[Federal Register Volume 69, Number 207 (Wednesday, October 27, 2004)]
[Proposed Rules]
[Pages 62632-62635]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-24023]


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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

29 CFR Parts 2700, 2701, 2702, and 2704


Procedural Rules

AGENCY: Federal Mine Safety and Health Review Commission.

ACTION: Advanced notice of proposed rulemaking.

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SUMMARY: The Federal Mine Safety and Health Review Commission (the 
``Commission'') is seeking suggestions regarding changes to improve its 
procedural rules (29 CFR part 2700), Government in the Sunshine Act 
regulations (29 CFR part 2701), regulations implementing the Freedom of 
Information Act (29 CFR part 2702), and regulations implementing the 
Equal Access to Justice Act (29 CFR part 2704).

DATES: Written and electronic comments must be submitted on or before 
January 25, 2005.

ADDRESSES: Written comments should be mailed to Thomas Stock, General 
Counsel, Office of the General Counsel, Federal Mine Safety and Health 
Review Commission, 601 New Jersey Avenue, NW., Suite 9500, Washington, 
DC 20001. Persons submitting written comments shall provide an original 
and three copies of their comments. Electronic comments should state 
``Comments on Advanced Notice of Proposed Rulemaking'' in the subject 
line and be sent to [email protected].

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

SUPPLEMENTARY INFORMATION: The Commission is reviewing its rules set 
forth in 29 CFR parts 2700, 2701, 2702, and 2704 to determine if 
revisions would aid the efficient adjudication of proceedings before 
the Commission and its judges. In particular, the Commission is 
considering revisions to its procedural rules set forth in part 2700. 
Since it last significantly revised its procedural rules in March 1993, 
the Commission has identified several rules that require further 
revision, clarification, or expansion. Revisions to part 2700 that the 
Commission is considering are described in the following text. The 
Commission will also examine its procedures for processing requests for 
relief from final judgment. The Commission requests comments from 
members of the interested public regarding the procedural rule 
revisions for consideration described in this notice. The Commission 
also invites submission of other revisions to the procedural rules 
(part 2700) not described in this notice that will lead to the more 
efficient adjudication of cases.
    While no specific revisions to the Commission's regulations 
implementing the Government in Sunshine Act (part 2701), the Freedom of 
Information Act (part 2702), and the Equal Access to Justice Act (part 
2704) are set forth in this notice, the Commission encourages members 
of the interested public to comment on any revisions or additions to 
those regulations.

Subpart A--General Provisions

29 CFR 2700.5(d) and 29 CFR 2700.7(c)

    Commission Procedural Rule 5(d) currently provides that a notice of 
contest of a citation or order; a petition for assessment of penalty; a 
complaint for compensation; a complaint of discharge, discrimination or 
interference; an application for temporary reinstatement; and an 
application for temporary relief shall be filed by personal delivery or 
by registered or certified mail, return receipt requested. 29 CFR 
2700.5(d). Commission Procedural Rule 7(c) also requires that such 
documents, in addition to a proposed penalty assessment, shall be 
served by personal delivery or by registered or certified mail, return 
receipt requested. 29 CFR 2700.7(c); see also 29 CFR 2700.45(a) 
(providing in part for service by certified mail of pleadings in a 
temporary reinstatement proceeding). Although not explicitly required 
by the Commission's procedural rules in all circumstances (cf. 29 CFR 
2700.66(a) (requiring show cause orders to be mailed by registered or 
certified mail, return receipt requested)), the Commission as a matter 
of practice generally mails by certified mail, return receipt 
requested, a judge's decision after hearing, default orders, and orders 
that require timely action by a party.
    The Commission is reviewing the use of certified mail for parties' 
filings and documents issued by the Commission. On one hand, certified 
mail can be costly and time-consuming. On the other hand, the return 
receipt associated with certified mail provides reliable information 
regarding the service of documents. The Commission will balance these 
competing factors in considering whether mailing by certified mail is 
appropriate. The Commission is also reviewing forms of mailing and 
delivery that might be an acceptable substitute for certified mail.
    In addition, Commission Procedural Rule 5(d) provides that certain 
documents, including petitions for discretionary review, may be filed 
by facsimile transmission. 29 CFR 2700.5(d). The Commission is 
reviewing whether notices designating a petition for discretionary 
review as an opening brief may also be filed by facsimile transmission.

29 CFR 2700.5(e)

    Commission Procedural Rule 5(e) currently sets forth the number of 
copies to be submitted in cases before a judge and the Commission. 29 
CFR 2700.5(e). Experience has indicated that not all judges require the 
number of copies required by the rule but, rather, that one copy should 
suffice. The Commission is considering requiring fewer copies than are 
currently required by the rule.

29 CFR 2700.8

    Commission Procedural Rule 8 provides in part that the last day of 
a period computed shall be included unless that day is a Saturday, 
Sunday, or Federal holiday, in which event the period runs until the 
next business day. 29 CFR 2700.8. The rule further provides that when a 
period of time prescribed in the rules is less than seven days, 
intermediate Saturdays, Sundays, and Federal holidays shall be excluded 
in the computation of time. Id. Rule 8 also states that when the 
service of a document is by mail, 5 days shall be

[[Page 62633]]

added to the time allowed by the rules for the filing of a response or 
other documents. Id.
    The Commission is considering whether to more closely conform its 
computation-of-time rule with the Federal rules. For instance, Federal 
rules provide that when a period of time prescribed is less than eleven 
days, intermediate Saturdays, Sundays, and legal holidays are excluded 
in the computation. Fed. R. Civ. P. 6(a); Fed. R. App. Proc. 26(a)(2). 
Fed. R. Civ. P. 6(e) further provides in part that three days are added 
to any period whenever the party required to act is served by mail. 
Fed. R. Civ. P. 6(e). In light of the Federal rules, the Commission is 
considering whether it should increase the period for which intervening 
Saturdays, Sundays and legal holidays shall be excluded, and decrease 
the number of days added for filing a response if service is by mail.
    The Commission is also considering clarifying changes to Commission 
Procedural Rule 8 that would dispel confusion regarding the 
circumstances and the types of mail and delivery that qualify for the 
additional days for filing when service is by mail. In addition, the 
Commission is considering making explicit that if the 40th day 
following a judge's decision falls on a Saturday, Sunday, or Federal 
holiday, the Commission may act on the petition for discretionary 
review of the judge's decision until the close of the next business 
day. If the Commission does not grant that petition for discretionary 
review, the petition would be deemed denied and the judge's decision 
would be deemed final at the close of that business day.

29 CFR 2700.10(c)

    Commission Procedural Rule 10(c) currently provides that prior to 
filing a ``procedural motion,'' the moving party shall make reasonable 
efforts to confer with other parties and state in the motion if the 
other parties oppose the motion. 29 CFR 2700.10(c).
    The Commission is considering whether the phrase ``procedural 
motion'' should be changed to clarify that it refers to a non-
dispositive motion.

Subpart B (Contests of Citations and Orders); Subpart C (Contests of 
Proposed Penalties); and Subpart D (Complaints for Compensation)

Subparts B and C

    The Commission has dual filing requirements under subparts B and C 
that reflect the filing procedures set forth in sections 105(a) and (d) 
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 815(a) and 
(d) (2000). Subpart B sets forth the manner in which a party may 
contest a citation or order before the Secretary has proposed a civil 
penalty for the alleged violation described in the citation or order. 
Subpart C sets forth the manner in which a party may contest a civil 
penalty after a proposed penalty assessment has been issued. If a party 
chooses not to file a contest of a citation or order under subpart B, 
it may nonetheless contest the proposed penalty assessment under 
subpart C. In such circumstances, in addition to contesting the 
proposed penalty assessment, the party may challenge the fact of 
violation and any special findings alleged in the citation or order. 
See 29 CFR 2700.21 (``An operator's failure to file a notice of contest 
of a citation or order * * * shall not preclude the operator from 
challenging, in a penalty proceeding, the fact of violation or any 
special findings * * *''); Quinland Coals Inc., 9 FMSHRC 1614, 1621 
(Sept. 1987) (holding that fact of violation and special findings may 
be placed in issue by the operator in a civil penalty proceeding 
regardless of whether the operator has availed itself of the 
opportunity to file a contest proceeding). However, if a party files a 
contest of a citation or order under subpart B, it must also file 
additional pleadings under subpart C in order to challenge the proposed 
penalty assessment related to the citation or order.
    The dual filing requirements are not consistent, leading to 
confusion. Experience has shown that a party may fail to contest a 
proposed penalty assessment or to answer the Secretary's petition for 
assessment of penalty under subpart C based on the mistaken belief that 
it is relieved of those obligations by filing a notice of a contest of 
a citation or order under subpart B.
    The Commission is considering whether the filing requirements 
relating to contesting citations, orders, and proposed penalties may be 
streamlined while remaining consistent with the procedures set forth in 
sections 105(a) and (d) of the Mine Act. For instance, the Commission 
is considering adding a provision that would state that, by filing a 
notice of contest of a citation or order, the party would be deemed to 
also contest any subsequent proposed penalty assessment. Alternatively, 
the Commission could simply clarify in its rules that the filing of a 
notice of contest of a citation or order under subpart B does not 
relieve the party of the obligation to contest a proposed penalty 
assessment or answer the Secretary's petition for assessment of penalty 
under subpart C.

29 CFR 2700.44(a) and 29 CFR 2700.28(b)

    Commission Procedural Rule 44(a), which pertains to a petition for 
the assessment of a penalty for an alleged violation of section 105(c) 
of the Mine Act, 30 U.S.C. 815(c), currently provides that ``[t]he 
petition for assessment of penalty shall include a short and plain 
statement of supporting reasons based on the criteria for penalty 
assessment set forth in section 110(i) of the Act.'' 29 CFR 2700.44(a), 
citing 30 U.S.C. 820(i). Commission Procedural Rule 44(a) was 
promulgated to codify the Commission's holding in Secretary of Labor on 
behalf of Bailey v. Arkansas-Carbona Co., 5 FMSHRC 2042, 2044-48 (Dec. 
1983), that the Secretary is required to set forth in a discrimination 
complaint the amount of the penalty supported by information on the six 
criteria set forth in section 110(i) of the Mine Act.
    Procedural Rule 28, which sets forth the procedure for the 
Secretary to file a petition for assessment of penalty when an operator 
has contested a proposed penalty in other (non-discrimination) cases, 
does not include the ``short and plain statement'' requirement of Rule 
44(a). Rather, Rule 28 provides merely that the petition for assessment 
of penalty shall state whether the citation or order has been contested 
and the docket number of any contest, and that the party against whom a 
penalty is filed has 30 days to answer the petition. 29 CFR 2700.28(b).
    The Commission is considering whether the provisions of Commission 
Procedural Rules 44(a) and 28(b) should be made consistent by adding to 
Rule 28(b) the short and plain statement requirement of Rule 44(a) so 
as to provide notice of the basis for a penalty to the party against 
whom the penalty is filed.

Subpart E--Complaints of Discharge, Discrimination or Interference

29 CFR 2700.45

    Commission Procedural Rule 45 sets forth the procedure for 
proceedings involving the temporary reinstatement of a miner alleging 
discrimination under section 105(c) of the Mine Act, 30 U.S.C. 815(c). 
Currently, as to a judge's jurisdiction, Commission Procedural Rule 45 
states only that a judge shall dissolve an order of temporary 
reinstatement if the Secretary of Labor's investigation reveals that 
the provisions of section 105(c)(1) of the Mine Act have not been 
violated. 29 CFR 2700.45(g).

[[Page 62634]]

    The Commission is considering whether to revise Rule 45 to set 
forth the Commission's holding in Secretary of Labor on behalf of York 
v. BR&D Enterprises, Inc., 23 FMSHRC 386, 388-89 (Apr. 2001), that a 
Commission administrative law judge retains jurisdiction over a 
temporary reinstatement proceeding pending issuance of a final 
Commission order on the underlying complaint of discrimination.

Subpart G--Hearings

29 CFR 2700.54

    Commission Procedural Rule 54 currently provides in part that 
written notice of the time, place, and nature of a hearing shall be 
given to all parties at least 20 days before the date set for hearing. 
29 CFR 2700.54. The Commission is considering whether the rule should 
be revised to require an administrative law judge to consult with all 
parties before setting a date for hearing.

29 CFR 2700.56(d) and (e)

    Commission Procedural Rule 56(d) sets forth a time for initiating 
discovery, providing in part that ``[d]iscovery shall be initiated 
within 20 days after an answer to a notice of contest, an answer to a 
petition for assessment of penalty, or an answer to a complaint under 
section[s] 105(c) or 111 of the Act has been filed.'' 29 CFR 
2700.56(d), citing 30 U.S.C. 815(c) and 821. Commission Procedural Rule 
56(e) sets forth a time for completing discovery, providing that 
``[d]iscovery shall be completed within 40 days after its initiation.'' 
29 CFR 2700.56(e).
    Experience under the rule has indicated that the time-frames given 
in the Commission's procedural rules for initiating and completing 
discovery may be too restrictive. Particularly, the Commission is 
considering whether there should be no specific time-frame for 
initiating discovery, and whether 40 days is too short a period of time 
for the completion of discovery. The Commission is considering whether 
it should replace those time-frames with a provision that discovery 
should not delay or otherwise impede disposition of the case and that, 
in any event, discovery should be completed at least 30 days prior to 
the date of the scheduled hearing.

29 CFR 2700.67

    Commission Procedural Rule 67(a) currently provides that ``[a]t any 
time after commencement of a proceeding and no later than 10 days 
before the date fixed for the hearing on the merits, a party may move 
the Judge to render summary decision disposing of all or part of the 
proceeding.'' 29 CFR 2700.67(a).
    The Commission is considering whether the filing deadline for a 
summary decision motion should be changed from ten days to 20 or 30 
days before the hearing, allowing the judge a greater period of time to 
rule on the motion.

29 CFR 2700.69

    Commission Procedural Rule 69(c) sets forth the procedure for the 
correction of clerical errors in a judge's decision. 29 CFR 2700.69(c). 
It provides that, at any time before the Commission has directed review 
of a judge's decision, a judge may correct clerical errors on his/her 
own motion, or on the motion of a party. Id. After the Commission has 
directed review of the judge's decision or after the judge's decision 
has become the final order of the Commission, the judge may correct 
clerical errors with the leave of the Commission. Id.
    The Commission is considering inserting a provision which would 
make explicit that clerical corrections made subsequent to the issuance 
of a judge's decision do not toll the period for filing a petition for 
discretionary review of the judge's decision on the merits. See Begley, 
employed by Manalapan Mining Co., 22 FMSHRC 943, 944 (Aug. 2000).

Subpart H--Review by the Commission

29 CFR 2700.70(h)

    Commission Procedural Rule 70(h) currently provides that a petition 
for discretionary review that is not granted within 40 days after the 
issuance of an administrative law judge's decision is deemed denied. 29 
CFR 2700.70(h).
    The Commission is considering making explicit its present practice 
under the rule that, if the 40th day after a judge's decision falls on 
a Saturday, Sunday, or Federal holiday, the Commission may act on a 
petition for discretionary review of the judge's decision until the 
close of the next business day following the 40th day. If the 
Commission does not grant the petition for discretionary review, the 
petition would be deemed denied, and the judge's decision would be 
deemed final at the close of that business day.

29 CFR 2700.72

    Commission Procedural Rule 72 currently provides that an unreviewed 
decision of a judge is not a precedent binding upon the Commission. 29 
CFR 2700.72.
    The Commission believes that any citation in a pleading to an 
unreviewed decision of a judge should be designated parenthetically as 
such. Such a revision would provide the reader with information 
regarding whether the citation is binding precedent on the proposition 
for which it is cited.

29 CFR 2700.76

    Commission Procedural Rule 76 currently sets forth the procedure 
for interlocutory review by the Commission. 29 CFR 2700.76. While the 
rule specifies that the Commission's review is confined to the issues 
raised in the judge's certification or to the issues raised in the 
petition for interlocutory review (29 CFR 2700.76 (d)), there is no 
description of what constitutes the record on interlocutory review.
    The Commission is considering whether it should revise Commission 
Procedural Rule 76 to state what constitutes the record on 
interlocutory review.

29 CFR 2700.78

    Commission Procedural Rule 78(b) currently provides in part that, 
unless the Commission orders otherwise, the filing of a petition for 
reconsideration does not stay the effect of a Commission decision and 
does not affect the finality of a decision for purposes of review in 
the courts. 29 CFR 2700.78(b).
    The Commission is considering whether it should revise Commission 
Procedural Rule 78 to state that the filing of a petition for 
reconsideration tolls the time period for filing an appeal for judicial 
review until the Commission has issued an order disposing of the 
petition for reconsideration.

29 CFR 2700.80

    The Commission is considering revising Rule 80(a) to clarify that 
certain ethical conduct is required of individuals practicing before 
the Commission or its judges.

Miscellaneous

Electronic Filing

    The Commission is considering the feasibility of electronic filing 
and may consider initiating a program that would permit the electronic 
filing of limited categories of documents in proceedings on a voluntary 
basis.

Public Review of Comments

    All comments responding to this notice will be a matter of public 
record and available for public inspection and copying by appointment 
with Ella Waymer, between the hours of 9 a.m. and 5 p.m. on business 
days at the Federal Mine Safety and Health Review Commission, 601 New 
Jersey Avenue,

[[Page 62635]]

NW., 9th Floor, Room 9536, Washington DC 20001; telephone 202-434-9935.

Michael F. Duffy,
Chairman, Federal Mine Safety and Health Review Commission.
[FR Doc. 04-24023 Filed 10-26-04; 8:45 am]
BILLING CODE 6735-01-P