Procedural Rules, 44190-44210 [06-6642]

Agencies

• Federal Mine Safety and Health Review Commission

[Federal Register Volume 71, Number 150 (Friday, August 4, 2006)]
[Rules and Regulations]
[Pages 44190-44210]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-6642]


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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: Final rule.

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SUMMARY: The Federal Mine Safety and Health Review Commission (the 
``Commission'') is an independent adjudicatory agency that provides 
trials and appellate review of cases arising under the Federal Mine 
Safety and Health Act of 1977 (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. This rule makes final revisions 
to many of the Commission's procedural rules, regulations implementing 
the Equal Access to Justice Act, and regulations implementing the 
Privacy Act. The Commission makes these changes in a continued effort 
to ensure the just, speedy, and inexpensive determination of all 
proceedings before the Commission.

DATES: This rule will take effect on October 3, 2006.

ADDRESSES: Questions may 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.

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: The final rules will apply to cases 
initiated after the rules take effect. The final rules also will apply 
to further proceedings in cases pending on the effective date, except 
to the extent that such application would be infeasible or unfair, in 
which event the former procedural rules would continue to apply.

I. Background

    In October 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, October 27, 2004. In the ANPRM, the 
Commission identified several procedural rules set forth in part 2700 
that required further revision, clarification, or expansion. See id. at 
62632 through 62635. 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).
    The comment period on the ANPRM closed on January 25, 2005. 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 ``UMWA''); 
the National Mining Association; the National Stone, Sand & Gravel 
Association; and other individual members of the mining community or 
bar who practice before the Commission. Most commenters expressed some 
degree of agreement with various areas that the Commission had targeted 
to review for possible revision. The commenters also requested further 
changes not described by the Commission in the ANPRM.
    In January 2006, the Commission published a Notice of Proposed 
Rulemaking (``NPRM''). 71 FR 553, January 5, 2006. In the notice, the 
Commission explained that it determined that changes to the 
Commission's Procedural Rules and its regulations implementing the 
Privacy Act and EAJA were necessary, but that no revisions were 
necessary to its regulations implementing the Government in the 
Sunshine Act or FOIA. Id. at 554. Some of the changes in the NPRM were 
proposed in response to the comments received, while other changes were 
proposed in response to further reflection by the Commission or in 
response to developments in Commission proceedings. For example, after 
examining its procedures for processing requests for relief from final 
judgment, the Commission 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 were procedural in 
nature and did not require notice and comment publication under the 
Administrative Procedure Act (``APA''), 5 U.S.C. 551, 553(b)(3)(A), the 
Commission invited comment from the interested public until March 6, 
2006. Besides generally requesting comments on any revisions

[[Page 44191]]

to its rules, the Commission also requested comments on three 
particular subjects to aid its further consideration of possible rule 
revisions. Specifically, the Commission invited comments on whether a 
time limit and presumption should be imposed upon the issuance of a 
proposed penalty assessment (29 CFR 2700.25), whether an exception 
should be created for a proposed pleading requirement applicable to 
petitions for assessment of penalty (29 CFR 2700.28(b)), and whether 
the Commission should repeal its EAJA rule providing for aggregation in 
the determination of eligibility for an EAJA award (29 CFR 
2704.104(b)(2)). 71 FR 557, 558, 559, 564, January 5, 2006.
    In addition, the Commission invited members of the interested 
public to request a public meeting on the proposed rules during the 
comment period. The Commission stated that if public meetings were 
scheduled, the Commission would issue a subsequent notice to be 
published in the Federal Register. The Commission received no requests 
for public meetings.
    The Commission received written comments on the NPRM from the 
Department of Labor's Office of the Solicitor and the UMWA. Those 
comments supported many of the revisions proposed by the Commission, 
although there were a few objections and suggestions for further 
improvements of the proposed rules. Those comments also addressed, in 
part, the three subjects upon which the Commission had requested 
further comment. The Commission has carefully considered all comments 
received and deliberated on the rules.
    The final rules retain much of the same text set forth in the 
proposed rules. As discussed in the section-by-section analysis, some 
changes have been made in response to the comments received. In 
addition, the Commission has resolved the three areas in which it 
requested specific comments. First, as discussed more fully below, the 
Commission has determined not to set time limits on the filing of 
proposed penalty assessments (29 CFR 2700.25). Further, the Commission 
has determined that it is appropriate to set forth a pleading 
requirement for petitions for assessment of penalty, although an 
exception to the requirement has been made for single penalty 
assessments (29 CFR 2700.28(b)). The Commission has also determined 
that it is appropriate to repeal a provision allowing for the 
aggregation of assets or employees of affiliates of a prevailing party 
in determining eligibility for an EAJA award (29 CFR 2704.104(b)(2)). 
In addition, although not included in the proposed rules, the 
Commission made a revision clarifying when a motion for participation 
as amicus curiae and an amicus curiae brief must be filed when a movant 
does not support the position of a party in a Commission proceeding (29 
CFR 2700.74). The Commission also made revisions that require a 
statement of material facts to be submitted with a motion for summary 
decision and that clarify the procedure for opposing a motion for 
summary decision (29 CFR 2700.67). The Commission did not invite 
comments on these revisions to sections 2700.67 and 2700.74 because the 
proceedings that brought to light the need for such clarification arose 
after the proposed rules had been published in the Federal Register. 
Finally, certain rules have been changed to accord with related changes 
in other rules.

II. Section-by-Section Analysis

    Set forth below is an analysis of the comments received on the 
Commission's proposed rules and the final actions taken. Minor 
editorial modifications to present or proposed rules are not discussed.

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 proposed amending 
paragraph (a) of Commission Procedural Rule 1 to add an explanation 
regarding the Commission's role and relationship to the Department of 
Labor. 71 FR 554, January 5, 2006. In addition, the Commission proposed 
adding to paragraph (a), pertinent information necessary for contacting 
the Commission or gaining access to Commission records. Id. The 
Commission received no objections to the change and adopts the proposed 
rule.
    The Commission has also revised Procedural Rule 1 to add a 
provision stating the effective date of amendments to the Commission's 
procedural rules. The provision states that, unless the Commission 
provides otherwise, amendments to the rules are effective 60 days 
following publication in the Federal Register, and apply in cases then 
pending to the extent that application of the amended rules would not 
be feasible or would work injustice, in which event the former rules of 
procedure would apply. The Commission has repealed Commission 
Procedural Rule 84, which sets forth the effective date of the 
Commission's procedural rules which were revised and republished in 
1993.

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 misuses of personal information are problems that have 
been exacerbated by the widespread availability of information over the 
internet. The Commission proposed redesignating current Commission 
Procedural Rule 5(d) as 5(e) and adding a new provision to paragraph 
(d) that would 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). 71 FR 554, January 5, 2006. 
The Commission explained that the role of the Commission's Judges in 
enforcing the rule would be limited because implementation of this rule 
would fall heavily on the parties in Mine Act proceedings in light of 
their interests in redacting personal information. Id. The Commission 
received no objections to the proposal, which is without change and 
will take effect as the new Procedural Rule 5(d).

Filing Requirements

    Present Rule 5(d) 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, must 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

[[Page 44192]]

circumstances, the Commission, as a matter of practice, generally mails 
Judges' decisions after hearing, default orders, and orders that 
require timely action by a party by certified mail, return receipt 
requested. Cf. 29 CFR 2700.66(a) (requiring show cause orders to be 
mailed by registered or certified mail, return receipt requested).
    In addition, present paragraph (d) of Procedural Rule 5 provides 
that certain documents can be filed by facsimile transmission 
(``fax''), while Procedural Rule 7(c) contains corresponding provisions 
governing service when filing is by fax. The documents which can 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 that paragraph, a 
Judge or the Review Commission can also permit the filing of other 
documents via fax.
    In the ANPRM, the Commission stated that it was reviewing whether 
present 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 62632, October 27, 2004. 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 opposed changing the rules in the manner described in 
the ANPRM 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 stated 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 supported changing the rule to allow the use of 
commercial mail services but further suggested that the Commission 
allow filing by fax to a greater degree than allowed under current 
rules. Those commenters stated that the use of commercial mail services 
could provide reliable information about the date of filing or service 
and that most fax machines will also print a verification of 
transmission. One commenter explained 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 which 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 had 
taken place in the event a question later arises. The documents that 
can be filed by fax 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 receipt 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 proposed revising the filing and 
service requirements in redesignated Procedural Rule 5(e) 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. 71 FR 554 through 555, January 5, 2006. Proposed 
section 2700.5(e) provided that the filing party could choose the 
manner for filing a document, unless a certain method were otherwise 
required by the Mine Act or the Commission's procedural rules. Under 
the proposed rule, 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 that filing or serving party to confirm receipt 
of the document filed or served.
    The Commission did not include a specific description of documents 
which could be filed by fax in proposed section 2700.5(e). Rather, 
virtually any document could be filed by fax, subject to a 15-page 
length limit. 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) 
could 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 
would be filed by fax, as it certainly would be 15 pages or less. The 
Commission proposed that the effective date of filing would depend upon 
the method of delivery chosen. The Commission also proposed 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)), 
to avoid the misperception that those are the only instances in which 
fax filing is permitted. The Commission further proposed in section 
2700.7(c), revisions to the service requirements that conform with 
those set forth in proposed section 2700.5(e) related to filing 
requirements.
    The Commission received one comment on the proposed rule which 
generally supported the proposed changes. The commenter expressed 
concern, however, that a litigant filing a document by fax may not be 
able to verify with certainty that the document had been filed if a 
question later arose. In addition, the commenter suggested that the 
Commission's rules should differentiate between business and calendar 
days, and that proposed Rule 5(e) should specify that when a document 
is filed by fax, the original document should be filed within three 
``business'' days.
    The Commission has determined to adopt Procedural Rule 5(e) as 
proposed. The Commission declines to confirm receipt of fax 
transmissions, as suggested, because such confirmation would unduly 
strain the Commission's limited resources. The Commission leaves such 
confirmation to parties who choose to file or serve documents by fax.
    The Commission has further determined that it is unnecessary at 
this time to differentiate between business and calendar days in 
Procedural Rule 5(e) and throughout the Commission's rules. The 
Commission has concluded that it is appropriate to conform its rules 
more closely to federal rules of procedure, and federal rules generally 
do not differentiate between business and calendar days. The Commission 
believes that it is appropriate to continue the use of the terms only 
where necessary to avoid confusion, and that their use is not necessary 
in Procedural Rule 5(e).
    Finally, the Commission has declined to codify its current practice 
of mailing

[[Page 44193]]

by certified mail, return receipt requested, Judges' decisions (after 
hearing), default orders, and orders that require timely action by a 
party. Such codification would not alter the Commission's practice or 
ultimately result in a benefit to parties.

Number of File Copies

    In the NPRM, the Commission proposed redesignating current 
Commission Procedural Rule 5(e) as 5(f). Paragraph (e) of Rule 5 
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 required 
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 were currently required by the rule. 69 FR 
62632, October 27, 2004. All commenters supported reducing the number 
of copies that must be filed.
    In newly redesignated Commission Procedural Rule 5(f), the 
Commission proposed requiring that only those parties represented by a 
lawyer needed to 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. 71 FR 
555, January 5, 2006. The proposed rule further stated that filing the 
original document would be sufficient for ``part[ies] * * * not 
represented by a lawyer.'' Id. at 566. Under the proposed rule, when 
filing was by fax, the original document would have to be filed with 
the Judge or Review Commission within 3 days of transmission, but no 
other copies needed to be filed. The Commission proposed making a 
conforming change to 29 CFR 2700.75(g), setting forth the number of 
copies of briefs to be filed.
    Commenters generally agreed with the Commission's proposed changes. 
One commenter, however, suggested that new Procedural Rule 5(f) should 
state that only ``pro se litigants'' are permitted to file the original 
document without copies. Another commenter requested that the reference 
to three days be changed to specify 3 ``business'' days.
    The Commission has determined to adopt Procedural Rule 5(f) as 
proposed. The Commission declines to refer in the rule to a party who 
is permitted to file an original document without copies as a ``pro se 
litigant'' rather than as a ``party'' who is ``not represented by a 
lawyer.'' The term ``pro se litigant'' would overly restrict the scope 
of the exception to those representing themselves. The Commission 
intends that all parties with non-attorney representatives appearing in 
Commission proceedings, rather than only parties who are representing 
themselves, should be subject to the exception. In addition, as 
discussed above, the Commission has determined that it is unnecessary 
to differentiate between business and calendar days throughout the 
Commission's rules.

Form of Pleadings

    In the NPRM, the Commission proposed redesignating current 
Commission Procedural Rule 5(f) as 5(g). Paragraph (f) of Rule 5 
currently contains various format requirements for pleadings filed with 
the Commission, providing in part that ``failure to comply with the 
requirements * * * will be grounds for rejection of a brief.'' 29 CFR 
2700.5(f). The rule was intended to permit rejection of all pleadings 
not meeting the format requirements, rather than only briefs. The 
Commission proposed revising redesignated Procedural Rule 5(g) to 
provide that any ``pleading'' not meeting the format requirements would 
be subject to rejection. 71 FR 555 through 556, January 5, 2006. The 
Commission also proposed redesignating 29 CFR 2700.5(g) as 29 CFR 
2700.5(i). Id. at 556.
    One commenter suggested that the rule be revised from providing 
that the failure to meet the format requirements ``will'' be grounds 
for rejection of a pleading to language providing that the failure to 
meet the format requirements ``may'' be grounds for rejection of the 
pleading. The Commission agrees with the suggested change because it 
clarifies that rejection of a pleading that does not meet format 
requirements is within the discretion of the Review Commission and its 
Judges. In addition, the Commission adopts the proposed revision 
described in the NPRM, referring to the documents within the scope of 
the rule as pleadings rather than briefs. Id.

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 62634, October 27, 2004. The Commission explained that 
such a revision would provide the reader with information regarding 
whether the citation is binding precedent for the proposition for which 
it is cited. Id.
    The majority of commenters on the ANPRM did not oppose the 
suggested change. However, a few commenters suggested that a system for 
designating cases should be published. One commenter suggested that a 
change is unnecessary because citation to a Judge's decision without 
subsequent Commission history is presumptively an unreviewed decision.
    In an effort to maximize clarity and precision in citation format, 
the Commission proposed adding a requirement that citations to a 
Judge's decision include ``(ALJ)'' at the end of the citation. 71 FR 
556, January 5, 2006. The Commission explained that there was no 
current requirement that citations to Commission cases in pleadings 
differentiate between Judge and Review Commission decisions, regardless 
of whether the former are reviewed or unreviewed. Id. The Commission 
proposed including the requirement in Commission Procedural Rule 5 
because such a change would be general and apply to pleadings before 
the Judges and the Review Commission. The Commission also proposed 
redesignating current Commission Procedural Rule 5(g) as 5(i) and 
placing the requirement regarding citation to a Judge's decision as a 
new provision in paragraph (h) of Procedural Rule 5. Id. In addition, 
the Commission further clarified that Judges' decisions are not binding 
precedent upon the Review Commission and included that clarification in 
29 CFR 2700.69, which addresses Judges' decisions. Id. The Commission 
proposed deleting the current provisions of 29 CFR 2700.72, and 
reserving Commission Procedural Rule 72 for future use. Id.
    One commenter suggested that proposed Procedural Rule 5(h) should 
be revised to provide that citations to Judges' decisions ``should,'' 
rather than ``shall,'' include the ``(ALJ)'' designation so as to allow 
the Review Commission and Judges discretion to reject documents not in 
compliance with the citation requirement. The Commission agrees with 
the suggested change and has revised the rule accordingly.

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,

[[Page 44194]]

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. 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 with Federal procedural 
rules. 69 FR 62633, October 27, 2004. 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 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 
falls on a weekend or Federal holiday. Id.
    Most commenters on the ANPRM supported expanding the period in 
which intervening weekends and holidays would not be counted, in 
conformance with Federal procedural rules. The Secretary also agreed 
that the period should be expanded, but further stated that no 
additional time should be added to the time periods set forth in 29 CFR 
2700.45 pertaining to temporary reinstatement proceedings. In addition, 
the Secretary suggested that 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 supported clarifying Procedural Rule 8 
to explain the circumstances in which 5 days are added to time periods 
when service is by mail. Most commenters did not support reducing the 
5-day period added for filing when service is by mail. Most commenters 
supported 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 falls on a weekend or Federal holiday.
    After considering these comments, the Commission determined that it 
would be appropriate to harmonize 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. 71 FR 556 
through 557, January 5, 2006. 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 proposed 
revising Procedural Rule 8 to expand the period in which intervening 
weekends and holidays are excluded from time computation from 7 to 11 
days. Id. at 556.
    However, adopting the 11-day period set forth in Federal procedural 
rules, without other Commission procedural rule changes, would have had 
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 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 proposed 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.
    The Commission agreed with the Secretary's comment that any 
proposed change to Procedural Rule 8 providing for an expanded response 
time should not apply to the time periods set forth in 29 CFR 2700.45 
pertaining to temporary reinstatement proceedings. 71 FR 556 through 
557, January 5, 2006. 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 
proposed 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 Procedural 
Rule 45. 71 FR 557.
    The Commission also agreed 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 similar 
conditions. Id. The Commission proposed revising 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. 
Id. This proposed revision would apply to deadlines for both Commission 
and party action. Id.
    In addition, the Commission agreed with commenters that the 5-day 
period that is added under Procedural Rule 8 when service is by mail 
should not be reduced. Id. Commenters 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 proposed specifying that the 5 days added when service 
is by mail would be 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 would be added, the Commission proposed inserting 
language to clarify that 5 calendar days would 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 one providing for same-day service. Id. 
This proposed change clarified that the 5-day period would be added 
when documents responded to a party's pleading, rather than when 
documents responded to orders from the Commission. 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 determined that, given these proposed changes, it 
did not need to 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 falls on a weekend or Federal holiday. Id. 
Rather, the proposed changes to Procedural Rule 8

[[Page 44195]]

sufficiently clarified 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 Procedural Rule 8 could result 
in different determinations of due dates depending upon the order in 
which the provisions are applied. Therefore, the Commission proposed 
stating in the rule that its subsections apply in sequential order. 71 
FR 557, January 5, 2006. That is, in computing time, a party must apply 
the subsections in order, beginning with subsection (a) and ending with 
subsection (c). The Commission proposed including as a part of the rule 
two examples demonstrating how the provisions would apply sequentially. 
Id.
    The Commission received one comment on these proposed changes in 
which the commenter stated that while it generally supports the 
changes, it believes that the terms ``business'' and ``calendar'' days 
that are used in Procedural Rule 45 and a portion of Procedural Rule 8 
should be used throughout the Commission's rules wherever time periods 
are set forth, including throughout Rule 8. The Commission has 
determined that it is unnecessary at this time to so differentiate 
between business and calendar days throughout the Commission's rules. 
In addition, the Commission has concluded that it is appropriate to 
conform its rules more closely to the Federal rules of procedure, and 
Federal rules do not generally use the business and calendar day 
terminology. The Commission believes that it is appropriate to continue 
the use of the terms, as set forth in the proposed rules, only where 
necessary in order to avoid confusion. For example, the use of the 
terms ``calendar'' or ``business'' days as proposed in Procedural Rules 
8 and 45 is appropriate because such use forecloses the necessity of 
creating exceptions to the Commission's time computation rule. 
Accordingly, the Commission adopts Procedural Rule 8 as proposed.

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 and that a motion for extension of time shall be received no 
later than 3 days prior to the expiration of time allowed for the 
filing or serving of the document. 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 
proposed 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). 71 FR 557, January 5, 2006.
    The Commission received one comment on the proposed change, in 
which the commenter stated that it supported the change, but that the 
provision requiring that requests for extensions of time must be filed 
at least 3 days before the due date should be restated as 3 
``business'' days. The Commission has declined to make the suggested 
change because it believes that it is sufficiently clear from the 
proposed rule, read in conjunction with Commission Procedural Rule 8, 
that requests for extension must be made at least three ``business'' 
days prior to the due date of a pleading. In addition, as stated with 
respect to Procedural Rule 8, the Commission has concluded that it is 
appropriate to conform its rules more closely to the Federal rules of 
procedure, and such rules do not generally differentiate between 
business and calendar days. Accordingly, the Commission adopts 
Procedural Rule 9 as proposed.

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 62633, October 27, 2004.
    Most commenters on the ANPRM supported clarifying that movants must 
confer with opposing parties on non-dispositive motions. The Secretary 
stated that she did not oppose the change, provided that it was 
intended to exclude summary decision motions from the rule.
    In an effort to dispel confusion created by the overly broad phrase 
``procedural motion,'' the Commission proposed revising the rule to 
state that consultation with opposing parties is required for any 
motion other than a dispositive motion. 71 FR 557, January 5, 2006. The 
Commission believes that the phrase ``dispositive motion'' more 
accurately describes the type of motion about which parties need not 
confer. The Commission received no objections to the proposed change 
and adopts the rule as proposed.

29 CFR 2700.10(d)

    As discussed in the section above regarding 29 CFR 2700.8, the 
Commission proposed decreasing the period of time for responding to a 
motion from 10 days to 8 days. Such a change was proposed in 
combination with the proposed changes to 29 CFR 2700.8. The Commission 
proposed 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. 71 FR 557, January 5, 2006. 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 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.
    The Commission received one comment on the proposed change in which 
the commenter suggested that the 8 days referred to in the proposed 
rule as the time for responding to a motion should be specified as 8 
``business'' days. The Commission declines to make the suggested 
change. As stated with respect to Procedural Rule 8, the Commission has 
concluded that it is appropriate to conform its rules more closely to 
Federal rules of procedure, which generally do not differentiate 
between business and calendar days.
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.
    The Commission received two comments on the ANPRM 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 stated that a time limit of 6 or 12 
months would be appropriate

[[Page 44196]]

and that such a time limit should establish a rebuttable presumption 
that the issuance of a proposed penalty beyond the specified time is 
unreasonable.
    The Commission invited 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. 71 FR 558, January 5, 2006.
    The Commission received two comments opposing the creation of any 
time limits or presumptions regarding the Secretary's filing of 
proposed penalty assessments. The Secretary argued that any such 
revised rule would not be a ``procedural rule'' because it would not 
merely alter the manner in which parties present their viewpoints to 
the Commission. Citing section 113(d)(2) of the Mine Act, 30 U.S.C. 
823(d)(2), which gives the Commission authority to ``prescribe rules of 
procedure,'' the Secretary contended that the Commission lacks 
statutory authority to prescribe a substantive rule. In addition, the 
Secretary asserted that such a rule would be inconsistent with her 
interpretation of section 105(a) of the Mine Act, 30 U.S.C. 815(a), and 
with the decision in Secretary of Labor v. Twentymile Coal Co., 411 
F.3d 256 (D.C. Cir. 2005).
    As noted by the Secretary, the change suggested by commenters on 
the ANPRM raises an array of issues, including an issue of statutory 
interpretation. The Commission has determined that the resolution of 
such matters is beyond the scope of this rulemaking, and leaves 
resolution of the matter to proceedings before the Review Commission 
and its Judges. Accordingly, the Commission retains Procedural Rule 25 
without revision.

29 CFR 2700.26 and 2700.21

    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 62633, October 27, 2004. 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 provision would 
be extremely difficult for MSHA to implement and that the expense of 
implementing it might not be justified by the relatively low number of 
default cases that would be eliminated.
    The Commission determined that it was inadvisable to add a 
provision stating that the timely filing of a notice of contest of a 
citation or order shall also be deemed to include the timely filing of 
a notice of contest of a proposed penalty assessment. 71 FR 558, 
January 5, 2006. Rather, the Commission proposed adding a provision to 
Procedural Rule 26 which clarified 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. Id. The Commission also proposed 
explaining, in Commission Procedural Rule 28(b), 29 CFR 2700.28(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.
    The Commission also stated its intent to employ a number of 
informal practices in an effort to reduce the number of cases resulting 
in default. Id. Toward that end, the Commission has been working with 
MSHA to clarify the instructions provided to parties for the filing of 
various documents. The Commission also intends 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 Web 
site a page of frequently asked questions and answers regarding 
Commission procedures.
    The Commission received one comment that supported adding the 
proposed changes. The Commission adopts Procedural Rule 26 as proposed.
    After publication of the NPRM, the Commission determined that it 
would be appropriate to make changes in subpart B that conform to the 
revisions to subpart C, set forth in Commission Procedural Rules 26 and 
28(b)(2). Accordingly, the Commission revised Commission Procedural 
Rule 21 to state that the filing of a notice of contest of a citation 
or order under subpart B does not constitute a challenge to a proposed 
penalty assessment that may be subsequently issued by the Secretary 
based on that citation or order. The Commission set forth these 
conforming changes in a new paragraph (a) of Commission Procedural Rule 
21. The current provisions of Procedural Rule 21 are set forth without 
change in new paragraph (b) of Rule 21.

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

[[Page 44197]]

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 Procedural Rule 44(a). Rather, 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 Procedural Rules 44(a) and 28(b) should be made 
consistent by adding to Procedural Rule 28(b) the ``short and plain 
statement'' requirement of Procedural Rule 44(a) so as to provide 
notice to the party against whom the penalty is filed of the bases for 
the penalty. 69 FR 62633, October 27, 2004.
    Most of the comments received by the Commission on the ANPRM 
supported 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 Procedural 
Rule 28 were that it would provide a better understanding of the bases 
for the Secretary's allegations, enable a more complete response to the 
petition, make Procedural Rule 28 consistent with Procedural Rule 44, 
and promote more expeditious disposition of the case. One commenter did 
not support making the change because it perceived that such a change 
would likely result in the consumption of additional resources and lead 
to delays in the issuance of paperwork. The Secretary stated that 
requiring a short and plain statement would be 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.
    In response to the comments on the ANPRM and upon further 
consideration, the Commission proposed revising Procedural Rule 28(b) 
by adding two requirements. First, as described in the section above 
regarding 29 CFR 2700.26, the Commission proposed adding to 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. 71 FR 559, January 5, 2006.
    In addition, the Commission proposed that the petition include a 
short and plain statement of the supporting reasons based on the 
criteria for penalty assessment set forth in section 110(i) of the Mine 
Act, 30 U.S.C. 820(i). Id. at 558-59, 567. The Commission explained 
that 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. Id. at 559, citing 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 listed factors listed, 
which correspond to 5 of the section 110(i) penalty criteria. The 
Secretary adds a narrative describing the bases 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 (April 1998) (applying the 
section 110(i) criteria in a section 110(c) agent case). The Commission 
stated its belief that inclusion of a narrative description for the 
bases of a penalty within a petition would better provide a party 
notice of the rationale behind the penalty amount. 71 FR 559. In 
addition, the Commission questioned whether Exhibit A provided an 
adequate explanation of the bases of a proposed assessment. Id.
    When the Secretary issues a single penalty assessment, there is no 
enumeration of the points attributed for each criterion in Exhibit A. 
The Commission recognized 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. 71 
FR 559. Accordingly, the Commission invited comment from members of the 
interested public regarding whether, if a short and plain statement 
requirement were added to Procedural Rule 28(b), an exception to that 
requirement for single penalty assessments should be explicitly stated. 
Id.
    The Commission further stated its belief that requiring the 
inclusion of a short and plain statement in a petition for assessment 
of penalty for regular and special assessments would not impose an 
onerous burden on the Secretary's resources. Id. It reasoned that 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. Id., citing 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 (December 
1998) (noting that the Secretary ``must initially produce preliminary 
information that will assist the Judge in making findings concerning 
the statutory penalty criteria''). 71 FR 559. The Commission 
anticipated 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. 
Id.
    Moreover, the Commission noted that 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. Id. It observed that 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. Id., citing 30 CFR 100.1.
    The commenters objected to the addition of a requirement for a 
short and plain statement and did not address whether an exception to 
the requirement should be made for single penalty assessments. Both 
commenters reiterated the concern that the requirement would require 
the consumption of additional resources which might result in delay. 
The Secretary also reiterated her objection that there is no 
discernible need for the requirement because the operator already has 
notice of all of the matters in dispute when litigation begins. The 
Secretary further objected to the requirement on the basis that section 
110(i) of the Mine Act gives her discretion in proposing penalties and 
explicitly states that the Secretary ``shall not'' be required to make 
findings of fact concerning the section 110(i) criteria.
    Upon consideration of the comments on the NPRM, the Commission has

[[Page 44198]]

concluded that it is appropriate to add the requirement for a short and 
plain statement with an explicit exception for single penalty 
assessments. As the Commission responded to the ANPRM comments, the 
Commission does not believe that the requirement will result in an 
onerous burden on the Secretary. The additional requirement does not 
affect all proposed assessments and only applies to regular or special 
proposed assessments that have been contested by an operator. In those 
circumstances, the short and plain statement would be inserted in the 
Petition for Assessment of Penalty by the attorney drafting the 
Petition, completing the pleading cycle and assisting in framing the 
issues for the operator and the Judge. The Commission anticipates that 
the short and plain statement will not necessarily provide different 
information than that provided in Exhibit A, which is currently 
attached to the Petition for Assessment of Penalty. However, the 
narrative form of the short and plain statement will make that 
information more accessible and easier to comprehend. Currently, in 
order to comprehend the bases for a proposed penalty, an operator must 
refer to numbers listed in Exhibit A which are derived from the 
application of formulas set forth in the Secretary's regulations. The 
requirement for a short and plain statement also provides useful 
information for those contested penalties which do not currently have 
information provided by the attachment of Exhibit A, such as penalties 
proposed in cases arising under section 110(c) of the Mine Act, 30 
U.S.C. 820(c).
    The Commission further concludes that the requirement for a short 
and plain statement in the Petition for Assessment of Penalty is not 
precluded by the language of section 110(i) of the Mine Act, which 
states that ``[i]n proposing civil penalties under this Act, the 
Secretary may rely upon a summary review of the information available 
to [her] and shall not be required to make findings of fact concerning 
the above factors.'' 30 U.S.C. 820(i). Section 110(i) provides that the 
Secretary need not make findings of fact relating to the six factors 
listed in section 110(i) in proposing a penalty. The short and plain 
statement requirement does not apply to the Secretary's proposal of a 
penalty. Rather, it is a pleading requirement that is confined to the 
Petition for Assessment of Penalty. The Petition for Assessment of 
Penalty is a pleading that is prepared by the Secretary's counsel after 
proposing a civil penalty and informing the operator of the proposed 
penalty, and the operator has opposed the proposed penalty. Thus, 
consistent with the language of section 110(i), the Secretary need not 
make findings of fact relating to the six factors listed in section 
110(i) in proposing a penalty. However, if a proposed penalty is 
contested, the Secretary shall be required to provide a short and plain 
statement regarding the bases for the proposed penalty in the Petition 
for Assessment of Penalty.
Subpart E--Complaints of Discharge, Discrimination or Interference

29 CFR 2700.45

Judge's Jurisdiction

    Commission Procedural Rule 45, 29 CFR 2700.45, 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, 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 
Secretary of Labor on behalf of York v. BR&D Enterprises, Inc., 23 
FMSHRC 386, 388-89 (April 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 62634, October 27, 2004. All commenters on the 
ANPRM agreed with the suggested change.
    The Commission proposed revising 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. 71 FR 559 through 560, 
January 5, 2006. The Commission received comments supporting the 
proposed revisions to Procedural Rule 45(e). The Commission adopts the 
rule as proposed.

Effect of Section 105(c)(3) Action on Temporary Reinstatement Order

    The Secretary submitted a comment on the ANPRM in which she 
suggested that Commission Procedural 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 explained 
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 contended 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 Commission declined proposing to revise Procedural Rule 45(g) 
in the manner suggested by the Secretary. 71 FR 560, January 5, 2006. 
The Commission explained that the Review Commission has not decided 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). Id. The Commission stated its 
belief that the issue of statutory interpretation raised by the 
Secretary's comment is more appropriately addressed in the context of 
litigation rather than rulemaking. Id.
    The Commission received comments requesting further revision to 
Procedural Rule 45(g). One commenter supported the initial revision 
suggested by the Secretary in her comments on the ANPRM that the rules 
should be revised to state that a Judge's reinstatement order should 
remain in effect pending a miner's discrimination complaint under 
section 105(c)(3). The Secretary, ho