[Federal Register Volume 64, Number 88 (Friday, May 7, 1999)]
[Proposed Rules]
[Pages 24547-24550]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-11459]


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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: Supplemental 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 
trial and appellate review of cases arising under the Federal Mine 
Safety and Health Act of 1977, 30 U.S.C. 801 et seq. (1994) (the ``Mine 
Act''). On May 7, 1998, the Commission published a proposed rule, 
proposing revisions to several of its rules of procedure. See 63 FR 
25183-87 (May 7, 1998). The Commission is supplementing that proposed 
rule with additional proposed procedural rule revisions which were not 
included in the May 7 publication.

DATES: Written comments must be submitted on or before May 28, 1999.

ADDRESSES: Comments may be mailed to Norman Gleichman, General Counsel, 
Federal Mine Safety and Health Review Commission, 1730 K Street, NW, 
6th Floor, Washington, DC 20006. Persons submitting comments shall 
provide an original and three copies of their comments.

FOR FURTHER INFORMATION CONTACT: Norman M. Gleichman, General Counsel, 
Office of the General Counsel, 1730 K Street, NW, 6th Floor, 
Washington, DC 20006, telephone 202-653-5610 (202-566-2673 for TDD 
Relay). These are not toll-free numbers.

SUPPLEMENTARY INFORMATION:

[[Page 24548]]

I. Background

    The Commission initially adopted its rules of procedure in June 
1979. See 44 FR 38227 (June 29, 1979). In March 1993, the Commission 
published significant revisions to its procedural rules, reflecting 
more than 10 years' experience with the rules and evolving Commission 
case law. See 58 FR 12158 (March 3, 1998). In May 1998, the Commission 
published proposed revisions to several of the rules in an attempt to 
address problems that were unforeseen in 1993. See 63 FR 25183 (May 7, 
1998). Those proposed rules included revisions relating to motion 
practice before the Commission, expansions of the requirements for 
certain pleadings, and revisions and clarifications for filing 
pleadings in temporary reinstatement proceedings. See 63 FR 25183-87. 
The Commission permitted written comments on those proposed rules to be 
submitted on or before August 5, 1998. The only written comments 
received by the Commission were submitted by the Department of Labor's 
Office of the Solicitor on behalf of the Mine Safety and Health 
Administration (``MSHA''). In addition to commenting on the published 
proposed revisions, MSHA suggested additional revisions which were not 
included in the May 7 publication. The Commission believes that some of 
those additional revisions are appropriate. In addition, recent 
developments in proceedings before the Commission have brought to light 
other rules requiring revision and clarification. The Commission is 
providing this opportunity for comment on these proposals from members 
of the mining community and the public.

    In these supplemental proposed rules, the Commission has clarified 
requirements concerning when service on an attorney or other authorized 
representative is required. See proposed Secs. 2700.3(c) and 2700.7(d). 
For example, under proposed Sec. 2700.7(d), the Commission proposes 
that service on an attorney or other authorized representative is 
required only after that attorney or representative has formally 
entered an appearance on behalf of a party pursuant to proposed 
Sec. 2700.3(c). Proposed Sec. 2700.3(c) clarifies the manner of and 
time for making such an entry of appearance.

    In addition, the Commission proposes expanding the requirements for 
the format of pleadings. See proposed Sec. 2700.5(f). The proposed 
revisions, which include additional requirements concerning spacing and 
typeface size, are designed to insure adherence to page limits imposed 
by the rules.

    Finally, the Commission proposes to increase the page limit for 
response briefs. See proposed Sec. 2700.75(c). The proposed revision 
subjects response briefs to the same 35-page limit currently imposed on 
opening briefs.

    Although these rules are procedural in nature and do not require 
notice and comment publication under the Administrative Procedure Act 
(see 5 U.S.C. 553(b)(3)(A)), the Commission is inviting and will 
consider public comment on these proposed revisions. A section-by-
section explanation of the proposed changes is set forth below.

II. Section-by-Section Analysis

General Provisions

Section 2700.3  Who May Practice

    Currently, Sec. 2700.3(c) provides that an entry of appearance by a 
representative of a party is made by, among other things, signing the 
first document filed on behalf of the party. See 29 CFR 2700.3(c). The 
rule is somewhat ambiguous regarding the agency where the document must 
be filed, and whether the document refers only to pleadings.

    The Commission proposes revising Sec. 2700.3(c) to clarify that the 
first document filed on behalf of the party in making an entry of 
appearance shall be the first document filed with the Commission or 
Commission judge. This revision is intended to delineate when an entry 
of appearance occurs. The proposed revision also clarifies that the 
documents that may serve as an entry of appearance shall be only those 
filed with the Commission or Commission judge in a proceeding under the 
Mine Act or the Commission's procedural rules, and not documents filed 
with MSHA. All documents filed with the Commission or its judges are 
processed in its three central offices in Denver, Colorado; Falls 
Church, Virginia; and Washington, DC. In contrast, MSHA processes 
documents in numerous regional offices, some of which, because of their 
specific and distinct functions, forward documents they receive to 
other MSHA offices. The Commission anticipates that an entry of 
appearance will be less likely to be misdirected if it is sent to the 
Commission or its judges.

    The proposed revisions to Sec. 2700.3(c) are intended to be 
consistent with the definition of ``party'' set forth in 
Sec. 2700.4(a). Section 2700.4(a) currently provides in part that ``[a] 
person, including the Secretary or an operator, who is named as a party 
or who is permitted to intervene, is a party.'' 29 CFR 2700.4(a). 
Proposed Sec. 2700.3(c) refers to actions that may be taken by a 
representative of a ``party'' in order to enter an appearance. Thus, 
reading current Sec. 2700.4(a) with proposed Sec. 2700.3(c), an entry 
of appearance by an attorney or other authorized representative cannot 
be made before the represented operator or individual achieves party 
status as defined in Sec. 2700.4(a). In some circumstances, however, an 
entry of appearance may be made at the same time that an operator or 
individual achieves party status. For instance, upon the filing of a 
notice of contest of a citation or order with the Commission by an 
authorized representative on behalf of an operator, the operator is 
named as a party, thereby achieving party status under current 
Sec. 2700.4(a), and the attorney filing the contest enters an 
appearance under proposed Sec. 2700.3(c) by filing the document with 
the Commission.
Section 2700.5  General Requirements for Pleadings and Other Documents; 
Status or Informational Requests

    In its comments to the Commission, MSHA requests that 
Sec. 2700.75(e) be revised to specify that all briefs be double-spaced 
using a typeface designated by the Commission, to avoid any evasion of 
the requirements for page limits. Currently, the Commission's 
procedural rules contain no formatting requirements, with the exception 
of Sec. 2700.5(f), which requires that pleadings and documents be 8\1/
2\ by 11 inches in size. See 29 CFR 2700.5(f).

    The Commission agrees that its current procedural rules should be 
revised to set forth standard requirements for pleading format in order 
to enhance compliance with page limitations. Because it believes that 
such requirements should apply to all pleadings filed with the 
Commission and its judges, the Commission has included such 
requirements in proposed Sec. 2700.5(f), which applies to all 
pleadings, rather than in Sec. 2700.75, which applies only to briefs 
before the Commission.

    In the proposed revisions, the Commission has set forth 
requirements for margins, font size and spacing and included a general 
prohibition against excessive footnotes. In addition, the Commission 
has proposed a revision permitting the Commission to reject a brief 
based on the failure to comply with the requirements of the subsection 
or on the use of compacted or otherwise compressed printing features. 
To avoid affecting basic appeal rights, the Commission has limited the 
provision by allowing only the rejection of briefs,

[[Page 24549]]

rather than petitions for discretionary review.
Section 2700.7  Service

    Based on recent proceedings before the Commission, the Commission 
believes that its current procedural rules should be revised to clarify 
when service on an attorney or other authorized representative is 
required, particularly in circumstances in which a person or operator 
has retained counsel prior to issuance of the initial document in a 
proceeding. See Roger Richardson, 20 FMSHRC 1259 (Nov. 1998) (involving 
proceeding under 30 U.S.C. 820(c), in which proposed penalty assessment 
was mailed to individual's former residence rather than to counsel who 
was retained prior to issuance of proposed penalty assessment). 
Accordingly, the Commission has proposed an amendment to Sec. 2700.7(d) 
which clarifies that service on an attorney or other authorized 
representative is required after that representative has formally 
entered an appearance pursuant to proposed revisions to Sec. 2700.3(c).

    Currently, Sec. 2700.7(d) provides that whenever a party is 
represented by an attorney or other authorized representative, 
subsequent service shall be made upon the attorney or other authorized 
representative. See 29 CFR 2700.7(d). The current rule is somewhat 
ambiguous regarding whether service is required after a representative 
has entered an appearance on behalf of the party, or whether service is 
required after a party has retained that representative.

    The Commission proposes to revise Sec. 2700.7(d) to provide that 
service is required on an attorney or other authorized representative 
only after that attorney or representative has formally entered an 
appearance on behalf of the party in the manner prescribed in proposed 
Sec. 2700.3(c). Thus, even if an operator or individual retains counsel 
prior to the initiation of a proceeding under the Mine Act, the counsel 
need not be served until after he or she makes a formal entry of 
appearance pursuant to proposed Sec. 2700.3(c).

Review by the Commission

Section 2700.75  Briefs

    In the comments filed with the Commission, MSHA requests that 
Sec. 2700.75 be revised to increase the page limit for response briefs 
from 25 pages to 35 pages. The Commission agrees that such a revision 
is appropriate. Section 2700.75(c) currently provides that opening 
briefs shall not exceed 35 pages, response briefs shall not exceed 25 
pages, and reply briefs shall not exceed 15 pages. See 29 CFR 
2700.75(c). The Commission believes that revising the page limit for 
response briefs to correspond with the page limit for opening briefs is 
appropriate given the similar substantive requirements for opening and 
response briefs. In addition, it agrees that such a revision is 
particularly appropriate in view of the opportunity for a petitioner to 
file an additional 15 pages in the form of a reply brief.

III. Matters of Regulatory Procedure

    The Commission has determined that these rules are not subject to 
Office of Management and Budget review under Executive Order 12866.

    The Commission has determined under the Regulatory Flexibility Act 
(5 U.S.C. 601-612) that these rules, if adopted, would not have a 
significant economic impact on a substantial number of small entities. 
Therefore, a Regulatory Flexibility Statement and Analysis has not been 
prepared.

    The Commission has determined that the Paperwork Reduction Act (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 Office of Management and Budget.

List of Subjects in 29 CFR Part 2700

    Administrative practice and procedure.


    For the reasons set out in the preamble, it is proposed to amend 29 
CFR Part 2700 as follows:

PART 2700--PROCEDURAL RULES

    1. The authority citation for Part 2700 continues to read as 
follows:


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


    2. Section 2700.3 is amended by revising paragraph (c) to read as 
follows:


Sec. 2700.3  Who may practice

* * * * *

    (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; 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.
* * * * *

    3. Section 2700.5 as proposed to be revised in 63 FR at 25186 is 
further amended by revising paragraph (f) to read as follows:


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

* * * * *

    (f) Form of pleadings. All printed material shall appear in at 
least 12 point type on paper 8\1/2\ by 11 inches in size, with margins 
of at least one 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 
subsection or the use of compacted or otherwise compressed printing 
features will be grounds for rejection of a brief.
* * * * *

    4. Section 2700.7 as proposed to be revised in 63 FR at 25186 is 
further amended by revising paragraph (d) to read as follows:


Sec. 2700.7  Service.

* * * * *

    (d) Service upon representative. Whenever a party is represented by 
an attorney or other authorized representative who has entered an 
appearance on behalf of such party pursuant to Sec. 2700.3(c), service 
thereafter shall be made upon the attorney or other authorized 
representative.
* * * * *

    5. Section 2700.75 as proposed to be revised at 63 FR at 25187 is 
further amended by revising paragraph (c) to read as follows:


Sec. 2700.75  Briefs.

* * * * *

    (c) Length of brief. Except by permission of the Commission and for 
good cause shown, opening and response briefs shall not exceed 35 
pages, and reply briefs shall not exceed 15 pages. A brief of an amicus 
curiae shall not exceed 25 pages. A brief of an intervenor shall not 
exceed the page limitation applicable to the party whose position it 
supports in affirming or reversing the Judge, or if a different 
position is taken, such brief shall not exceed 25 pages. Tables of 
contents or

[[Page 24550]]

authorities shall not be counted against the length of a brief.
* * * * *
Mary Lu Jordan,
Chairman, Federal Mine Safety and Health Review Commission.
[FR Doc. 99-11459 Filed 5-6-99; 8:45 am]
BILLING CODE 6735-01-P