Procedural Rules, 63047-63062 [2020-19492]

Agencies

• Federal Mine Safety and Health Review Commission

[Federal Register Volume 85, Number 194 (Tuesday, October 6, 2020)]
[Proposed Rules]
[Pages 63047-63062]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-19492]


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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

29 CFR Part 2700


Procedural Rules

AGENCY: Federal Mine Safety and Health Review Commission.

ACTION: Notice of Proposed Rulemaking.

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SUMMARY: The Federal Mine Safety and Health Review Commission (the 
``Commission'') is an independent adjudicatory agency that provides 
trials and appellate review of cases arising under the Federal Mine 
Safety and Health Act of 1977 (the ``Mine Act''). Trials are held 
before the Commission's Administrative Law Judges, and appellate review 
is provided by a five-member Review Commission appointed by the 
President and confirmed by the Senate. The Commission proposes revising 
its procedural rules in order to aid the just and efficient 
adjudication of such proceedings.

DATES: Written and electronic comments must be submitted on or before 
December 7, 2020.

[[Page 63048]]


ADDRESSES: Written comments should be mailed to Michael A. McCord, 
General Counsel, Office of the General Counsel, Federal Mine Safety and 
Health Review Commission, 1331 Pennsylvania Ave. NW, Suite 520N, 
Washington, DC 20004-1710. Electronic comments should state ``Comments 
on Procedural Rules'' in the subject line and be sent to 
[email protected].

FOR FURTHER INFORMATION CONTACT: Sarah Stewart, Deputy General Counsel, 
Office of the General Counsel, Federal Mine Safety and Health Review 
Commission, at (202) 434-9935.

SUPPLEMENTARY INFORMATION:

I. Background

    The Commission last significantly revised its procedural rules, 29 
CFR part 2700, in August 2006. 71 FR 44,190 (Aug. 4, 2006). Since that 
time, the Commission has identified several rules that require revision 
or clarification in order to aid the efficient adjudication of 
proceedings at the Commission's trial and appellate levels. For 
instance, confusion has arisen in discrimination proceedings brought 
pursuant to section 105(c)(3) of the Mine Act, 30 U.S.C. 815(c)(3), 
regarding when a decision on the merits of discrimination becomes ripe 
for review. The Commission proposes changing procedures relating to 
section 105(c)(3) discrimination proceedings in order to make them more 
consistent with procedures relating to discrimination proceedings 
brought pursuant to section 105(c)(2) of the Mine Act, 30 U.S.C. 
815(c)(2). Such changes are intended to provide greater clarity and to 
eliminate unnecessary delay.
    In order to provide transparency as to its processes, the 
Commission has proposed both new rules and revisions to its current 
rules that reflect the Commission's actual practices. The Commission 
has proposed adding new Commission Procedural Rule 32 which pertains to 
motions to reopen orders that have become final as the result of a 
failure to make a timely filing. The Commission has also proposed new 
Commission Procedural Rule 72 which describes the method by which the 
Commission empanels Commissioners, as authorized by section 113(c) of 
the Mine Act, 30 U.S.C. 823(c). The Commission has proposed adding 
provisions to Sec.  2700.5(e) for protecting sensitive commercial 
information, and for placing sensitive documents under Commission seal. 
In addition, the Commission has proposed numerous changes with respect 
to Sec.  2700.80, which more fully describe the Commission's process 
for investigating and making determinations in disciplinary 
proceedings.
    Finally, the Commission has proposed more technical changes. A 
number of changes are necessitated by the evolution of the Commission's 
electronic management of its dockets. In addition, the Commission has 
proposed a number of corrections and stylistic changes to word usage 
throughout its rules.
    The proposed changes are described more fully in the following 
section-by-section analysis. The Commission welcomes all comments and 
suggestions regarding the proposed changes and any necessary changes 
that have not been included.

II. Section-by-Section Analysis

    Set forth below is an analysis of proposed changes to the 
Commission's procedural rules. Some proposals involve similar or 
identical changes to multiple rules. Those changes are described 
immediately below by subject matter. Other changes generally pertain to 
one rule and are described following the subject matter discussion on a 
rule-by-rule basis.

A. Changes Related to the Commission's Paperless Docketing System

    In 2014, the Commission began using an electronic case management 
system (``eCMS'') in order to more efficiently manage its caseload. In 
late 2013, the Commission published interim rules permitting parties to 
file and serve documents electronically. 78 FR 77,354 (Dec. 23, 2013). 
The Commission later adopted those interim rules as final rules. 84 FR 
59,931 (Nov. 7, 2019). Although parties may continue to file documents 
non-electronically with the Commission as they have in the past, unless 
otherwise directed by the Commission in response to emergencies and 
special circumstances such as the COVID-19 considerations, experience 
has shown that a vast majority of documents are filed electronically 
through eCMS.
    The Commission recognizes that, as eCMS evolves, the Commission's 
procedural rules should reflect any necessary changes. For instance, it 
is likely that in the future, eCMS will allow parties to serve 
documents electronically through the system. Currently, parties may 
serve documents electronically only through the use of email. The 
Commission proposes changing its service requirements to allow parties 
to serve documents electronically by other means in addition to email 
in anticipation of such changes to eCMS. These proposed changes appear 
identically in Sec. Sec.  2700.7(c) (general service requirements); 
2700.9(a) (motions for extensions of time); 2700.24(d) (filing and 
service of pleadings in emergency response plan dispute proceedings; 
2700.45(a) and 2700.45(f) (service in temporary reinstatement 
proceedings); 2700.46(d) (service of pleadings in temporary relief 
proceedings); 2700.70(f) (motions for leave to exceed page limit 
relating to petitions for discretionary review); and 2700.75(f) 
(motions for leave to exceed page limit relating to briefs).
    In addition, documents issued by the Commission may be offered in 
electronic format rather than in paper format to parties. Consequently, 
the Commission proposes deleting provisions in Sec. Sec.  2700.4(b)(1), 
2700.24(f)(1), 2700.45(e)(3), 2700.54, and 2700.66(a) that specify a 
method of postal mail for the issuance of documents by the Commission 
under those provisions. Although the Mine Act does not specify the 
method by which the Commission must distribute its issuances, the 
Commission intends to use the most expeditious means reasonably 
available which is appropriate under the circumstances. Because 
Commission Procedural Rules 24 (emergency response plan dispute 
proceedings) and 45 (temporary reinstatement proceedings) deal with 
expedited proceedings, they shall retain their current language stating 
that the parties shall be notified of the Judge's decision or 
determination by the ``most expeditious means reasonably available.'' 
The Commission proposes adding similar language to Commission 
Procedural Rule 66 (summary disposition of proceedings) in paragraph 
(a) stating that the order to show cause shall be provided to the party 
who has failed to comply by ``the most expeditious means reasonably 
available.''

B. Gender-Specific Pronouns

    The masculine gender is currently used throughout the Commission's 
Procedural Rules. The Commission proposes changing the gender-specific 
pronouns in its rules to more gender-neutral language. Conforming 
changes have been proposed for Sec. Sec.  2700.4(a); 2700.6(a)(1), 
(a)(2)(ii) and (b); 2700.8 (Example 2); 2700.20(d); 2700.24(e)(2)(i) 
and (ii); 2700.25; 2700.26; 2700.27; 2700.41(a); 2700.45(b), (c), (d) 
and (g); 2700.55(h); 2700.56(c); 2700.58(c); 2700.61; 2700.62; 
2700.63(b); 2700.68(a) and (b); 2700.69(a), (b) and (c); 2700.73(b); 
2700.75(a)(1) and (e); and 2700.76(a)(1)(i); and 2700.81(a) and (c). 
The Commission also proposes deleting

[[Page 63049]]

the provision in Procedural Rule 1(c) that currently states that 
``[w]herever the masculine gender is used in these rules, the feminine 
gender is also implied.'' 29 CFR 2700.1(c). In addition, the Commission 
proposes revising references in Sec.  2700.83 from ``Chairman'' to 
``Chair.''

C. Consistency in Use of Language

1. References to Pleadings
    The term ``pleading'' generally refers to those documents filed in 
the beginning stage of proceedings in which parties formally submit 
their claims and defenses (i.e., petitions, answers). The Commission's 
rules sometimes erroneously use the term ``pleading,'' when the use of 
a more generic term, such as ``document'' or ``filing'' is intended. 
The Commission proposes changing the term ``pleading'' to the term 
``document'' or ``filing'' when the more generic term is intended in 
Sec. Sec.  2700.4(c), 2700.5(h), 2700.8(b) and Example 2, 2700.10(b), 
2700.11, 2700.24(d), 2700.45(a), and 2700.46(d).
2. References to a Judge
    The Commission proposes capitalizing the word ``Judge'' wherever it 
appears in the Commission's Procedural Rules. Such changes are proposed 
with respect to Sec. Sec.  2700.24(f)(2) and 2700.67(e).
3. References to the Secretary of Labor
    The rules variously refer to the Secretary of Labor as 
``Secretary'' and ``Secretary of Labor.'' For purposes of clarity and 
consistency, the Commission proposes making revisions so that the first 
reference in the text of a rule shall be to the ``Secretary of Labor,'' 
with a parenthetical indicating that subsequent references shall be to 
the ``Secretary.'' No parenthetical is included if ``Secretary of 
Labor'' appears only once in the rule. In addition, no parenthetical is 
included with the first reference to ``Secretary of Labor'' that 
appears in a title of the rule or in the title of its paragraphs. The 
Commission proposes making such changes to Sec. Sec.  2700.4(a), 
2700.20(b), 2700.21(a), 2700.22(c), 2700.24(a), 2700.25, 2700.26, 
2700.27, 2700.28(a), 2700.30(b), 2700.31(b)(1), 2700.40(a), 2700.41(a), 
2700.44(a), and 2700.45(b).
4. References to Website
    The Commission proposes changing all references from ``website'' to 
``website,'' in keeping with current accepted usage. Such changes are 
proposed with respect to Sec. Sec.  2700.1(a)(1), and 2700.5(b), 
(c)(1), (f)(1), and (j).

D. Subpart A--General Provisions


Sec.  2700.3  Who may practice.

    The Commission proposes revising Commission Procedural Rule 3 to 
clarify the conduct required of, and actions prohibited by, those who 
appear before the Commission and its Judges as a representative. The 
proposed revisions state that all individuals authorized to practice 
before the Commission, including attorney representatives and other 
non-attorney persons, shall be subject to the standards of conduct and 
disciplinary proceedings set forth in 29 CFR 2700.80. As discussed 
below, the Commission proposes revising Commission Procedural Rule 
80(a) to state that the American Bar Association's Model Rules of 
Professional Conduct shall be considered in the Commission's 
disciplinary proceedings.


Sec.  2700.4  Parties, intervenors, and amici curiae.

    Current Commission Procedural Rule 5, 29 CFR 2700.5, provides that 
parties may file documents by electronic means and non-electronic means 
and provides instructions for doing so. The Commission proposes 
revising Sec.  2700.4(b) to state that notices of intervention shall be 
filed in accordance with the filing requirements set forth in 
Commission Procedural Rule 5. In addition, as noted with respect to 
changes proposed that are related to the Commission's paperless 
docketing system, the Commission proposes deleting the reference in 
current Sec.  2700.4(b)(1) that appears to recognize that copies of a 
notice of intervention may be provided by the Commission only by postal 
mail.


Sec.  2700.5  General requirements for pleadings and other documents; 
status or informational requests.

    Commission Procedural Rule 5 is currently entitled, ``General 
requirements for pleadings and other documents; status or informational 
requests.'' A large part of Rule 5 pertains to filing requirements. A 
party who is unfamiliar with the Commission's Procedural Rules would 
not know which rule to consult for filing requirements. The Commission 
proposes inserting ``filing requirements'' in the title of Rule 5.
    The Commission also proposes revising paragraph (a) to replace an 
erroneous citation of ``30 U.S.C. 820(c)'' with the correct citation of 
``30 U.S.C. 820.''
    Paragraph (c)(2) of Rule 5 (Sec.  2700.5(c)(2)) provides 
instructions for filing documents by non-electronic means. The 
Commission proposes two changes with respect to this paragraph. First, 
the Commission proposes amending paragraph (c)(2)(i) of Rule 5 to 
require that filings submitted by a means other than electronic 
transmission should be sent to the Commission's Docket Office rather 
than to the Commission's Executive Director. The Commission's Executive 
Director plays no role with respect to filings, and the proposed change 
reflects the Commission's actual practice.
    Second, the Commission proposes deleting paragraph (c)(2)(iii) as 
superfluous and possibly confusing. Paragraph (2)(c) sets forth filing 
instructions pertaining to the following specific time-frames: (i) 
Before a Judge has been assigned; (ii) after a Judge has been assigned; 
(iii) interlocutory review; and (iv) after a Judge has issued a final 
decision. Section 2700.5(c)(2)(iii) relating to documents filed in 
connection with interlocutory review is unnecessary and possibly 
confusing because such documents also fall under section 5(c)(2)(ii) 
(after a Judge has been assigned). In addition, Sec.  2700.5(c)(2)(iii) 
refers the reader to Sec.  2700.76, which does not provide detailed 
information about how to file documents non-electronically.
    The Commission proposes revising paragraph (e) of Commission 
Procedural Rule 5 in order to address various privacy considerations. 
Parties sometimes provide sensitive commercial information to the 
Commission. Further, a party may request documents from an opposing 
party that contain such information. The Commission proposes adding 
paragraph (5) to Sec.  2700.5(e) in order to include a requirement that 
parties take steps to protect their sensitive commercial information. 
In addition, while the Commission's Judges already consider and decide 
motions to place records under seal, there currently is no Commission 
rule that specifically addresses the Commission's procedure for doing 
so. The Commission proposes adding paragraph (6) to Sec.  2700.5(e) in 
order to expressly address the procedures for placing sensitive 
documents under Commission seal.
    Paragraph (j) of Rule 5 sets forth the manner in which status or 
informational requests shall be made. It provides that such requests 
may be satisfied by accessing the Commission's website or by directing 
the request to the address of the Docket Office. The Commission 
proposes revising the rule to include a telephone number for contacting 
the Docket Office for those who need to contact the Docket Office in an 
expeditious manner but who do not have access to a computer.

[[Page 63050]]

Sec.  2700.6  Signing of documents.

    Although Commission Procedural Rule 6 states how and by whom 
documents filed with the Commission must be signed, there is no 
specific requirement that all such documents shall be signed. The 
Commission proposes adding a requirement that all documents filed with 
the Commission must be signed.


Sec.  2700.8  Computation of time.

    Section 2700.8(b) currently provides that five additional days are 
added to the due date for responding to a pleading served by a method 
of delivery resulting in other than same-day service. As noted above 
with respect to references to pleadings, the Commission proposes 
changing the term ``pleading'' to ``filing'' since the Commission 
intends for the provision to apply to more documents than just those 
filed with the Commission during the initial stage of proceedings that 
set forth a party's claims and defenses.
    The Commission also proposes adding a clarification to Rule 8(b) 
that the five extra days are not added for a response to a proposed 
penalty assessment because a proposed penalty assessment is not a 
filing with the Commission. Rather, a proposed penalty assessment is a 
notification sent by the Secretary of Labor to the operator or any 
other person against whom a civil penalty is proposed.


Sec.  2700.10  Motions.

    Commission Procedural Rule 10, which addresses motions, currently 
provides that oral motions may be made during a hearing or a 
conference. However, the rule does not require that any proceedings on 
such oral motions shall be on the record. A lack of such record makes 
review of proceedings on oral motions difficult. The Commission 
proposes adding a provision requiring that proceedings on any motion 
made at hearing or during a conference shall be on the record. The 
Commission also proposes making a conforming revision to Sec.  
2700.53(a) recognizing that a Judge has the discretion to record any 
in-person or telephonic conference.

E. Subpart C--Contests of Proposed Penalties


Sec.  2700.25  Proposed penalty assessment.

    The Commission received a suggestion that the service requirements 
in a regulation promulgated by the Department of Labor's Mine Safety 
and Health Administration (``MSHA'') at 30 CFR 100.8(a) are 
inconsistent with the service requirements in Sec.  2700.25, and that 
changes should be made to Commission Procedural Rule 25. The Commission 
has considered the matter and has concluded not to propose any such 
changes.
    Section 2700.25 requires that the Secretary of Labor shall send a 
notice of a proposed civil penalty to an operator or any other person 
against whom a penalty is proposed by ``certified mail.'' The 
requirements of Commission Procedural Rule 25 are taken directly from 
the language of section 105(a) of the Mine Act, 30 U.S.C. 815(a), which 
authorizes notification of a proposed penalty by ``certified mail'' 
only.
    In contrast, section 100.8 states that proposed penalty assessments 
shall be ``delivered'' to an operator's name and address of record. 
Section 100.8 sets forth what constitutes a proper service address but 
does not state how service to that address should be made. The 
Commission declines proposing changes to Commission Procedural Rule 25 
since the rule is wholly consistent with the Mine Act.


Sec.  2700.28  Filing of petition for assessment of penalty with the 
Commission.

    The Commission proposes adding a provision to Sec.  2700.28(b)(1) 
indicating that no more than 20 citations or orders may be the subject 
of a petition for assessment of penalty. Past practice has demonstrated 
that more than 20 citations or orders make a docket too large and 
unwieldy for the Commission to efficiently manage.
    Current Commission Procedural Rule 28(b)(2) mistakenly refers to a 
``single penalty assessment that has been proposed under 30 CFR 
100.4.'' Single penalty assessments have been subsumed by regular 
assessments. The Commission proposes deleting the reference to single 
penalty assessments.


Sec.  2700.31  Penalty settlement.

    Paragraph (a) of Sec.  2700.31 currently provides that in ``all 
penalty proceedings, except for discrimination proceedings arising 
under section 105(c) of the Mine Act,'' a settlement motion must be 
accompanied by a proposed order approving settlement. In 
``discrimination proceedings, a party need not file a proposed order.'' 
29 CFR 2700.31(a). The Commission proposes deleting the reference to 
discrimination proceedings because the reference appears to erroneously 
include discrimination proceedings arising under section 105(c) of the 
Act as a subcategory of ``all penalty proceedings.'' The proposed 
change to paragraph (a) of Rule 31 would require parties to file 
proposed orders approving settlement in penalty proceedings associated 
with a discrimination proceeding as they are required to do in all 
penalty proceedings.
    Section 2700. 31(d) currently sets forth requirements for 
electronically filing proposed settlement documents under the rule. 
Paragraph (d) was added to Rule 31 prior to the development of e-CMS. 
After the development of e-CMS, the Commission promulgated rule changes 
for the electronic filing and service of documents, which are now final 
rules and include all documents filed in accordance with Rule 31. See, 
e.g., 29 CFR 2700.5, 2700.7. The Commission proposes deleting 
references to electronic filing appearing in Rule 31 as superfluous and 
potentially confusing.
    The Commission also proposes deleting references that appear in 
Rule 31 regarding forms for approved orders approving settlement. The 
Commission no longer provides sample forms for proposed orders 
approving settlement on its website. Rather, parties draft proposed 
orders appropriate to each case.


Sec.  2700.32  Motions to reopen.

    The Commission receives requests to reopen final orders that 
generally fall into two categories. Requests in the first category 
involve circumstances in which a party has failed to file a timely 
contest of a proposed penalty assessment and the proposed penalty 
thereby becomes a final order of the Commission by operation of section 
105(a) of the Mine Act, 30 U.S.C. 815(a). See 29 CFR 2700.27. Requests 
in the second category involve circumstances in which a Commission 
Administrative Law Judge issues a default order because a party has 
failed to file an answer to a petition for assessment of penalty filed 
by the Secretary of Labor. See 29 CFR 2700.28, 2700.29.
    In 2008, the Commission published an Advanced Notice of Proposed 
Rulemaking (``ANPRM''). 73 FR 51,256 (Sept. 2, 2008). In the notice, 
the Commission sought suggestions for improving its procedures for 
processing requests to reopen and reducing the number of cases in which 
a party seeks relief before the Commission after default. The 
Commission stated that one of its key considerations was whether it 
should set forth requirements for requesting relief from default in a 
rule, or whether further guidance should be provided in an informal 
document.
    The Commission ultimately decided to provide guidance concerning 
motions to reopen in its case law and in informal guidance available on 
the Commission's website. In 2016, the Court of Appeals for the Fifth 
Circuit held that the Commission applied its case law

[[Page 63051]]

precedent arbitrarily in denying a motion to reopen. Noranda Alumina, 
LLC v. Perez, 841 F.3d 661, 665-69 (5th Cir. 2016). The Court noted 
that the Commission has not promulgated any regulations concerning 
motions to reopen, ``although it has provided nonbinding guidance on 
its website.'' Id. at 666 n.1.
    From the comments received on the ANPRM and the Commission's own 
experience, the Commission recognizes that there are many arguments in 
favor of adopting a rule and arguments against such a rule. For 
instance, creating a rule may provide more visibility for the 
Commission's expectations regarding information necessary to support a 
motion to reopen. Application of a rule may result in more consistency 
in the Commission's case law. However, the creation of a rule may not 
necessarily increase the efficiency of the Commission's processing of 
motions to reopen or reduce the instances in which a party seeks 
relief.
    The Commission has proposed a rule setting forth a procedure for 
motions to reopen drawn from the Commission's experience in receiving 
and disposing of such motions. The Commission invites comment regarding 
whether a rule would be beneficial and, if so, whether any changes to 
the proposed rule are appropriate.

F. Subpart E--Complaints of Discharge, Discrimination or Interference


Sec.  2700.44  Petition for assessment of penalty in discrimination 
cases.

    In discrimination proceedings arising under section 105(c)(2) of 
the Act, 30 U.S.C. 815(c)(2), a Judge's decision is not considered 
final and reviewable by the Commission until the Judge has ruled upon 
the merits of the discrimination complaint, and, in instances in which 
discrimination has been found, awarded compensation to the miner and 
assessed a civil penalty against the operator. A Judge's decision that 
reaches only the merits of the complaint, and reserves for later such 
issues as compensation and the penalty, is an ``interim decision'' and 
is thus not appealable to the Commission (except by a petition for 
interlocutory review) until the resolution of the outstanding issues.
    Because the Secretary of Labor is not involved in a discrimination 
proceeding brought by a miner under section 105(c)(3) of the Mine Act, 
30 U.S.C. 815(c)(3), in the past the Commission has often separately 
docketed the Secretary's civil penalty proposal, which is made 
subsequent to the Judge's determination of discrimination. Thus, unlike 
in section 105(c)(2) proceedings, the discrimination docket is separate 
from the associated civil penalty docket in section 105(c)(3) 
proceedings.
    In a section 105(c)(3) proceeding, if a penalty determination is 
unresolved at the time that the Judge's merits and compensation 
decision becomes ripe for court review, a question arises regarding 
whether the pendency of the penalty before the Commission renders the 
merits determination in the discrimination proceeding non-final for 
court review purposes.
    Consequently, in order to afford more clarity, the Commission has 
proposed revisions to Commission Procedural Rule 44 so that section 
105(c)(3) cases may be treated in a manner similar to section 105(c)(2) 
cases in terms of when a decision becomes ripe for review. In addition, 
in recognition of the Mine Act's requirement that proceedings under 
section 105(c) ``shall be expedited by the Secretary and the 
Commission,'' the Commission has proposed changes to Sec.  2700.44 that 
permit expedition and eliminate unnecessary delay. 30 U.S.C. 815(c)(3).
    More specifically, the Commission proposes making changes to Sec.  
2700.44(b) that clarify that a Judge's finding of discrimination in a 
section 105(c)(3) proceeding is an interim decision, rather than a 
final decision. Under the proposed changes, after the Judge sustains a 
discrimination complaint brought pursuant to section 105(c)(3), the 
Secretary must enter an appearance within 10 days in that 
discrimination proceeding and file a petition for assessment of penalty 
within 30 days. When necessary to expedite the issuance of a final 
decision in the proceeding, the Judge is authorized under the proposed 
changes to shorten the 30-day period and the period within which the 
operator has to respond to the petition. The proposed changes also set 
forth other procedural safeguards to prevent unnecessary delay. Under 
these proposed revisions, the final decision of the Judge will include 
the compensation to the miner and the penalty to be assessed against 
the operator.
    The Commission also proposes making a conforming change to 
Commission Sec.  2700.41 by adding a new paragraph (c). Proposed 
Commission Procedural Rule 41(c) would state that proceedings under 
subpart E of the part 2700, which pertain to complaints of discharge, 
discrimination or interference, are to be expedited.
    The Commission further proposes making a conforming change to 
Commission Procedural Rule 69. The Commission proposes revising Sec.  
2700.69(a) to explicitly require that any decision of a Judge that is 
not final shall be denoted as an ``interim decision.''

G. Subpart G--Hearings


Sec.  2700.53  Prehearing conferences and statements.

    The Commission proposes revising Sec.  2700.53(a) to add a 
provision stating that a Judge has the discretion to record any in-
person or telephonic conference. As discussed with respect to Sec.  
2700.10, the Commission also proposes making changes to Commission 
Procedural Rule 10 by adding a requirement that proceedings on any 
motion made at a hearing or during a conference shall be on the record. 
Thus, while a Judge may record any in-person or telephonic conference 
within the Judge's discretion, proceedings on any motion must be made 
part of the record.


Sec.  2700.64  Retention of exhibits.

    Commission Procedural Rule 64 pertains generally to exhibits which 
are made part of the official record. The Commission proposes revising 
the title of the rule to more generally refer to ``exhibits,'' rather 
than ``retention of exhibits'' since the rule encompasses more than the 
retention of exhibits. In addition, the Commission proposes changing 
the rule to reflect that exhibits shall be ``deemed part of'' the 
official record, rather than ``retained with'' the official record. The 
Commission's official record is electronic and some physical exhibits 
will be deemed to be part of the official record although they may not 
be retained in a digital format with the other parts of the official 
record.

H. Subpart H--Review by the Commission


Sec.  2700.72  Commission panels.

    Rule 72 is currently reserved. In order to promote transparency as 
to its functioning, the Commission proposes creating a new Procedural 
Rule 72 which would explain the Commission's process for impaneling 
Commissioners. Section 113(c) of the Mine Act, 30 U.S.C. 823(c), 
provides in part that the Commission is authorized ``to delegate to any 
group of three or more members any or all of the powers of the 
Commission.'' Proposed Rule 72 would provide that the Commission may 
impanel a group of three or more members to hear any pending matter, 
and that a Commissioner's assignment to such a panel may be made by a 
random method agreed upon by a majority of Commissioners.

[[Page 63052]]

Sec.  2700.78  Reconsideration.

    The Commission proposes revising Commission Procedural Rule 78 in 
order to clarify when a motion for reconsideration must be filed. Rule 
78 currently provides that a petition for reconsideration must be filed 
with the Commission within 10 days after a decision or order. The 
proposed revision clarifies that the ten-day period is counted from the 
issuance of the decision or order.

I. Subpart I--Miscellaneous


Sec.  2700.80  Standards of conduct; disciplinary proceedings.

    The Commission proposes making changes to Commission Procedural 
Rule 80 that would clarify the Commission's procedure in disciplinary 
proceedings and the standards applicable in such proceedings.
    Rule 80(a) currently provides that individuals practicing before 
the Commission or its Judges shall conform to the standards of ethical 
conduct required of practitioners in the courts of the United States. 
Practitioners appearing before the Commission could appear in 
Commission proceedings, live, and work, in varying locations, making a 
number of jurisdictions' rules of conduct potentially applicable. The 
Commission considers it more equitable to apply the same standards of 
conduct to all individuals practicing before the Commission. Therefore, 
the Commission proposes revising Rule 80(a) to state that the American 
Bar Association's Model Rules of Professional Conduct shall be 
considered in the Commission's disciplinary proceedings.
    The Commission also proposes revising Sec.  2700.80(c) to provide 
appropriate notice to the person named in a disciplinary referral, and 
to permit the person an opportunity for response. Proposed paragraph 
(c)(1) of Rule 80 would require the Commission to provide written 
notice to the person named in a disciplinary referral of the initiation 
of an investigation. The Commission proposes revising paragraph (c)(2) 
of rule 80 to provide that after the Commission has determined that a 
hearing is warranted on the matter described in the disciplinary 
referral, the Commission shall specify the disciplinary issues to be 
resolved through hearing.
    Paragraph (c)(3) permits the respondent named in the disciplinary 
proceeding an opportunity to file a response. In addition, paragraph 
(c)(3) provides that the Chief Administrative Law Judge may assign the 
proceeding to a Commission Administrative Law Judge or to a non-
Commission Administrative Law Judge. Such assignment will be made in an 
impartial manner. Paragraph (c)(3) clarifies that subpart G of part 
2700, pertaining to hearings before the Commission's Administrative Law 
Judges, also applies as appropriate to all Commission disciplinary 
proceedings.


Sec.  2700.82  Ex parte communications.

    Commission Procedural Rule 5(j) sets forth requirements regarding 
the manner in which status or informational requests shall be made. 
Section 2700.82(d) sets forth slightly different requirements for 
making status or informational requests. In keeping with the 
Commission's actual practice, the Commission proposes making changes to 
Sec.  2700.82(d) so that it conforms with the provisions of Sec.  
2700.5(j).


Sec.  2700.83  Authority to sign orders.

    Under current Sec.  2700.83, the Chairman or other designated 
Commissioner is authorized to sign an order on behalf of the other 
Commissioners disposing of certain procedural motions. The motions 
subject to Commission Procedural Rule 83 are non-substantive and 
involve minor procedural issues such as motions for extensions of time. 
The vast majority of those motions are unopposed.
    The Commission proposes adding a provision to Sec.  2700.83 
clarifying that in the absence of a quorum, the remaining Commissioner 
or Commissioners may dispose of the procedural motions subject to the 
rule. The proposed change would reflect the Commission's practice.
    The Commission also proposes deleting the provision in Procedural 
Rule 83 stating that a person aggrieved by an order signed by the 
Chairman or designated Commissioner under the rule may request that the 
order be signed by the participating Commissioners. The Commission has 
not received such a request and, given the unopposed nature of the 
motions at issue, considers it unlikely that it would receive such a 
request in the future. Thus, the Commission considers the provision 
unnecessary.
    Finally, consistent with changing gender-specific pronouns to more 
gender neutral language throughout its rules, the Commission proposes 
changing references from ``Chairman'' to ``Chair.''

III. Notice and Public Procedure

A. Executive Orders

    The Commission is an independent regulatory agency under section 
3(b) of Executive Order (``E.O.'') 12866 (Sept. 30, 1993), 58 FR 51735 
(Oct. 4, 1993); E.O. 13563 (Jan. 18, 2011), 76 FR 3821 (Jan. 21, 2011); 
E.O. 13771 (Jan. 30, 2017), 82 FR 9339 (Feb. 3, 2017); E.O. 13777 (Feb. 
24, 2017), 82 FR 12285 (Mar. 1, 2017); and E.O. 13132 (Aug. 4, 1999), 
64 FR 43255 (Aug. 10, 1999).
    The Commission has determined that this rulemaking does not have 
``takings implications'' under E.O. 12630 (Mar. 15. 1988), 53 FR 8859 
(Mar. 18, 1988).
    The Commission has determined that these regulations meet all 
applicable standards set forth in E.O. 12988 (Feb. 5, 1996), 61 FR 4729 
(Feb. 7, 1996).

B. Statutory Requirements

    Although notice-and-comment rulemaking requirements under the 
Administrative Procedure Act (``APA'') do not apply to rules of agency 
procedure (5 U.S.C. 553(b)(3)(A)), the Commission invites members of 
the interested public to submit comments on this final rule. The 
Commission will accept public comment until [Insert date 60 days after 
date of publication in the Federal Register.
    The Commission has determined that this rulemaking is exempt from 
the requirements of the Regulatory Flexibility Act (``RFA'') (5 U.S.C. 
601 et seq.), because the proposed rule would not have a significant 
economic impact on a substantial number of small entities.
    The Commission has determined that this rule is not a ``major 
rule'' under the Small Business Regulatory Enforcement Fairness Act 
(``SBREFA'') (5 U.S.C. 804(2)).
    The Commission has determined that the Paperwork Reduction Act 
(``PRA'') (44 U.S.C. 3501 et seq.) does not apply because these rules 
do not contain any information collection requirements that require the 
approval of the OMB.
    The Commission has determined that the Congressional Review Act 
(``CRA'') (5 U.S.C. 801 et seq.) does not apply because, pursuant to 5 
U.S.C. 804(3)(C), these rules are rules of agency procedure or practice 
that do not substantially affect the rights or obligations of non-
agency parties.
    The Commission has determined that this rulemaking is not a major 
Federal action significantly affecting the quality of the human 
environment requiring an environmental assessment under the National 
Environmental Policy Act (``NEPA'') (42 U.S.C. 4321 et seq.).
    The Commission is an independent regulatory agency, and as such, is 
not subject to the requirements of the Unfunded Mandates Reform Act 
(``UMRA'') (2 U.S.C. 1532 et seq.).

[[Page 63053]]

List of Subjects in 29 CFR Part 2700

    Administrative practice and procedure, Confidential business 
information, Mine safety and health, Penalties, Whistleblowing.

    For the reasons stated in the preamble, the Commission proposes 
amending 29 CFR part 2700 as follows:

PART 2700--PROCEDURAL RULES

0
1. The authority citation for part 2700 is revised to read as follows:

    Authority:  30 U.S.C. 815, 820, and 823.

0
2. In Sec.  2700.1, revise paragraphs (a)(1) and (c) to read as 
follows:


Sec.  2700.1   Scope; applicability of other rules; construction.

    (a) Scope. (1) This part sets forth rules applicable to proceedings 
before the Federal Mine Safety and Health Review Commission (``the 
Commission'') and its Administrative Law Judges. The Commission is an 
adjudicative agency that provides administrative trial and appellate 
review of legal disputes arising under the Federal Mine Safety and 
Health Act of 1977, 30 U.S.C. 801 et seq. (``the Act''). The Commission 
is an independent agency, not a part of nor affiliated in any way with 
the U.S. Department of Labor or its Mine Safety and Health 
Administration (``MSHA''). The location of the Commission's 
headquarters is at 1331 Pennsylvania Avenue NW, Suite 520N, Washington, 
DC 20004-1710; its primary phone number is 202-434-9900; and the fax 
number of its Docket Office is 202-434-9954. The Commission maintains a 
website at https://www.fmshrc.gov where these rules, recent and many 
past decisions of the Commission and its Judges, and other information 
regarding the Commission, can be accessed.
* * * * *
    (c) Construction. These rules shall be construed to secure the 
just, speedy and inexpensive determination of all proceedings, and to 
encourage the participation of miners and their representatives.
0
3. Revise Sec.  2700.3 to read as follows:


Sec.  2700.3   Who may appear before the Commission as a representative 
of a party.

    (a) Notice of appearance. When first making an appearance, each 
representative of a party must file a notice of appearance that 
indicates on whose behalf the appearance is made and the proceeding 
name and docket number.
    (b) Persons who may represent a party or subpoenaed witness before 
an Administrative Law Judge or the Commission. (1) An attorney who is a 
member of a bar in good standing of the highest court of a State, 
Commonwealth, or Territory of the United States, or the District of 
Columbia where the attorney has been licensed to practice law, who will 
promptly disclose to the Judge any action suspending, enjoining, 
restraining, disbarring, or otherwise currently restricting the 
attorney in the practice of law in any jurisdiction where the attorney 
is licensed to practice law;
    (2) A party;
    (3) A representative of miners;
    (4) An owner, partner, officer or employee of a party when the 
party is a labor organization, an association, a partnership, a 
corporation, governmental agency, other business entity, or a political 
subdivision; or
    (5) Any other person with the permission of the presiding Judge or 
the Commission.
    (c) Entry of appearance. A representative of a party shall enter an 
appearance in a proceeding under the Act or these procedural rules by 
signing the first document filed on behalf of the party with the 
Commission or Judge in accordance with Sec.  2700.6; filing a written 
entry of appearance with the Commission or Judge; or, if the Commission 
or Judge permits, by orally entering an appearance in open hearing.
    (d) Duties. All individuals authorized to practice before the 
Commission shall be subject to Sec.  2700.80 (Standards of conduct; 
disciplinary proceedings). A representative must be diligent, prompt, 
and forthright when dealing with parties, other representatives and the 
Judge, and act in a manner that furthers the fair and orderly conduct 
of the proceeding.
    (e) Prohibited actions. A representative must not:
    (1) Threaten, coerce, intimidate, deceive or knowingly mislead a 
party, representative, witness, potential witness, Judge, or anyone 
participating in the proceeding regarding any matter related to the 
proceeding.
    (2) Knowingly make or present false or misleading statements, 
assertions, or misrepresentations about a material fact or law related 
to the proceeding;
    (3) Unreasonably delay, or cause to be delayed without good cause, 
any proceeding;
    (4) Violate or attempt to violate the standards of conduct (see 29 
CFR 2700.80(a)), knowingly assist or induce another to do so, or do so 
through acts of another; or
    (5) Engage in any other action or behavior prejudicial to the fair 
and orderly conduct of the proceeding.
    (f) Withdrawal of appearance. A representative who desires to 
withdraw after filing a notice of appearance, or a party desiring to 
withdraw the appearance of a representative, must file a motion with 
the Commission or Judge. The motion must state that a notice of the 
withdrawal has been provided to all parties. The Commission or Judge 
may deny a representative's motion to withdraw when necessary to avoid 
undue delay or prejudice to the rights of a party.
0
4. In Sec.  2700.4, revise paragraphs (a), (b)(1), and (c) to read as 
follows:


Sec.  2700.4   Parties, intervenors, and amici curiae.

    (a) Party status. A person, including the Secretary of Labor 
(``Secretary'') or an operator, who is named as a party or who is 
permitted to intervene, is a party. In a proceeding instituted by the 
Secretary under section 105(c)(2) of the Act, 30 U.S.C. 815(c)(2), the 
complainant on whose behalf the Secretary has filed the complaint is a 
party and may present additional evidence. A miner, applicant for 
employment, or representative of a miner who has filed a complaint with 
the Commission under section 105(c)(3) or 111 of the Act, 30 U.S.C. 
815(c)(3) and 821, and an affected miner or the miner's representative 
who has become a party in accordance with paragraph (b) of this 
section, are parties.
    (b) Intervention--(1) Intervention by affected miners and their 
representatives. Before a case has been assigned to a Judge, affected 
miners or their representatives shall be permitted to intervene upon 
filing a written notice of intervention with the Commission. If the 
case has been assigned to a Judge, the notice of intervention shall be 
filed with the Judge. Notices of intervention shall be filed with the 
Commission or Judge in accordance with Sec.  2700.5(c). The Commission 
or the Judge shall provide forthwith a copy of the notice to all 
parties. After the start of the hearing, affected miners or their 
representatives may intervene upon just terms and for good cause shown.
* * * * *
    (c) Procedure for participation as amicus curiae. Any person may 
move to participate as amicus curiae in a proceeding before a Judge. 
Such participation as amicus curiae shall not be a matter of right but 
of the sound discretion of the Judge. A motion for participation as 
amicus curiae shall set forth the interest of the movant and show that 
the granting of the motion will not unduly delay or prejudice the 
adjudication of the issues. If the Judge permits amicus curiae 
participation, the Judge's order shall specify the time within which 
such amicus curiae memorandum, brief, or other filing must

[[Page 63054]]

be filed and the time within which a reply may be made. The movant may 
conditionally attach its memorandum, brief, or other filing to its 
motion for participation as amicus curiae.
0
5. Revise Sec.  2700.5 to read as follows:


Sec.  2700.5   General requirements for pleadings and other documents; 
filing requirements; status or informational requests.

    (a) Jurisdiction. A proposal for a penalty under section 110, 30 
U.S.C. 820; an answer to a notice of contest of a citation or 
withdrawal order issued under section 104, 30 U.S.C. 814; an answer to 
a notice of contest of an order issued under section 107, 30 U.S.C. 
817; a complaint issued under section 105(c) or 111, 30 U.S.C. 815(c) 
and 821; and an application for temporary reinstatement under section 
105(c)(2), 30 U.S.C. 815(c)(2), shall allege that the violation or 
imminent danger took place in or involves a mine that has products 
which enter commerce or has operations or products that affect 
commerce. Jurisdictional facts that are alleged are deemed admitted 
unless specifically denied in a responsive pleading.
    (b) How to file. Unless otherwise provided for in the Act, these 
rules, or by order, filing may be accomplished in person, by U.S. 
Postal Service, by third-party commercial carrier, by facsimile 
transmission, or by electronic transmission. Instructions for 
electronic filing may be accessed on the Commission's website (https://www.fmshrc.gov).
    (c) Where to file. Unless otherwise provided for in the Act, these 
rules, or by order:
    (1) Filing by electronic transmission. A document may be filed by 
electronic transmission with the Commission and its Judges. 
Instructions for electronic filing may be accessed on the Commission's 
website (https://www.fmshrc.gov).
    (2) Filing in person, by U.S. Postal Service, by third-party 
commercial carrier, or by facsimilie transmission.
    (i) Before a Judge has been assigned. Before a Judge has been 
assigned to a case, all documents shall be filed with the Commission. 
Documents filed with the Commission shall be addressed to the Docket 
Office, Federal Mine Safety and Health Review Commission, 1331 
Pennsylvania Avenue NW, Suite 520N, Washington, DC 20004-1710; 
facsimile delivery shall be transmitted to (202) 434-9954.
    (ii) After a Judge has been assigned. After a Judge has been 
assigned, and before a decision has been issued, documents shall be 
filed with the Judge at the address set forth on the notice of the 
assignment.
    (iii) After a Judge has issued a final decision. After the Judge 
has issued a final decision, documents shall be filed with the 
Commission as described in paragraph (c)(2)(i) of this section.
    (d) Necessary information. All documents shall be legible and shall 
clearly identify on the cover page the filing party by name. All 
documents shall be dated and shall include the assigned docket number, 
page numbers, and the filing person's address, business telephone 
number, cell telephone number if available, fax number if available, 
and email address if available. Written notice of any change in contact 
information shall be given promptly to the Commission or the Judge and 
all other parties.
    (e) Privacy considerations. Persons submitting information to the 
Commission shall protect information that tends to identify certain 
individuals, to constitute an unwarranted intrusion of personal 
privacy, or disclose confidential commercial information in the 
following manner:
    (1) Social security numbers, financial account numbers, driver's 
license numbers, or other personal identifying numbers, shall be 
redacted or excluded;
    (2) Minor children shall be identified only by initials;
    (3) If dates of birth must be included, only the year shall be 
used;
    (4) Parties shall exercise caution when filing medical records, 
medical treatment records, medical diagnosis records, employment 
history, and individual financial information, and shall redact or 
exclude materials unnecessary to a disposition of the case, provided 
the party gives notice to other parties and the Judge of the types of 
material redacted and the reason for such redactions.
    (5) Parties shall, consistent with 29 CFR 2702.6, exercise caution 
when providing corporate or commercial information and, with the 
permission of the Judge, shall redact or exclude any portion of its 
filing unnecessary to a disposition of the case or shall designate by 
appropriate markings any portion that it considers to be confidential.
    (6) The Commission may order, sua sponte or pursuant to a party's 
motion, that a filing be placed under seal. The Commission may 
subsequently unseal the filing or order the person who made the 
submission to substitute a redacted version in the record. Prior to 
unsealing a filing, the Commission shall provide the party that 
submitted the filing a reasonable opportunity to object to the sealing 
or to withdraw the filing. If no response is received, the Commission 
will take appropriate action at its discretion. No placements under 
seal, redactions or withdrawals shall be permitted during the pendency 
of a subpoena duces tecum validly issued to the Commission or a valid 
request pursuant to 29 CFR part 2702 related to the filing.
    (f) Effective date of filing. Unless otherwise provided for in the 
Act, these rules, or by order:
    (1) Filing by electronic transmission. When filing is by electronic 
transmission, filing is effective upon successful receipt by the 
Commission. The electronic transmission shall be in the manner 
specified by the Commission's website (https://www.fmshrc.gov).
    (2) Filing in person, by U.S. Postal Service, by third-party 
commercial carrier, or by facsimile transmission. When filing is by 
U.S. Postal Service, filing is effective upon mailing, except that the 
filing of a motion for extension of time, any document in an emergency 
response plan dispute proceeding, a petition for review of a temporary 
reinstatement order, a motion for summary decision, a petition for 
discretionary review, and a motion to exceed page limit is effective 
only upon receipt. See Sec. Sec.  2700.9(a), 2700.24(d), 2700.45(f), 
2700.67(a), 2700.70(a), (f), and 2700.75(f). When filing is in person, 
by third-party commercial carrier, or by facsimile, filing is effective 
upon successful receipt by the Commission.
    (g) Number of copies. Unless otherwise ordered or stated in this 
part, only the original of a document shall be filed.
    (h) Form of filings. All documents, including those filed 
electronically, shall appear in at least 12-point type on paper 8\1/2\ 
by 11 inches in size, with margins of at least 1 inch on all four 
sides. Text and footnotes shall appear in the same size type. Text 
shall be double spaced. Headings and footnotes may be single spaced. 
Quotations of 50 words or more may be single spaced and indented left 
and right. Excessive footnotes are prohibited. The failure to comply 
with the requirements of this paragraph (h) or the use of compacted or 
otherwise compressed printing features may be grounds for rejection of 
a filing.
    (i) Citation to a decision of a Judge. Each citation to a decision 
of a Judge should include ``(ALJ)'' at the end of the citation.
    (j) Status or informational requests. Information concerning filing 
requirements, the status of cases, or docket information may be 
accessed through the Commission's website

[[Page 63055]]

(https://www.fmshrc.gov). In the event such information is unavailable 
through the Commission's website or the requesting party does not have 
access to the website, such status or informational requests must be 
directed to the Docket Office of the Federal Mine Safety and Health 
Review Commission, 1331 Pennsylvania Avenue NW, Suite 520N, Washington, 
DC 20004-1710; 202-434-9950.
0
6. Revise Sec.  2700.6 to read as follows:


Sec.  2700.6   Signing of documents.

    (a) Signature. All documents filed with the Commission must be 
signed by a party or representative of the party.
    (1) Documents not filed by electronic transmission. A party or 
representative of the party shall sign a document by handwritten 
signature.
    (2) Documents filed by electronic transmission. (i) A party or 
representative of the party may sign a document by including the 
notation ``/s/'' followed by the typewritten name of the party or 
representative of the party filing the document.
    (ii) A party or representative of the party may sign a document by 
including a graphical duplicate of the handwritten signature.
    (b) Meaning of Signature. A document or signature may not be denied 
legal effect or enforceability solely because it is in electronic form. 
When a party or representative of the party signs a document in the 
manner described in paragraph (a) of this section, that person's 
signature shall constitute a certification:
    (1) That under the provisions of the law, including these rules and 
all federal conflict of interest statutes, the person is authorized and 
qualified to represent the particular party in the matter; and
    (2) That the person has read the document; that based on knowledge, 
information, and belief formed after reasonable inquiry it is well 
grounded in fact and is warranted by existing law or a good faith 
argument for extension, modification, or reversal of existing law; and 
that it is not interposed for any improper purpose, such as to harass 
or to cause unnecessary delay or needless increase in the cost of 
litigation.
0
7. In Sec.  2700.7, revise paragraphs (c)(1) and (2) to read as 
follows:


Sec.  2700.7   Service.

* * * * *
    (c) * * *
    (1) Methods of service. Documents may be served in person, by U.S. 
Postal Service, by third-party commercial carrier, by facsimile 
transmission, or by email or other electronic transmission. For 
documents filed pursuant to Sec. Sec.  2700.9(a), 2700.24, 2700.45, 
2700.70(f), 2700.75(f), and subpart F (applications for temporary 
relief), the method of service used must be no less expeditious than 
that used for filing, except that if service by email or other 
electronic transmission is impossible, the filing party must serve in 
person, by third party commercial carrier, or facsimile transmission, 
resulting in same-day delivery.
    (2) Effective date of service. When service is by U.S. Postal 
service, service is effective upon mailing. When service is in person, 
by third-party commercial carrier, by facsimile transmission, or by 
email or other electronic transmission, service is effective upon 
successful receipt by the party intended to be served.
* * * * *
0
8. In Sec.  2700.8, revise paragraph (b) and Example 2 to read as 
follows:


Sec.  2700.8   Computation of time.

* * * * *
    (b) When a party serves a filing by a method of delivery resulting 
in other than same-day service, the due date for party action in 
response is extended 5 additional calendar days beyond the date 
otherwise prescribed, after consideration of paragraph (a) of this 
section where applicable. (n.b. A proposed penalty assessment is not a 
filing with the Commission and additional days are not added to the 
time for responding to a proposed assessment.)
* * * * *
    Example 2: A Commission Judge issues a final decision in a case on 
Friday, July 5, 2013. Under Sec.  2700.70(a), parties have until August 
4, 2013, to file with the Commission a petition for discretionary 
review of the Judge's decision. Even though the decision was mailed, 5 
additional calendar days are not added, because paragraph (b) of this 
section only applies to actions in response to parties' filings. 
However, because August 4, 2013, is a Sunday, the actual due date for 
the petition is Monday, August 5, 2013.
* * * * *
0
9. In Sec.  2700.9, revise paragraph (a) to read as follows:


Sec.  2700.9   Extensions of time.

    (a) The time for filing or serving any document may be extended for 
good cause shown. Filing of a motion requesting an extension of time is 
effective upon receipt. A motion requesting an extension of time shall 
be received no later than 3 days prior to the expiration of the time 
allowed for the filing or serving of the document, and shall comply 
with Sec.  2700.10. The motion and any statement in opposition shall 
include proof of service on all parties by a means of delivery no less 
expeditious than that used for filing the motion, except that if 
service by email or other electronic transmission is impossible, the 
filing party must serve in person, by third party commercial carrier, 
or by facsimile transmission resulting in same-day delivery.
* * * * *
0
10. In Sec.  2700.10, revise paragraphs (a) and (b) to read as follows:


Sec.  2700.10   Motions.

    (a) An application for an order shall be by motion which, unless 
made during a hearing or a conference, shall be made in writing and 
shall set forth the relief or order sought. Proceedings on any motion 
made at a hearing or during a conference shall be on the record.
    (b) Written motions shall be set forth in a document separate from 
other filings.
* * * * *
0
11. Revise Sec.  2700.11 to read as follows:


Sec.  2700.11   Withdrawal of filing.

    A party may withdraw a filing at any stage of a proceeding with the 
approval of the Judge or the Commission.
0
12. In Sec.  2700.20, revise paragraphs (b) and (d) to read as follows:


Sec.  2700.20   Notice of contest of a citation or order issued under 
section 104 of the Act.

* * * * *
    (b) Time to contest. Contests filed by an operator pursuant to 
paragraph (a)(1) of this section shall be filed with the Secretary of 
Labor (``Secretary'') at the appropriate Regional Solicitor's Office or 
at the Solicitor's Office, Mine Safety and Health Division, Arlington, 
Virginia, within 30 days of receipt by the operator of the contested 
citation, order, or modification. Contests filed by a miner or 
representative of miners pursuant to paragraph (a)(2) of this section 
shall be filed in the same manner within 30 days of receipt by the 
miner or representative of miners of the contested order, modification, 
or termination.
* * * * *
    (d) Copy to Commission. The contesting party shall also file a copy 
of the notice of contest with the Commission at the time the party 
files with the Secretary.
* * * * *
0
13. In Sec.  2700.21, revise paragraph (a) to read as follows:

[[Page 63056]]

Sec.  2700.21   Effect of filing notice of contest of citation or 
order.

    (a) The filing of a notice of contest of a citation or order issued 
under section 104 of the Act, 30 U.S.C. 814, does not constitute a 
challenge to a proposed penalty assessment that may subsequently be 
issued by the Secretary of Labor under section 105(a) of the Act, 30 
U.S.C. 815(a), which is based on that citation or order. A challenge to 
such a proposed penalty assessment must be filed as a separate notice 
of contest of the proposed penalty assessment. See Sec.  2700.26.
* * * * *
0
14. In Sec.  2700.22, revise paragraph (c) to read as follows:


Sec.  2700.22   Notice of contest of imminent danger withdrawal orders 
under section 107 of the Act.

* * * * *
    (c) Answer. Within 15 days after service of the notice of contest, 
the Secretary of Labor shall file an answer responding to each 
allegation of the notice of contest.
0
15. Revise Sec.  2700.24 to read as follows:


Sec.  2700.24   Emergency response plan dispute proceedings.

    (a) Referral by the Secretary of Labor. The Secretary of Labor 
(``Secretary'') shall immediately refer to the Commission any citation 
arising from a dispute between the Secretary and an operator with 
respect to the content of the operator's emergency response plan, or 
any refusal by the Secretary to approve such a plan. Any referral made 
pursuant to this paragraph (a) shall be made within two business days 
of the issuance of any such citation.
    (b) Contents of referral. A referral shall consist of a notice of 
plan dispute describing the nature of the dispute; a copy of the 
citation issued by the Secretary; a short and plain statement of the 
Secretary's position with respect to any disputed plan provision; and a 
copy of the disputed provision of the emergency response plan.
    (c) Short and plain statement by the operator. Within five calendar 
days following the filing of the referral, the operator shall file with 
the Commission a short and plain statement of its position with respect 
to the disputed plan provision.
    (d) Filing and service of documents. The filing with the Commission 
of any document in an emergency response plan dispute proceeding, 
including the referral, is effective upon receipt. A copy of each 
document filed with the Commission in such a proceeding shall be served 
on all parties and on any miner or miners' representative who has 
participated in the emergency response plan review process by a method 
of service no less expeditious than that used for filing, except that 
if service by email or other electronic transmission is impossible, the 
filing party must serve in person, by third party commercial carrier, 
or by facsimile transmission, resulting in same-day delivery.
    (e) Proceedings before the Judge--(1) Submission of materials. 
Within 15 calendar days of the referral, the parties shall submit to 
the Judge assigned to the matter all relevant materials regarding the 
dispute. Such submissions shall include a request for any relief sought 
and may include proposed findings of fact and conclusions of law. Such 
materials may be supported by affidavits or other verified documents, 
and shall specify the grounds upon which the party seeks relief. 
Supporting affidavits shall be made on personal knowledge and shall 
show affirmatively that the affiant is competent to testify to the 
matters stated.
    (2) Hearing. (i) Within 5 calendar days following the filing of the 
Secretary's referral, any party may request a hearing and shall so 
advise the Commission's Chief Administrative Law Judge or designee, and 
simultaneously notify the other parties.
    (ii) Within 10 calendar days following the filing of the 
Secretary's referral, the Commission's Chief Administrative Law Judge 
or designee may issue an order scheduling a hearing on the Judge's own 
motion, and must immediately so notify the parties.
    (iii) If a hearing is ordered under paragraphs (e)(2)(i) or (ii) of 
this section, the hearing shall be held within 15 calendar days of the 
filing of the referral. The scope of such a hearing is limited to the 
disputed plan provision or provisions. If no hearing is held, the Judge 
assigned to the matter shall review the materials submitted by the 
parties pursuant to paragraph (e)(1) of this section, and shall issue a 
decision pursuant to paragraph (f) of this section.
    (f) Disposition--(1) Decision of the Judge. Within 15 calendar days 
following receipt by the Judge of all submissions and testimony made 
pursuant to paragraph (e) of this section, the Judge shall issue a 
decision that constitutes the Judge's final disposition of the 
proceedings. The decision shall be in writing and shall include all 
findings of fact and conclusions of law, and the reasons or bases for 
them, on all the material issues of fact, law or discretion presented 
by the record, and an order. The parties shall be notified of the 
Judge's decision by the most expeditious means reasonably available.
    (2) Stay of plan provision. Notwithstanding Sec.  2700.69(b), a 
Judge shall retain jurisdiction over a request for a stay in an 
emergency response plan dispute proceeding. Within two business days 
following service of the decision, the operator may file with the Judge 
a request to stay the inclusion of the disputed provision in the plan 
during the pendency of an appeal to the Commission pursuant to 
paragraph (g) of this section. The Secretary shall respond to the 
operator's motion within two business days following service of the 
motion. The Judge shall issue an order granting or denying the relief 
sought within two business days after the filing of the Secretary's 
response.
    (g) Review of decision. Any party may seek review of a Judge's 
decision, including the Judge's order granting or denying a stay, by 
filing with the Commission a petition for discretionary review pursuant 
to Sec.  2700.70. Neither an operator's request for a stay nor the 
issuance of an order addressing the stay request affects the time 
limits for filing a petition for discretionary review of a Judge's 
decision with the Commission under this paragraph (g). The Commission 
shall act upon a petition on an expedited basis. If review is granted, 
the Commission shall issue a briefing order. Except as otherwise 
ordered or provided for herein, the provisions of Sec.  2700.75 apply. 
The Commission will not grant motions for extension of time for filing 
briefs, except under extraordinary circumstances.
0
16. Revise Sec.  2700.25 to read as follows:


Sec.  2700.25   Proposed penalty assessment.

    The Secretary of Labor (``Secretary''), by certified mail, shall 
notify the operator or any other person against whom a penalty is 
proposed of the violation alleged, the amount of the proposed penalty 
assessment, and that such person shall have 30 days to notify the 
Secretary of the intent to contest the proposed penalty assessment.
0
17. Revise Sec.  2700.26 to read as follows:


Sec.  2700.26   Notice of contest of proposed penalty assessment.

    A person has 30 days after receipt of the proposed penalty 
assessment within which to notify the Secretary of Labor 
(``Secretary'') of the contest of the proposed penalty assessment. A 
person who wishes to contest a proposed penalty assessment must provide 
such notification regardless of whether the person has previously 
contested the underlying citation or order pursuant to Sec.  2700.20. 
The Secretary shall immediately transmit to the

[[Page 63057]]

Commission any notice of contest of a proposed penalty assessment.
0
18. Revise Sec.  2700.27 to read as follows:


Sec.  2700.27   Effect of failure to contest proposed penalty 
assessment.

    If, within 30 days from the receipt of the proposed penalty 
assessment, the operator or other person fails to notify the Secretary 
of Labor (``Secretary'') of the contest of the proposed penalty, the 
Secretary's proposed penalty assessment shall be deemed to be a final 
order of the Commission not subject to review by any court or agency.
0
19. In Sec.  2700.28, revise paragraphs (a), and (b)(1) and (2) to read 
as follows:


Sec.  2700.28   Filing of petition for assessment of penalty with the 
Commission.

    (a) Time to file. Within 45 days of receipt of a timely contest of 
a proposed penalty assessment, the Secretary of Labor shall file with 
the Commission a petition for assessment of penalty.
    (b) * * *
    (1) List the alleged violations and the proposed penalties. Each 
violation shall be identified by the number and date of the citation or 
order and the section of the Act or regulations alleged to be violated. 
The list shall include no more than 20 citations or orders which are 
the subject of the petition for assessment of penalty.
    (2) Include a short and plain statement of supporting reasons based 
on the criteria for penalty assessment set forth in section 110(i) of 
the Act, 30 U.S.C. 820(i).
* * * * *
0
20. In Sec.  2700.30, revise paragraph (b) to read as follows:


Sec.  2700.30   Assessment of penalty.

* * * * *
    (b) In determining the amount of penalty, neither the Judge nor the 
Commission shall be bound by a penalty proposed by the Secretary of 
Labor or by any offer of settlement made by a party.
0
21. Revise Sec.  2700.31 to read as follows:


Sec.  2700.31   Penalty settlement.

    (a) General. A proposed penalty that has been contested before the 
Commission may be settled only with the approval of the Commission upon 
motion. In all penalty proceedings, a settlement motion must be 
accompanied by a proposed order approving settlement.
    (b) Content of motion--(1) Factual support. A motion to approve a 
penalty settlement shall include for each violation the amount of the 
penalty proposed by the Secretary of Labor (``Secretary''), the amount 
of the penalty agreed to in settlement, and facts in support of the 
penalty agreed to by the parties.
    (2) Certification. The party filing a motion must certify that the 
opposing party has authorized the filing party to represent that the 
opposing party consents to the granting of the motion and the entry of 
the proposed order approving settlement.
    (c) Content of proposed order--(1) Factual support. A proposed 
order approving a penalty settlement shall include for each violation 
the amount of the penalty proposed by the Secretary, the amount of the 
penalty agreed to in settlement, and facts in support of the penalty 
agreed to by the parties. Proposed orders shall not be submitted in PDF 
format.
    (2) Appearance by CLR. If a motion has been filed by a Conference 
and Litigation Representative (``CLR'') on behalf of the Secretary, the 
proposed order approving settlement accompanying the motion shall 
include a provision in which the Judge accepts the CLR to represent the 
Secretary in accordance with the notice of either limited or unlimited 
appearance previously filed with the Commission. A CLR does not need to 
obtain authorization from the Commission to represent the Secretary 
before the CLR files a motion to approve settlement and proposed order.
    (d) Filing of motion and proposed order prior to filing of 
petition. If a motion to approve settlement and proposed order is filed 
with the Commission before the Secretary has filed a petition for 
assessment of penalty, the filing party must also submit as 
attachments, electronic copies of the proposed penalty assessment and 
citations and orders at issue. If such attachments are filed, the 
Secretary need not file a petition for assessment of penalty.
    (e) Final order. Any order by the Judge approving a settlement 
shall set forth the reasons for approval and shall be supported by the 
record. Such order shall become the final order of the Commission 40 
days after issuance unless the Commission has directed that the order 
be reviewed. A Judge may correct clerical errors in an order approving 
settlement in accordance with the provisions of 29 CFR 2700.69(c).
0
22. Add Sec.  2700.32 to read as follows:


Sec.  2700.32   Motions to reopen.

    (a) General. This section applies to situations:
    (1) Where an operator has failed to file a timely notice of contest 
of a proposed penalty assessment issued by the Department of Labor's 
Mine Safety and Health Administration (``MSHA''), resulting in the 
proposed penalty assessment being deemed a final order of the 
Commission pursuant to section 105(a) of the Act, 30 U.S.C. 815(a), and 
Sec.  2700.27; and
    (2) Where an operator has failed to file a timely answer to a 
petition for assessment of a penalty and the Judge has issued a default 
order. Either situation is termed a ``default.''
    (b) Definition. For purposes of this section only, ``operator'' 
also includes a person subject to the provisions of section 110(c) of 
the Act, 30 U.S.C. 820(c), as well as an entity considered an operator 
under section 3(d) of the Act, 30 U.S.C. 802(d).
    (c) Grounds for relief. In reviewing motions to reopen cases where 
a default has occurred, the Commission is guided by Rule 60(b) of the 
Federal Rules of Civil Procedure, under which, for example, a party 
could be entitled to relief from a final order of the Commission on the 
basis of inadvertence, surprise, mistake, misrepresentation, misconduct 
by an opposing party, or other reason that justifies relief. The 
operator bears the burden of establishing entitlement to such 
extraordinary relief.
    (d) Time limits for filing the motion. (1) A party seeking relief 
from a default must promptly file a motion with the Commission 
requesting that the final order be reopened with a full explanation of 
why reopening is warranted, accompanied by appropriate documentation, 
as required by paragraph (e) of this section. A party's diligence in 
promptly filing the motion will be taken into account in the decision 
whether to grant relief. If a party fails to file its motion to reopen 
within 30 days of notice or discovery of its delinquency, it must 
provide a reasonable explanation for the delay.
    (2) Motions for relief based on mistake, inadvertence, surprise, 
excusable neglect, newly discovered evidence, fraud, misrepresentation, 
or misconduct by an opposing party must be filed within one year after 
a proposed penalty assessment has become a final order of the 
Commission. Failure to do so will result in denial of the motion.
    (e) Contents of the motion. (1) In submitting a motion, the 
operator should seek guidance from the Commission's website (https://www.fmshrc.gov/content/requests-reopen and https://www.fmshrc.gov/guides/faq#problems).
    (2) The motion must include the operator's name and mine ID number, 
the name of the operator's

[[Page 63058]]

representative, the representative's relationship to the mine operator, 
and the representative's contact information.
    (3) The motion shall include a detailed explanation of facts 
related to the grounds for relief, including:
    (i) The nature of the event, error, or omission leading to the 
default, including, if applicable, the movant's control of the filing 
of a notice of contest, the circumstances causing the lateness, and any 
factor bearing upon the good faith of the movant;
    (ii) The steps taken in attempting to contest the proposed penalty 
or to answer the penalty petition;
    (iii) The reason for the untimeliness; and
    (iv) Any other relevant factor.
    (4) The reasons for the default must be substantiated by 
documentation containing, as appropriate, affidavits and documents, 
including written and electronic communications, which are relevant to 
the issues raised in the motion to reopen and are within the party's 
custody or control.
    (5) Motions seeking to reopen a proposed penalty that has been 
deemed a final order must also include:
    (i) The assessment case number(s) that the operator seeks to reopen 
and the individual penalties within the assessment case which the 
operator seeks to contest upon reopening.
    (ii) The operator's internal procedures for timely contesting 
proposed penalty assessments or answer penalty petitions, including the 
existence of the tracking and backup systems, and
    (iii) Any available documentation of the mailing and/or delivery of 
the operator's contest if the movant claims that it timely contested a 
proposed penalty assessment.
    (f) Secretary of Labor's response to motion. (1) The Secretary of 
Labor (``Secretary'') may submit a response to the Commission within 30 
days after receipt of the operator's motion to reopen a default. In the 
response, the Secretary shall state whether the Secretary opposes the 
motion and, if so, the reasons for such opposition, including any 
prejudice resulting from the delay.
    (2) The Secretary shall also submit a copy of all relevant 
documents to which the Secretary has access that were not submitted by 
the operator in its motion.
    (3) In response to a motion to reopen a penalty assessment, the 
Secretary shall include a summary, from the MSHA Mine Data Retrieval 
System or other sources, of the operator's status regarding penalty 
delinquencies during the preceding 24-month period. Such information 
shall be presumed to be correct unless rebutted by the operator.
    (g) Operator's reply. The operator may file a reply within 20 days 
after service of the Secretary's response.
    (h) Refiling of motion. (1) If a motion is denied ``without 
prejudice,'' a new motion may be refiled within 30 days of the issuance 
of the Commission's decision. If no new motion is filed within 30 days, 
the initial motion is denied permanently, ``with prejudice.''
    (2) If a motion is denied ``with prejudice,'' in cases involving a 
failure to timely contest a proposed penalty assessment, the underlying 
assessment shall be deemed to have been a final order of the 
Commission. In cases involving a Judge's default order, the order shall 
be a final order.
    (3) When a motion is refiled, for purposes of Sec.  2700.32(d)(2), 
the time during which the initial motion that was denied without 
prejudice was pending before the Commission shall not be counted toward 
the one-year period within which some motions to reopen a default must 
be filed.
0
23. In Sec.  2700.40, revise paragraph (a) to read as follows:


Sec.  2700.40   Who may file.

    (a) The Secretary of Labor. A discrimination complaint under 
section 105(c)(2) of the Act, 30 U.S.C. 815(c)(2), shall be filed by 
the Secretary of Labor (``Secretary'') if, after an investigation 
conducted pursuant to section 105(c)(2), the Secretary determines that 
a violation of section 105(c)(1), 30 U.S.C. 815(c)(1), has occurred.
* * * * *
0
24. In Sec.  2700.41, revise paragraph (a) and add paragraph (c) to 
read as follows:


Sec.  2700.41   Time to file.

    (a) The Secretary of Labor. A discrimination complaint shall be 
filed by the Secretary of Labor (``Secretary'') within 30 days after 
the Secretary's written determination that a violation has occurred.
* * * * *
    (c) Expedition. Proceedings held under this subpart E are to be 
expedited. 30 U.S.C. 815(c)(3).
0
25. Revise Sec.  2700.44 to read as follows:


Sec.  2700.44   Petition for assessment of penalty in discrimination 
cases.

    (a) Petition for assessment of penalty in Secretary of Labor's 
complaint. A discrimination complaint filed by the Secretary of Labor 
(``Secretary'') shall propose a civil penalty of a specific amount for 
the alleged violation of section 105(c) of the Act, 30 U.S.C. 815(c). 
The petition for assessment of penalty shall include a short and plain 
statement of supporting reasons based on the criteria for penalty 
assessment set forth in section 110(i) of the Act. 30 U.S.C. 820(i).
    (b) Petition for assessment of penalty after sustaining of 
complaint by miner, representative of miners, or applicant for 
employment. Immediately upon issuance of a decision by a Judge 
sustaining a discrimination complaint brought pursuant to section 
105(c)(3), 30 U.S.C. 815(c)(3), the Judge shall notify the Secretary in 
writing of such determination. The Secretary shall enter an appearance 
in the case within 10 days and file with the Commission a petition for 
assessment of civil penalty within 30 days of receipt of such notice. 
When necessary to expedite the issuance of a final decision in the 
proceeding, the Judge is authorized to shorten the Secretary's 30-day 
filing period and the period in which the operator has to respond to 
the petition. In the event the Judge does not receive a petition for 
assessment of a civil penalty within 30 days of the Secretary's receipt 
of the notice, or a shorter period specified in the notice, the Judge 
shall issue an order to show cause as to why the Secretary has not 
filed a petition. If after 7 days of issuance of such order the 
Secretary has not filed with the Commission a petition for civil 
penalty and the Judge has not granted an extension of time for filing, 
the Judge shall presume the Secretary has proposed no penalty and 
assess a penalty in accordance with 29 CFR 2700.30.
0
26. Revise Sec.  2700.45 to read as follows:


Sec.  2700.45   Temporary reinstatement proceedings.

    (a) Service of documents. A copy of each document filed with the 
Commission in a temporary reinstatement proceeding shall be served on 
all parties by a method of service as expeditious as that used for 
filing, except that, if service by email or other electronic 
transmission is impossible, the filing party must serve in person, by 
third party commercial carrier, or by facsimile transmission, resulting 
in same-day delivery.
    (b) Contents of application. An application for temporary 
reinstatement shall state the finding by the Secretary of Labor 
(``Secretary'') that the miner's discrimination complaint was not 
frivolously brought and shall be accompanied by an affidavit setting 
forth the Secretary's reasons supporting this finding. The application 
also shall include a copy of the miner's complaint to the Secretary and 
proof of notice to and service on the person against whom relief is 
sought by the most expeditious

[[Page 63059]]

method of notice and delivery reasonably available.
    (c) Request for hearing. Within 10 calendar days following receipt 
of the Secretary's application for temporary reinstatement, the person 
against whom relief is sought shall advise the Commission's Chief 
Administrative Law Judge or designee, and simultaneously notify the 
Secretary, whether a hearing on the application is requested. If no 
hearing is requested, the Judge assigned to the matter shall 
immediately review the Secretary's application and, if based on the 
contents thereof the Judge determines that the miner's complaint was 
not frivolously brought, the Judge shall immediately issue a written 
order of temporary reinstatement. If a hearing on the application is 
requested, the hearing shall be held within 10 calendar days following 
receipt of the request for hearing by the Commission's Chief 
Administrative Law Judge or designee, unless compelling reasons are 
shown in an accompanying request for an extension of time.
    (d) Hearing. The scope of a hearing on an application for temporary 
reinstatement is limited to a determination as to whether the miner's 
complaint was frivolously brought. The burden of proof shall be upon 
the Secretary to establish that the complaint was not frivolously 
brought. In support of the application for temporary reinstatement, the 
Secretary may limit presentation to the testimony of the complainant. 
The respondent shall have an opportunity to cross-examine any witnesses 
called by the Secretary and may present testimony and documentary 
evidence in support of its position that the complaint was frivolously 
brought.
    (e) Order on application. (1) Within 7 calendar days following the 
close of a hearing on an application for temporary reinstatement, the 
Judge shall issue a written order granting or denying the application. 
However, in extraordinary circumstances, the Judge's time for issuing 
an order may be extended as deemed necessary by the Judge.
    (2) The Judge's order shall include findings and conclusions 
supporting the determination as to whether the miner's complaint has 
been frivolously brought.
    (3) The parties shall be notified of the Judge's determination by 
the most expeditious means reasonably available.
    (4) A Judge's order temporarily reinstating a miner is not a final 
decision within the meaning of Sec.  2700.69, and except during 
appellate review of such order by the Commission or courts, the Judge 
shall retain jurisdiction over the temporary reinstatement proceeding.
    (f) Review of order. Review by the Commission of a Judge's written 
order granting or denying an application for temporary reinstatement 
may be sought by filing with the Commission a petition, which shall be 
captioned ``Petition for Review of Temporary Reinstatement Order,'' 
with supporting arguments, within 5 business days following receipt of 
the Judge's written order. The filing of any such petition is effective 
upon receipt. The filing of a petition shall not stay the effect of the 
Judge's order unless the Commission so directs; a motion for such a 
stay will be granted only under extraordinary circumstances. Any 
response shall be filed within 5 business days following service of a 
petition. Pleadings under this rule shall include proof of service on 
all parties by a means of delivery no less expeditious than that used 
for filing, except that if service by email or other electronic 
transmission is impossible, the filing party must serve in person, by 
third party commercial carrier, or by facsimile transmission, resulting 
in same-day delivery. The Commission's ruling on a petition shall be 
made on the basis of the petition and any response (any further briefs 
will be entertained only at the express direction of the Commission), 
and shall be rendered within 10 calendar days following receipt of any 
response or the expiration of the period for filing such response. In 
extraordinary circumstances, the Commission's time for decision may be 
extended.
    (g) Dissolution of order. If, following an order of temporary 
reinstatement, the Secretary determines that the provisions of section 
105(c)(1), 30 U.S.C. 815(c)(1), have not been violated, the Judge shall 
be so notified. An order dissolving the order of reinstatement shall 
not bar the filing of an action by the miner on the miner's own behalf 
under section 105(c)(3) of the Act, 30 U.S.C. 815(c)(3), and Sec.  
2700.40(b) of these rules.
0
27. In Sec.  2700.46, revise paragraph (d) to read as follows:


Sec.  2700.46   Procedure.

* * * * *
    (d) Service of documents. A copy of each document filed with the 
Commission under subpart F of this part must be served on all parties 
by a means of delivery no less expeditious than that used for filing, 
except that if service by email or other electronic transmission is 
impossible, the filing party must serve in person, by third party 
commercial carrier, or by facsimile transmission, resulting in same-day 
delivery.
0
28. In Sec.  2700.53, revise the introductory text of paragraph (a) to 
read as follows:


Sec.  2700.53   Prehearing conferences and statements.

    (a) The Judge may require the parties to participate in a 
prehearing conference, either in person or by telephone or other video/
audio teleconferencing. Notwithstanding the mandatory recording of 
motions on the record in accordance with Sec.  2700.10(a), the Judge 
has the discretion to record any in-person or telephonic conference, a 
transcript of which shall be provided to the parties upon reasonable 
request. The participants at any such conference may consider and take 
action with respect to:
* * * * *
0
29. Revise Sec.  2700.54 to read as follows:


Sec.  2700.54   Notice of hearing.

    Except in expedited proceedings, written notice of the time, place, 
and nature of the hearing, the legal authority under which the hearing 
is to be held, and the matters of fact and law asserted shall be given 
to all parties at least 20 days before the date set for hearing.
0
30. In Sec.  2700.55, revise paragraph (h) to read as follows:


Sec.  2700.55   Powers of Judges.

* * * * *
    (h) Make decisions in the proceedings, provided that the Judge 
shall not be assigned to make a recommended decision; and
* * * * *
0
31. In Sec.  2700.56, revise paragraph (c) to read as follows:


Sec.  2700.56   Discovery; general.

* * * * *
    (c) Limitation of discovery. Upon motion by a party or by the 
person from whom discovery is sought or upon the Judge's own motion, a 
Judge may, for good cause shown, limit discovery to prevent undue delay 
or to protect a party or person from oppression or undue burden or 
expense.
* * * * *
0
32. In Sec.  2700.58, revise paragraph (c) to read as follows:


Sec.  2700.58   Interrogatories, requests for admissions and requests 
for production of documents.

* * * * *
    (c) Request for production, entry or inspection. Any party, without 
leave of the Judge, may serve on another party a written request to 
produce and permit inspection, copying or photocopying of designated 
documents or objects, or to permit a party or its agent to enter upon 
designated property to inspect and gather information. A party served 
with such a request shall respond in writing

[[Page 63060]]

within 25 days of service unless the party making the request agrees to 
a longer time. The Judge may order a shorter or longer period for 
responding. A party objecting to a request for production, entry or 
inspection shall state the basis for the objection in its response.
0
33. Revise Sec.  2700.61 to read as follows:


Sec.  2700.61   Name of miner informant.

    A Judge shall not, except in extraordinary circumstances, disclose 
or order a person to disclose to an operator or its agent the name of 
an informant who is a miner.
0
34. Revise Sec.  2700.62 to read as follows:


Sec.  2700.62   Name of miner witness.

    A Judge shall not, until 2 days before a hearing, disclose or order 
a person to disclose to an operator or its agent the name of a miner 
who is expected by the Judge to testify or whom a party expects to 
summon or call as a witness.
0
35. In Sec.  2700.63, revise paragraph (b) to read as follows:


Sec.  2700.63   Evidence; presentation of case.

* * * * *
    (b) The proponent of an order has the burden of proof. A party 
shall have the right to present a case or defense by oral or 
documentary evidence, to submit rebuttal evidence, and to conduct such 
cross-examination as may be required for a full and true disclosure of 
the facts.
0
36. Revise Sec.  2700.64 to read as follows:


Sec.  2700.64   Exhibits.

    All exhibits received in evidence in a hearing or submitted for the 
record in any proceeding before the Commission shall be deemed part of 
the official record of the proceeding. The withdrawal of original 
exhibits may be permitted by the Commission or the Judge, upon request 
and after notice to the other parties, if true copies are substituted, 
where practical, for the originals.
0
37. In Sec.  2700.66, revise paragraph (a) to read as follows:


Sec.  2700.66   Summary disposition of proceedings.

    (a) Generally. When a party fails to comply with an order of a 
Judge or these rules, except as provided in paragraph (b) of this 
section, an order to show cause shall be directed to the party before 
the entry of any order of default or dismissal. The order shall be 
provided to the party by the most expeditious means reasonably 
available.
* * * * *
0
38. In Sec.  2700.67, revise paragraph (e) to read as follows:


Sec.  2700.67   Summary decision of the Judge.

* * * * *
    (e) Affidavits. Supporting and opposing affidavits shall be made on 
personal knowledge and shall show affirmatively that the affiant is 
competent to testify to the matters stated. Sworn or certified copies 
of all papers or parts of papers referred to in an affidavit shall be 
attached to the affidavit or be incorporated by reference if not 
otherwise a matter of record. The Judge shall permit affidavits to be 
supplemented or opposed by depositions, answers to interrogatories, 
admissions, or further affidavits.
* * * * *
0
39. Revise Sec.  2700.68 to read as follows:


Sec.  2700.68   Substitution of the Judge.

    (a) Generally. Should a Judge become unavailable to the Commission, 
the proceedings assigned to that Judge shall be reassigned to a 
substitute Judge.
    (b) Substitution following a hearing. The substitute Judge may 
render a decision based upon the existing record, provided the parties 
are notified of the Judge's intent and they are given an opportunity to 
object. An objection to the Judge rendering a decision based upon the 
existing record shall be filed within 10 days following receipt of the 
Judge's notice, or the objection shall be deemed to be waived. An 
objection shall be founded upon a showing of a need for the resolution 
of conflicting material testimony requiring credibility determinations. 
Upon good cause shown the Judge may order a further hearing on the 
merits, which shall be limited, so far as practicable, to the testimony 
in dispute.
0
40. In Sec.  2700.69, revise paragraphs (a) through (c) to read as 
follows:


Sec.  2700.69   Decision of the Judge.

    (a) Form and content of the Judge's decision. The Judge shall make 
a decision that constitutes a final disposition of the proceedings. A 
decision that is not final shall be titled ``Interim Decision.'' Any 
decision shall be in writing and shall include all findings of fact and 
conclusions of law, and the reasons or bases for them, on all the 
material issues of fact, law or discretion presented by the record, and 
an order. If a decision is announced orally from the bench, it shall be 
reduced to writing after the filing of the transcript. An order by a 
Judge approving a settlement proposal is a decision of the Judge.
    (b) Termination of the Judge's jurisdiction. Except to the extent 
otherwise provided herein, the jurisdiction of the Judge terminates 
when the Judge's decision has been issued.
    (c) Correction of clerical errors. At any time before the 
Commission has directed that a Judge's decision be reviewed, and on the 
Judge's own motion or the motion of a party, the Judge may correct 
clerical errors in decisions, orders, or other parts of the record. 
After the Commission has directed that a Judge's decision be reviewed, 
the Judge may correct such errors with the leave of the Commission. If 
a Judge's decision has become the final order of the Commission, the 
Judge may correct such errors with the leave of the Commission. Neither 
the filing of a motion to correct a clerical error, nor the issuance of 
an order or amended decision correcting a clerical error, shall toll 
the time for filing a petition for discretionary review of the Judge's 
decision on the merits.
* * * * *
0
41. In Sec.  2700.70, revise paragraph (f) to read as follows:


Sec.  2700.70   Petitions for discretionary review.

* * * * *
    (f) Motion for leave to exceed page limit. A motion requesting 
leave to exceed the page limit shall be received not less than 3 days 
prior to the date the petition for discretionary review is due to be 
filed, shall state the total number of pages proposed, and shall comply 
with Sec.  2700.10. Filing of a motion requesting an extension of page 
limit is effective upon receipt. The motion and any statement in 
opposition shall include proof of service on all parties by a means of 
delivery no less expeditious than that used for filing the motion, 
except that if service by email or other electronic transmission is 
impossible, the filing party must serve in person, by third party 
commercial carrier, or by facsimile transmission, resulting in same-day 
delivery.
* * * * *
0
42. Add Sec.  2700.72 to read as follows:


Sec.  2700.72   Commission panels.

    The Commission may, at its discretion, impanel a group of three or 
more members to hear any pending matter. Assignment to such panels 
shall be made by a random method agreed upon by a majority of the 
Commissioners.
0
43. In Sec.  2700.73, revise paragraph (b) to read as follows:

[[Page 63061]]

Sec.  2700.73   Procedure for intervention.

* * * * *
    (b) A showing that the disposition of the proceeding may impair or 
impede the movant's ability to protect that interest;
* * * * *
0
44. In Sec.  2700.75, revise paragraphs (a)(1), (e), and (f) to read as 
follows:


Sec.  2700.75   Briefs.

    (a) Time to file--(1) Opening and response briefs. Within 30 days 
after the Commission grants a petition for discretionary review, the 
petitioner shall file an opening brief. The petitioner may notify the 
Commission and all other parties within the 30-day period that the 
petition and any supporting memorandum are to constitute the opening 
brief. Other parties may file response briefs within 30 days after the 
petitioner's brief is served. If the Commission directs review on its 
own motion, all parties shall file any opening briefs within 30 days of 
the direction for review. In such cases, a party may file a response 
brief within 20 days after service of the opposing party's opening 
brief.
* * * * *
    (e) Consequences of petitioner's failure to file brief. If a 
petitioner fails to timely file a brief or to designate the petition as 
the opening brief, the direction for review may be vacated.
    (f) Motion for leave to exceed page limit. A motion requesting 
leave to exceed the page limit for a brief shall be received not less 
than 3 days prior to the date the brief is due to be filed, shall state 
the total number of pages proposed, and shall comply with Sec.  
2700.10. Filing of a motion requesting an extension of page limit is 
effective upon receipt. The motion and any statement in opposition 
shall include proof of service on all parties by a means of delivery no 
less expeditious than that used for filing the motion, except that if 
service by email or other electronic transmission is impossible, the 
filing party must serve in person, by third party commercial carrier, 
or by facsimile transmission, resulting in same-day delivery.
* * * * *
0
45. In Sec.  2700.76, revise paragraph (a)(1)(i) to read as follows:


Sec.  2700.76   Interlocutory review.

    (a) * * *
    (1) * * *
    (i) The Judge has certified, upon the Judge's own motion or the 
motion of a party, that an interlocutory ruling involves a controlling 
question of law and that in the Judge's opinion immediate review will 
materially advance the final disposition of the proceeding; or
* * * * *
0
46. In Sec.  2700.78, revise paragraph (a) to read as follows:


Sec.  2700.78   Reconsideration.

    (a) A petition for reconsideration must be filed with the 
Commission within 10 days after the issuance of a decision or order of 
the Commission. Any response must be filed with the Commission within 
10 days of service of the petition.
* * * * *
0
47. In Sec.  2700.80, revise paragraphs (a) through (c) to read as 
follows:


Sec.  2700.80   Standards of conduct; disciplinary proceedings.

    (a) Standards of conduct. Representatives practicing before the 
Commission or before Commission Judges pursuant to 29 CFR 2700.3(b) 
shall conform to the standards of ethical conduct required of 
practitioners under the American Bar Association's Rules of 
Professional Conduct (``ABA's Model Rules''). The Commission shall 
apply the ABA's Model rules as far as practicable.
    (b) Grounds. Disciplinary proceedings may be instituted against 
anyone who is practicing or has practiced before the Commission on 
grounds that such person has engaged in unethical or unprofessional 
conduct; has failed to comply with these rules or an order of the 
Commission or its Judges; has been disbarred or suspended by a court or 
administrative agency; or has been disciplined by a Judge under 
paragraph (e) of this section.
    (c) Procedure. Disciplinary proceedings shall be subject to the 
following procedure:
    (1) Disciplinary referral. Except as provided in paragraph (e) of 
this section, a Judge or other person having knowledge of circumstances 
that may warrant disciplinary proceedings against an individual who is 
practicing or has appeared before the Commission shall forward to the 
Commission for action such information in the form of a written 
disciplinary referral. Whenever the Commission receives a disciplinary 
referral, the matter shall be assigned a docket number and a notice 
will be issued to the individual named in the referral of the 
initiation of an investigation.
    (2) Inquiry and preliminary determination by the Commission. The 
Commission shall conduct an inquiry concerning a disciplinary referral 
and shall determine whether disciplinary proceedings are warranted. The 
Commission may require persons to submit affidavits setting forth their 
knowledge of relevant circumstances.
    (i) Termination of referral. If the Commission determines that 
disciplinary proceedings are not warranted, it shall issue an order 
terminating the referral.
    (ii) Further disciplinary proceedings. Whenever, as a result of its 
inquiry, the Commission, by a majority vote of the full Commission or a 
majority vote of a duly constituted panel of the Commission, determines 
that the circumstances warrant a hearing, the Commission shall issue an 
order specifying the disciplinary issues to be resolved through hearing 
and order the Commission's Chief Administrative Law Judge to assign the 
matter to an Administrative Law Judge, from within or outside of the 
Commission, other than the referring Judge, for hearing and decision. 
The Commission may designate counsel from within or outside of the 
Commission to prosecute the matter before the Judge.
    (3) Hearing before an Administrative Law Judge--(i) Assignment. 
Upon the Commission's order determining that further proceedings are 
warranted, the Commission's Chief Administrative Law Judge shall select 
a Commission Administrative Law Judge, or select a non-Commission 
Administrative Law Judge, and issue an order of assignment for hearing. 
The order of assignment shall advise the respondent that the respondent 
may file a statement in accordance with paragraph (c)(3)(ii) of this 
section.
    (ii) Response. The respondent named in the disciplinary proceeding 
may file a statement responding to the Commission's decision within 30 
days after service of the order of assignment.
    (iii) Evidence and applicability of hearing rules. The parties 
shall have the opportunity to present evidence and cross-examine 
witnesses. Subpart G of the Commission's procedural rules governing 
Commission hearings before Administrative Law Judges shall apply as 
appropriate to all Commission disciplinary proceedings.
    (iv) Judge's decision. The Judge's decision shall include findings 
of fact and conclusions of law and either an order dismissing the 
proceedings or an appropriate disciplinary order, which may include 
reprimand, suspension, or prohibition from practice before the 
Commission.
* * * * *
0
48. In Sec.  2700.81, revise paragraphs (a) and (c) to read as follows:


Sec.  2700.81   Recusal and disqualification.

    (a) Recusal. Whenever a Commissioner or a Judge deems

[[Page 63062]]

appropriate, the Commissioner or Judge may choose to be recused from a 
proceeding.
* * * * *
    (c) Procedure if Commissioner or Judge does not withdraw. If, upon 
being requested to withdraw pursuant to paragraph (b) of this section, 
the Commissioner or the Judge does not withdraw from the proceeding, 
the Commissioner or Judge shall so rule upon the record, stating the 
grounds for such ruling. If the Judge does not withdraw, the Judge 
shall proceed with the hearing, or, if the hearing has been completed, 
the Judge shall proceed with the issuance of a decision, unless the 
Commission stays the hearing or further proceedings upon the granting 
of a petition for interlocutory review of the Judge's decision not to 
withdraw.
0
49. In Sec.  2700.82, revise paragraph (d) to read as follows:


Sec.  2700.82   Ex parte communications.

* * * * *
    (d) Status or informational requests. Information concerning filing 
requirements, the status of cases, or docket information may be 
accessed through the Commission's website (https://www.fmshrc.gov). In 
the event such information is unavailable through the Commission's 
website, such status or informational requests must be directed to the 
Docket Office of the Federal Mine Safety and Health Review Commission, 
1331 Pennsylvania Avenue NW, Suite 520N, Washington, DC 20004-1710; 
202-434-9950.
0
50. Revise Sec.  2700.83 to read as follows:


Sec.  2700.83   Authority to sign orders.

    The Chair or other designated Commissioner is authorized to sign on 
behalf of the Commissioners, orders disposing of the following 
procedural motions: motions for extensions of time, motions for 
permission to file briefs in excess of page limits, motions to accept 
late filed briefs, motions to consolidate, motions to expedite 
proceedings, motions for oral argument, and similar procedural motions. 
In the absence of a designated Chair, Acting Chair or quorum, the 
remaining Commissioner or Commissioners continue to be authorized to 
sign orders disposing of procedural motions as identified above.

    Dated: August 31, 2020.
Marco M. Rajkovich, Jr.,
Chair, Federal Mine Safety and Health Review Commission.
[FR Doc. 2020-19492 Filed 10-5-20; 8:45 am]
BILLING CODE 6735-01-P