Procedural Rules
| Published date | 06 October 2020 |
| Citation | 85 FR 63047 |
| Record Number | 2020-19492 |
| Section | Proposed rules |
| Court | Federal Mine Safety And Health Review Commission |
Federal Register, Volume 85 Issue 194 (Tuesday, October 6, 2020)
[Federal Register Volume 85, Number 194 (Tuesday, October 6, 2020)]
[Proposed Rules]
[Pages 63047-63062]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-19492]
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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: Notice of Proposed Rulemaking.
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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. The Commission proposes revising
its procedural rules in order to aid the just and efficient
adjudication of such proceedings.
DATES: Written and electronic comments must be submitted on or before
December 7, 2020.
[[Page 63048]]
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
[email protected].
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:
I. Background
The Commission last significantly revised its procedural rules, 29
CFR part 2700, in August 2006. 71 FR 44,190 (Aug. 4, 2006). Since that
time, the Commission has identified several rules that require revision
or clarification in order to aid the efficient adjudication of
proceedings at the Commission's trial and appellate levels. For
instance, confusion has arisen in discrimination proceedings brought
pursuant to section 105(c)(3) of the Mine Act, 30 U.S.C. 815(c)(3),
regarding when a decision on the merits of discrimination becomes ripe
for review. The Commission proposes changing procedures relating to
section 105(c)(3) discrimination proceedings in order to make them more
consistent with procedures relating to discrimination proceedings
brought pursuant to section 105(c)(2) of the Mine Act, 30 U.S.C.
815(c)(2). Such changes are intended to provide greater clarity and to
eliminate unnecessary delay.
In order to provide transparency as to its processes, the
Commission has proposed both new rules and revisions to its current
rules that reflect the Commission's actual practices. The Commission
has proposed adding new Commission Procedural Rule 32 which pertains to
motions to reopen orders that have become final as the result of a
failure to make a timely filing. The Commission has also proposed new
Commission Procedural Rule 72 which describes 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 has 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 has 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 has proposed more technical changes. A
number of changes are necessitated by the evolution of the Commission's
electronic management of its dockets. In addition, the Commission has
proposed a number of corrections and stylistic changes to word usage
throughout its rules.
The proposed changes are described more fully in the following
section-by-section analysis. The Commission welcomes all comments and
suggestions regarding the proposed changes and any necessary changes
that have not been included.
II. Section-by-Section Analysis
Set forth below is an analysis of proposed changes to the
Commission's procedural rules. Some proposals involve similar or
identical changes to multiple rules. Those changes are described
immediately below by subject matter. Other changes generally pertain to
one rule and are described following the subject matter discussion on a
rule-by-rule basis.
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 77,354 (Dec. 23, 2013).
The Commission later adopted those interim rules as final rules. 84 FR
59,931 (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 recognizes that, as eCMS evolves, the Commission's
procedural rules should reflect any necessary changes. 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 proposes 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 pleadings in emergency response plan dispute proceedings;
2700.45(a) and 2700.45(f) (service in temporary reinstatement
proceedings); 2700.46(d) (service of pleadings 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 proposes deleting provisions in Sec. Sec. 2700.4(b)(1),
2700.24(f)(1), 2700.45(e)(3), 2700.54, and 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 proposes 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.''
B. Gender-Specific Pronouns
The masculine gender is currently used throughout the Commission's
Procedural Rules. The Commission proposes changing the gender-specific
pronouns in its rules to more gender-neutral language. Conforming
changes have been 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); and 2700.81(a) and (c).
The Commission also proposes deleting
[[Page 63049]]
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
proposes revising references in Sec. 2700.83 from ``Chairman'' to
``Chair.''
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 proposes 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 2700.46(d).
2. References to a Judge
The Commission proposes capitalizing the word ``Judge'' wherever it
appears in the Commission's Procedural Rules. Such changes are proposed
with respect to Sec. Sec. 2700.24(f)(2) and 2700.67(e).
3. References to the Secretary of Labor
The rules variously refer to the Secretary of Labor as
``Secretary'' and ``Secretary of Labor.'' For purposes of clarity and
consistency, the Commission proposes making revisions so that the first
reference in the text of a rule shall be to the ``Secretary of Labor,''
with a parenthetical indicating that subsequent references shall be to
the ``Secretary.'' No parenthetical is included if ``Secretary of
Labor'' appears only once in the rule. In addition, no parenthetical is
included with the first reference to ``Secretary of Labor'' that
appears in a title of the rule or in the title of its paragraphs. The
Commission proposes making such changes to Sec. Sec. 2700.4(a),
2700.20(b), 2700.21(a), 2700.22(c), 2700.24(a), 2700.25, 2700.26,
2700.27, 2700.28(a), 2700.30(b), 2700.31(b)(1), 2700.40(a), 2700.41(a),
2700.44(a), and 2700.45(b).
4. References to Website
The Commission proposes 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).
D. Subpart A--General Provisions
Sec. 2700.3 Who may practice.
The Commission proposes revising Commission Procedural Rule 3 to
clarify the conduct required of, and actions prohibited by, those who
appear before the Commission and its Judges as a representative. The
proposed revisions state 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 proposes revising Commission Procedural 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.
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 proposes
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 proposed that are related to the Commission's paperless
docketing system, the Commission proposes 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.
Sec. 2700.5 General requirements for pleadings and other documents;
status or informational requests.
Commission Procedural Rule 5 is currently entitled, ``General
requirements for pleadings and other documents; status or informational
requests.'' A large part of Rule 5 pertains to filing requirements. A
party who is unfamiliar with the Commission's Procedural Rules would
not know which rule to consult for filing requirements. The Commission
proposes inserting ``filing requirements'' in the title of Rule 5.
The Commission also proposes 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.''
Paragraph (c)(2) of Rule 5 (Sec. 2700.5(c)(2)) provides
instructions for filing documents by non-electronic means. The
Commission proposes two changes with respect to this paragraph. First,
the Commission proposes 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.
Second, the Commission proposes deleting paragraph (c)(2)(iii) as
superfluous and possibly confusing. Paragraph (2)(c) sets forth filing
instructions pertaining to the following specific time-frames: (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 section 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 proposes revising paragraph (e) of Commission
Procedural Rule 5 in order to address various privacy considerations.
Parties sometimes provide sensitive commercial information to the
Commission. Further, a party may request documents from an opposing
party that contain such information. The Commission proposes adding
paragraph (5) to Sec. 2700.5(e) in order to include a requirement that
parties take steps to protect their sensitive commercial information.
In addition, while the Commission's Judges already consider and decide
motions to place records under seal, there currently is no Commission
rule that specifically addresses the Commission's procedure for doing
so. The Commission proposes adding paragraph (6) to Sec. 2700.5(e) in
order to expressly address the procedures for placing sensitive
documents under Commission seal.
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
proposes 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.
[[Page 63050]]
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 proposes adding a requirement that all documents filed with
the Commission must be signed.
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 proposes
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 proposes 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 of Labor to the operator or any
other person against whom a civil penalty is 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
proposes adding a provision requiring that proceedings on any motion
made at hearing or during a conference shall be on the record. The
Commission also proposes making a conforming revision to Sec.
2700.53(a) recognizing that a Judge has the discretion to record any
in-person or telephonic conference.
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. The Commission
has considered the matter and has concluded not to propose any such
changes.
Section 2700.25 requires that the Secretary of Labor shall send a
notice of a proposed civil penalty to an operator or 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 section 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, section 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 declines proposing changes to Commission Procedural Rule 25
since the rule is wholly consistent with the Mine Act.
Sec. 2700.28 Filing of petition for assessment of penalty with the
Commission.
The Commission proposes 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. Past practice has demonstrated
that more than 20 citations or orders make a docket too large and
unwieldy for the Commission to efficiently manage.
Current Commission Procedural Rule 28(b)(2) mistakenly refers to a
``single penalty assessment that has been proposed under 30 CFR
100.4.'' Single penalty assessments have been subsumed by regular
assessments. The Commission proposes deleting the reference to single
penalty assessments.
Sec. 2700.31 Penalty settlement.
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 proposes 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.'' The proposed
change to paragraph (a) of Rule 31 would require parties to file
proposed orders approving settlement in penalty proceedings associated
with a discrimination proceeding as they are required to do in all
penalty proceedings.
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 proposes deleting
references to electronic filing appearing in Rule 31 as superfluous and
potentially confusing.
The Commission also proposes deleting references that appear in
Rule 31 regarding forms for approved orders approving settlement. The
Commission no longer provides sample forms for proposed orders
approving settlement on its website. Rather, parties draft proposed
orders appropriate to each case.
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 of Labor. See 29 CFR 2700.28, 2700.29.
In 2008, the Commission published an Advanced Notice of Proposed
Rulemaking (``ANPRM''). 73 FR 51,256 (Sept. 2, 2008). In the notice,
the Commission sought suggestions for improving its procedures for
processing requests to reopen and reducing the number of cases in which
a party seeks relief before the Commission after default. The
Commission stated that one of its key considerations was whether it
should set forth requirements for requesting relief from default in a
rule, or whether further guidance should be provided in an informal
document.
The Commission ultimately decided to provide guidance concerning
motions to reopen in its case law and in informal guidance available on
the Commission's website. In 2016, the Court of Appeals for the Fifth
Circuit held that the Commission applied its case law
[[Page 63051]]
precedent arbitrarily in denying a motion to reopen. Noranda Alumina,
LLC v. Perez, 841 F.3d 661, 665-69 (5th Cir. 2016). The Court noted
that the Commission has not promulgated any regulations concerning
motions to reopen, ``although it has provided nonbinding guidance on
its website.'' Id. at 666 n.1.
From the comments received on the ANPRM and the Commission's own
experience, the Commission recognizes that there are many arguments in
favor of adopting a rule and arguments against such a rule. For
instance, creating a rule may provide more visibility for the
Commission's expectations regarding information necessary to support a
motion to reopen. Application of a rule may result in more consistency
in the Commission's case law. However, 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 has proposed a rule setting forth a procedure for
motions to reopen drawn from the Commission's experience in receiving
and disposing of such motions. The Commission invites comment regarding
whether a rule would be beneficial and, if so, whether any changes to
the proposed rule are appropriate.
F. Subpart E--Complaints of Discharge, Discrimination or Interference
Sec. 2700.44 Petition for assessment of penalty in discrimination
cases.
In discrimination proceedings arising under section 105(c)(2) of
the Act, 30 U.S.C. 815(c)(2), a Judge's decision is not considered
final and reviewable by the Commission until the Judge has ruled upon
the merits of the discrimination complaint, and, in instances in which
discrimination has been found, awarded compensation to the miner and
assessed a civil penalty against the operator. A Judge's decision that
reaches only the merits of the complaint, and reserves for later such
issues as compensation and the penalty, is an ``interim decision'' and
is thus not appealable to the Commission (except by a petition for
interlocutory review) until the resolution of the outstanding issues.
Because the Secretary of Labor is not involved in a discrimination
proceeding brought by a miner under section 105(c)(3) of the Mine Act,
30 U.S.C. 815(c)(3), in the past the Commission has often separately
docketed the Secretary's civil penalty proposal, which is made
subsequent to the Judge's determination of discrimination. Thus, unlike
in section 105(c)(2) proceedings, the discrimination docket is separate
from the associated civil penalty docket in section 105(c)(3)
proceedings.
In a section 105(c)(3) proceeding, if a penalty determination is
unresolved at the time that the Judge's merits and compensation
decision becomes ripe for court review, a question arises regarding
whether the pendency of the penalty before the Commission renders the
merits determination in the discrimination proceeding non-final for
court review purposes.
Consequently, in order to afford more clarity, the Commission has
proposed revisions to Commission Procedural Rule 44 so that section
105(c)(3) cases may be treated in a manner similar to section 105(c)(2)
cases in terms of when a decision becomes ripe for review. In addition,
in recognition of the Mine Act's requirement that proceedings under
section 105(c) ``shall be expedited by the Secretary and the
Commission,'' the Commission has proposed changes to Sec. 2700.44 that
permit expedition and eliminate unnecessary delay. 30 U.S.C. 815(c)(3).
More specifically, the Commission proposes making changes to Sec.
2700.44(b) that clarify that a Judge's finding of discrimination in a
section 105(c)(3) proceeding is an interim decision, rather than a
final decision. Under the proposed changes, after the Judge sustains a
discrimination complaint brought pursuant to section 105(c)(3), the
Secretary must enter an appearance within 10 days in that
discrimination proceeding and file a petition for assessment of penalty
within 30 days. When necessary to expedite the issuance of a final
decision in the proceeding, the Judge is authorized under the proposed
changes to shorten the 30-day period and the period within which the
operator has to respond to the petition. The proposed changes also set
forth other procedural safeguards to prevent unnecessary delay. Under
these proposed revisions, the final decision of the Judge will include
the compensation to the miner and the penalty to be assessed against
the operator.
The Commission also proposes making a conforming change to
Commission Sec. 2700.41 by adding a new paragraph (c). Proposed
Commission Procedural Rule 41(c) would state 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 proposes making a conforming change to
Commission Procedural Rule 69. The Commission proposes revising Sec.
2700.69(a) to explicitly require that any decision of a Judge that is
not final shall be denoted as an ``interim decision.''
G. Subpart G--Hearings
Sec. 2700.53 Prehearing conferences and statements.
The Commission proposes revising Sec. 2700.53(a) to add a
provision stating that a Judge has the discretion to record any in-
person or telephonic conference. As discussed with respect to Sec.
2700.10, the Commission also proposes making changes to Commission
Procedural Rule 10 by adding a requirement that proceedings on any
motion made at a hearing or during a conference shall be on the record.
Thus, while a Judge may record any in-person or telephonic conference
within the Judge's discretion, proceedings on any motion must be made
part of the record.
Sec. 2700.64 Retention of exhibits.
Commission Procedural Rule 64 pertains generally to exhibits which
are made part of the official record. The Commission proposes 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 proposes 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.
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 proposes creating a new Procedural
Rule 72 which would explain the Commission's process for impaneling
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 would provide that the Commission may
impanel 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.
[[Page 63052]]
Sec. 2700.78 Reconsideration.
The Commission proposes 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 clarifies that the ten-day period is counted from the
issuance of the decision or order.
I. Subpart I--Miscellaneous
Sec. 2700.80 Standards of conduct; disciplinary proceedings.
The Commission proposes making changes to Commission Procedural
Rule 80 that would clarify the Commission's procedure in disciplinary
proceedings and the standards applicable in such proceedings.
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.
Practitioners appearing before the Commission could appear in
Commission proceedings, live, and work, in varying locations, making a
number of jurisdictions' rules of conduct potentially applicable. The
Commission considers it more equitable to apply the same standards of
conduct to all individuals practicing before the Commission. Therefore,
the Commission proposes 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 proposes 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 would require the Commission to provide written
notice to the person named in a disciplinary referral of the initiation
of an investigation. The Commission proposes 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.
Paragraph (c)(3) permits the respondent named in the disciplinary
proceeding an opportunity to file a response. In addition, paragraph
(c)(3) provides that the Chief Administrative Law Judge may assign the
proceeding to a Commission Administrative Law Judge or to a non-
Commission Administrative Law Judge. Such assignment will be made in an
impartial manner. Paragraph (c)(3) clarifies 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.
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 proposes making changes to
Sec. 2700.82(d) so that it conforms with the provisions of Sec.
2700.5(j).
Sec. 2700.83 Authority to sign orders.
Under current 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 proposes 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 proposed change would reflect the Commission's practice.
The Commission also proposes 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. Thus, the Commission considers the provision
unnecessary.
Finally, consistent with changing gender-specific pronouns to more
gender neutral language throughout its rules, the Commission proposes
changing references from ``Chairman'' to ``Chair.''
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); E.O. 13777 (Feb.
24, 2017), 82 FR 12285 (Mar. 1, 2017); 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)(3)(A)), the Commission invites members of
the interested public to submit comments on this final rule. The
Commission will accept public comment until [Insert date 60 days after
date of publication in the Federal Register.
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.
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.).
[[Page 63053]]
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 proposes
amending 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.
0
2. In Sec. 2700.1, revise paragraphs (a)(1) and (c) 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. 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; its primary phone number is 202-434-9900; and the fax
number of its Docket Office is 202-434-9954. The Commission maintains a
website at http://www.fmshrc.gov where these rules, recent and many
past decisions of the Commission and its Judges, and other information
regarding the Commission, can be accessed.
* * * * *
(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. 2700.3 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) Persons who may represent a party or subpoenaed witness before
an Administrative Law Judge or the Commission. (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 Judge 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, governmental agency, other business entity, or a political
subdivision; or
(5) Any other person with the permission of the presiding Judge 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 Judge in accordance with Sec. 2700.6; filing a written
entry of appearance with the Commission or Judge; or, if the Commission
or Judge permits, by orally entering an appearance in open hearing.
(d) Duties. All individuals authorized to practice 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
Judge, and act in a manner that furthers the fair and orderly conduct
of the proceeding.
(e) Prohibited actions. A representative must not:
(1) Threaten, coerce, intimidate, deceive or knowingly mislead a
party, representative, witness, potential witness, Judge, or anyone
participating in the proceeding regarding any matter related to the
proceeding.
(2) Knowingly make or present false or misleading statements,
assertions, or misrepresentations about a material fact or law related
to the proceeding;
(3) Unreasonably delay, or cause to be delayed without good cause,
any proceeding;
(4) Violate or attempt to violate the standards of conduct (see 29
CFR 2700.80(a)), knowingly assist or induce another to do so, or do so
through acts of another; or
(5) Engage in any other action or behavior prejudicial to the fair
and orderly conduct of the proceeding.
(f) 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 Judge. The motion must state that a notice of the
withdrawal has been provided to all parties. The Commission or Judge
may deny a representative's motion to withdraw when necessary to avoid
undue delay or prejudice to the rights of a party.
0
4. In Sec. 2700.4, revise paragraphs (a), (b)(1), and (c) to read as
follows:
Sec. 2700.4 Parties, intervenors, and amici curiae.
(a) Party status. A person, including the Secretary of Labor
(``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 a Judge, 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 a Judge, the notice of intervention shall be
filed with the Judge. Notices of intervention shall be filed with the
Commission or Judge in accordance with Sec. 2700.5(c). The Commission
or the Judge 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.
* * * * *
(c) Procedure for participation as amicus curiae. Any person may
move to participate as amicus curiae in a proceeding before a Judge.
Such participation as amicus curiae shall not be a matter of right but
of the sound discretion of the Judge. 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 Judge permits amicus curiae
participation, the Judge's order shall specify the time within which
such amicus curiae memorandum, brief, or other filing must
[[Page 63054]]
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
5. 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, by facsimile
transmission, or by electronic transmission. Instructions for
electronic filing may be accessed on the Commission's website (http://www.fmshrc.gov).
(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 Judges.
Instructions for electronic filing may be accessed on the Commission's
website (http://www.fmshrc.gov).
(2) Filing in person, by U.S. Postal Service, by third-party
commercial carrier, or by facsimilie transmission.
(i) Before a Judge has been assigned. Before a Judge 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;
facsimile delivery shall be transmitted to (202) 434-9954.
(ii) After a Judge has been assigned. After a Judge has been
assigned, and before a decision has been issued, documents shall be
filed with the Judge at the address set forth on the notice of the
assignment.
(iii) After a Judge has issued a final decision. After the Judge
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, cell telephone number if available, fax 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 Judge and
all other parties.
(e) Privacy considerations. Persons submitting information to the
Commission shall protect information that tends to identify certain
individuals, to constitute an unwarranted intrusion of personal
privacy, or disclose confidential commercial information 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 Judge 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 Judge, 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 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 (http://www.fmshrc.gov).
(2) Filing in person, by U.S. Postal Service, by third-party
commercial carrier, or by facsimile transmission. 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 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,
by third-party commercial carrier, or by facsimile, 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 a Judge. Each citation to a decision
of a Judge 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
[[Page 63055]]
(http://www.fmshrc.gov). 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
6. 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
7. In Sec. 2700.7, revise paragraphs (c)(1) and (2) to read as
follows:
Sec. 2700.7 Service.
* * * * *
(c) * * *
(1) Methods of service. Documents may be served in person, by U.S.
Postal Service, by third-party commercial carrier, by facsimile
transmission, 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, by third party commercial carrier, or facsimile transmission,
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, by facsimile transmission, or by
email or other electronic transmission, service is effective upon
successful receipt by the party intended to be served.
* * * * *
0
8. In Sec. 2700.8, revise paragraph (b) and Example 2 to read as
follows:
Sec. 2700.8 Computation of time.
* * * * *
(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.)
* * * * *
Example 2: A Commission Judge issues a final decision in a case on
Friday, July 5, 2013. Under Sec. 2700.70(a), parties have until August
4, 2013, to file with the Commission a petition for discretionary
review of the Judge's decision. Even though the decision was mailed, 5
additional calendar days are not added, because paragraph (b) of this
section only applies to actions in response to parties' filings.
However, because August 4, 2013, is a Sunday, the actual due date for
the petition is Monday, August 5, 2013.
* * * * *
0
9. 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, by third party commercial carrier,
or by facsimile transmission resulting in same-day delivery.
* * * * *
0
10. 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 on the record.
(b) Written motions shall be set forth in a document separate from
other filings.
* * * * *
0
11. 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 Judge or the Commission.
0
12. 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
section 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 of
Labor (``Secretary'') at the appropriate Regional Solicitor's Office or
at the Solicitor's Office, Mine Safety and Health Division, Arlington,
Virginia, 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
13. In Sec. 2700.21, revise paragraph (a) to read as follows:
[[Page 63056]]
Sec. 2700.21 Effect of filing notice of contest of citation or
order.
(a) The filing of a notice of contest of a citation or order issued
under section 104 of the Act, 30 U.S.C. 814, does not constitute a
challenge to a proposed penalty assessment that may subsequently be
issued by the Secretary of Labor under section 105(a) of the Act, 30
U.S.C. 815(a), which is based on that citation or order. A challenge to
such a proposed penalty assessment must be filed as a separate notice
of contest of the proposed penalty assessment. See Sec. 2700.26.
* * * * *
0
14. In Sec. 2700.22, revise paragraph (c) to read as follows:
Sec. 2700.22 Notice of contest of imminent danger withdrawal orders
under section 107 of the Act.
* * * * *
(c) Answer. Within 15 days after service of the notice of contest,
the Secretary of Labor shall file an answer responding to each
allegation of the notice of contest.
0
15. Revise Sec. 2700.24 to read as follows:
Sec. 2700.24 Emergency response plan dispute proceedings.
(a) Referral by the Secretary of Labor. The Secretary of Labor
(``Secretary'') shall immediately refer to the Commission any citation
arising from a dispute between the Secretary and an operator with
respect to the content of the operator's emergency response plan, or
any refusal by the Secretary to approve such a plan. Any referral made
pursuant to this paragraph (a) shall be made within two business days
of the issuance of any such citation.
(b) Contents of referral. A referral shall consist of a notice of
plan dispute describing the nature of the dispute; a copy of the
citation issued by the Secretary; a short and plain statement of the
Secretary's position with respect to any disputed plan provision; and a
copy of the disputed provision of the emergency response plan.
(c) Short and plain statement by the operator. Within five calendar
days following the filing of the referral, the operator shall file with
the Commission a short and plain statement of its position with respect
to the disputed plan provision.
(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, by third party commercial carrier,
or by facsimile transmission, resulting in same-day delivery.
(e) Proceedings before the Judge--(1) Submission of materials.
Within 15 calendar days of the referral, the parties shall submit to
the Judge 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 Administrative Law Judge 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 Administrative Law Judge
or designee may issue an order scheduling a hearing on the Judge's own
motion, and must immediately so notify the parties.
(iii) If a hearing is ordered under paragraphs (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 Judge
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 Judge. Within 15 calendar days
following receipt by the Judge of all submissions and testimony made
pursuant to paragraph (e) of this section, the Judge shall issue a
decision that constitutes the Judge'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
Judge's decision by the most expeditious means reasonably available.
(2) Stay of plan provision. Notwithstanding Sec. 2700.69(b), a
Judge shall retain jurisdiction over a request for a stay in an
emergency response plan dispute proceeding. Within two business days
following service of the decision, the operator may file with the Judge
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 Judge 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 a Judge's
decision, including the Judge'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 a Judge'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.
0
16. Revise Sec. 2700.25 to read as follows:
Sec. 2700.25 Proposed penalty assessment.
The Secretary of Labor (``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 Labor
(``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
[[Page 63057]]
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 Labor (``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 (a), and (b)(1) and (2) to read
as follows:
Sec. 2700.28 Filing of petition for assessment of penalty with the
Commission.
(a) Time to file. Within 45 days of receipt of a timely contest of
a proposed penalty assessment, the Secretary of Labor shall file with
the Commission a petition for assessment of penalty.
(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. In Sec. 2700.30, revise paragraph (b) to read as follows:
Sec. 2700.30 Assessment of penalty.
* * * * *
(b) In determining the amount of penalty, neither the Judge nor the
Commission shall be bound by a penalty proposed by the Secretary of
Labor 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. In all penalty proceedings, 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 of Labor (``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--(1) Factual support. 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.
(2) Appearance by CLR. If a motion has been filed by a Conference
and Litigation Representative (``CLR'') on behalf of the Secretary, the
proposed order approving settlement accompanying the motion shall
include a provision in which the Judge accepts the CLR to represent the
Secretary in accordance with the notice of either limited or unlimited
appearance previously filed with the Commission. A CLR does not need to
obtain authorization from the Commission to represent the Secretary
before the CLR files a motion to approve settlement and proposed order.
(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 Judge 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. A Judge may correct clerical errors in an order approving
settlement in accordance with the provisions of 29 CFR 2700.69(c).
0
22. Add Sec. 2700.32 to read as follows:
Sec. 2700.32 Motions to reopen.
(a) General. This section applies to situations:
(1) Where an operator has failed to file a timely notice of contest
of a proposed penalty assessment issued by the Department of Labor's
Mine Safety and Health Administration (``MSHA''), resulting in the
proposed penalty assessment being deemed a final order of the
Commission pursuant to section 105(a) of the Act, 30 U.S.C. 815(a), and
Sec. 2700.27; and
(2) Where an operator has failed to file a timely answer to a
petition for assessment of a penalty and the Judge has issued a default
order. Either situation is termed a ``default.''
(b) Definition. For purposes of this section only, ``operator''
also includes a person subject to the provisions of section 110(c) of
the Act, 30 U.S.C. 820(c), as well as an entity considered an operator
under section 3(d) of the Act, 30 U.S.C. 802(d).
(c) Grounds for relief. In reviewing motions to reopen cases where
a default has occurred, the Commission is guided by Rule 60(b) of the
Federal Rules of Civil Procedure, under which, for example, a party
could be entitled to relief from a final order of the Commission on the
basis of inadvertence, surprise, mistake, misrepresentation, misconduct
by an opposing party, or other reason that justifies relief. The
operator bears the burden of establishing entitlement to such
extraordinary relief.
(d) Time limits for filing the motion. (1) A party seeking relief
from a default must promptly file a motion with the Commission
requesting that the final order be reopened with a full explanation of
why reopening is warranted, accompanied by appropriate documentation,
as required by paragraph (e) of this section. A party's diligence in
promptly filing the motion will be taken into account in the decision
whether to grant relief. If a party fails to file its motion to reopen
within 30 days of notice or discovery of its delinquency, it must
provide a reasonable explanation for the delay.
(2) Motions for relief based on mistake, inadvertence, surprise,
excusable neglect, newly discovered evidence, fraud, misrepresentation,
or misconduct by an opposing party must be filed within one year after
a proposed penalty assessment has become a final order of the
Commission. Failure to do so will result in denial of the motion.
(e) Contents of the motion. (1) In submitting a motion, the
operator should seek guidance from the Commission's website (https://www.fmshrc.gov/content/requests-reopen and https://www.fmshrc.gov/guides/faq#problems).
(2) The motion must include the operator's name and mine ID number,
the name of the operator's
[[Page 63058]]
representative, the representative's relationship to the mine operator,
and the representative's contact information.
(3) The motion shall include a detailed explanation of facts
related to the grounds for relief, including:
(i) The nature of the event, error, or omission leading to the
default, including, if applicable, the movant's control of the filing
of a notice of contest, the circumstances causing the lateness, and any
factor bearing upon the good faith of the movant;
(ii) The steps taken in attempting to contest the proposed penalty
or to answer the penalty petition;
(iii) The reason for the untimeliness; and
(iv) Any other relevant factor.
(4) The reasons for the default must be substantiated by
documentation containing, as appropriate, affidavits and documents,
including written and electronic communications, which are relevant to
the issues raised in the motion to reopen and are within the party's
custody or control.
(5) Motions seeking to reopen a proposed penalty that has been
deemed a final order must also include:
(i) The assessment case number(s) that the operator seeks to reopen
and the individual penalties within the assessment case which the
operator seeks to contest upon reopening.
(ii) The operator's internal procedures for timely contesting
proposed penalty assessments or answer penalty petitions, including the
existence of the tracking and backup systems, and
(iii) Any available documentation of the mailing and/or delivery of
the operator's contest if the movant claims that it timely contested a
proposed penalty assessment.
(f) Secretary of Labor's response to motion. (1) The Secretary of
Labor (``Secretary'') may submit a response to the Commission within 30
days after receipt of the operator's motion to reopen a default. In the
response, the Secretary shall state whether the Secretary opposes the
motion and, if so, the reasons for such opposition, including any
prejudice resulting from the delay.
(2) The Secretary shall also submit a copy of all relevant
documents to which the Secretary has access that were not submitted by
the operator in its motion.
(3) In response to a motion to reopen a penalty assessment, the
Secretary shall include a summary, from the MSHA Mine Data Retrieval
System or other sources, of the operator's status regarding penalty
delinquencies during the preceding 24-month period. Such information
shall be presumed to be correct unless rebutted by the operator.
(g) Operator's reply. The operator may file a reply within 20 days
after service of the Secretary's response.
(h) Refiling of motion. (1) If a motion is denied ``without
prejudice,'' a new motion may be refiled within 30 days of the issuance
of the Commission's decision. If no new motion is filed within 30 days,
the initial motion is denied permanently, ``with prejudice.''
(2) If a motion is denied ``with prejudice,'' in cases involving a
failure to timely contest a proposed penalty assessment, the underlying
assessment shall be deemed to have been a final order of the
Commission. In cases involving a Judge's default order, the order shall
be a final order.
(3) When a motion is refiled, for purposes of Sec. 2700.32(d)(2),
the time during which the initial motion that was denied without
prejudice was pending before the Commission shall not be counted toward
the one-year period within which some motions to reopen a default must
be filed.
0
23. In Sec. 2700.40, revise paragraph (a) to read as follows:
Sec. 2700.40 Who may file.
(a) The Secretary of Labor. A discrimination complaint under
section 105(c)(2) of the Act, 30 U.S.C. 815(c)(2), shall be filed by
the Secretary of Labor (``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.
* * * * *
0
24. In Sec. 2700.41, revise paragraph (a) and add paragraph (c) to
read as follows:
Sec. 2700.41 Time to file.
(a) The Secretary of Labor. A discrimination complaint shall be
filed by the Secretary of Labor (``Secretary'') within 30 days after
the Secretary's written determination that a violation has occurred.
* * * * *
(c) Expedition. Proceedings held under this subpart E are to be
expedited. 30 U.S.C. 815(c)(3).
0
25. Revise Sec. 2700.44 to read as follows:
Sec. 2700.44 Petition for assessment of penalty in discrimination
cases.
(a) Petition for assessment of penalty in Secretary of Labor's
complaint. A discrimination complaint filed by the Secretary of Labor
(``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 a Judge
sustaining a discrimination complaint brought pursuant to section
105(c)(3), 30 U.S.C. 815(c)(3), the Judge shall notify the Secretary in
writing of such determination. The Secretary shall enter an appearance
in the case within 10 days and file with the Commission a petition for
assessment of civil penalty within 30 days of receipt of such notice.
When necessary to expedite the issuance of a final decision in the
proceeding, the Judge is authorized to shorten the Secretary's 30-day
filing period and the period in which the operator has to respond to
the petition. In the event the Judge does not receive a petition for
assessment of a civil penalty within 30 days of the Secretary's receipt
of the notice, or a shorter period specified in the notice, the Judge
shall issue an order to show cause as to why the Secretary has not
filed a petition. If after 7 days of issuance of such order the
Secretary has not filed with the Commission a petition for civil
penalty and the Judge has not granted an extension of time for filing,
the Judge shall presume the Secretary has proposed no penalty and
assess a penalty in accordance with 29 CFR 2700.30.
0
26. 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 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, by
third party commercial carrier, or by facsimile transmission, resulting
in same-day delivery.
(b) Contents of application. An application for temporary
reinstatement shall state the finding by the Secretary of Labor
(``Secretary'') that the miner's discrimination 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
[[Page 63059]]
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
Administrative Law Judge or designee, and simultaneously notify the
Secretary, whether a hearing on the application is requested. If no
hearing is requested, the Judge assigned to the matter shall
immediately review the Secretary's application and, if based on the
contents thereof the Judge determines that the miner's complaint was
not frivolously brought, the Judge 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
Administrative Law Judge 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
Judge shall issue a written order granting or denying the application.
However, in extraordinary circumstances, the Judge's time for issuing
an order may be extended as deemed necessary by the Judge.
(2) The Judge'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 Judge's determination by
the most expeditious means reasonably available.
(4) A Judge'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 Judge
shall retain jurisdiction over the temporary reinstatement proceeding.
(f) Review of order. Review by the Commission of a Judge'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 Judge'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
Judge'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. Pleadings 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, by
third party commercial carrier, or by facsimile transmission, 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 Judge 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) of these rules.
0
27. 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, by third party
commercial carrier, or by facsimile transmission, resulting in same-day
delivery.
0
28. In Sec. 2700.53, revise the introductory text of paragraph (a) to
read as follows:
Sec. 2700.53 Prehearing conferences and statements.
(a) The Judge may require the parties to participate in a
prehearing conference, either in person or by telephone or other video/
audio teleconferencing. Notwithstanding the mandatory recording of
motions on the record in accordance with Sec. 2700.10(a), the Judge
has the discretion to record any in-person or telephonic conference, a
transcript of which shall be provided to the parties upon reasonable
request. The participants at any such conference may consider and take
action with respect to:
* * * * *
0
29. 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
30. In Sec. 2700.55, revise paragraph (h) to read as follows:
Sec. 2700.55 Powers of Judges.
* * * * *
(h) Make decisions in the proceedings, provided that the Judge
shall not be assigned to make a recommended decision; and
* * * * *
0
31. In Sec. 2700.56, revise paragraph (c) 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 Judge's own motion, a
Judge 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.
* * * * *
0
32. In Sec. 2700.58, revise paragraph (c) to read as follows:
Sec. 2700.58 Interrogatories, requests for admissions and requests
for production of documents.
* * * * *
(c) Request for production, entry or inspection. Any party, without
leave of the Judge, 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
[[Page 63060]]
within 25 days of service unless the party making the request agrees to
a longer time. The Judge 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
33. Revise Sec. 2700.61 to read as follows:
Sec. 2700.61 Name of miner informant.
A Judge 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
34. Revise Sec. 2700.62 to read as follows:
Sec. 2700.62 Name of miner witness.
A Judge 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 Judge to testify or whom a party expects to
summon or call as a witness.
0
35. 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
36. 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 Judge, upon request
and after notice to the other parties, if true copies are substituted,
where practical, for the originals.
0
37. In Sec. 2700.66, revise paragraph (a) to read as follows:
Sec. 2700.66 Summary disposition of proceedings.
(a) Generally. When a party fails to comply with an order of a
Judge 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.
* * * * *
0
38. In Sec. 2700.67, revise paragraph (e) to read as follows:
Sec. 2700.67 Summary decision of the Judge.
* * * * *
(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 Judge shall permit affidavits to be
supplemented or opposed by depositions, answers to interrogatories,
admissions, or further affidavits.
* * * * *
0
39. Revise Sec. 2700.68 to read as follows:
Sec. 2700.68 Substitution of the Judge.
(a) Generally. Should a Judge become unavailable to the Commission,
the proceedings assigned to that Judge shall be reassigned to a
substitute Judge.
(b) Substitution following a hearing. The substitute Judge may
render a decision based upon the existing record, provided the parties
are notified of the Judge's intent and they are given an opportunity to
object. An objection to the Judge rendering a decision based upon the
existing record shall be filed within 10 days following receipt of the
Judge'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 Judge may order a further hearing on the
merits, which shall be limited, so far as practicable, to the testimony
in dispute.
0
40. In Sec. 2700.69, revise paragraphs (a) through (c) to read as
follows:
Sec. 2700.69 Decision of the Judge.
(a) Form and content of the Judge's decision. The Judge shall make
a decision that constitutes a final disposition of the proceedings. A
decision that is not final shall be titled ``Interim Decision.'' Any
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 a
Judge approving a settlement proposal is a decision of the Judge.
(b) Termination of the Judge's jurisdiction. Except to the extent
otherwise provided herein, the jurisdiction of the Judge terminates
when the Judge's decision has been issued.
(c) Correction of clerical errors. At any time before the
Commission has directed that a Judge's decision be reviewed, and on the
Judge's own motion or the motion of a party, the Judge may correct
clerical errors in decisions, orders, or other parts of the record.
After the Commission has directed that a Judge's decision be reviewed,
the Judge may correct such errors with the leave of the Commission. If
a Judge's decision has become the final order of the Commission, the
Judge 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 Judge's
decision on the merits.
* * * * *
0
41. In Sec. 2700.70, revise paragraph (f) to read as follows:
Sec. 2700.70 Petitions for discretionary review.
* * * * *
(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, by third party
commercial carrier, or by facsimile transmission, resulting in same-day
delivery.
* * * * *
0
42. Add Sec. 2700.72 to read as follows:
Sec. 2700.72 Commission panels.
The Commission may, at its discretion, impanel a group of three or
more members to hear any pending matter. Assignment to such panels
shall be made by a random method agreed upon by a majority of the
Commissioners.
0
43. In Sec. 2700.73, revise paragraph (b) to read as follows:
[[Page 63061]]
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;
* * * * *
0
44. In Sec. 2700.75, revise paragraphs (a)(1), (e), and (f) to read as
follows:
Sec. 2700.75 Briefs.
(a) Time to file--(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.
* * * * *
(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, by third party commercial carrier,
or by facsimile transmission, resulting in same-day delivery.
* * * * *
0
45. In Sec. 2700.76, revise paragraph (a)(1)(i) to read as follows:
Sec. 2700.76 Interlocutory review.
(a) * * *
(1) * * *
(i) The Judge has certified, upon the Judge's own motion or the
motion of a party, that an interlocutory ruling involves a controlling
question of law and that in the Judge's opinion immediate review will
materially advance the final disposition of the proceeding; or
* * * * *
0
46. 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.
* * * * *
0
47. In Sec. 2700.80, revise paragraphs (a) through (c) to read as
follows:
Sec. 2700.80 Standards of conduct; disciplinary proceedings.
(a) Standards of conduct. Representatives practicing before the
Commission or before Commission Judges pursuant to 29 CFR 2700.3(b)
shall conform to the standards of ethical conduct required of
practitioners under the American Bar Association's 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 practicing or has practiced 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 Judges; has been disbarred or suspended by a court or
administrative agency; or has been disciplined by a Judge 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, a Judge or other person having knowledge of circumstances
that may warrant disciplinary proceedings against an individual who is
practicing 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 Administrative Law Judge to assign the
matter to an Administrative Law Judge, from within or outside of the
Commission, other than the referring Judge, for hearing and decision.
The Commission may designate counsel from within or outside of the
Commission to prosecute the matter before the Judge.
(3) Hearing before an Administrative Law Judge--(i) Assignment.
Upon the Commission's order determining that further proceedings are
warranted, the Commission's Chief Administrative Law Judge shall select
a Commission Administrative Law Judge, or select a non-Commission
Administrative Law Judge, 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 the Commission's procedural rules governing
Commission hearings before Administrative Law Judges shall apply as
appropriate to all Commission disciplinary proceedings.
(iv) Judge's decision. The Judge'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 practice before the
Commission.
* * * * *
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48. In Sec. 2700.81, revise paragraphs (a) and (c) to read as follows:
Sec. 2700.81 Recusal and disqualification.
(a) Recusal. Whenever a Commissioner or a Judge deems
[[Page 63062]]
appropriate, the Commissioner or Judge may choose to be recused from a
proceeding.
* * * * *
(c) Procedure if Commissioner or Judge does not withdraw. If, upon
being requested to withdraw pursuant to paragraph (b) of this section,
the Commissioner or the Judge does not withdraw from the proceeding,
the Commissioner or Judge shall so rule upon the record, stating the
grounds for such ruling. If the Judge does not withdraw, the Judge
shall proceed with the hearing, or, if the hearing has been completed,
the Judge 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 Judge's decision not to
withdraw.
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49. In Sec. 2700.82, revise paragraph (d) to read as follows:
Sec. 2700.82 Ex parte communications.
* * * * *
(d) Status or informational requests. Information concerning filing
requirements, the status of cases, or docket information may be
accessed through the Commission's website (http://www.fmshrc.gov). 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 Avenue NW, Suite 520N, Washington, DC 20004-1710;
202-434-9950.
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50. 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 the Commissioners, 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, Acting Chair or quorum, the
remaining Commissioner or Commissioners continue to be authorized to
sign orders disposing of procedural motions as identified above.
Dated: August 31, 2020.
Marco M. Rajkovich, Jr.,
Chair, Federal Mine Safety and Health Review Commission.
[FR Doc. 2020-19492 Filed 10-5-20; 8:45 am]
BILLING CODE 6735-01-P
