule
would be to the ``Secretary of Labor,'' with a parenthetical indicating
that subsequent references would be to the ``Secretary.''
The Commission received one comment regarding these proposed
changes. The Secretary suggested that in order to streamline the rules,
the Commission could explain the shortened reference to the Secretary
in just one rule, for example, in Commission Procedural Rule 1. In
addition, the Secretary commented that the word ``Judge'' should be
replaced by
[[Page 5612]]
``ALJ'' or ``administrative law judge'' in order to distinguish between
the Commission's administrative law judges and federal district court
judges.
The Commission agrees with the Secretary that the rules should
explain the shortened reference to the Secretary in just one rule. The
Commission believes that the explanation is more appropriately made in
Rule 2, which pertains to ``Definitions,'' rather than in Rule 1.
Accordingly, in Rule 2, the Commission clarifies that references to the
``Secretary'' are to ``the Secretary of Labor'' or the ``Acting
Secretary of Labor.'' This change affects Sec. 2700.8, Example 3.
In addition, the Commission has revised Rule 2 to clarify that a
Commission Administrative Law Judge shall be referred to as an ``ALJ''
throughout the Commission's rules. This change affects Sec. Sec.
2700.1, 2700.3, 2700.4, 2700.5, 2700.8, 2700.11, 2700.12, 2700.24,
2700.30, 2700.31, 2700.44, 2700.45, 2700.47, 2700.50, 2700.51, 2700.53,
2700.55, 2700.56, 2700.57, 2700.58, 2700.59, 2700.60, 2700.61, 2700.62,
2700.64, 2700.65, 2700.66, 2700.67, 2700.68, 2700.69, 2700.70, 2700.71,
2700.73, 2700.75, 2700.76, 2700.80, 2700.81, and 2700.82.
4. References to Discrimination
The Commission did not propose any changes to references to
discrimination in the NPRM.
The Secretary commented that references to ``discrimination'' that
appear in the rules should also be to ``interference.''
Section 105(c) of the Mine Act, 30 U.S.C. 815(c), refers to both
discrimination and interference. The Commission recognizes that
proceedings involving alleged discrimination, interference, or both are
processed in an identical manner procedurally. The Commission agrees
that references to ``discrimination'' in the Commission's Procedural
Rules should also be to ``interference.'' This change impacts Rules
7(a); 40(a) and (b); 41(a) and (b); 42, 43, 44(a) and (b); and 45(b).
D. Subpart A--General Provisions
Sec. 2700.3 Who May Practice
The Commission proposed revising Commission Procedural Rule 3 to
clarify who may appear before the Commission as a representative of a
party, and the conduct required of, and actions prohibited by, those
who appear before the Commission. The proposed revisions set forth the
requirements for making an appearance and listed those persons who may
represent a party or subpoenaed witness. The proposed revisions further
provided that all individuals authorized to practice before the
Commission, including attorney representatives and other non-attorney
persons, shall be subject to the standards of conduct and disciplinary
proceedings set forth in 29 CFR 2700.80. As discussed below, the
Commission proposed revising Commission Procedural Rule 80(a) to state
in part that the American Bar Association's Model Rules of Professional
Conduct shall be considered in the Commission's disciplinary
proceedings.
The Commission received only one comment regarding the proposed
changes. The Secretary agreed with proposed paragraph (b)(4), which
states in part that an employee of a governmental agency need not seek
the presiding Judge's approval before representing a party before the
Commission. The Secretary further commented that, consistent with
proposed paragraph (b)(4), because Conference and Litigation
Representatives (``CLRs'') need not get prior approval before
representing a party, conforming changes should be made to Rule
31(c)(2). The Secretary noted that Sec. 2700.31(c)(2) currently
requires CLRs to include language in proposed settlement orders stating
that the Judge accepts the CLR to represent the Secretary.
Upon further consideration, the Commission found unnecessary
proposed paragraph (e) specifying actions prohibited by
representatives. The Commission believes that the standard of conduct
required of representatives is adequately addressed by the changes to
Rule 80. Accordingly, the Commission is withdrawing proposed paragraph
(e) pertaining to prohibited actions. The Commission otherwise adopts
Rule 3 as proposed. In addition, the Commission agrees with the
Secretary's comment and has made conforming changes to Rule 31.
Sec. 2700.4 Parties, Intervenors, and Amici Curiae
Current Commission Procedural Rule 5, 29 CFR 2700.5, provides that
parties may file documents by electronic means and non-electronic means
and provides instructions for doing so. The Commission proposed
revising Sec. 2700.4(b) to state that notices of intervention shall be
filed in accordance with the filing requirements set forth in
Commission Procedural Rule 5. In addition, as noted with respect to
changes related to the Commission's paperless docketing system, the
Commission proposed deleting the reference in current Sec.
2700.4(b)(1) that appears to recognize that copies of a notice of
intervention may be provided by the Commission only by postal mail.
The Commission received no comments regarding these proposed
changes and adopts them as proposed.
Sec. 2700.5 General Requirements for Pleadings and Other Documents;
Status or Informational Requests
The Commission proposed inserting ``filing requirements'' in the
title of Rule 5 in recognition that a large part of Rule 5 pertains to
filing requirements. The Commission received no comments regarding this
proposed change and adopts it as proposed.
The Commission also proposed revising paragraph (a) to replace an
erroneous citation of ``30 U.S.C. 820(c)'' with the correct citation of
``30 U.S.C. 820.'' The Commission received no comments regarding this
proposed change and adopts it as proposed.
Paragraph (c)(2) of Rule 5 (Sec. 2700.5(c)(2)) provides
instructions for filing documents by non-electronic means. The
Commission proposed two changes with respect to this paragraph. First,
the Commission proposed amending paragraph (c)(2)(i) of Rule 5 to
require that filings submitted by a means other than electronic
transmission should be sent to the Commission's Docket Office rather
than to the Commission's Executive Director. The Commission's Executive
Director plays no role with respect to filings, and the proposed change
reflects the Commission's actual practice. The Commission proposed a
conforming change to Rule 4(b)(1) (Sec. 2700.4(b)(1)). The Commission
received no comments regarding these proposed changes and adopts them
as proposed.
Second, the Commission proposed deleting paragraph (c)(2)(iii) as
superfluous and possibly confusing. Paragraph (2)(c) sets forth filing
instructions pertaining to the following specific timeframes: (i)
before a Judge has been assigned; (ii) after a Judge has been assigned;
(iii) interlocutory review; and (iv) after a Judge has issued a final
decision. Section 2700.5(c)(2)(iii) relating to documents filed in
connection with interlocutory review is unnecessary and possibly
confusing because such documents also fall under Sec. 2700.5(c)(2)(ii)
(after a Judge has been assigned). In addition, Sec. 2700.5(c)(2)(iii)
refers the reader to Sec. 2700.76, which does not provide detailed
information about how to file documents non-electronically. The
Commission received no comments regarding this proposed change and
adopts it as proposed.
[[Page 5613]]
The Commission proposed revising paragraph (e) of Commission
Procedural Rule 5 in order to address various privacy considerations.
Parties sometimes provide confidential commercial information to the
Commission. Further, a party may request documents from an opposing
party that contain such information. The Commission proposed adding
paragraph (5) to Sec. 2700.5(e) in order to include a requirement that
parties take steps to protect their confidential commercial
information. In addition, while the Commission's Judges already
consider and decide motions to place records under seal, currently
there is no Commission rule that specifically addresses the
Commission's procedure for doing so. The Commission proposed adding
paragraph (6) to Sec. 2700.5(e) in order to expressly address the
procedures for placing documents under Commission seal.
The Commission received two comments regarding the proposed changes
to Sec. 2700.5(e). The Secretary commented that proposed Sec.
2700.5(e)(6) should be revised to permit in camera review in
appropriate cases. The UMWA commented that the Commission should
clarify what constitutes ``sensitive commercial information.''
The Commission recognizes that Judges already order in-camera
review in appropriate circumstances. The Commission has added language
to Rule 5(e)(6) to permit in-camera review in order to clarify and
codify the Commission's practice.
Regarding the UMWA's comment that the Commission should clarify
what constitutes ``sensitive commercial information,'' the Commission
notes that such language appears only in the preamble of the NPRM,
rather than in Rule 5. Proposed Sec. 2700.5(e) referred to
``confidential commercial information.'' The Commission added language
to Sec. 2700.5(e) clarifying that ``confidential commercial
information'' is defined in 29 CFR 2702.6(a)(1).
Paragraph (j) of Rule 5 sets forth the manner in which status or
informational requests shall be made. It provides that such requests
may be satisfied by accessing the Commission's website or by directing
the request to the address of the Docket Office. The Commission
proposed revising the rule to include a telephone number for contacting
the Docket Office for those who need to contact the Docket Office in an
expeditious manner but who do not have access to a computer. The
Commission received no comments regarding this proposed change and
adopts it as proposed.
Finally, the Commission deleted the option to file documents by
facsimile transmission from Sec. Sec. 2700.5(b), 2700.5(c)(2)(i), and
2700.5(f)(2) in recognition that the Commission no longer has the
capability of receiving facsimile transmissions. Conforming changes
have also been made to Sec. Sec. 2700.7(c)(1), 2700.7(c)(2),
2700.8(d), 2700.9(a), 2700.24(d), 2700.45(a), 2700.45(f), and
2700.70(f).
Sec. 2700.6 Signing of Documents
Although Commission Procedural Rule 6 states how and by whom
documents filed with the Commission must be signed, there is no
specific requirement that all such documents shall be signed. The
Commission proposed adding a requirement that all documents filed with
the Commission must be signed.
The Commission received no comments regarding this proposed change
and adopts it as proposed.
Sec. 2700.8 Computation of Time
Section 2700.8(b) currently provides that five additional days are
added to the due date for responding to a pleading served by a method
of delivery resulting in other than same-day service. As noted above
with respect to references to pleadings, the Commission proposed
changing the term ``pleading'' to ``filing'' since the Commission
intends for the provision to apply to more documents than just those
filed with the Commission during the initial stage of proceedings that
set forth a party's claims and defenses.
The Commission also proposed adding a clarification to Rule 8(b)
that the five extra days are not added for a response to a proposed
penalty assessment because a proposed penalty assessment is not a
filing with the Commission. Rather, a proposed penalty assessment is a
notification sent by the Secretary to the operator or any other person
against whom a civil penalty is proposed.
The Commission received no comments regarding these proposed
changes and adopts them as proposed.
Sec. 2700.10 Motions
Commission Procedural Rule 10, which addresses motions, currently
provides that oral motions may be made during a hearing or a
conference. However, the rule does not require that any proceedings on
such oral motions shall be on the record. A lack of such record makes
review of proceedings on oral motions difficult. The Commission
proposed adding a provision requiring that proceedings on any motion
made at hearing or during a conference shall be on the record. The
Commission also proposed making a conforming revision to Sec.
2700.53(a) recognizing that a Judge has the discretion to record any
in-person or telephonic conference.
The Commission received two comments on these proposed changes. The
Secretary agreed with the proposed changes to Rule 10. With respect to
the proposed changes to Rule 53, the Secretary commented that
transcripts should be made available upon request and that
``reasonable'' should be deleted from the phrase, ``a transcript should
be made available upon reasonable request'' since transcripts should be
readily accessible and because ``reasonable'' is not defined. In
addition, the Secretary suggested that Rule 53 should clarify that the
Judge will notify the parties when a Judge records a conference.
A member of the mining bar commented that the recording of all in-
person or telephonic motions should be mandatory rather than within the
Judge's discretion unless the conference is purely non-substantive in
nature.
The Commission modified the proposed language of Rule 10(a) to
specify that proceedings on any motion made at a hearing or during a
conference shall be ``recorded'' rather than stating that such
proceedings shall be ``on the record.'' The Commission found the phrase
``on the record'' to be somewhat vague and colloquial and potentially
confusing.
Upon further consideration of the proposed changes to Rule 53(a),
the Commission included language clarifying that any in-person or
telephonic conference shall be recorded at a party's request in
addition to being recorded within the Judge's discretion. If the
conference concerns a settlement discussion or mediation, the parties
may request that the matter not be recorded. The Commission deleted the
proposed change pertaining to transcript requests as unnecessary.
E. Subpart C--Contests of Proposed Penalties
Sec. 2700.25 Proposed Penalty Assessment
The Commission received a suggestion that the service requirements
in a regulation promulgated by the Department of Labor's Mine Safety
and Health Administration (``MSHA'') at 30 CFR 100.8(a) are
inconsistent with the service requirements in Sec. 2700.25, and that
changes should be made to Commission Procedural Rule 25.
Section 2700.25 requires that the Secretary shall send a notice of
a proposed civil penalty to an operator or
[[Page 5614]]
any other person against whom a penalty is proposed by ``certified
mail.'' The requirements of Commission Procedural Rule 25 are taken
directly from the language of Sec. 105(a) of the Mine Act, 30 U.S.C.
815(a), which authorizes notification of a proposed penalty by
``certified mail'' only.
In contrast, Sec. 100.8 states that proposed penalty assessments
shall be ``delivered'' to an operator's name and address of record.
Section 100.8 sets forth what constitutes a proper service address but
does not state how service to that address should be made. The
Commission declined proposing changes to Commission Procedural Rule 25
since the rule is wholly consistent with the Mine Act. There were no
comments on the Commission's determination that changes should not be
proposed.
Sec. 2700.28 Filing of Petition for Assessment of Penalty With the
Commission
The Commission proposed two changes to Rule 28. First, the
Commission proposed adding a provision to Sec. 2700.28(b)(1)
indicating that no more than 20 citations or orders may be the subject
of a petition for assessment of penalty. The Commission recognized that
past practice has demonstrated that more than 20 citations or orders
make a docket too large and unwieldy for the Commission to efficiently
manage.
The Commission received one comment on this proposed change. The
Secretary commented that the current system results in penalty
petitions containing more than 20 violations only on rare occasions.
The Secretary urged the Commission not to adopt the proposed change,
citing the Commission's ability to manually split dockets as one of
several reasons why the practical need for this rule change was not
clear. The Secretary also cited logistical confusion, inefficiency, and
unintended substantive consequences, particularly when multiple dockets
contain citations and orders involving the same inspection, inspector,
and mine personnel.
The Commission has determined that it shall adopt this change as
proposed. The Commission's Docket Office currently is required to
manually split dockets containing more than 20 citations and orders.
This approach is not sustainable in light of anticipated increasing
numbers of large dockets and the Commission's limited resources. As to
the Secretary's other concerns, the Commission may address such
concerns on a case-by-case basis, including by consolidating
proceedings as appropriate pursuant to 29 CFR 2700.12.
Second, the Commission proposed making a correction to 29 CFR
2700.28(b)(2). Current Commission Procedural Rule 28(b)(2) mistakenly
refers to a ``single penalty assessment [that] has been proposed under
30 CFR 100.4.'' The Commission proposed deleting the reference to
single penalty assessments in recognition that single penalty
assessments have been subsumed by regular assessments.
The Commission received no comments regarding this proposed change
and adopts it as proposed.
Sec. 2700.31 Penalty Settlement
The Commission proposed three changes with respect to Rule 31.
First, the Commission proposed making a correction to Sec. 2700.31(a).
Paragraph (a) of Sec. 2700.31 currently provides that ``in all penalty
proceedings, except for discrimination proceedings arising under
section 105(c) of the Mine Act,'' a settlement motion must be
accompanied by a proposed order approving settlement. In
``discrimination proceedings, a party need not file a proposed order.''
29 CFR 2700.31(a). The Commission proposed deleting the reference to
discrimination proceedings because the reference appears to erroneously
include discrimination proceedings arising under section 105(c) of the
Act as a subcategory of ``all penalty proceedings.''
For purposes of concision, the Commission is further revising this
proposed change to delete the reference to ``all penalty proceedings.''
Although the Commission has deleted this language, the remaining
language of Rule 31 provides the necessary context clarifying that
parties are required to file proposed orders approving settlement in
all penalty proceedings, including penalty proceedings associated with
a discrimination proceeding.
Second, the Commission proposed deleting unnecessary filing
requirements. Section 2700.31(d) currently sets forth requirements for
electronically filing proposed settlement documents under the rule.
Paragraph (d) was added to Rule 31 prior to the development of e-CMS.
After the development of e-CMS, the Commission promulgated rule changes
for the electronic filing and service of documents, which are now final
rules and include all documents filed in accordance with Rule 31. See,
e.g., 29 CFR 2700.5, 2700.7. The Commission proposed deleting
references to electronic filing appearing in Rule 31 as superfluous and
potentially confusing.
The Commission received no comments regarding this proposed change
and adopts it as proposed.
The Commission also proposed deleting references that appear in
Rule 31 regarding forms for approved orders approving settlement. The
Commission prefers exercising flexibility regarding whether it shall
provide sample forms for proposed orders approving settlement on its
website.
The Commission received no comments regarding this proposed change
and adopts it as proposed.
Sec. 2700.32 Motions To Reopen
The Commission receives requests to reopen final orders that
generally fall into two categories. Requests in the first category
involve circumstances in which a party has failed to file a timely
contest of a proposed penalty assessment and the proposed penalty
thereby becomes a final order of the Commission by operation of section
105(a) of the Mine Act, 30 U.S.C. 815(a). See 29 CFR 2700.27. Requests
in the second category involve circumstances in which a Commission
Administrative Law Judge issues a default order because a party has
failed to file an answer to a petition for assessment of penalty filed
by the Secretary. See 29 CFR 2700.28 and 2700.29.
The Commission proposed a new rule setting forth procedures for
motions to reopen drawn from the Commission's experience in receiving
and disposing of such motions. The Secretary commented on the proposed
rule and suggested wording changes.
Upon further consideration, the Commission is withdrawing the
proposed rule at this time. The Commission recognizes that the creation
of a rule may not necessarily increase the efficiency of the
Commission's processing of motions to reopen or reduce the instances in
which a party seeks relief. The Commission may revisit the issue of
promulgating a new rule in the future. In the meantime, the Commission
will continue to provide guidance concerning motions to reopen in its
case law and in informal guidance available on the Commission's
website.
F. Subpart E--Complaints of Discharge, Discrimination or Interference
Sec. 2700.44 Petition for Assessment of Penalty in Discrimination
Cases
The Commission proposed revisions to Commission Procedural Rule 44
so that cases brought under 30 U.S.C. 815(c)(3) could be treated in a
manner similar to those brought under 30 U.S.C. 815(c)(2) in terms of
when a decision becomes ripe for review. In addition, in
[[Page 5615]]
recognition of the Mine Act's requirement that proceedings under
section 105(c) ``shall be expedited by the Secretary and the
Commission,'' the Commission proposed changes to Sec. 2700.44 that
permitted expedition and eliminated unnecessary delay. 30 U.S.C.
815(c)(3).
The Commission also proposed adding a new paragraph (c) to 29 CFR
2700.41, stating that proceedings under subpart E of the part 2700,
which pertain to complaints of discharge, discrimination or
interference, are to be expedited.
The Commission further proposed making a conforming change to Sec.
2700.69(a) to explicitly require that any decision of a Judge that is
not final shall be denoted as an ``interim decision.''
The Commission received two comments regarding these changes. The
Secretary suggested wording changes to proposed Rule 44. The UMWA and
the Secretary expressed concern about the impact that proposed Rule
41(c) would have upon adequate case preparation.
Upon further consideration, the Commission withdraws these proposed
revisions. The Commission recognizes that the proposed changes may
create confusion rather than clarity and efficiency. The Commission may
revisit these proposed changes in future rulemakings.
Sec. 2700.45 Temporary Reinstatement Proceedings
The Commission did not propose any changes to 29 CFR 2700.45 in the
NPRM. However, a member of the mining bar commented that a provision
should be added to Rule 45 requiring that a Complainant's counsel or
representative must be notified if the operator requests a hearing
regarding the Secretary's application for temporary reinstatement. The
rule currently provides that such notice must be provided only to the
Chief Administrative Law Judge and the Secretary.
The Commission agrees with the commenter that the rule should be
changed. The Commission has revised Sec. Sec. 2700.45(a) and
2700.45(c) to make explicit who must receive hearing requests, as well
as documents, in a temporary reinstatement proceeding.
G. Subpart G--Hearings
Sec. 2700.64 Retention of Exhibits
Commission Procedural Rule 64 pertains generally to exhibits which
are made part of the official record. The Commission proposed revising
the title of the rule to more generally refer to ``exhibits,'' rather
than ``retention of exhibits'' since the rule encompasses more than the
retention of exhibits. In addition, the Commission proposed changing
the rule to reflect that exhibits shall be ``deemed part of'' the
official record, rather than ``retained with'' the official record. The
Commission's official record is electronic and some physical exhibits
will be deemed to be part of the official record although they may not
be retained in a digital format with the other parts of the official
record.
The Commission received no comments on these proposed changes and
adopts them as proposed.
H. Subpart H--Review by the Commission
Sec. 2700.72 Commission Panels
Rule 72 is currently reserved. In order to promote transparency as
to its functioning, the Commission proposed creating a new Procedural
Rule 72 which would explain the Commission's process for empaneling
Commissioners. Section 113(c) of the Mine Act, 30 U.S.C. 823(c),
provides in part that the Commission is authorized ``to delegate to any
group of three or more members any or all of the powers of the
Commission.'' Proposed Rule 72 provided that the Commission may empanel
a group of three or more members to hear any pending matter, and that a
Commissioner's assignment to such a panel may be made by a random
method agreed upon by a majority of Commissioners.
The Commission received two comments regarding proposed Rule 72.
The UMWA commented that Rule 72 should specify that the parties should
be informed about the ``random method'' used to determine the
Commission panel so that parties could object if they believed the
method used was not truly random. Another commenter questioned the need
for 3-member panels given that the Commission's caseload is not
extensive. The commenter stated that if the Commission decides to keep
the rule, Rule 72 should be revised to include a provision whereby the
losing side in a 2-1 decision issued by a panel has the right to
petition the full Commission to re-hear the matter.
Upon further consideration, the Commission withdraws proposed Rule
72. The Commission believes that section 113(c) of the Mine Act
provides sufficient information about the Commission's empanelment
authority.
Sec. 2700.75 Briefs
The Commission did not propose any changes to its rules in the NPRM
regarding briefs on appeal before the Commission.
The Secretary, however, commented that the Commission should revise
its rules to set the required length of appellate briefs based on word
count rather than page count. The Secretary explained that such a
change would conform the Commission's rules to the approach that
Federal Courts of Appeals have taken. In addition, the Secretary states
the change would also eliminate the differing number of pages that
result from setting the same text in different typefaces or from
manipulating type.
The Commission has determined that it shall not make the suggested
change at this time. Some documents filed with the Commission do not
use word processing programs and are hand-written. In addition, Sec.
2700.5 has procedural requirements in place that prohibit a filer from
using word processing features to avoid page limits.
Sec. 2700.76 Interlocutory Review
The Commission proposed no changes to 29 CFR 2700.76 in the NPRM.
A member of the mining bar commented that the Commission should
revise Rule 76 to establish a time limit for Judges to make a
determination on a motion to certify a matter for interlocutory review.
The commenter expressed a concern that a Judge could fail to act on a
motion for certification until the issue became moot.
The Commission has determined that it will not make this change at
this time. However, the Commission will consider this suggestion in
future rulemakings.
Sec. 2700.78 Reconsideration
The Commission proposed revising Commission Procedural Rule 78 in
order to clarify when a motion for reconsideration must be filed. Rule
78 currently provides that a petition for reconsideration must be filed
with the Commission within 10 days after a decision or order. The
proposed revision clarified that the ten-day period is counted from the
issuance of the decision or order.
The Commission received no comments on the proposed change and
adopts it as proposed.
I. Subpart I--Miscellaneous
Sec. 2700.80 Standards of Conduct; Disciplinary Proceedings
The Commission proposed making changes to Commission Procedural
Rule 80 that would clarify the Commission's procedure in disciplinary
proceedings and the standards applicable in such proceedings.
[[Page 5616]]
Rule 80(a) currently provides that individuals practicing before
the Commission or its Judges shall conform to the standards of ethical
conduct required of practitioners in the courts of the United States.
The Commission proposed revising Rule 80(a) to state that the American
Bar Association's Model Rules of Professional Conduct shall be
considered in the Commission's disciplinary proceedings.
The Commission also proposed revising Sec. 2700.80(c) to provide
appropriate notice to the person named in a disciplinary referral, and
to permit the person an opportunity for response. Proposed paragraph
(c)(1) of Rule 80 required the Commission to provide written notice to
the person named in a disciplinary referral of the initiation of an
investigation. The Commission proposed revising paragraph (c)(2) of
rule 80 to provide that after the Commission has determined that a
hearing is warranted on the matter described in the disciplinary
referral, the Commission shall specify the disciplinary issues to be
resolved through hearing.
Proposed paragraph (c)(3) permitted the respondent named in the
disciplinary proceeding an opportunity to file a response. In addition,
proposed paragraph (c)(3) provided that the Chief Administrative Law
Judge may assign the proceeding to a Commission Administrative Law
Judge or to a non-Commission Administrative Law Judge. Proposed
paragraph (c)(3) clarified that subpart G of part 2700, pertaining to
hearings before the Commission's Administrative Law Judges, also
applies as appropriate to all Commission disciplinary proceedings.
The Commission received one comment on the proposed changes. The
Secretary commented on a typographical error in the proposed changes to
Rule 80, noting that the word ``Model'' had been omitted in identifying
the ABA Rules in Sec. 2700.80(a). The Secretary further commented that
to the extent an attorney may be a member of a state bar with any rule
that may conflict in any way with the ABA Model Rules, the Commission
should exercise discretion in favor of the attorney's state bar rules.
The Commission has made the correction noted by the Secretary but
has determined that it will not accept the Secretary's suggestion to
apply state ethics laws in Rule 80 proceedings. Practitioners appearing
before the Commission live, work, and appear in various locations,
making a number of jurisdictions' rules of conduct potentially
applicable. The Commission believes it is more equitable to apply the
same standards of conduct to all individuals appearing before the
Commission. The Commission adopted all other changes as proposed.
Sec. 2700.82 Ex Parte Communications
Commission Procedural Rule 5(j) sets forth requirements regarding
the manner in which status or informational requests shall be made.
Section 2700.82(d) sets forth slightly different requirements for
making status or informational requests. In keeping with the
Commission's actual practice, the Commission proposed making changes to
Sec. 2700.82(d) so that it conforms with the provisions of Sec.
2700.5(j).
The Commission received no comments regarding the proposed change
and adopts it as proposed.
Sec. 2700.83 Authority To Sign Orders
Currently under Sec. 2700.83, the Chairman or other designated
Commissioner is authorized to sign an order on behalf of the other
Commissioners disposing of certain procedural motions. The motions
subject to Commission Procedural Rule 83 are non-substantive and
involve minor procedural issues such as motions for extensions of time.
The vast majority of those motions are unopposed.
The Commission proposed three changes to 29 CFR 2700.83. First, the
Commission proposed adding a provision to Sec. 2700.83 clarifying that
in the absence of a quorum, the remaining Commissioner or Commissioners
may dispose of the procedural motions subject to the rule.
The Commission received one comment on this proposed change. The
Secretary commented that although the proposed change was practical,
the Mine Act does not appear to permit a single Commissioner to act
alone.
The Commission is withdrawing this proposed change at this time.
Second, the Commission proposed deleting the provision in
Procedural Rule 83 stating that a person aggrieved by an order signed
by the Chairman or designated Commissioner under the rule may request
that the order be signed by the participating Commissioners. The
Commission has not received such a request and, given the unopposed
nature of the motions at issue, considers it unlikely that it would
receive such a request in the future.
The Commission received no comments regarding this proposed change
and adopts it as proposed.
Third, consistent with changing gender-specific pronouns to more
gender-neutral language throughout its rules, the Commission proposed
changing references from ``Chairman'' to ``Chair.''
The Commission received no comments regarding this proposed change
and adopts it as proposed.
III. Notice and Public Procedure
A. Executive Orders
The Commission is an independent regulatory agency under section
3(b) of Executive Order (``E.O.'') 12866 (Sept. 30, 1993), 58 FR 51735
(Oct. 4, 1993); E.O. 13563 (Jan. 18, 2011), 76 FR 3821 (Jan. 21, 2011);
E.O. 13771 (Jan. 30, 2017), 82 FR 9339 (Feb. 3, 2017), repealed by E.O.
13992 (Jan. 20, 2021), 86 FR 7049 (Jan. 25, 2021); E.O. 13777 (Feb. 24,
2017), 82 FR 12285 (Mar. 1, 2017), repealed by E.O. 13992 (Jan. 20,
2021), 86 FR 7049 (Jan. 25, 2021); and E.O. 13132 (Aug. 4, 1999), 64 FR
43255 (Aug. 10, 1999).
The Commission has determined that this rulemaking does not have
``takings implications'' under E.O. 12630 (Mar. 15. 1988), 53 FR 8859
(Mar. 18, 1988).
The Commission has determined that these regulations meet all
applicable standards set forth in E.O. 12988 (Feb. 5, 1996), 61 FR 4729
(Feb. 7, 1996).
B. Statutory Requirements
Although notice-and-comment rulemaking requirements under the
Administrative Procedure Act (``APA'') do not apply to rules of agency
procedure (5 U.S.C. 553(b)(4)(A)), the Commission invites members of
the interested public to submit comments on this final rule. The
Commission will accept public comment until February 18, 2025.
The Commission has determined that this rulemaking is exempt from
the requirements of the Regulatory Flexibility Act (``RFA'') (5 U.S.C.
601 et seq.), because the proposed rule would not have a significant
economic impact on a substantial number of small entities.
The Commission has determined that this rule is not a ``major
rule'' under the Small Business Regulatory Enforcement Fairness Act
(``SBREFA'') (5 U.S.C. 804(2)).
The Commission has determined that the Paperwork Reduction Act
(``PRA'') (44 U.S.C. 3501 et seq.) does not apply because these rules
do not contain any information collection requirements that require the
approval of the OMB.
The Commission has determined that the Congressional Review Act
(``CRA'') (5 U.S.C. 801 et seq.) does not apply because, pursuant to 5
U.S.C. 804(3)(C), these rules are rules of agency procedure or practice
that do not substantially affect the rights or obligations of non-
agency parties.
[[Page 5617]]
The Commission has determined that this rulemaking is not a major
Federal action significantly affecting the quality of the human
environment requiring an environmental assessment under the National
Environmental Policy Act (``NEPA'') (42 U.S.C. 4321 et seq.).
The Commission is an independent regulatory agency, and as such, is
not subject to the requirements of the Unfunded Mandates Reform Act
(``UMRA'') (2 U.S.C. 1532 et seq.).
List of Subjects in 29 CFR Part 2700
Administrative practice and procedure, Confidential business
information, Mine safety and health, Penalties, Whistleblowing.
For the reasons stated in the preamble, the Commission amends 29
CFR part 2700 as follows:
PART 2700--PROCEDURAL RULES
0
1. The authority citation for part 2700 is revised to read as follows:
Authority: 30 U.S.C. 815, 820, and 823.
Subpart A--General Provisions
0
2. Revise Sec. 2700.1 to read as follows:
Sec. 2700.1 Scope; applicability of other rules; construction.
(a) Scope. (1) This part sets forth rules applicable to proceedings
before the Federal Mine Safety and Health Review Commission (``the
Commission'') and its Administrative Law Judges (``ALJs''). The
Commission is an adjudicative agency that provides administrative trial
and appellate review of legal disputes arising under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. 801 et seq. (``the Act''). The
Commission is an independent agency, not a part of nor affiliated in
any way with the U.S. Department of Labor or its Mine Safety and Health
Administration (``MSHA''). The location of the Commission's
headquarters is at 1331 Pennsylvania Avenue NW, Suite 520N, Washington,
DC 20004-1710; and its primary phone number is 202-434-9900. The
Commission maintains a website at <a href="http://www.fmshrc.gov">http://www.fmshrc.gov</a> where these
rules, recent and many past decisions of the Commission and its ALJs,
and other information regarding the Commission, can be accessed.
(2) Unless the Commission provides otherwise, amendments to these
rules are effective 60 days following publication in the Federal
Register and apply to cases initiated after they take effect. They also
apply to further proceedings in cases pending on the effective date,
except to the extent that application of the amended rules would not be
feasible, or would work injustice, in which event the former rules of
procedure would continue to apply.
(b) Applicability of other rules. On any procedural question not
regulated by the Act, these Procedural Rules, or the Administrative
Procedure Act (particularly 5 U.S.C. 554 and 556), the Commission and
its ALJs shall be guided so far as practicable by the Federal Rules of
Civil Procedure and the Federal Rules of Appellate Procedure.
(c) Construction. These rules shall be construed to secure the
just, speedy and inexpensive determination of all proceedings, and to
encourage the participation of miners and their representatives.
0
3. Revise Sec. 2700.2 to read as follows:
Sec. 2700.2 Definitions.
For purposes of this part, the definitions contained in section 3
of the Act, 30 U.S.C. 802, apply. For ease of reference throughout this
part, the ``Secretary of Labor'' or ``Acting Secretary of Labor'' shall
be referred to as the ``Secretary.'' Similarly, a Commission
Administrative Law Judge shall be referred to as an ``ALJ.''
0
4. Revise Sec. 2700.3 to read as follows:
Sec. 2700.3 Who may appear before the Commission as a representative
of a party.
(a) Notice of appearance. When first making an appearance, each
representative of a party must file a notice of appearance that
indicates on whose behalf the appearance is made and the proceeding
name and docket number.
(b) Who may appear. Persons who may represent a party or subpoenaed
witness before an ALJ or the Commission include:
(1) An attorney who is a member of a bar in good standing of the
highest court of a State, Commonwealth, or Territory of the United
States, or the District of Columbia where the attorney has been
licensed to practice law, who will promptly disclose to the ALJ any
action suspending, enjoining, restraining, disbarring, or otherwise
currently restricting the attorney in the practice of law in any
jurisdiction where the attorney is licensed to practice law;
(2) A party;
(3) A representative of miners;
(4) An owner, partner, officer or employee of a party when the
party is a labor organization, an association, a partnership, a
corporation, a governmental agency, other business entity, or a
political subdivision; or
(5) Any other person with the permission of the presiding ALJ or
the Commission.
(c) Entry of appearance. A representative of a party shall enter an
appearance in a proceeding under the Act or these procedural rules by
signing the first document filed on behalf of the party with the
Commission or ALJ in accordance with Sec. 2700.6; filing a written
entry of appearance with the Commission or ALJ; or, if the Commission
or ALJ permits, by orally entering an appearance in open hearing.
(d) Duties. All representatives authorized to appear before the
Commission shall be subject to Sec. 2700.80 (Standards of conduct;
disciplinary proceedings). A representative must be diligent, prompt,
and forthright when dealing with parties, other representatives and the
ALJ, and act in a manner that furthers the fair and orderly conduct of
the proceeding.
(e) Withdrawal of appearance. A representative who desires to
withdraw after filing a notice of appearance, or a party desiring to
withdraw the appearance of a representative, must file a motion with
the Commission or ALJ. The motion must state that a notice of the
withdrawal has been provided to all parties. The Commission or ALJ may
deny a representative's motion to withdraw when necessary to avoid
undue delay or prejudice to the rights of a party.
0
5. Revise Sec. 2700.4 to read as follows:
Sec. 2700.4 Parties, intervenors, and amici curiae.
(a) Party status. A person, including the Secretary or an operator,
who is named as a party or who is permitted to intervene, is a party.
In a proceeding instituted by the Secretary under section 105(c)(2) of
the Act, 30 U.S.C. 815(c)(2), the complainant on whose behalf the
Secretary has filed the complaint is a party and may present additional
evidence. A miner, applicant for employment, or representative of a
miner who has filed a complaint with the Commission under section
105(c)(3) or 111 of the Act, 30 U.S.C. 815(c)(3) and 821, and an
affected miner or the miner's representative who has become a party in
accordance with paragraph (b) of this section, are parties.
(b) Intervention--(1) Intervention by affected miners and their
representatives. Before a case has been assigned to an ALJ, affected
miners or their representatives shall be permitted to intervene upon
filing a written notice of intervention with the Commission. If the
case has been assigned to an ALJ, the notice of intervention shall be
filed with the ALJ. Notices of intervention shall be filed with the
Commission or ALJ in accordance with Sec. 2700.5(c). The
[[Page 5618]]
Commission or the ALJ shall provide forthwith a copy of the notice to
all parties. After the start of the hearing, affected miners or their
representatives may intervene upon just terms and for good cause shown.
(2) Intervention by other persons. (i) Motions by other persons for
leave to intervene shall be filed before the start of a hearing on the
merits unless the ALJ, for good cause shown, allows a later filing. The
motion shall set forth:
(A) The interest of the movant relating to the property or events
that are the subject of the proceeding;
(B) The reasons why such interest is not otherwise adequately
represented by the parties already involved in the proceeding; and
(C) A showing that intervention will not unduly delay or prejudice
the adjudication of the issues.
(ii) Such intervention is not a matter of right but of the sound
discretion of the ALJ. In denying a motion to intervene, the ALJ may
alternatively permit the movant to participate in the proceeding as
amicus curiae.
(c) Procedure for participation as amicus curiae. Any person may
move to participate as amicus curiae in a proceeding before an ALJ.
Such participation as amicus curiae shall not be a matter of right but
of the sound discretion of the ALJ. A motion for participation as
amicus curiae shall set forth the interest of the movant and show that
the granting of the motion will not unduly delay or prejudice the
adjudication of the issues. If the ALJ permits amicus curiae
participation, the ALJ's order shall specify the time within which such
amicus curiae memorandum, brief, or other filing must be filed and the
time within which a reply may be made. The movant may conditionally
attach its memorandum, brief, or other filing to its motion for
participation as amicus curiae.
0
6. Revise Sec. 2700.5 to read as follows:
Sec. 2700.5 General requirements for pleadings and other documents;
filing requirements; status or informational requests.
(a) Jurisdiction. A proposal for a penalty under section 110, 30
U.S.C. 820; an answer to a notice of contest of a citation or
withdrawal order issued under section 104, 30 U.S.C. 814; an answer to
a notice of contest of an order issued under section 107, 30 U.S.C.
817; a complaint issued under section 105(c) or 111, 30 U.S.C. 815(c)
and 821; and an application for temporary reinstatement under section
105(c)(2), 30 U.S.C. 815(c)(2), shall allege that the violation or
imminent danger took place in or involves a mine that has products
which enter commerce or has operations or products that affect
commerce. Jurisdictional facts that are alleged are deemed admitted
unless specifically denied in a responsive pleading.
(b) How to file. Unless otherwise provided for in the Act, these
rules, or by order, filing may be accomplished in person, by U.S.
Postal Service, by third-party commercial carrier, or by electronic
transmission. Instructions for electronic filing may be accessed on the
Commission's website (<a href="http://www.fmshrc.gov">http://www.fmshrc.gov</a>).
(c) Where to file. Unless otherwise provided for in the Act, these
rules, or by order:
(1) Filing by electronic transmission. A document may be filed by
electronic transmission with the Commission and its ALJs. Instructions
for electronic filing may be accessed on the Commission's website
(<a href="http://www.fmshrc.gov">http://www.fmshrc.gov</a>).
(2) Filing in person, by U.S. Postal Service, or by third-party
commercial carrier--(i) Before an ALJ has been assigned. Before an ALJ
has been assigned to a case, all documents shall be filed with the
Commission. Documents filed with the Commission shall be addressed to
the Docket Office, Federal Mine Safety and Health Review Commission,
1331 Pennsylvania Avenue NW, Suite 520N, Washington, DC 20004-1710.
(ii) After an ALJ has been assigned. After an ALJ has been
assigned, and before a decision has been issued, documents shall be
filed with the ALJ at the address set forth on the notice of the
assignment.
(iii) After an ALJ has issued a final decision. After the ALJ has
issued a final decision, documents shall be filed with the Commission
as described in paragraph (c)(2)(i) of this section.
(d) 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, cellular telephone number if available, and email address if
available. Written notice of any change in contact information shall be
given promptly to the Commission or the ALJ and all other parties.
(e) Privacy considerations. Persons submitting information to the
Commission shall protect information that tends to identify certain
individuals, constitute an unwarranted intrusion of personal privacy,
or disclose confidential commercial information as defined by 29 CFR
2702.6(a)(1) in the following manner:
(1) Social security numbers, financial account numbers, driver's
license numbers, or other personal identifying numbers, shall be
redacted or excluded;
(2) Minor children shall be identified only by initials;
(3) If dates of birth must be included, only the year shall be
used;
(4) Parties shall exercise caution when filing medical records,
medical treatment records, medical diagnosis records, employment
history, and individual financial information, and shall redact or
exclude materials unnecessary to a disposition of the case, provided
the party gives notice to other parties and the ALJ of the types of
material redacted and the reason for such redactions.
(5) Parties shall, consistent with 29 CFR 2702.6, exercise caution
when providing corporate or commercial information and, with the
permission of the ALJ, shall redact or exclude any portion of its
filing unnecessary to a disposition of the case or shall designate by
appropriate markings any portion that it considers to be confidential.
(6) The Commission may order, sua sponte or pursuant to a party's
motion, that a filing be submitted for in-camera review or placed under
seal. The Commission may subsequently unseal the filing or order the
person who made the submission to substitute a redacted version in the
record. Prior to unsealing a filing, the Commission shall provide the
party that submitted the filing a reasonable opportunity to object to
the sealing or to withdraw the filing. If no response is received, the
Commission will take appropriate action at its discretion. No
placements under seal, redactions or withdrawals shall be permitted
during the pendency of a subpoena duces tecum validly issued to the
Commission or a valid request pursuant to 29 CFR part 2702 related to
the filing.
(f) Effective date of filing. Unless otherwise provided for in the
Act, these rules, or by order:
(1) Filing by electronic transmission. When filing is by electronic
transmission, filing is effective upon successful receipt by the
Commission. The electronic transmission shall be in the manner
specified by the Commission's website (<a href="http://www.fmshrc.gov">http://www.fmshrc.gov</a>).
(2) Filing in person, by U.S. Postal Service, or by third-party
commercial carrier. When filing is by U.S. Postal Service, filing is
effective upon mailing, except that the filing of a motion for
extension of time, any document in an emergency response plan dispute
proceeding, a petition for review of a temporary reinstatement order, a
motion
[[Page 5619]]
for summary decision, a petition for discretionary review, and a motion
to exceed page limit is effective only upon receipt. See Sec. Sec.
2700.9(a), 2700.24(d), 2700.45(f), 2700.67(a), 2700.70(a), (f), and
2700.75(f). When filing is in person or by third-party commercial
carrier, filing is effective upon successful receipt by the Commission.
(g) Number of copies. Unless otherwise ordered or stated in this
part, only the original of a document shall be filed.
(h) Form of filings. All documents, including those filed
electronically, shall appear in at least 12-point type on paper 8\1/2\
by 11 inches in size, with margins of at least 1 inch on all four
sides. Text and footnotes shall appear in the same size type. Text
shall be double spaced. Headings and footnotes may be single spaced.
Quotations of 50 words or more may be single spaced and indented left
and right. Excessive footnotes are prohibited. The failure to comply
with the requirements of this paragraph (h) or the use of compacted or
otherwise compressed printing features may be grounds for rejection of
a filing.
(i) Citation to a decision of an ALJ. Each citation to a decision
of an ALJ should include ``(ALJ)'' at the end of the citation.
(j) Status or informational requests. Information concerning filing
requirements, the status of cases, or docket information may be
accessed through the Commission's website (<a href="http://www.fmshrc.gov">http://www.fmshrc.gov</a>). In
the event such information is unavailable through the Commission's
website or the requesting party does not have access to the website,
such status or informational requests must be directed to the Docket
Office of the Federal Mine Safety and Health Review Commission, 1331
Pennsylvania Avenue NW, Suite 520N, Washington, DC 20004-1710; 202-434-
9950.
0
7. Revise Sec. 2700.6 to read as follows:
Sec. 2700.6 Signing of documents.
(a) Signature. All documents filed with the Commission must be
signed by a party or representative of the party.
(1) Documents not filed by electronic transmission. A party or
representative of the party shall sign a document by handwritten
signature.
(2) Documents filed by electronic transmission. (i) A party or
representative of the party may sign a document by including the
notation ``/s/'' followed by the typewritten name of the party or
representative of the party filing the document.
(ii) A party or representative of the party may sign a document by
including a graphical duplicate of the handwritten signature.
(b) Meaning of signature. A document or signature may not be denied
legal effect or enforceability solely because it is in electronic form.
When a party or representative of the party signs a document in the
manner described in paragraph (a) of this section, that person's
signature shall constitute a certification:
(1) That under the provisions of the law, including these rules and
all federal conflict of interest statutes, the person is authorized and
qualified to represent the particular party in the matter; and
(2) That the person has read the document; that based on knowledge,
information, and belief formed after reasonable inquiry it is well
grounded in fact and is warranted by existing law or a good faith
argument for extension, modification, or reversal of existing law; and
that it is not interposed for any improper purpose, such as to harass
or to cause unnecessary delay or needless increase in the cost of
litigation.
0
8. In Sec. 2700.7, revise paragraphs (a) and (c)(1) and (2) to read as
follows:
Sec. 2700.7 Service.
(a) Generally. A copy of each document filed with the Commission
shall be served on all parties. Whenever a party is represented by an
attorney or other authorized representative who has entered an
appearance on behalf of such party pursuant to Sec. 2700.3, service
thereafter shall be made upon the attorney or other authorized
representative. In addition, a copy of a notice of contest of a
citation or order, a petition for assessment of penalty, a
discrimination or interference complaint, a complaint for compensation,
and an application for temporary relief shall be served upon the
representative of miners, if known.
* * * * *
(c) * * *
(1) Methods of service. Documents may be served in person, by U.S.
Postal Service, by third-party commercial carrier, or by email or other
electronic transmission. For documents filed pursuant to Sec. Sec.
2700.9(a), 2700.24, 2700.45, 2700.70(f), 2700.75(f), and subpart F
(applications for temporary relief), the method of service used must be
no less expeditious than that used for filing, except that if service
by email or other electronic transmission is impossible, the filing
party must serve in person, or by third-party commercial carrier,
resulting in same-day delivery.
(2) Effective date of service. When service is by U.S. Postal
service, service is effective upon mailing. When service is in person,
by third-party commercial carrier, or by email or other electronic
transmission, service is effective upon successful receipt by the party
intended to be served.
* * * * *
0
9. In Sec. 2700.8:
0
a. Revise the introductory text and paragraphs (b) and (d);
0
b. Remove examples 1, 2, and 3 from the end of the section; and
0
c. Add paragraph (e).
The revisions and additions read as follows:
Sec. 2700.8 Computation of time.
Unless otherwise provided for in the Act, these rules, or by order,
the due date for a filing or other deadline for party or Commission
action (hereinafter ``due date'') is determined sequentially as
follows:
* * * * *
(b) When a party serves a filing by a method of delivery resulting
in other than same-day service, the due date for party action in
response is extended 5 additional calendar days beyond the date
otherwise prescribed, after consideration of paragraph (a) of this
section where applicable. (n.b. A proposed penalty assessment is not a
filing with the Commission and additional days are not added to the
time for responding to a proposed assessment.)
* * * * *
(d) The time of filing with the Commission shall be determined
using Washington, DC, local time. For filing by electronic means, the
due date ends at midnight Washington, DC, local time. For filing by
other means, the due date ends at 5:00 p.m. Washington, DC, local time.
(e)(1) Example 1. A motion is filed with the Commission on Tuesday,
July 2, 2025. Under Sec. 2700.10(d), other parties in the proceeding
have 8 days in which to respond to the motion. Because the response
period is less than 11 days, intervening weekends and holidays, such as
Friday, July 4, 2025, are excluded in determining the due date. A
response is thus due by Tuesday, July 15, 2025. In addition, those
parties not served with the motion on the day it was filed have 5
additional calendar days in which to respond, or until Monday, July 21,
2025.
(2) Example 2. An ALJ issues a final decision in a case on Friday,
July 11, 2025. Under Sec. 2700.70(a), parties have until August 11,
2025, to file with the Commission a petition for discretionary review
of the ALJ's decision. Even though the decision was mailed, 5
[[Page 5620]]
additional calendar days are not added, because paragraph (b) of this
section only applies to actions in response to parties' filings.
However, because August 10, 2025, is a Sunday, the actual due date for
the petition is Monday, August 11, 2025.
(3) Example 3. Pursuant to Sec. 2700.24(a), the Secretary files a
referral of a citation arising out of a dispute over the content of an
operator's emergency response plan. Certain subsequent deadlines in
such cases are specifically established by reference to calendar days,
and thus paragraph (a) of this section would not necessarily apply in
determining due dates. For instance, if the referral was filed on
Thursday, July 10, 2025, the short and plain statement the operator
must file in response within 5 calendar days would be due Tuesday, July
15, 2025, because the intervening weekend days would not be excluded in
determining the due date. If the fifth calendar day were to fall on a
weekend, holiday, or other day on which the Commission is not open
however, the terms of paragraph (c) of this section would apply and the
due date would be the next day the Commission is open.
0
10. In Sec. 2700.9, revise paragraph (a) to read as follows:
Sec. 2700.9 Extensions of time.
(a) The time for filing or serving any document may be extended for
good cause shown. Filing of a motion requesting an extension of time is
effective upon receipt. A motion requesting an extension of time shall
be received no later than 3 days prior to the expiration of the time
allowed for the filing or serving of the document, and shall comply
with Sec. 2700.10. The motion and any statement in opposition shall
include proof of service on all parties by a means of delivery no less
expeditious than that used for filing the motion, except that if
service by email or other electronic transmission is impossible, the
filing party must serve in person, or by third-party commercial
carrier, resulting in same-day delivery.
* * * * *
0
11. In Sec. 2700.10, revise paragraphs (a) and (b) to read as follows:
Sec. 2700.10 Motions.
(a) An application for an order shall be by motion which, unless
made during a hearing or a conference, shall be made in writing and
shall set forth the relief or order sought. Proceedings on any motion
made at a hearing or during a conference shall be recorded.
(b) Written motions shall be set forth in a document separate from
other filings.
* * * * *
0
12. Revise Sec. 2700.11 to read as follows:
Sec. 2700.11 Withdrawal of filing.
A party may withdraw a filing at any stage of a proceeding with the
approval of the ALJ or the Commission.
0
13. Revise Sec. 2700.12 to read as follows:
Sec. 2700.12 Consolidation of proceedings.
The Commission and its ALJs may at any time, upon their own motion
or a party's motion, order the consolidation of proceedings that
involve similar issues.
Subpart B--Contests of Citations and Orders
0
14. In Sec. 2700.20, revise paragraphs (b) and (d) to read as follows:
Sec. 2700.20 Notice of contest of a citation or order issued under
Sec. 104 of the Act.
* * * * *
(b) Time to contest. Contests filed by an operator pursuant to
paragraph (a)(1) of this section shall be filed with the Secretary at
the appropriate Regional Solicitor's Office or at the Solicitor's
Office, Mine Safety and Health Division, Washington, DC, within 30 days
of receipt by the operator of the contested citation, order, or
modification. Contests filed by a miner or representative of miners
pursuant to paragraph (a)(2) of this section shall be filed in the same
manner within 30 days of receipt by the miner or representative of
miners of the contested order, modification, or termination.
* * * * *
(d) Copy to Commission. The contesting party shall also file a copy
of the notice of contest with the Commission at the time the party
files with the Secretary.
* * * * *
0
15. In Sec. 2700.24, revise paragraphs (d), (e), (f), and (g) to read
as follows:
Sec. 2700.24 Emergency response plan dispute proceedings.
* * * * *
(d) Filing and service of documents. The filing with the Commission
of any document in an emergency response plan dispute proceeding,
including the referral, is effective upon receipt. A copy of each
document filed with the Commission in such a proceeding shall be served
on all parties and on any miner or miners' representative who has
participated in the emergency response plan review process by a method
of service no less expeditious than that used for filing, except that
if service by email or other electronic transmission is impossible, the
filing party must serve in person, or by third-party commercial
carrier, resulting in same-day delivery.
(e) Proceedings before the ALJ--(1) Submission of materials. Within
15 calendar days of the referral, the parties shall submit to the ALJ
assigned to the matter all relevant materials regarding the dispute.
Such submissions shall include a request for any relief sought and may
include proposed findings of fact and conclusions of law. Such
materials may be supported by affidavits or other verified documents,
and shall specify the grounds upon which the party seeks relief.
Supporting affidavits shall be made on personal knowledge and shall
show affirmatively that the affiant is competent to testify to the
matters stated.
(2) Hearing. (i) Within 5 calendar days following the filing of the
Secretary's referral, any party may request a hearing and shall so
advise the Commission's Chief ALJ or designee, and simultaneously
notify the other parties.
(ii) Within 10 calendar days following the filing of the
Secretary's referral, the Commission's Chief ALJ or designee may issue
an order scheduling a hearing on the ALJ's own motion, and must
immediately so notify the parties.
(iii) If a hearing is ordered under paragraph (e)(2)(i) or (ii) of
this section, the hearing shall be held within 15 calendar days of the
filing of the referral. The scope of such a hearing is limited to the
disputed plan provision or provisions. If no hearing is held, the ALJ
assigned to the matter shall review the materials submitted by the
parties pursuant to paragraph (e)(1) of this section, and shall issue a
decision pursuant to paragraph (f) of this section.
(f) Disposition--(1) Decision of the ALJ. Within 15 calendar days
following receipt by the ALJ of all submissions and testimony made
pursuant to paragraph (e) of this section, the ALJ shall issue a
decision that constitutes the ALJ's final disposition of the
proceedings. The decision shall be in writing and shall include all
findings of fact and conclusions of law, and the reasons or bases for
them, on all the material issues of fact, law or discretion presented
by the record, and an order. The parties shall be notified of the ALJ's
decision by the most expeditious means reasonably available.
(2) Stay of plan provision. Notwithstanding Sec. 2700.69(b), an
ALJ shall retain jurisdiction over a request for a stay in an emergency
response plan dispute proceeding. Within two
[[Page 5621]]
business days following service of the decision, the operator may file
with the ALJ a request to stay the inclusion of the disputed provision
in the plan during the pendency of an appeal to the Commission pursuant
to paragraph (g) of this section. The Secretary shall respond to the
operator's motion within two business days following service of the
motion. The ALJ shall issue an order granting or denying the relief
sought within two business days after the filing of the Secretary's
response.
(g) Review of decision. Any party may seek review of an ALJ's
decision, including the ALJ's order granting or denying a stay, by
filing with the Commission a petition for discretionary review pursuant
to Sec. 2700.70. Neither an operator's request for a stay nor the
issuance of an order addressing the stay request affects the time
limits for filing a petition for discretionary review of an ALJ's
decision with the Commission under this paragraph (g). The Commission
shall act upon a petition on an expedited basis. If review is granted,
the Commission shall issue a briefing order. Except as otherwise
ordered or provided for herein, the provisions of Sec. 2700.75 apply.
The Commission will not grant motions for extension of time for filing
briefs, except under extraordinary circumstances.
Subpart C--Contests of Proposed Penalties
0
16. Revise Sec. 2700.25 to read as follows:
Sec. 2700.25 Proposed penalty assessment.
The Secretary, by certified mail, shall notify the operator or any
other person against whom a penalty is proposed of the violation
alleged, the amount of the proposed penalty assessment, and that such
person shall have 30 days to notify the Secretary of the intent to
contest the proposed penalty assessment.
0
17. Revise Sec. 2700.26 to read as follows:
Sec. 2700.26 Notice of contest of proposed penalty assessment.
A person has 30 days after receipt of the proposed penalty
assessment within which to notify the Secretary of the contest of the
proposed penalty assessment. A person who wishes to contest a proposed
penalty assessment must provide such notification regardless of whether
the person has previously contested the underlying citation or order
pursuant to Sec. 2700.20. The Secretary shall immediately transmit to
the Commission any notice of contest of a proposed penalty assessment.
0
18. Revise Sec. 2700.27 to read as follows:
Sec. 2700.27 Effect of failure to contest proposed penalty
assessment.
If, within 30 days from the receipt of the proposed penalty
assessment, the operator or other person fails to notify the Secretary
of the contest of the proposed penalty, the Secretary's proposed
penalty assessment shall be deemed to be a final order of the
Commission not subject to review by any court or agency.
0
19. In Sec. 2700.28, revise paragraphs (b)(1) and (2) to read as
follows:
Sec. 2700.28 Filing of petition for assessment of penalty with the
Commission.
* * * * *
(b) * * *
(1) List the alleged violations and the proposed penalties. Each
violation shall be identified by the number and date of the citation or
order and the section of the Act or regulations alleged to be violated.
The list shall include no more than 20 citations or orders which are
the subject of the petition for assessment of penalty.
(2) Include a short and plain statement of supporting reasons based
on the criteria for penalty assessment set forth in section 110(i) of
the Act, 30 U.S.C. 820(i).
* * * * *
0
20. Revise Sec. 2700.30 to read as follows:
Sec. 2700.30 Assessment of penalty.
(a) In assessing a penalty the ALJ shall determine the amount of
penalty in accordance with the six statutory criteria contained in
section 110(i) of the Act, 30 U.S.C. 820(i), and incorporate such
determination in a written decision. The decision shall contain
findings of fact and conclusions of law on each of the statutory
criteria and an order requiring that the penalty be paid.
(b) In determining the amount of penalty, neither the ALJ nor the
Commission shall be bound by a penalty proposed by the Secretary or by
any offer of settlement made by a party.
0
21. Revise Sec. 2700.31 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. A settlement motion must be accompanied by a proposed order
approving settlement.
(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.
(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. 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. Proposed orders shall not be submitted in PDF format.
(d) 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.
(e) Final order. Any order by the ALJ 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. An ALJ may correct clerical errors in an order approving
settlement in accordance with the provisions of Sec. 2700.69(c).
Subpart E--Complaints of Discharge, Discrimination or Interference
0
22. Revise Sec. 2700.40 to read as follows:
Sec. 2700.40 Who may file.
(a) The Secretary. A discrimination or interference complaint under
section 105(c)(2) of the Act, 30 U.S.C. 815(c)(2), shall be filed by
the Secretary if, after an investigation conducted pursuant to section
105(c)(2), the Secretary determines that a violation of section
105(c)(1), 30 U.S.C. 815(c)(1), has occurred.
(b) Miner, representative of miners, or applicant for employment. A
discrimination or interference complaint under section 105(c)(3) of the
Act, 30 U.S.C. 815(c)(3), may be filed by the complaining miner,
representative
[[Page 5622]]
of miners, or applicant for employment if the Secretary, after
investigation, has determined that the provisions of section 105(c)(1)
of the Act, 30 U.S.C. 815(c)(1), have not been violated.
0
23. Revise Sec. 2700.41 to read as follows:
Sec. 2700.41 Time to file.
(a) The Secretary. A discrimination or interference complaint shall
be filed by the Secretary within 30 days after the Secretary's written
determination that a violation has occurred.
(b) Miner, representative of miners, or applicant for employment. A
discrimination or interference complaint may be filed by a complaining
miner, representative of miners, or applicant for employment within 30
days after receipt of a written determination by the Secretary that no
violation has occurred.
0
24. Revise Sec. 2700.42 to read as follows:
Sec. 2700.42 Contents of complaint.
A discrimination or interference complaint shall include a short
and plain statement of the facts, setting forth the alleged discharge,
discrimination or interference, and a statement of the relief
requested.
0
25. Revise Sec. 2700.43 to read as follows:
Sec. 2700.43 Answer.
Within 30 days after service of a discrimination or interference
complaint, the respondent shall file an answer responding to each
allegation of the complaint.
0
26. Revise Sec. 2700.44 to read as follows:
Sec. 2700.44 Petition for assessment of penalty in discrimination or
interference cases.
(a) Petition for assessment of penalty in Secretary's complaint. A
discrimination or interference complaint filed by the Secretary shall
propose a civil penalty of a specific amount for the alleged violation
of section 105(c) of the Act, 30 U.S.C. 815(c). The petition for
assessment of penalty shall include a short and plain statement of
supporting reasons based on the criteria for penalty assessment set
forth in section 110(i) of the Act, 30 U.S.C. 820(i).
(b) Petition for assessment of penalty after sustaining of
complaint by miner, representative of miners, or applicant for
employment. Immediately upon issuance of a decision by an ALJ
sustaining a discrimination or interference complaint brought pursuant
to section 105(c)(3), 30 U.S.C. 815(c)(3), the ALJ shall notify the
Secretary in writing of such determination. The Secretary file with the
Commission a petition for assessment of civil penalty within 45 days of
receipt of such notice.
0
27. Revise Sec. 2700.45 to read as follows:
Sec. 2700.45 Temporary reinstatement proceedings.
(a) Service of documents. A copy of each document filed with the
Commission in a temporary reinstatement proceeding shall be served on
all parties, the miner (in cases where the miner is without
representation), and also on any representative of the complainant
miner so identified in the miner's complaint to the Secretary or
identified in subsequent filings, by a method of service as expeditious
as that used for filing, except that, if service by email or other
electronic transmission is impossible, the filing party must serve in
person, or by third-party commercial carrier, resulting in same-day
delivery.
(b) Contents of application. An application for temporary
reinstatement shall state the Secretary's finding that the miner's
discrimination or interference complaint was not frivolously brought
and shall be accompanied by an affidavit setting forth the Secretary's
reasons supporting this finding. The application also shall include a
copy of the miner's complaint to the Secretary and proof of notice to
and service on the person against whom relief is sought by the most
expeditious method of notice and delivery reasonably available.
(c) Request for hearing. Within 10 calendar days following receipt
of the Secretary's application for temporary reinstatement, the person
against whom relief is sought shall advise the Commission's Chief ALJ
or designee, and simultaneously notify the Secretary, the miner (in
cases where the miner is without representation), and any miner's
representative who is due service under paragraph (a) of this section,
whether a hearing on the application is requested. If no hearing is
requested, the ALJ assigned to the matter shall immediately review the
Secretary's application and, if based on the contents thereof the ALJ
determines that the miner's complaint was not frivolously brought, the
ALJ shall immediately issue a written order of temporary reinstatement.
If a hearing on the application is requested, the hearing shall be held
within 10 calendar days following receipt of the request for hearing by
the Commission's Chief ALJ or designee, unless compelling reasons are
shown in an accompanying request for an extension of time.
(d) Hearing. The scope of a hearing on an application for temporary
reinstatement is limited to a determination as to whether the miner's
complaint was frivolously brought. The burden of proof shall be upon
the Secretary to establish that the complaint was not frivolously
brought. In support of the application for temporary reinstatement, the
Secretary may limit presentation to the testimony of the complainant.
The respondent shall have an opportunity to cross-examine any witnesses
called by the Secretary and may present testimony and documentary
evidence in support of its position that the complaint was frivolously
brought.
(e) Order on application. (1) Within 7 calendar days following the
close of a hearing on an application for temporary reinstatement, the
ALJ shall issue a written order granting or denying the application.
However, in extraordinary circumstances, the ALJ's time for issuing an
order may be extended as deemed necessary by the ALJ.
(2) The ALJ's order shall include findings and conclusions
supporting the determination as to whether the miner's complaint has
been frivolously brought.
(3) The parties shall be notified of the ALJ's determination by the
most expeditious means reasonably available.
(4) An ALJ's order temporarily reinstating a miner is not a final
decision within the meaning of Sec. 2700.69, and except during
appellate review of such order by the Commission or courts, the ALJ
shall retain jurisdiction over the temporary reinstatement proceeding.
(f) Review of order. Review by the Commission of an ALJ's written
order granting or denying an application for temporary reinstatement
may be sought by filing with the Commission a petition, which shall be
captioned ``Petition for Review of Temporary Reinstatement Order,''
with supporting arguments, within 5 business days following receipt of
the ALJ's written order. The filing of any such petition is effective
upon receipt. The filing of a petition shall not stay the effect of the
ALJ's order unless the Commission so directs; a motion for such a stay
will be granted only under extraordinary circumstances. Any response
shall be filed within 5 business days following service of a petition.
Filings under this rule shall include proof of service on all parties
by a means of delivery no less expeditious than that used for filing,
except that if service by email or other electronic transmission is
impossible, the filing party must serve in person, or
[[Page 5623]]
by third-party commercial carrier, resulting in same-day delivery. The
Commission's ruling on a petition shall be made on the basis of the
petition and any response (any further briefs will be entertained only
at the express direction of the Commission), and shall be rendered
within 10 calendar days following receipt of any response or the
expiration of the period for filing such response. In extraordinary
circumstances, the Commission's time for decision may be extended.
(g) Dissolution of order. If, following an order of temporary
reinstatement, the Secretary determines that the provisions of section
105(c)(1), 30 U.S.C. 815(c)(1), have not been violated, the ALJ shall
be so notified. An order dissolving the order of reinstatement shall
not bar the filing of an action by the miner on the miner's own behalf
under section 105(c)(3) of the Act, 30 U.S.C. 815(c)(3), and Sec.
2700.40(b).
Subpart F--Applications for Temporary Relief
0
28. In Sec. 2700.46, revise paragraph (d) to read as follows:
Sec. 2700.46 Procedure.
* * * * *
(d) Service of documents. A copy of each document filed with the
Commission under subpart F of this part must be served on all parties
by a means of delivery no less expeditious than that used for filing,
except that if service by email or other electronic transmission is
impossible, the filing party must serve in person, or by third-party
commercial carrier, resulting in same-day delivery.
0
29. In Sec. 2700.47, revise paragraph (a) to read as follows:
Sec. 2700.47 Contents of application.
(a) An application for temporary relief shall contain:
(1) A showing of substantial likelihood that the findings and
decision of the ALJ or the Commission will be favorable to the
applicant;
(2) A statement of the specific relief requested; and
(3) A showing that such relief will not adversely affect the health
and safety of miners in the affected mine.
* * * * *
Subpart G--Hearings
0
30. Revise Sec. 2700.50 to read as follows:
Sec. 2700.50 Assignment of ALJs.
ALJs shall be assigned cases in rotation as far as practicable.
0
31. Revise Sec. 2700.51 to read as follows:
Sec. 2700.51 Hearing dates and sites.
All cases will be assigned a hearing date and site by order of the
ALJ. In fixing the time and place of the hearing, the ALJ shall give
due regard to the convenience and necessity of the parties or their
representatives and witnesses, the availability of suitable hearing
facilities, and other relevant factors.
0
32. Revise Sec. 2700.53 to read as follows:
Sec. 2700.53 Prehearing conferences and statements.
(a) The ALJ may require the parties to participate in a prehearing
conference, either in person or by telephone or other video/audio
teleconferencing. Notwithstanding the mandatory recordings of motions
on the record in accordance with Sec. 2700.10(a), any in-person or
telephonic conference shall be recorded at a party's request or within
the ALJ's discretion. The participants at any such conference may
consider and take action with respect to:
(1) The formulation and simplification of the issues;
(2) The possibility of obtaining stipulations, admissions of fact
and of documents that will avoid unnecessary proof and advance rulings
from the ALJ on the admissibility of evidence;
(3) The exchange of exhibits and the names of witnesses and a
synopsis of the testimony expected from each witness;
(4) The necessity or desirability of amendments to the filings and
the joinder of parties;
(5) The possibility of agreement disposing of any or all of the
issues in dispute;
(6) Such other matters as may aid in the expedition of the hearing
or the disposition of the case.
(b) The ALJ may also require the parties to submit prehearing
statements addressing one or more of the matters set forth in paragraph
(a) of this section.
0
33. Revise Sec. 2700.54 to read as follows:
Sec. 2700.54 Notice of hearing.
Except in expedited proceedings, written notice of the time, place,
and nature of the hearing, the legal authority under which the hearing
is to be held, and the matters of fact and law asserted shall be given
to all parties at least 20 days before the date set for hearing.
0
34. Revise Sec. 2700.55 to read as follows:
Sec. 2700.55 Powers of ALJs.
Subject to these rules, an ALJ is empowered to:
(a) Administer oaths and affirmations;
(b) Issue subpoenas authorized by law;
(c) Rule on offers of proof and receive relevant evidence;
(d) Order depositions to be taken;
(e) Regulate the course of the hearing;
(f) Hold conferences for the settlement or simplification of the
issues;
(g) Dispose of procedural requests or similar matters;
(h) Make decisions in the proceedings, provided that the ALJ shall
not be assigned to make a recommended decision; and
(i) Take other action authorized by these rules, by 5 U.S.C. 556,
or by the Act.
0
35. In Sec. 2700.56, revise paragraphs (c) and (e) to read as follows:
Sec. 2700.56 Discovery; general.
* * * * *
(c) Limitation of discovery. Upon motion by a party or by the
person from whom discovery is sought or upon the ALJ's own motion, an
ALJ may, for good cause shown, limit discovery to prevent undue delay
or to protect a party or person from oppression or undue burden or
expense.
* * * * *
(e) Completion of discovery. Discovery shall not unduly delay or
otherwise impede disposition of the case, and must be completed at
least 20 days prior to the scheduled hearing date. For good cause
shown, the ALJ may extend or shorten the time for discovery.
0
36. Revise Sec. 2700.57 to read as follows:
Sec. 2700.57 Depositions.
(a) Generally. Any party, without leave of the ALJ, may take the
testimony of any person, including a party, by deposition upon oral
examination or written interrogatories.
(b) Orders for deposition. If the parties are unable to agree, the
time, place, and manner of taking depositions shall be governed by
order of the ALJ.
0
37. Revise Sec. 2700.58 to read as follows:
Sec. 2700.58 Interrogatories, requests for admissions and requests
for production of documents.
(a) Interrogatories. Any party, without leave of the ALJ, may serve
written interrogatories upon another party. A party served with
interrogatories shall answer each interrogatory separately and fully in
writing under oath within 25 days of service unless the proponent of
the interrogatories agrees to a longer time. The ALJ may order a
shorter or longer time period for responding. A party objecting to an
interrogatory shall state the basis for the objection in its answer.
[[Page 5624]]
(b) Requests for admissions. Any party, without leave of the ALJ,
may serve on another party a written request for admissions. A party
served with a request for admissions shall respond to each request
separately and fully in writing within 25 days of service, unless the
party making the request agrees to a longer time. The ALJ may order a
shorter or longer time period for responding. A party objecting to a
request for admissions shall state the basis for the objection in its
response. Any matter admitted under this rule is conclusively
established for the purpose of the pending proceeding unless the ALJ,
on motion, permits withdrawal or amendment of the admission.
(c) Request for production, entry or inspection. Any party, without
leave of the ALJ, may serve on another party a written request to
produce and permit inspection, copying or photocopying of designated
documents or objects, or to permit a party or its agent to enter upon
designated property to inspect and gather information. A party served
with such a request shall respond in writing within 25 days of service
unless the party making the request agrees to a longer time. The ALJ
may order a shorter or longer period for responding. A party objecting
to a request for production, entry or inspection shall state the basis
for the objection in its response.
0
38. Revise Sec. 2700.59 to read as follows:
Sec. 2700.59 Failure to cooperate in discovery; sanctions.
Upon the failure of any person, including a party, to respond to a
discovery request or upon an objection to such a request, the party
seeking discovery may file a motion with the ALJ requesting an order
compelling discovery. If any person, including a party, fails to comply
with an order compelling discovery, the ALJ may make such orders with
regard to the failure as are just and appropriate, including deeming as
established the matters sought to be discovered or dismissing the
proceeding in favor of the party seeking discovery. For good cause
shown the ALJ may excuse an objecting party from complying with the
request.
0
39. Revise Sec. 2700.60 to read as follows:
Sec. 2700.60 Subpoenas.
(a) Compulsory attendance of witnesses and production of documents.
The Commission and its ALJs are authorized to issue subpoenas, on their
own motion or on the oral or written application of a party, requiring
the attendance of witnesses and the production of documents or physical
evidence. A subpoena may be served by any person who is at least 18
years of age. A subpoena may also be served by registered or certified
mail, return receipt requested, but, in such case, any risk of delivery
is on the serving party. A copy of the subpoena bearing a certificate
of service shall be filed with the Commission or the ALJ.
(b) Fees payable to witnesses. Subpoenaed witnesses shall be paid
the same fees and mileage as are paid in the district courts of the
United States. The witness fees and mileage shall be paid by the party
at whose request the witness appears, or by the Commission if a witness
is subpoenaed on the motion of the Commission or an ALJ. This paragraph
does not apply to Government employees who are called as witnesses by
the Government.
(c) Motions to revoke or modify subpoenas. Any person served with a
subpoena may move within 5 days of service or at the hearing, whichever
is sooner, to revoke or modify the subpoena. The Commission or the ALJ,
as appropriate, shall revoke or modify the subpoena if it seeks
information outside the proper scope of discovery as set forth in Sec.
2700.56(b); or if it does not describe with sufficient particularity
the evidence required to be produced; or if for any other reason it is
found to be invalid or unreasonable. The Commission or the ALJ shall
set forth a concise statement of the grounds for such ruling.
(d) Availability of transcript. Persons compelled to submit
evidence at a public proceeding are entitled to obtain, on payment of
prescribed costs, a transcript of that part of the proceeding that sets
forth their testimony or refers to their production of evidence.
(e) Failure to comply. Upon the failure of any person to comply
with an order to testify or with a subpoena issued by the Commission or
the ALJ, the ALJ or the Commission's General Counsel, at the request of
the ALJ or at the direction of the Commission, may undertake to
initiate proceedings in the appropriate district court of the United
States for the enforcement of the subpoena.
0
40. Revise Sec. 2700.61 to read as follows:
Sec. 2700.61 Name of miner informant.
An ALJ shall not, except in extraordinary circumstances, disclose
or order a person to disclose to an operator or its agent the name of
an informant who is a miner.
0
41. Revise Sec. 2700.62 to read as follows:
Sec. 2700.62 Name of miner witness.
An ALJ shall not, until 2 days before a hearing, disclose or order
a person to disclose to an operator or its agent the name of a miner
who is expected by the ALJ to testify or whom a party expects to summon
or call as a witness.
0
42. In Sec. 2700.63, revise paragraph (b) to read as follows:
Sec. 2700.63 Evidence; presentation of case.
* * * * *
(b) The proponent of an order has the burden of proof. A party
shall have the right to present a case or defense by oral or
documentary evidence, to submit rebuttal evidence, and to conduct such
cross-examination as may be required for a full and true disclosure of
the facts.
0
43. Revise Sec. 2700.64 to read as follows:
Sec. 2700.64 Exhibits.
All exhibits received in evidence in a hearing or submitted for the
record in any proceeding before the Commission shall be deemed part of
the official record of the proceeding. The withdrawal of original
exhibits may be permitted by the Commission or the ALJ, upon request
and after notice to the other parties, if true copies are substituted,
where practical, for the originals.
0
44. Revise Sec. 2700.65 to read as follows:
Sec. 2700.65 Proposed findings, conclusions and orders.
The ALJ may require the submission of proposed findings of fact,
conclusions of law, and orders, together with supporting briefs. The
proposals shall be served upon all parties, and shall contain adequate
references to the record and authorities.
0
45. Revise Sec. 2700.66 to read as follows:
Sec. 2700.66 Summary disposition of proceedings.
(a) Generally. When a party fails to comply with an order of an ALJ
or these rules, except as provided in paragraph (b) of this section, an
order to show cause shall be directed to the party before the entry of
any order of default or dismissal. The order shall be provided to the
party by the most expeditious means reasonably available.
(b) Failure to attend hearing. If a party fails to attend a
scheduled hearing, the ALJ, where appropriate, may find the party in
default or dismiss the proceeding without issuing an order to show
cause.
(c) Penalty proceedings. When the ALJ finds a party in default in a
civil penalty proceeding, the ALJ shall also
[[Page 5625]]
enter an order assessing appropriate penalties and directing that such
penalties be paid.
0
46. In Sec. 2700.67, revise paragraphs (a), (e), and (f) to read as
follows:
Sec. 2700.67 Summary decision of the ALJ.
(a) Filing of motion for summary decision. At any time after
commencement of a proceeding and no later than 25 days before the date
fixed for the hearing on the merits, a party may move the ALJ to render
summary decision disposing of all or part of the proceeding. Filing of
a summary decision motion and an opposition thereto shall be effective
upon receipt.
* * * * *
(e) Affidavits. Supporting and opposing affidavits shall be made on
personal knowledge and shall show affirmatively that the affiant is
competent to testify to the matters stated. Sworn or certified copies
of all papers or parts of papers referred to in an affidavit shall be
attached to the affidavit or be incorporated by reference if not
otherwise a matter of record. The ALJ shall permit affidavits to be
supplemented or opposed by depositions, answers to interrogatories,
admissions, or further affidavits.
(f) Case not fully adjudicated on motion. If a motion for summary
decision is denied in whole or in part, the ALJ shall ascertain what
material facts are controverted and shall issue an order directing
further proceedings as appropriate.
0
47. Revise Sec. 2700.68 to read as follows:
Sec. 2700.68 Substitution of the ALJ.
(a) Generally. Should an ALJ become unavailable to the Commission,
the proceedings assigned to that ALJ shall be reassigned to a
substitute ALJ.
(b) Substitution following a hearing. The substitute ALJ may render
a decision based upon the existing record, provided the parties are
notified of the ALJ's intent and they are given an opportunity to
object. An objection to the ALJ rendering a decision based upon the
existing record shall be filed within 10 days following receipt of the
ALJ's notice, or the objection shall be deemed to be waived. An
objection shall be founded upon a showing of a need for the resolution
of conflicting material testimony requiring credibility determinations.
Upon good cause shown the ALJ may order a further hearing on the
merits, which shall be limited, so far as practicable, to the testimony
in dispute.
0
48. Revise Sec. 2700.69 to read as follows:
Sec. 2700.69 Decision of the ALJ.
(a) Form and content of the ALJ's decision. The ALJ shall make a
decision that constitutes a final disposition of the proceedings. The
decision shall be in writing and shall include all findings of fact and
conclusions of law, and 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 after the filing of the transcript. An order by an
ALJ approving a settlement proposal is a decision of the ALJ.
(b) Termination of the ALJ's jurisdiction. Except to the extent
otherwise provided herein, the jurisdiction of the ALJ terminates when
the ALJ's decision has been issued.
(c) Correction of clerical errors. At any time before the
Commission has directed that an ALJ's decision be reviewed, and on the
ALJ's own motion or the motion of a party, the ALJ may correct clerical
errors in decisions, orders, or other parts of the record. After the
Commission has directed that an ALJ's decision be reviewed, the ALJ may
correct such errors with the leave of the Commission. If an ALJ's
decision has become the final order of the Commission, the ALJ may
correct such errors with the leave of the Commission. Neither the
filing of a motion to correct a clerical error, nor the issuance of an
order or amended decision correcting a clerical error, shall toll the
time for filing a petition for discretionary review of the ALJ's
decision on the merits.
(d) Effect of decision of the ALJ. A decision of an ALJ is not a
precedent binding upon the Commission.
Subpart H--Review by the Commission
0
49. Revise Sec. 2700.70 to read as follows:
Sec. 2700.70 Petitions for discretionary review.
(a) Procedure. Any person adversely affected or aggrieved by an
ALJ's decision or order may file with the Commission a petition for
discretionary review within 30 days after issuance of the decision or
order. Filing of a petition for discretionary review is effective upon
receipt. Two or more parties may join in the same petition; the
Commission may consolidate related petitions. Procedures governing
petitions for review of temporary reinstatement orders are found at
Sec. 2700.45(f).
(b) Review discretionary. Review by the Commission shall not be a
matter of right but of the sound discretion of the Commission. Review
by the Commission shall be granted only by affirmative vote of at least
two of the Commissioners present and voting.
(c) Grounds. Petitions for discretionary review shall be filed only
upon one or more of the following grounds:
(1) A finding or conclusion of material fact is not supported by
substantial evidence;
(2) A necessary legal conclusion is erroneous;
(3) The decision is contrary to law or to the duly promulgated
rules or decisions of the Commission;
(4) A substantial question of law, policy, or discretion is
involved; or
(5) A prejudicial error of procedure was committed.
(d) Requirements. Each issue shall be separately numbered and
plainly and concisely stated, and shall be supported by detailed
citations to the record, when assignments of error are based on the
record, and by statutes, regulations, or other principal authorities
relied upon. Except by permission of the Commission and for good cause
shown, petitions for discretionary review shall not exceed 35 pages.
Except for good cause shown, no assignment of error by any party shall
rely on any question of fact or law upon which the ALJ had not been
afforded an opportunity to pass.
(e) Statement in opposition to petition. A statement in opposition
to a petition for discretionary review may be filed, but the
opportunity for such filing shall not require the Commission to delay
its action on the petition.
(f) Motion for leave to exceed page limit. A motion requesting
leave to exceed the page limit shall be received not less than 3 days
prior to the date the petition for discretionary review is due to be
filed, shall state the total number of pages proposed, and shall comply
with Sec. 2700.10. Filing of a motion requesting an extension of page
limit is effective upon receipt. The motion and any statement in
opposition shall include proof of service on all parties by a means of
delivery no less expeditious than that used for filing the motion,
except that if service by email or other electronic transmission is
impossible, the filing party must serve in person, or by third-party
commercial carrier, resulting in same-day delivery.
(g) Scope of review. If a petition is granted, review shall be
limited to the issues raised by the petition, unless the Commission
directs review of additional issues pursuant to Sec. 2700.71.
(h) Denial of petition. A petition not granted within 40 days after
the issuance of the ALJ's decision is deemed denied.
[[Page 5626]]
0
50. Revise Sec. 2700.71 to read as follows:
Sec. 2700.71 Review by the Commission on its own motion.
At any time within 30 days after the issuance of an ALJ's decision,
the Commission may, by the affirmative vote of at least two of the
Commissioners present and voting, direct the case for review on its own
motion. Review shall be directed only upon the ground that the decision
may be contrary to law or Commission policy or that a novel question of
policy has been presented. The Commission shall state in such direction
for review the specific issue of law, Commission policy, or novel
question of policy to be reviewed. Review shall be limited to the
issues specified in such direction for review.
0
51. In Sec. 2700.73, revise paragraphs (b) and (d) to read as follows:
Sec. 2700.73 Procedure for intervention.
* * * * *
(b) A showing that the disposition of the proceeding may impair or
impede the movant's ability to protect that interest;
* * * * *
(d) The reasons why the movant should be excused for failing to
file for intervention before the ALJ. A motion for intervention shall
also show that the granting of the motion will not unduly delay the
proceeding or prejudice any party and shall explain why the movant's
participation as an amicus curiae would be inadequate. If the
Commission permits intervention, the Commission's order shall specify
the time within which the intervenor's brief and any response or reply
may be filed. In denying a motion to intervene, the Commission may
alternatively permit the movant to participate in the proceeding as
amicus curiae.
0
52. In Sec. 2700.75, revise paragraphs (a)(1), (c), (e), and (f) to
read as follows:
Sec. 2700.75 Briefs.
(a) * * *
(1) Opening and response briefs. Within 30 days after the
Commission grants a petition for discretionary review, the petitioner
shall file an opening brief. The petitioner may notify the Commission
and all other parties within the 30-day period that the petition and
any supporting memorandum are to constitute the opening brief. Other
parties may file response briefs within 30 days after the petitioner's
brief is served. If the Commission directs review on its own motion,
all parties shall file any opening briefs within 30 days of the
direction for review. In such cases, a party may file a response brief
within 20 days after service of the opposing party's opening brief.
* * * * *
(c) Length of brief. Except by permission of the Commission and for
good cause shown, opening and response briefs shall not exceed 35
pages, and reply briefs shall not exceed 15 pages. A brief of an amicus
curiae shall not exceed 25 pages. A brief of an intervenor shall not
exceed the page limitation applicable to the party whose position it
supports in affirming or reversing the ALJ, or if a different position
is taken, such brief shall not exceed 25 pages. Tables of contents or
authorities shall not be counted against the length of a brief.
* * * * *
(e) Consequences of petitioner's failure to file brief. If a
petitioner fails to timely file a brief or to designate the petition as
the opening brief, the direction for review may be vacated.
(f) Motion for leave to exceed page limit. A motion requesting
leave to exceed the page limit for a brief shall be received not less
than 3 days prior to the date the brief is due to be filed, shall state
the total number of pages proposed, and shall comply with Sec.
2700.10. Filing of a motion requesting an extension of page limit is
effective upon receipt. The motion and any statement in opposition
shall include proof of service on all parties by a means of delivery no
less expeditious than that used for filing the motion, except that if
service by email or other electronic transmission is impossible, the
filing party must serve in person, or by third-party commercial
carrier, resulting in same-day delivery.
* * * * *
0
53. Revise Sec. 2700.76 to read as follows:
Sec. 2700.76 Interlocutory review.
(a) Procedure. Interlocutory review by the Commission shall not be
a matter of right but of the sound discretion of the Commission.
Procedures governing petitions for review of temporary reinstatement
orders are found at Sec. 2700.45(f).
(1) Review cannot be granted unless:
(i) The ALJ has certified, upon the ALJ's own motion or the motion
of a party, that an interlocutory ruling involves a controlling
question of law and that in the ALJ's opinion immediate review will
materially advance the final disposition of the proceeding; or
(ii) The ALJ has denied a party's motion for certification of the
interlocutory ruling to the Commission, and the party files with the
Commission a petition for interlocutory review within 30 days of the
ALJ's denial of such motion for certification.
(2) In the case of either paragraph (a)(1)(i) or (ii) of this
section, the Commission, by a majority vote of the full Commission or a
majority vote of a duly constituted panel of the Commission, may grant
interlocutory review upon a determination that the ALJ's interlocutory
ruling involves a controlling question of law and that immediate review
may materially advance the final disposition of the proceeding.
Interlocutory review by the Commission shall not operate to suspend the
hearing unless otherwise ordered by the Commission. Any grant or denial
of interlocutory review shall be by written order of the Commission.
(b) Petitions for interlocutory review. Where the ALJ denies a
party's motion for certification of an interlocutory ruling and the
party seeks interlocutory review, a petition for interlocutory review
shall be in writing and shall not exceed 15 pages. A copy of the ALJ's
interlocutory ruling sought to be reviewed and of the ALJ's order
denying the petitioner's motion for certification shall be attached to
the petition.
(c) Briefs. When the Commission grants interlocutory review, it
shall also issue an order which addresses page limits on briefs and the
sequence and schedule for filing of initial briefs, and, if permitted
by the order, reply briefs.
(d) Scope of review. Unless otherwise specified in the Commission's
order granting interlocutory review, review shall be confined to the
issues raised in the ALJ's certification or to the issues raised in the
petition for interlocutory review.
0
54. In Sec. 2700.78, revise paragraph (a) to read as follows:
Sec. 2700.78 Reconsideration.
(a) A petition for reconsideration must be filed with the
Commission within 10 days after the issuance of a decision or order of
the Commission. Any response must be filed with the Commission within
10 days of service of the petition.
* * * * *
Subpart I--Miscellaneous
0
55. Revise Sec. 2700.80 to read as follows:
Sec. 2700.80 Standards of conduct; disciplinary proceedings.
(a) Standards of conduct. Representatives appearing before the
Commission or before Commission ALJs pursuant to Sec. 2700.3(b) shall
conform to the standards of ethical conduct
[[Page 5627]]
required of practitioners under the American Bar Association's Model
Rules of Professional Conduct (``ABA's Model Rules''). The Commission
shall apply the ABA's Model rules as far as practicable.
(b) Grounds. Disciplinary proceedings may be instituted against
anyone who is appearing or has appeared before the Commission on
grounds that such person has engaged in unethical or unprofessional
conduct; has failed to comply with these rules or an order of the
Commission or its ALJs; has been disbarred or suspended by a court or
administrative agency; or has been disciplined by an ALJ under
paragraph (e) of this section.
(c) Procedure. Disciplinary proceedings shall be subject to the
following procedure:
(1) Disciplinary referral. Except as provided in paragraph (e) of
this section, an ALJ or other person having knowledge of circumstances
that may warrant disciplinary proceedings against a representative who
is appearing or has appeared before the Commission shall forward to the
Commission for action such information in the form of a written
disciplinary referral. Whenever the Commission receives a disciplinary
referral, the matter shall be assigned a docket number and a notice
will be issued to the individual named in the referral of the
initiation of an investigation.
(2) Inquiry and preliminary determination by the Commission. The
Commission shall conduct an inquiry concerning a disciplinary referral
and shall determine whether disciplinary proceedings are warranted. The
Commission may require persons to submit affidavits setting forth their
knowledge of relevant circumstances.
(i) Termination of referral. If the Commission determines that
disciplinary proceedings are not warranted, it shall issue an order
terminating the referral.
(ii) Further disciplinary proceedings. Whenever, as a result of its
inquiry, the Commission, by a majority vote of the full Commission or a
majority vote of a duly constituted panel of the Commission, determines
that the circumstances warrant a hearing, the Commission shall issue an
order specifying the disciplinary issues to be resolved through hearing
and order the Commission's Chief ALJ to assign the matter to an ALJ,
from within or outside of the Commission, other than the referring ALJ,
for hearing and decision. The Commission may designate counsel from
within or outside of the Commission to prosecute the matter before the
ALJ.
(3) Hearing before an ALJ--(i) Assignment. Upon the Commission's
order determining that further proceedings are warranted, the
Commission's Chief ALJ shall select a Commission ALJ, or select a non-
Commission ALJ, and issue an order of assignment for hearing. The order
of assignment shall advise the respondent that the respondent may file
a statement in accordance with paragraph (c)(3)(ii) of this section.
(ii) Response. The respondent named in the disciplinary proceeding
may file a statement responding to the Commission's decision within 30
days after service of the order of assignment.
(iii) Evidence and applicability of hearing rules. The parties
shall have the opportunity to present evidence and cross-examine
witnesses. Subpart G of this part, governing Commission hearings before
ALJs shall apply as appropriate to all Commission disciplinary
proceedings.
(iv) ALJ's decision. The ALJ's decision shall include findings of
fact and conclusions of law and either an order dismissing the
proceedings or an appropriate disciplinary order, which may include
reprimand, suspension, or prohibition from appearing before the
Commission.
(d) Appeal from ALJ's decision. Any person adversely affected or
aggrieved by the ALJ's decision is entitled to review by the
Commission. A person seeking such review shall file a notice of appeal
with the Commission within 30 days after the issuance of the ALJ's
decision.
(e) Misconduct before an ALJ. An ALJ may order the removal of any
person, including a representative of a party, who engages in
disruptive conduct in the ALJ's presence. If a representative is
ordered removed, the ALJ shall allow the party represented by the
person a reasonable time to engage another representative. In all
instances of removal of a person for disruptive conduct, the ALJ shall
place in the record a written statement on the matter. A party
aggrieved by an ALJ's order of removal may appeal by requesting
interlocutory review pursuant to Sec. 2700.76 or, alternatively, may
assign the ALJ's ruling as error in a petition for discretionary
review.
0
56. Revise Sec. 2700.81 to read as follows:
Sec. 2700.81 Recusal and disqualification.
(a) Recusal. Whenever a Commissioner or an ALJ deems appropriate,
the Commissioner or ALJ may choose to be recused from a proceeding.
(b) Request to withdraw. A party may request a Commissioner or an
ALJ to withdraw on grounds of personal bias or other disqualification.
A party shall make such a request by promptly filing an affidavit
setting forth in detail the matters alleged to constitute personal bias
or other grounds for disqualification.
(c) Procedure if Commissioner or ALJ does not withdraw. If, upon
being requested to withdraw pursuant to paragraph (b) of this section,
the Commissioner or the ALJ does not withdraw from the proceeding, the
Commissioner or ALJ shall so rule upon the record, stating the grounds
for such ruling. If the ALJ does not withdraw, the ALJ shall proceed
with the hearing, or, if the hearing has been completed, the ALJ shall
proceed with the issuance of a decision, unless the Commission stays
the hearing or further proceedings upon the granting of a petition for
interlocutory review of the ALJ's decision not to withdraw.
0
57. In Sec. 2700.82, revise paragraphs (b), (c), and (d) to read as
follows:
Sec. 2700.82 Ex parte communications.
* * * * *
(b) Prohibited ex parte communication. There shall be no ex parte
communication with respect to the merits of a case not concluded,
between the Commission, including any member, ALJ, officer, or agent of
the Commission who is employed in the decisional process, and any of
the parties, intervenors, representatives, amici, or other interested
persons.
(c) Procedure in case of violation. (1) In the event a prohibited
ex parte communication occurs, the Commission or the ALJ may make such
orders or take such action to remedy the effect of the ex parte
communication as circumstances require. Upon notice and hearing, the
Commission may take disciplinary action against any person who
knowingly and willfully makes or causes to be made a prohibited ex
parte communication.
(2) A memorandum setting forth all ex parte communications, whether
prohibited or not, shall be placed on the public record of the
proceeding.
(d) Status or informational requests. Information concerning filing
requirements, the status of cases, or docket information may be
accessed through the Commission's website (<a href="http://www.fmshrc.gov">http://www.fmshrc.gov</a>). In
the event such information is unavailable through the Commission's
website, such status or informational requests must be directed to the
Docket Office of the Federal Mine Safety and Health Review Commission,
1331 Pennsylvania
[[Page 5628]]
Avenue NW, Suite 520N, Washington, DC 20004-1710; 202-434-9950.
0
58. Revise Sec. 2700.83 to read as follows:
Sec. 2700.83 Authority to sign orders.
The Chair or other designated Commissioner is authorized to sign on
behalf of a quorum of the Commission, orders disposing of the following
procedural motions: motions for extensions of time, motions for
permission to file briefs in excess of page limits, motions to accept
late filed briefs, motions to consolidate, motions to expedite
proceedings, motions for oral argument, and similar procedural motions.
In the absence of a designated Chair or Acting Chair, Commissioners
continue to be authorized to sign orders disposing of procedural
motions as identified above.
Dated: January 8, 2025.
Mary Lu Jordan,
Chair, Federal Mine Safety and Health Review Commission.
[FR Doc. 2025-00703 Filed 1-16-25; 8:45 am]
BILLING CODE 6735-01-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.