Procedural Rules, 553-569 [06-64]

Agencies

• Federal Mine Safety and Health Review Commission

[Federal Register Volume 71, Number 3 (Thursday, January 5, 2006)]
[Proposed Rules]
[Pages 553-569]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-64]


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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

29 CFR Parts 2700, 2704, and 2705


Procedural Rules

AGENCY: Federal Mine Safety and Health Review Commission.

ACTION: Proposed rule.

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SUMMARY: The Federal Mine Safety and Health Review Commission (the 
``Commission'') is an independent adjudicatory agency that provides 
trials and appellate review of cases arising under the Federal Mine 
Safety and Health Act of 1977, 30 U.S.C. 801 et seq. (2000) (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 is proposing to revise its procedural rules, regulations 
implementing the Equal Access to Justice Act, and regulations 
implementing the Privacy Act in order to aid the efficient adjudication 
of proceedings at the Commission's trial and appellate levels and to 
ensure consistency with the statutes underlying those regulations.

DATES: Written and electronic comments must be submitted on or before 
March 6, 2006.

ADDRESSES: Written comments should be mailed to Thomas A. Stock, 
General Counsel, Office of the General Counsel, Federal Mine Safety and 
Health Review Commission, 601 New Jersey Avenue, NW., Suite 9500, 
Washington, DC 20001, or sent via facsimile to 202-434-9944. Persons 
mailing written comments shall provide an original and three copies of 
their comments. Electronic comments should state ``Comments on Notice 
of Proposed Rulemaking'' in the subject line and be sent to 
tstock@fmshrc.gov.

FOR FURTHER INFORMATION CONTACT: Thomas A. Stock, General Counsel, 
Office of the General Counsel, 601 New Jersey Avenue, NW., Suite 9500, 
Washington, DC 20001; telephone 202-434-9935; fax 202-434-9944.

SUPPLEMENTARY INFORMATION:

I. Background

    In October 2004, the Commission published an Advance Notice of 
Proposed Rulemaking (``ANPRM'') in which it sought suggestions for 
improving its procedural rules (29 CFR part 2700), Government in the 
Sunshine Act regulations (29 CFR part 2701), regulations implementing 
the Freedom of Information Act (``FOIA'') (29 CFR part 2702), and 
regulations implementing the Equal Access to Justice Act (``EAJA'') (29 
CFR part 2704). See 69 FR 62632, Oct. 27, 2004. In the ANPRM, the 
Commission identified several procedural rules set forth in part 2700 
that require further revision, clarification, or expansion. See id. at 
62632-35. The Commission also stated that it would examine its 
procedures for processing requests for relief from final judgments. Id. 
at 62632. The Commission did not include in the ANPRM any specific 
proposed revisions to the Commission's regulations implementing the 
Government in the Sunshine Act (part 2701), the FOIA (part 2702), the 
EAJA (part 2704), or the Privacy Act (part 2705).
    Although notice-and-comment rulemaking requirements under the 
Administrative Procedure Act (``APA'') do not apply to rules of agency 
procedure (see 5 U.S.C. 553(b)(3)(A)), the Commission invited members 
of the interested public to submit comments until January 25, 2005. The 
Commission invited comments on the revisions described in the ANPRM and 
on any other revisions not in the ANPRM but which the interested public 
believed could lead to the more efficient adjudication of Commission 
proceedings under the Commission's procedural rules (part 2700). The 
Commission also invited comments on its regulations implementing the 
Government in the Sunshine Act (part 2701), FOIA (part 2702), and EAJA 
(part 2704). 69 FR at 62632.
    The Commission received comments from the Secretary of Labor 
through the U.S. Department of Labor's Office of the Solicitor; the 
Pennsylvania Coal Association; the United Mine Workers of America; the 
National Stone, Sand & Gravel Association; and other

[[Page 554]]

individual members of the mining community or bar who practice before 
the Commission. As discussed in the section-by-section analysis, some 
changes in this notice are proposed in response to the comments 
received. Other changes are proposed in response to further reflection 
by the Commission or in response to developments in Commission 
proceedings since publication of the ANPRM. For example, the Commission 
has determined that some changes may be necessary to its regulations 
implementing the Privacy Act (part 2705). Further consideration by the 
Commission has also revealed that further changes are unnecessary at 
the present time to various rules, including the Commission's 
regulations implementing the Government in the Sunshine Act (part 2701) 
and FOIA (part 2702). In addition, after examining its procedures for 
processing requests for relief from final judgment, the Commission has 
determined that such procedures could be made more efficient through 
informal means rather than through the rulemaking process. Such 
informal means include making available a summary of the Commission's 
procedural rules described in simple terms and placing on the 
Commission's Web site a page of frequently asked questions and answers 
regarding Commission procedure.
    Although the proposed rules in this notice are procedural in nature 
and do not require notice and comment publication (see 5 U.S.C. 
553(b)(3)(A)), the Commission is inviting and will consider public 
comment before adopting in final form any revisions to the existing 
rules. In addition, anyone interested in providing oral statements on 
the Commission's proposed rule revisions announced in this notice may 
submit a request for a public meeting. In the request for a public 
meeting, the party shall identify the individual or entity requesting 
the public meeting and the name of the individual who will present the 
oral statement at the public meeting, provide a summary of the content 
of the oral statement to be presented at the public meeting, indicate 
the amount of time needed to present the oral statement, and propose a 
geographic location for the meeting. If the Commission receives a 
request for a public meeting on this notice, the Commission may hold a 
public meeting at its headquarters at 601 New Jersey Avenue, NW., Suite 
9500, Washington, DC, or at other locations depending upon the level of 
interest shown. If public meetings are scheduled, the Commission will 
issue a subsequent notice to be published in the Federal Register no 
later than 30 days before the dates of such meetings announcing the 
dates and locations of such meetings and setting forth guidelines for 
the meetings.
    All comments and requests for a public meeting shall be mailed to 
Thomas A. Stock, General Counsel, Office of the General Counsel, 
Federal Mine Safety and Health Review Commission, 601 New Jersey 
Avenue, NW., Suite 9500, Washington, DC 20001; sent via facsimile to 
202-434-9944; or emailed to tstock@fmshrc.gov. It is requested that 
comments and requests be filed no later than March 6, 2006.

II. Section-by-Section Analysis

    Set forth below is an analysis of proposed changes to the 
Commission's rules, including any comments received.

A. Part 2700--Procedural Rules

Subpart A--General Provisions

29 CFR 2700.1
    Proceedings before the Commission have sometimes revealed confusion 
regarding the relationship between the Commission and the Department of 
Labor and its Mine Safety and Health Administration (``MSHA''). In 
order to minimize such confusion, the Commission proposes amending 
paragraph (a) of Commission Procedural Rule 1 to add an explanation 
regarding the Commission's role and relationship to the Department of 
Labor. In addition, the Commission proposes adding to paragraph (a), 
for easy reference, pertinent information necessary for contacting the 
Commission or gaining access to Commission records.
29 CFR 2700.5
    Privacy-related issues raised by pleadings and other documents in 
Mine Act cases. With the advent of electronic filings and Internet 
access to judicial files, there has been increased sensitivity 
regarding personal information in files that are easily accessed by the 
public. Identity theft and other misuse of personal information are 
problems that have been exacerbated by the widespread availability of 
information over the Internet. Since publication of the ANPRM, the 
Commission has reviewed the rules of the courts and other agencies and 
proposes to add a new subsection to Commission Procedural Rule 5, 
formerly subsection 5(d), to prevent incorporation into the 
Commission's case files of certain kinds of information (social 
security numbers, bank account numbers, and drivers' license numbers) 
and information related to certain individuals (e.g., minor children). 
It is generally anticipated that the role of the Commission's Judges in 
enforcing the rule will be limited because implementation of this rule 
will fall heavily on the parties in Mine Act proceedings in light of 
their interests in redacting personal information.
    Filing and service requirements. Commission Procedural Rule 5(d) 
currently provides that a notice of contest of a citation or order; a 
petition for assessment of penalty; a complaint for compensation; a 
complaint of discharge, discrimination, or interference; an application 
for temporary reinstatement; and an application for temporary relief 
shall be filed by personal delivery or by registered or certified mail, 
return receipt requested. 29 CFR 2700.5(d). Commission Procedural Rule 
7(c) also requires that such documents, in addition to a proposed 
penalty assessment, shall be served by personal delivery or by 
registered or certified mail, return receipt requested. 29 CFR 
2700.7(c); see also 29 CFR 2700.45(a) (providing, in part, for service 
by certified mail of pleadings in a temporary reinstatement 
proceeding). Although not explicitly required by the Commission's 
procedural rules in all circumstances, the Commission, as a matter of 
practice, generally mails by certified mail, return receipt requested, 
Judges' decisions after hearing, default orders, and orders that 
require timely action by a party. Cf. 29 CFR 2700.66(a) (requiring show 
cause orders to be mailed by registered or certified mail, return 
receipt requested).
    In addition, Commission Procedural Rule 5(d) currently provides 
that certain documents may be filed by facsimile transmission 
(``fax''), while Commission Procedural Rule 7(c) contains corresponding 
provisions governing service when filing is by fax. The documents which 
may be filed by fax are motions for extension of time (29 CFR 2700.9), 
petitions for Commission review of a Judge's temporary reinstatement 
decision (29 CFR 2700.45(f)), motions for expedition of proceedings (29 
CFR 2700.52(a)), petitions for discretionary review (``PDRs'') (29 CFR 
2700.70(a)), motions to file a PDR in excess of the applicable page 
limit (29 CFR 2700.70(f)), and motions to file a brief in excess of the 
applicable page limit (29 CFR 2700.75(f)). Under Commission Procedural 
Rule 5(d), a Judge or the Review Commission may also order the filing 
via fax of other documents. In practice, the Commission accepts by fax

[[Page 555]]

many documents that are not specified in current Commission Procedural 
Rule 5(d).
    In the ANPRM, the Commission stated that it was reviewing whether 
sections 2700.5(d) and 2700.7(c) should permit parties to use other 
methods, such as commercial mail services, to file and serve the 
documents for which personal delivery or registered or certified mail 
are presently required. 69 FR at 62632. In addition, the Commission 
stated that it was considering whether notices designating a PDR as an 
opening brief should be added to the list of pleadings that may be 
filed by fax. Id.
    The Secretary opposes changing the present rules on the use of 
registered or certified mail because she does not consider the rules to 
be burdensome and considers the availability of the return receipt 
desirable for proving that a document has been filed or served. Another 
commenter also states that the requirements for certified mail should 
not be changed, except that the Commission should codify its current 
practice of mailing documents by certified mail. Most commenters 
support changing the rule to allow the use of commercial mail services 
but further suggest that the Commission allow filing by fax to a 
greater degree than allowed under current rules. Those commenters state 
that the use of commercial mail services can provide reliable 
information about the date of filing or service and that most fax 
machines will also print a verification of transmission. One commenter 
explains that because some mines are located in remote locations, it 
may be difficult to satisfy the requirements for certified or 
registered mail in a timely manner.
    The pleadings and other documents for which the current rules 
presently require personal delivery or certified or registered mail as 
the method for filing and service are generally those that initiate 
Commission proceedings. The purpose for requiring such methods of 
filing and service is to provide the party initiating the proceeding 
with proof that filing and service have taken place in the event a 
question later arises. The documents that may be filed by fax under 
current Commission Procedural Rule 5(d) are generally those requesting 
Commission action of a time-sensitive nature.
    Whenever a party initiates a Commission proceeding, the party is 
assuming a certain degree of risk that it may not be successful in 
initiating the proceeding due to unexpected circumstances involving the 
document it is filing or serving once the document has left the party's 
control. It is in the filing party's best interest to ensure against 
that risk by using a method of delivery that provides adequate proof of 
proper filing and service. While a signed receipt is reliable proof 
that filing and service were actually accomplished, the Commission 
believes that a waybill provided by a private carrier that contains 
tracking information or a fax machine transmission report may also 
provide sufficiently reliable information that proper filing and 
service have been accomplished.
    Accordingly, the Commission proposes revising the filing and 
service requirements of current Commission Procedural Rules 5(d) and 
7(c) in an effort to require a method of filing and service that would 
be convenient to most parties yet would provide reliable verification 
of the time of filing and service. The Commission proposes to 
redesignate current Commission Procedural Rule 5(d) as 5(e), and in 
redesignated Commission Procedural Rule 5(e), to allow the filing party 
to choose the manner for filing a document, unless a certain method is 
otherwise required by the Mine Act or the Commission's procedural 
rules. Under this proposed change, it would be incumbent upon parties 
to use a method of delivery that provides adequate proof of timely 
filing and service, particularly if a filing party is initiating a 
proceeding. It would be the responsibility of the filing or serving 
party to confirm receipt of the document filed or served.
    The newly redesignated Commission Procedural Rule 5(e) would not 
include the specific description of documents which may be filed by 
fax. Rather than limiting fax filing to various types of documents, the 
proposed rule would impose a 15-page length limit on most documents 
that may be filed by fax. Documents filed pursuant to 30 CFR 2700.70 
(petitions for discretionary review), 30 CFR 2700.45 (temporary 
reinstatement proceedings) or 30 CFR subpart F (applications for 
temporary relief) may be filed by fax and would not be subject to the 
15-page limit. Under the proposed rule, a notice designating a PDR as 
an opening brief may be filed by fax as it certainly would be 15 pages 
or less. The effective date of filing depends upon the method of 
delivery chosen and is specified accordingly in new Commission 
Procedural Rule 5(e). The Commission also proposes deleting references 
to permissible fax filing presently found in other rules (see 29 CFR 
2700.9(a), 2700.45(f), 2700.52(a), 2700.70(a), 2700.75(f)), so as to 
avoid the misperception that those are the only instances in which fax 
filing is permitted. Proposed Sec.  2700.7(c) sets forth service 
requirement revisions that conform with those set forth in proposed 
Sec.  2700.5(e) related to filing requirements.
    Finally, the Commission intends to continue its current practice of 
mailing by certified mail, return receipt requested: Judges' decisions 
(after hearing), default orders, and orders that require timely action 
by a party. The Commission has determined that further codification of 
that practice is not necessary at this time since such codification 
would not alter the Commission's practice or ultimately result in a 
benefit to parties. See 29 CFR 2700.66(a) (requiring an order to show 
cause to be mailed by registered or certified mail, return receipt 
requested).
    Number of file copies. Commission Procedural Rule 5(e) currently 
sets forth the number of copies to be submitted in cases before a Judge 
and the Review Commission, requiring represented parties to file two 
copies per docket in cases before Judges and seven copies in cases 
before the Review Commission. 29 CFR 2700.5(e). The rule further 
requires that when filing by fax a party must file the proper number of 
copies with the Judge or Review Commission within 3 days of the 
facsimile transmission. Id.
    In the ANPRM, the Commission stated that it was considering 
requiring fewer copies than are currently required by the rule. 69 FR 
at 62632. All commenters support reducing the number of copies that 
must be filed.
    The Commission proposes redesignating current Commission Procedural 
Rule 5(e) as 5(f). In newly redesignated Commission Procedural Rule 
5(f), the Commission would require that only those parties represented 
by a lawyer need file, unless otherwise ordered, the original document 
and one copy for each docket in cases before a Judge, and the original 
document and six copies in cases before the Review Commission. For 
parties not represented by a lawyer, filing the original document would 
be sufficient. Under the proposed rule, when filing is by fax, the 
original document must be filed with the Judge or Review Commission 
within 3 days of transmission, but no other copies need be filed. The 
Commission proposes making a conforming change to 29 CFR 2700.75(g), 
setting forth the number of copies of briefs to be filed.
    Form of pleadings. Current Commission Procedural Rule 5(f) contains 
various format requirements for pleadings filed with the Commission, 
providing in part that ``briefs'' not meeting the requirements may be 
rejected. 29 CFR 2700.5(f). The

[[Page 556]]

rule is intended to permit rejection of all pleadings not meeting the 
format requirements, rather than only briefs. The Commission proposes 
redesignating current Commission Procedural Rule 5(f) as 5(g). Newly 
redesignated Commission Procedural Rule 5(g) would provide that any 
pleading not meeting the format requirements would be subject to 
rejection. Current 29 CFR 2700.5(g) would be redesignated as 29 CFR 
2700.5(i).
    Citations to Judges' decisions. Commission Procedural Rule 72 
currently provides that an unreviewed decision of a Judge is not a 
precedent binding upon the Commission. 29 CFR 2700.72. In the ANPRM, 
the Commission stated that it was considering adding the requirement 
that any citation in a pleading to an unreviewed decision of a Judge 
should be designated parenthetically as such. 69 FR at 62634. The 
Commission explained that such a revision would provide the reader with 
information regarding whether the citation is binding precedent on the 
proposition for which it is cited. Id.
    The majority of commenters do not oppose the suggested citation 
change. However, a few commenters suggest that a system for designating 
cases should be published. One commenter suggests that a change is 
unnecessary because citation to a Judge's decision without subsequent 
Commission history is presumptively an unreviewed decision.
    Presently, there is no requirement that citations to Commission 
cases in pleadings differentiate between Judge and Review Commission 
decisions, regardless of whether the former are reviewed or unreviewed. 
In an effort to maximize clarity and accuracy in citation format, the 
Commission proposes adding a requirement that citations to a Judge's 
decision include ``(ALJ)'' at the end of the citation. Because such a 
change would be general and apply to pleadings before the Judges and 
the Review Commission, the Commission would include the requirement in 
Commission Procedural Rule 5. The Commission proposes redesignating 
current Commission Procedural Rule 5(g) as 5(i) and including in new 
Rule 5(h) the requirement regarding citation to a Judge's decision. In 
addition, the Commission would further clarify that Judges' decisions 
are not binding precedent upon the Review Commission. The Commission 
believes that such a clarification is most appropriately included in 29 
CFR 2700.69, which addresses Judges' decisions. The Commission proposes 
deleting the current provisions of 29 CFR 2700.72, and reserving 
Commission Procedural Rule 72 for future use.
29 CFR 2700.8
    Commission Procedural Rule 8 provides in part that the last day of 
a period computed shall be included unless that day is a Saturday, 
Sunday, or federal holiday, in which event the period runs until the 
next business day. 29 CFR 2700.8. The rule further provides that when a 
period of time prescribed in the rules is less than 7 days, 
intermediate Saturdays, Sundays, and federal holidays shall be excluded 
in the computation of time. Id. Commission Procedural Rule 8 also 
states that when the service of a document is by mail, 5 days shall be 
added to the time allowed by the rules for the filing of a response or 
other documents. Id.
    In the ANPRM, the Commission stated that it was considering whether 
to more closely conform its time computation rule with federal 
procedural rules. 69 FR at 62633. It specified that the Commission was 
considering whether it should increase the period for which intervening 
Saturdays, Sundays, and federal holidays shall be excluded, and 
decrease the number of days added for filing a response if service is 
by mail. Id. The Commission further stated that it was considering 
clarifying changes to Commission Procedural Rule 8 that would dispel 
confusion regarding the circumstances and the types of mail and 
delivery that qualify for the additional days for filing when service 
is by mail. Id. Finally, the Commission stated that it was considering 
making explicit that the Review Commission may act on a PDR on the 
first business day following the 40th day after the Judge's decision, 
where the 40th day would otherwise fall on a weekend or federal 
holiday. Id.
    Most commenters support expanding the period in which intervening 
weekends and holidays would not be counted, in conformance with federal 
procedural rules. The Secretary also agrees that such a period should 
be expanded, but further states that such an expanded time should not 
apply to the time periods set forth in 29 CFR 2700.45 pertaining to 
temporary reinstatement proceedings. In addition, the Secretary 
suggests that Commission Procedural Rule 8 should be revised to provide 
that the last day of a filing period should not be counted if the 
Commission's office is closed due to inclement weather or other 
conditions. Most commenters also support clarifying Commission 
Procedural Rule 8 to explain the circumstances in which 5 days are 
added to time periods when service is by mail. Most commenters do not 
support reducing the 5-day period added on for filing when service is 
by mail. Most commenters support making explicit that the Commission 
may act on a PDR on the first business day following the 40th day after 
the Judge's decision, where the 40th day would otherwise fall on a 
weekend or Federal holiday.
    As to the time period for which holidays and weekends are excluded 
in the computation of time, the Commission considers it appropriate to 
harmonize Commission Procedural Rule 8 with federal procedural rules in 
order to decrease confusion and to better afford parties ample time in 
which to prepare their pleadings. Federal procedural rules provide that 
when a period of time prescribed is less than 11 days, intermediate 
Saturdays, Sundays, and legal holidays are excluded in the computation. 
Fed. R. Civ. P. 6(a); Fed. R. App. P. 26(a)(2). The Commission would 
propose to revise Commission Procedural Rule 8 to expand the period in 
which intervening weekends and holidays are excluded from time 
computation from 7 to 11 days.
    However, adopting the 11-day period set forth in federal procedural 
rules, without other Commission procedural rule changes, may have an 
unintended negative impact on the efficient adjudication of proceedings 
before the Review Commission and its Judges. Under Commission 
Procedural Rule 10(d), a party has 10 days to respond to a motion. 29 
CFR 2700.10(d). Under proposed Commission Procedural Rule 8, weekends 
and holidays that occur within the 10-day response time of current 
Commission Procedural Rule 10(d) would not be counted, which could 
result in the return response period being unreasonably extended to 
nearly 3 weeks where parties are served by mail. In order to avoid this 
result, the Commission also proposes changing the period of time for 
responding to a motion set forth in 29 CFR 2700.10(d) from 10 days to 8 
days. This proposed change would guarantee parties 8 business days to 
respond to a motion, which is the greatest number of business days 
provided by the current rules. Under current Commission Procedural 
Rules 8 and 10(d), intervening weekends and holidays are included in 
time computation, resulting in parties receiving a response time of 10 
to 12 calendar days, or 5 to 8 business days.
    The Commission agrees with the Secretary's comment that any 
proposed change to Commission Procedural Rule 8 providing for an 
expanded response time should not apply to the time periods set forth 
in 29 CFR 2700.45

[[Page 557]]

pertaining to temporary reinstatement proceedings. Section 105(c)(2) of 
the Mine Act requires the Commission to consider applications for 
temporary reinstatement on an expedited basis. 30 U.S.C. 815(c)(2). 
Therefore, the Commission proposes that Commission Procedural Rule 45 
be amended to specify time periods in ``business'' days when the time 
period prescribed for action is less than 7 days, and ``calendar'' days 
when the time period prescribed is 7 or more days under that rule. This 
proposed change would maintain the same time frames currently provided 
in Commission Procedural Rule 45.
    The Commission also agrees with the Secretary's comment that 
Commission Procedural Rule 8 should be revised to recognize that the 
last day of a filing period should not be counted if the Commission's 
offices are closed due to inclement weather or other conditions. The 
Commission proposes revising Commission Procedural Rule 8 to include 
more general language stating that the last day of a prescribed period 
for action shall be the due date unless the Commission's offices are 
not open or the Commission is otherwise unable to accept filings. This 
proposed revision would apply to deadlines for both Commission and 
party action.
    The Commission also agrees with commenters that the 5-day period 
that is added under Commission Procedural Rule 8 when service is by 
mail should not be reduced. Commenters have explained that for many 
operators in isolated areas, it would be unreasonable to expect 
delivery within a shorter period of time. In addition, there have been 
mail delays caused by security concerns and increased screening 
procedures. Nonetheless, the Commission proposes specifying that the 5 
days added when service is by mail are 5 additional calendar days. The 
rule is presently silent as to whether the 5 days are calendar days or 
business days.
    Furthermore, in order to better explain the circumstances in which 
the 5 additional days will be added, the Commission proposes inserting 
language to clarify that 5 calendar days will be added to the due date 
for a responding party's reply to a pleading which has been served by a 
method of delivery other than same-day service. This proposed change 
clarifies that the 5-day period is added to documents responding to a 
party's pleading, rather than to documents responding to orders from 
the Commission. In addition, the proposed change clarifies that the 5 
days will be added when responding to a party's pleading that has been 
served by any means other than same-day service. Service by courier or 
fax would result in same-day delivery so that the 5 days would not be 
added to the time for response to such pleadings. However, service by 
U.S. Postal Service first-class mail or any other mail service 
resulting in other than same-day delivery would result in the addition 
of 5 days to the response time.
    The Commission has determined that, given these proposed changes, 
it need not further clarify that the Review Commission may act on a PDR 
on the first business day following the 40th day after the Judge's 
decision, where the 40th day would otherwise fall on a weekend or 
federal holiday. Rather, the proposed changes to Commission Procedural 
Rule 8 should sufficiently clarify that the Review Commission may act 
on the PDR until the end of the next day that the Commission's offices 
are open. Such proposed language would apply to other deadlines for 
Commission action as well. See, e.g., 30 U.S.C. 823(d)(2)(B) (providing 
the period within which the Review Commission may direct sua sponte 
review).
    The various provisions of proposed Commission Procedural Rule 8 may 
result in different determinations of due dates depending upon the 
order in which the provisions are applied. Therefore, the Commission 
proposes to state in the rule that its subsections apply in sequential 
order. That is, in computing time, a party must apply the subsections 
in order, beginning with subsection (a) and ending with subsection (c). 
The Commission also proposes including as a part of the rule two 
examples demonstrating how the provisions would apply sequentially.
29 CFR 2700.9
    Commission Procedural Rule 9 currently provides in part that the 
time for filing or serving ``any document'' may be extended for good 
cause. 29 CFR 2700.9(a). Experience has shown that a number of parties 
believe that they can seek an extension of time to file a petition for 
discretionary review. The Commission therefore proposes revising the 
rule to clarify that the rule does not apply to petitions for 
discretionary review filed pursuant to section 113(d)(2)(A)(i) of the 
Mine Act, 30 U.S.C. 823(d)(2)(A)(i), and 29 CFR 2700.70(a).
29 CFR 2700.10(c)
    Commission Procedural Rule 10(c) currently provides that prior to 
filing a ``procedural motion,'' the moving party shall make reasonable 
efforts to confer with other parties and state in the motion whether 
the other parties oppose the motion. 29 CFR 2700.10(c). In the ANPRM, 
the Commission stated that it was considering whether the phrase 
``procedural motion'' should be changed to clarify that it refers to 
any non-dispositive motion. 69 FR at 62633.
    Most commenters support clarifying that movants must confer with 
opposing parties on non-dispositive motions. The Secretary does not 
oppose the change, provided that it is intended to exclude summary 
decision motions from the rule.
    The Commission considered changing Commission Procedural Rule 10(c) 
because the phrase ``procedural motion'' is broad and may create 
confusion regarding which documents constitute procedural motions. The 
Commission believes that the phrase ``dispositive motion'' may more 
accurately describe the type of motion about which parties need not 
confer. Consequently, in an effort to dispel confusion, the Commission 
proposes revising the rule to state that consultation with opposing 
parties is required for any motion other than a dispositive motion.
29 CFR 2700.10(d)
    As discussed in the section above regarding 29 CFR 2700.8, the 
Commission proposes decreasing the period of time for responding to a 
motion from 10 days to 8 days. Such a change is proposed in combination 
with the proposed changes to 29 CFR 2700.8. The Commission proposes 
revising Commission Procedural Rule 8 to expand the period in which 
intervening weekends and holidays are excluded from time computation 
from 7 to 11 days. If the Commission were to leave unchanged the time 
period for responding to a motion in current 29 CFR 2700.10(d), the 
response period could be unreasonably extended. The proposed change to 
Commission Procedural Rule 10(d) guarantees parties 8 business days to 
respond to a motion, which is the greatest number of business days 
provided by the current rules.

Subpart B--Contests of Citations and Orders; Subpart C--Contests of 
Proposed Penalties

29 CFR 2700.25
    Commission Procedural Rule 25 currently provides that the Secretary 
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 any contest of the proposed penalty assessment. 29 CFR 
2700.25.

[[Page 558]]

    The Commission received two comments suggesting that the Commission 
adopt a time limit after a citation or order is issued for the 
Secretary to issue a proposed penalty assessment for the violations 
involved. The commenters state that a time limit of 6 or 12 months 
would be appropriate and that such a time limit should establish a 
rebuttable presumption that the issuance of a proposed penalty beyond 
the specified time is unreasonable.
    Section 105(a) of the Act requires the Secretary to issue a 
proposed penalty assessment to an operator ``within a reasonable time'' 
after the termination of the inspection or investigation that led to 
the issuance of the citation or order in question. 30 U.S.C. 815(a). 
Commission Procedural Rule 25 does not further define the period of 
``reasonable time'' set forth in the statute. The Commission invites 
comment from members of the interested public regarding the imposition 
of a time limit on the issuance of a proposed penalty assessment and 
whether failing to issue a proposed penalty within the limit should 
establish a rebuttable presumption that the issuance of a proposed 
penalty beyond the specified time is unreasonable.
29 CFR 2700.26
    The Commission has dual filing requirements under subparts B and C 
that reflect the filing procedures set forth in sections 105(a) and (d) 
of the Mine Act, 30 U.S.C. 815(a) and (d). Subpart B sets forth the 
manner in which a party may contest a citation or order before the 
Secretary has proposed a civil penalty for the alleged violation 
described in the citation or order. Subpart C sets forth the manner in 
which a party may contest a civil penalty after a proposed penalty 
assessment has been issued. If a party chooses not to file a contest of 
a citation or order under subpart B, it may nonetheless contest the 
proposed penalty assessment under subpart C. In such circumstances, in 
addition to contesting the proposed penalty assessment, the party may 
challenge the fact of violation and any special findings alleged in the 
citation or order. See 29 CFR 2700.21. However, if a party files a 
contest of a citation or order under subpart B, it must also file 
additional pleadings under subpart C in order to challenge the proposed 
penalty assessment related to the citation or order.
    In the ANPRM, the Commission stated that it was considering whether 
the filing requirements relating to contesting citations, orders, and 
proposed penalties could be streamlined while remaining consistent with 
the procedures set forth in sections 105(a) and (d) of the Mine Act. 69 
FR at 62633. It explained that the dual filing requirements under 
subparts B and C are inconsistent and can sometimes lead to confusion. 
Id. For instance, parties have failed to contest a proposed penalty 
assessment or to answer the Secretary's petition for assessment of 
penalty under subpart C based on the mistaken belief that they have 
been relieved of those obligations by having filed a notice of contest 
of a citation or order under subpart B. In such circumstances, a final 
order requiring the payment of the proposed penalty may have been 
entered against the party by default.
    After publishing the ANPRM, the Commission considered streamlining 
the filing procedures by adding a provision stating that the timely 
filing of a notice of contest of a citation or order shall also be 
deemed the timely filing of a notice of contest of a proposed penalty 
assessment. The Commission discussed the provision with MSHA because 
such a provision would impact the manner in which MSHA processes 
notices of contests and issues proposed penalty assessments and related 
documents. During those discussions the Commission was informed that, 
due to administrative and technological problems, the proposed new rule 
would be extremely difficult for MSHA to implement and that the expense 
of implementing the rule might not be justified by the relatively low 
number of default cases that would be eliminated by the new rule's 
implementation.
    The Commission has determined that it is inadvisable at this time 
to add a provision stating that the timely filing of a notice of 
contest of a citation or order shall also be deemed the timely filing 
of a notice of contest of a proposed penalty assessment. Rather, the 
Commission proposes adding a provision to Commission Procedural Rule 26 
which would clarify that a party who wishes to contest a proposed 
penalty assessment must provide such notification regardless of whether 
that party has previously contested the underlying citation or order 
pursuant to 29 CFR 2700.20. The Commission also proposes explaining, in 
Commission Procedural Rule 28(b), that an answer to a petition for 
assessment of penalty must be filed regardless of whether the party has 
already filed a notice of contest of the citation, order, or proposed 
penalty assessment.
    Rather than proposing further changes to its rules, the Commission 
intends to employ a number of informal practices in an effort to reduce 
the number of cases resulting in default. For instance, the Commission 
intends to work with MSHA to clarify the instructions provided to 
parties for the filing of various documents, to distribute and make 
available to the interested public a document that summarizes the 
Commission's procedural rules in simple terms, and to place on its 
website a page of frequently asked questions and answers regarding 
Commission procedures.
29 CFR 2700.28(b)
    Commission Procedural Rule 44(a), which pertains to a petition for 
the assessment of a penalty in a discrimination proceeding arising 
under section 105(c) of the Mine Act, 30 U.S.C. 815(c), currently 
provides that ``[t]he 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.'' 29 CFR 
2700.44(a), citing 30 U.S.C. 820(i). Procedural Rule 28, which sets 
forth the procedure for the Secretary to file a petition for assessment 
of penalty when an operator has contested a proposed penalty in non-
discrimination cases, does not include the ``short and plain 
statement'' requirement of Commission Procedural Rule 44(a). Rather, 
Commission Procedural Rule 28(b) provides merely that the petition for 
assessment of penalty shall state whether the citation or order has 
been contested, the docket number of any contest, and that the party 
against whom a penalty petition is filed has 30 days to answer the 
petition. 29 CFR 2700.28(b).
    In the ANPRM, the Commission stated that it was considering whether 
the provisions of Commission Procedural Rules 44(a) and 28(b) should be 
made consistent by adding to Rule 28(b) the ``short and plain 
statement'' requirement of Rule 44(a) so as to provide notice to the 
party against whom the penalty is filed of the basis for the penalty. 
69 FR at 62633.
    Most of the comments received by the Commission support requiring 
the Secretary to provide a short and plain statement of supporting 
reasons for a penalty based on the section 110(i) criteria. The reasons 
given in support of amending Commission Procedural Rule 28 are that it 
would provide a better understanding of the basis for the Secretary's 
allegations, enable a more complete response to the petition, make Rule 
28 consistent with Rule 44, and promote more expeditious disposition of 
the case. One commenter does not support making the change because it

[[Page 559]]

perceives that such a change would likely result in the consumption of 
additional resources and lead to delays in the issuance of paperwork. 
The Secretary states that requiring a short and plain statement is 
unnecessary because the supporting reasons for the penalty are set 
forth in the proposed penalty assessment (referred to by MSHA as 
``Exhibit A''), which is attached to the petition for assessment of 
penalty.
    The Secretary's regulations in part 100 describe three methods for 
calculating civil penalties: the regular assessment, the special 
assessment, and the single penalty assessment. See 30 CFR 100.3, 100.4, 
100.5. For regular assessments, Exhibit A generally identifies in non-
narrative form, among other things, the citation or order by number, 
whether the alleged violation is significant and substantial within the 
meaning of section 104(d)(1) of the Mine Act, 30 U.S.C. 814(d)(1), the 
date of issuance, the standard allegedly violated, and the points 
assigned to each of 10 factors listed, which fall under 5 of the 
section 110(i) penalty criteria. The Secretary adds a narrative 
describing the basis of the penalty to Exhibit A only when she assesses 
a special assessment. However, in a proceeding in which individual 
liability is sought under section 110(c) of the Mine Act, 30 U.S.C. 
820(c), Exhibit A does not include a narrative or other document 
explaining the proposed assessment. See, e.g., Wayne R. Steen, 20 
FMSHRC 381, 386 (Apr. 1998) (applying the section 110(i) criteria in a 
section 110(c) agent case). The Commission believes that inclusion of a 
narrative description for the bases of a penalty within a petition may 
better provide a party notice of the rationale behind the penalty 
amount. In addition, the Commission questions whether Exhibit A is an 
adequate explanation of the bases of a proposed assessment.
    When the Secretary issues a single penalty assessment, there is no 
enumeration of the points attributed for each criterion in Exhibit A. 
The Commission recognizes that since single penalty assessments do not 
involve individualized application of section 110(i) criteria (see Coal 
Employment Project v. Dole, 889 F.2d 1127, 1134 (D.C. Cir. 1989)), a 
narrative description requirement may not apply to these penalties. The 
Commission invites comment from members of the interested public 
regarding whether, if a short and plain statement requirement is added 
to Rule 28(b), an exception to that requirement for single penalty 
assessments should be explicitly stated.
    The Commission does not believe that requiring the inclusion of a 
short and plain statement in a petition for assessment of penalty for 
regular and special assessments will impose an onerous burden on the 
Secretary's resources. While section 110(i) does not require the 
Secretary to make findings on the six criteria, the Secretary generally 
bears the burden of presenting the evidence concerning section 110(i) 
penalty criteria in support of her proposed assessment in a civil 
penalty proceeding. Hubb Corp., 22 FMSHRC 606, 613 (May 2000); see also 
Sec'y of Labor on behalf of Hannah v. Consolidation Coal Co., 20 FMSHRC 
1293, 1302 (Dec. 1998) (noting that the Secretary ``must initially 
produce preliminary information that will assist the Judge in making 
findings concerning the statutory penalty criteria''). The Commission 
anticipates that providing the operator with notice of the bases of the 
Secretary's proposed penalty assessment and allowing the operator the 
opportunity to identify issues with respect to the proposed penalty 
would ultimately lead to a more efficient resolution of penalty cases.
    Moreover, the revision would make the requirements for petitions 
for assessment of penalties in both discrimination and non-
discrimination cases consistent under the Commission's procedural 
rules. The Secretary's own regulations in 30 CFR part 100 consistently 
require the consideration of the same six criteria when proposing 
penalties in discrimination and non-discrimination cases. See 30 CFR 
100.1. Thus, the Commission proposes revising Commission Procedural 
Rule 28(b) to add the requirement that a petition for assessment of 
penalty shall include a short and plain statement of supporting reasons 
for the penalty based on the section 110(i) criteria.
    Finally, as described in the section above regarding 29 CFR 
2700.26, in an effort to decrease the number of cases resulting in 
default, the Commission proposes to add to Commission Procedural Rule 
28(b) an explanation that an answer to a petition for assessment of 
penalty must be filed regardless of whether the party has already filed 
a notice of contest of the citation, order, or proposed penalty 
assessment.

Subpart E--Complaints of Discharge, Discrimination or Interference

29 CFR 2700.45
    Judge's jurisdiction. Commission Procedural Rule 45 sets forth 
procedures governing the temporary reinstatement of a miner alleging 
discrimination under section 105(c) of the Mine Act, 30 U.S.C. 815(c). 
Currently, as to a Judge's jurisdiction, Commission Procedural Rule 45 
states only that a Judge shall dissolve an order of temporary 
reinstatement if the Secretary's investigation reveals that the 
provisions of section 105(c)(1) of the Mine Act have not been violated. 
29 CFR 2700.45(g). The rule further provides that an order dissolving 
the order of reinstatement shall not bar the filing of an action by the 
miner in his own behalf under section 105(c)(3) of the Act, 30 U.S.C. 
815(c)(3). Id.
    In the ANPRM, the Commission stated that it was considering whether 
to revise Rule 45 to codify the Review Commission's holding in Sec'y of 
Labor on behalf of York v. BR&D Enterprises, Inc., 23 FMSHRC 386, 388-
89 (Apr. 2001), that a Commission Judge retains jurisdiction over a 
temporary reinstatement proceeding pending issuance of a final 
Commission order on the underlying complaint of discrimination. 69 FR 
at 62634. All commenters agreed with the suggested change.
    In BR&D Enterprises, Inc., the Review Commission noted that section 
105(c)(2) of the Mine Act, 30 U.S.C. 815(c)(2), provides for the 
temporary reinstatement of a miner ``pending final order on the 
complaint,'' and that Commission Procedural Rule 45(g), 29 CFR 
2700.45(g), states that if the Secretary determines there was no 
section 105(c)(1) violation, the Judge ``shall enter an order 
dissolving'' the reinstatement order. 23 FMSHRC at 388-89. The Review 
Commission interpreted this language to mean that the Judge retains 
jurisdiction over the temporary reinstatement proceeding during the 
investigation and adjudication of the formal discrimination complaint. 
Id. at 389. Moreover, the Review Commission also noted that under Rule 
45(f), its jurisdiction over a temporary reinstatement proceeding is 
very limited, and concluded that when the parties do not appeal the 
Judge's reinstatement order, the Judge retains sole jurisdiction. Id.
    Thus, a temporary reinstatement order remains in effect until 40 
days after the Judge issues a decision on the merits of the 
discrimination complaint if the decision is not appealed to the Review 
Commission. See 30 U.S.C. 823(d)(1). If either party to a 
discrimination proceeding appeals the Judge's decision in the 
discrimination proceeding to the Review Commission, the temporary 
reinstatement order remains in effect while the Review Commission 
considers

[[Page 560]]

the Judge's decision, and until such time that the Review Commission's 
decision becomes final and non-appealable. See Sec'y of Labor on behalf 
of Bernardyn v. Reading Anthracite Co., 21 FMSHRC 947, 949 (Sept. 1999) 
(construing sections 105(c)(2) and 113(d)(1) of the Mine Act, 30 U.S.C. 
823(d)(1), as prohibiting a Judge from dissolving a temporary 
reinstatement order upon issuing a decision dismissing a discrimination 
complaint and holding that the temporary reinstatement order remains in 
effect while the Review Commission considers the Judge's decision).
    Accordingly, the Commission proposes to revise Commission 
Procedural Rule 45(e) by inserting a statement explaining that the 
Judge's order temporarily reinstating a miner is not a final decision 
within the meaning of 29 CFR 2700.69 and that the Judge shall retain 
jurisdiction over a temporary reinstatement proceeding except during 
Review Commission or court review of the Judge's order of temporary 
reinstatement.
    Effect of section 105(c)(3) action on temporary reinstatement 
order. The Secretary submitted a comment in which she suggests that 
Rule 45(g) be amended to provide that once temporary reinstatement is 
ordered, absent agreement of the parties, the order of temporary 
reinstatement shall remain in effect until there is a final decision on 
the merits of the miner's complaint of discrimination even when the 
Secretary determines that there was no violation of section 105(c) of 
the Mine Act. The Secretary explains that the current language of 29 
CFR 2700.45(g) suggests that if, after temporary reinstatement has been 
ordered, the Secretary determines not to proceed on the complaint of 
discrimination under section 105(c)(2) of the Act, but the miner files 
a complaint of discrimination under section 105(c)(3), the order of 
reinstatement should be dissolved. The Secretary contends that such a 
result is at odds with the meaning of section 105(c)(2). The Secretary 
reads section 105(c)(2) to require that the temporary reinstatement 
order remain in effect until the underlying discrimination complaint is 
resolved regardless of whether the complaint of discrimination is 
litigated by the Secretary under section 105(c)(2) of the Act or 
whether it is litigated by the miner under section 105(c)(3) of the 
Act.
    The Secretary raises the issue of whether a temporary reinstatement 
order remains in effect during a miner's pursuit of his or her 
discrimination complaint before the Commission under section 105(c)(3). 
To date, the Review Commission has not decided this issue. The 
Commission believes that the issue of statutory interpretation raised 
by the Secretary's comment is more appropriately addressed in the 
context of litigation rather than rulemaking. Accordingly, the 
Commission declines proposing to revise Commission Procedural Rule 
45(g) in the manner suggested by the Secretary at this time.
    Time computation. As discussed in the section above regarding 29 
CFR 2700.8, the Commission does not intend the proposed rule revisions 
regarding time computation to affect the filing and service 
requirements of temporary reinstatement proceedings currently set forth 
in 29 CFR 2700.45. Accordingly, the Commission proposes that Commission 
Procedural Rule 45 be amended to reflect time periods in ``business'' 
days when the time period described for action is less than 7 days, and 
``calendar'' days when the time period prescribed is 7 or more days. 
This proposed change would maintain the time frames currently provided 
in 29 CFR 2700.45.

Subpart G--Hearings

Amendment of Pleadings
    The Commission received two comments suggesting that the Commission 
adopt a rule limiting the amendment of pleadings by the Secretary. The 
Commission has determined that the comments raise an issue which falls 
within the sound discretion of the Commission's judges. See Cyprus 
Empire Corp., 12 FMSHRC 911, 916 (May 1990) (setting forth guidance in 
the exercise of discretion regarding amendment of pleadings). 
Accordingly, the Commission has determined that the issue should be 
determined on a case-by-case basis and declines to propose adopting a 
rule regarding the amendment of pleadings.
29 CFR 2700.51 and 2700.54
    Commission Procedural Rule 54 currently provides in part that 
written notice of the time, place, and nature of a hearing shall be 
given to all parties at least 20 days before the date set for hearing. 
29 CFR 2700.54. In the ANPRM, the Commission stated that it was 
considering whether Rule 54 should be revised to require a Judge to 
consult with all parties before setting a date for hearing. 69 FR at 
62634.
    The comments received by the Commission favor imposing a 
requirement that a Judge confer with the parties before establishing a 
hearing date. The comments note that when hearing dates are set ex 
parte, one or both parties must often move for a continuance to avoid 
schedule conflicts. The Secretary adds that the requirement to confer 
should be extended to the choice of a hearing site, while another 
commenter suggests at least 45 days' notice of a hearing should be 
required. Another commenter suggests that Judges should be required to 
hold the hearing without undue delay, and that a time frame within 
which the hearing must be held should be established.
    The Commission believes that establishing a time within which 
hearings must be held is not necessary at this time. In practice, a 
hearing date is typically set within 45-90 days after the case has been 
assigned. Later dates may be established with the agreement of the 
parties. Under the current and proposed rules, any party would be free 
to request or move for an expedited hearing in appropriate cases, 
pursuant to 29 CFR 2700.52.
    Many of the Commission's Judges confer with parties before setting 
a hearing in all cases, and others confer in certain types of cases, 
e.g., where discovery has been initiated and/or the case appears 
complex. Experience has revealed that requiring Judges to confer with 
parties prior to setting a hearing date may result in undue delay in 
situations in which it is difficult to contact a party or a party's 
representative. For instance, difficulties can sometimes arise in 
contacting pro se parties or operators of seasonal or intermittent 
mining operations during periods when those facilities are not in 
operation.
    The Mine Act requires that hearings before the Commission's Judges 
be held pursuant to 5 U.S.C. 554 (the APA). 30 U.S.C. 815(c), (d). The 
APA requires that in ``fixing the time and place for hearings, due 
regard shall be had for the convenience and necessity of the parties or 
their representatives.'' 5 U.S.C. 554(b).
    Commission Procedural Rule 51 currently provides in part that a 
Judge shall give due regard to the convenience and necessity of parties 
or their representatives and witnesses in setting a hearing site. 29 
CFR 2700.51. The Commission proposes that Rule 51 should be revised to 
explicitly require a Judge to consider the convenience of parties or 
their representatives and witnesses in setting the hearing date and 
site.
29 CFR 2700.56(d) and (e)
    Commission Procedural Rule 56(d) sets forth a time for initiating 
discovery, providing in part that ``[d]iscovery shall be initiated 
within 20 days after an answer to a notice of contest, an answer

[[Page 561]]

to a petition for assessment of penalty, or an answer to a complaint 
under section[s] 105(c) or 111 of the Act has been filed.'' 29 CFR 
2700.56(d), citing 30 U.S.C. 815(c) and 821. Commission Procedural Rule 
56(e) sets forth a time for completing discovery, providing that 
``[d]iscovery shall be completed within 40 days after its initiation.'' 
29 CFR 2700.56(e).
    In the ANPRM, the Commission stated that it was considering whether 
there should be no specific time frame for initiating discovery, and 
whether 40 days is too short a period of time for the completion of 
discovery. 69 FR at 62634.
    The comments received by the Commission favor eliminating the 
present rules' specific time periods for commencing and completing 
discovery, and suggest substituting language providing that discovery 
not cause undue delay and that it be completed 30 days in advance of a 
hearing. Several comments note that the present time frames are 
outmoded and, if enforced, would require initiation of potentially 
costly and burdensome discovery before settlement options could be 
explored. Several also note that a specific provision should be added 
allowing the Judge to permit discovery within the 30-day period prior 
to the hearing for good cause shown.
    The Commission proposes amending Commission Procedural Rule 56 to 
permit discovery to begin with the filing of a responsive pleading and 
requiring that it be completed 20 days in advance of a scheduled 
hearing. The Commission believes that the 20-day period, combined with 
a general provision that discovery not unduly delay or otherwise impede 
disposition of the case, will assure that discovery be completed in 
time to allow the filing of comprehensive prehearing statements and 
full presentation of the case.
29 CFR 2700.61 and 2700.62
    Commission Procedural Rule 61 currently provides that a ``Judge 
shall not, except in extraordinary circumstances, disclose or order a 
person to disclose to an operator or his agent the name of an informant 
who is a miner.'' 29 CFR 2700.61. Commission Procedural Rule 62 
currently states that a ``Judge shall not, until 2 days before a 
hearing, disclose or order a person to disclose to an operator or his 
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.'' 29 CFR 2700.62.
    The Commission received two comments suggesting that the Commission 
should modify Rule 62 to require disclosure of the names of miner 
witnesses, along with any documents containing statements by the miner 
witnesses, at the time of the filing of a prehearing statement or no 
later than 15 days before a scheduled hearing. The commenters suggest 
that the 2-day period precludes proper preparation for hearing. The 
commenters further state that the Commission should also modify Rule 61 
to provide that the Secretary cannot rely upon evidence from miner 
informants without providing the names of these informants and the 
substance of their testimony to the operator 15 days before the 
hearing.
    The Commission has concluded that extending the time period for 
identifying anticipated miner witnesses from 2 days to 15 days before 
the start of a hearing, as suggested, would unacceptably weaken the 
protection afforded to miners under Rules 61 and 62. In the majority of 
cases, an operator will be able to independently depose miners who 
might be witnesses well in advance of the trial and therefore will not 
be harmed by the 2-day limitation. In most instances, the universe of 
potential witnesses, i.e., those with knowledge of the facts of a 
violative condition or an accident, is generally limited, and the 
operator will know who has knowledge of the facts of the alleged 
violation. If the potential miner informant/witness is an employee, the 
operator will be able to easily contact the employee for purposes of 
arranging a deposition. Moreover, the identification of miner 
witnesses, who may also be informants, 15 days in advance of a hearing 
would not be necessary to ensure the operator a fair trial in 
circumstances in which a hearing is continued to a later date or 
eliminated altogether for unrelated reasons.
    The Commission's Judges have indicated that they generally have not 
experienced problems applying Commission Procedural Rules 61 and 62 and 
have been able to balance the interests of all parties under the 
current rules. Because the 2-day period set forth in Rule 62 refers to 
2 business days, under current Rule 8 and its proposed revisions, the 
operator also may use weekend days contiguous to the 2-day period for 
depositions of miner witnesses. In any event, should there be an 
occasion where the late identification of a miner witness or the late 
discovery of the scope of his testimony causes prejudice to the 
operator, the operator can request a continuance in order to have time 
to adequately prepare for the hearing. Accordingly, the Commission has 
determined that it is not appropriate to propose revisions to 
Commission Procedural Rules 61 and 62 at this time.
29 CFR 2700.63(a)
    Commission Procedural Rule 63(a) currently provides that 
``[r]elevant evidence, including hearsay evidence, that is not unduly 
repetitious or cumulative is admissible.'' 29 CFR 2700.63(a). The 
Commission received two comments suggesting that the Commission modify 
its rule to require that hearsay evidence be supported by some evidence 
of reliability in order to be admissible.
    Under Commission precedent, hearsay evidence is admissible in 
proceedings before the Commission's Judges as long as the evidence is 
``material and relevant.'' Kenny Richardson, 3 FMSHRC 8, 12 n.7 (Jan. 
1981), aff'd, 689 F.2d 632 (6th Cir. 1982), cert. denied, 461 U.S. 928 
(1983). Hearsay evidence can constitute substantial evidence supporting 
a Judge's decision only if that evidence ``is surrounded by adequate 
indicia of probativeness and trustworthiness.'' Mid-Continent Res., 
Inc., 6 FMSHRC 1132, 1135-36 (May 1984) (citations omitted). The 
Commission has determined that its precedents sufficiently address the 
commenters' concerns, and that rulemaking on the issue is not warranted 
at this time.
29 CFR 2700.67
    Commission Procedural Rule 67(a) currently provides that ``[a]t any 
time after commencement of a proceeding and no later than 10 days 
before the date fixed for the hearing on the merits, a party may move 
the Judge to render summary decision disposing of all or part of the 
proceeding.'' 29 CFR 2700.67(a).
    In the ANPRM, the Commission stated that it was considering whether 
the filing deadline for a summary decision motion should be changed 
from 10 days to 20 or 30 days before the hearing, allowing the Judge a 
greater period of time to rule on the motion. 69 FR at 62634.
    Most of the comments received by the Commission support changing 
the time period for filing a motion for summary decision from 10 days 
to 20 days before the hearing date. The Secretary and another commenter 
favor increasing the time period to 30 days. That commenter further 
suggests adding a requirement that the Judge rule on the motion at 
least 10 days before the hearing.
    An appropriate deadline for filing a motion for summary decision 
prior to a hearing must be considered in light of other rule provisions 
governing filing and time computation. Under the

[[Page 562]]

present rules, which provide that filing is effective upon mailing (29 
CFR 2700.5(d)), a party has 10 days to respond to a motion (29 CFR 
2700.10(d)), and an additional 5 days is added to that time when the 
motion is served by mail (29 CFR 2700.8). Consequently, a party could 
file by mail a motion for summary decision 10 days prior to a hearing, 
and the opposition would not have to be filed by mail until 5 days 
after commencement of the hearing.
    The Commission proposes amending Commission Procedural Rule 67(a) 
to ensure adequate time for a Judge to review the motion and the 
opposition, and to make an informed decision as to whether a hearing 
will be necessary. The Commission believes that a time period of 25 
days should be sufficient, provided that proposed Commission Procedural 
Rule 67(a) also specifies that the filing of such motions and responses 
would be effective upon receipt. Additional language allowing motions 
and oppositions to be filed and served by fax is no longer required in 
light of the proposed amendments to Commission Procedural Rule 5 
providing that most documents can be filed and served by facsimile. 
Pursuant to 29 CFR 2700.9, a party may req