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


=======================================================================
-----------------------------------------------------------------------

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

29 CFR Parts 2700, 2704, and 2705


Procedural Rules

AGENCY: Federal Mine Safety and Health Review Commission.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Federal Mine Safety and Health Review Commission (the 
``Commission'') is an independent adjudicatory agency that provides 
trials and appellate review of cases arising under the Federal Mine 
Safety and Health Act of 1977 (2000) (the ``Mine Act''). Trials are 
held before the Commission's Administrative Law Judges, and appellate 
review is provided by a five-member Review Commission appointed by the 
President and confirmed by the Senate. This rule makes final revisions 
to many of the Commission's procedural rules, regulations implementing 
the Equal Access to Justice Act, and regulations implementing the 
Privacy Act. The Commission makes these changes in a continued effort 
to ensure the just, speedy, and inexpensive determination of all 
proceedings before the Commission.

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

ADDRESSES: Questions may be mailed to Thomas A. Stock, General Counsel, 
Office of the General Counsel, Federal Mine Safety and Health Review 
Commission, 601 New Jersey Avenue, NW., Suite 9500, Washington, DC 
20001, or sent via facsimile to 202-434-9944.

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

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

I. Background

    In October 2004, the Commission published an Advance Notice of 
Proposed Rulemaking (``ANPRM'') in which it sought suggestions for 
improving its procedural rules (29 CFR part 2700), Government in the 
Sunshine Act regulations (29 CFR part 2701), regulations implementing 
the Freedom of Information Act (``FOIA'') (29 CFR part 2702), and 
regulations implementing the Equal Access to Justice Act (``EAJA'') (29 
CFR part 2704). See 69 FR 62632, October 27, 2004. In the ANPRM, the 
Commission identified several procedural rules set forth in part 2700 
that required further revision, clarification, or expansion. See id. at 
62632 through 62635. The Commission also stated that it would examine 
its procedures for processing requests for relief from final judgments. 
Id. at 62632. The Commission did not include in the ANPRM any specific 
proposed revisions to the Commission's regulations implementing the 
Government in the Sunshine Act (part 2701), the FOIA (part 2702), the 
EAJA (part 2704), or the Privacy Act (part 2705).
    The comment period on the ANPRM closed on January 25, 2005. The 
Commission received comments from the Secretary of Labor through the 
U.S. Department of Labor's Office of the Solicitor; the Pennsylvania 
Coal Association; the United Mine Workers of America (the ``UMWA''); 
the National Mining Association; the National Stone, Sand & Gravel 
Association; and other individual members of the mining community or 
bar who practice before the Commission. Most commenters expressed some 
degree of agreement with various areas that the Commission had targeted 
to review for possible revision. The commenters also requested further 
changes not described by the Commission in the ANPRM.
    In January 2006, the Commission published a Notice of Proposed 
Rulemaking (``NPRM''). 71 FR 553, January 5, 2006. In the notice, the 
Commission explained that it determined that changes to the 
Commission's Procedural Rules and its regulations implementing the 
Privacy Act and EAJA were necessary, but that no revisions were 
necessary to its regulations implementing the Government in the 
Sunshine Act or FOIA. Id. at 554. Some of the changes in the NPRM were 
proposed in response to the comments received, while other changes were 
proposed in response to further reflection by the Commission or in 
response to developments in Commission proceedings. For example, after 
examining its procedures for processing requests for relief from final 
judgment, the Commission determined that such procedures could be made 
more efficient through informal means rather than through the 
rulemaking process. Such informal means include making available a 
summary of the Commission's procedural rules described in simple terms 
and placing on the Commission's Web site a page of frequently asked 
questions and answers regarding Commission procedure.
    Although the proposed rules in this notice were procedural in 
nature and did not require notice and comment publication under the 
Administrative Procedure Act (``APA''), 5 U.S.C. 551, 553(b)(3)(A), the 
Commission invited comment from the interested public until March 6, 
2006. Besides generally requesting comments on any revisions

[[Page 44191]]

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

II. Section-by-Section Analysis

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

A. Part 2700--Procedural Rules

Subpart A--General Provisions

29 CFR 2700.1

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

29 CFR 2700.5

Privacy-Related Issues Raised by Pleadings and Other Documents in Mine 
Act Cases

    With the advent of electronic filings and internet access to 
judicial files, there has been increased sensitivity regarding personal 
information in files that are easily accessed by the public. Identity 
theft and other misuses of personal information are problems that have 
been exacerbated by the widespread availability of information over the 
internet. The Commission proposed redesignating current Commission 
Procedural Rule 5(d) as 5(e) and adding a new provision to paragraph 
(d) that would prevent incorporation into the Commission's case files 
of certain kinds of information (social security numbers, bank account 
numbers, and drivers' license numbers) and information related to 
certain individuals (e.g., minor children). 71 FR 554, January 5, 2006. 
The Commission explained that the role of the Commission's Judges in 
enforcing the rule would be limited because implementation of this rule 
would fall heavily on the parties in Mine Act proceedings in light of 
their interests in redacting personal information. Id. The Commission 
received no objections to the proposal, which is without change and 
will take effect as the new Procedural Rule 5(d).

Filing Requirements

    Present Rule 5(d) provides that a notice of contest of a citation 
or order; a petition for assessment of penalty; a complaint for 
compensation; a complaint of discharge, discrimination, or 
interference; an application for temporary reinstatement; and an 
application for temporary relief shall be filed by personal delivery or 
by registered or certified mail, return receipt requested. 29 CFR 
2700.5(d). Commission Procedural Rule 7(c) also requires that such 
documents, in addition to a proposed penalty assessment, must be served 
by personal delivery or by registered or certified mail, return receipt 
requested. 29 CFR 2700.7(c); see also 29 CFR 2700.45(a) (providing, in 
part, for service by certified mail of pleadings in a temporary 
reinstatement proceeding). Although not explicitly required by the 
Commission's procedural rules in all

[[Page 44192]]

circumstances, the Commission, as a matter of practice, generally mails 
Judges' decisions after hearing, default orders, and orders that 
require timely action by a party by certified mail, return receipt 
requested. Cf. 29 CFR 2700.66(a) (requiring show cause orders to be 
mailed by registered or certified mail, return receipt requested).
    In addition, present paragraph (d) of Procedural Rule 5 provides 
that certain documents can be filed by facsimile transmission 
(``fax''), while Procedural Rule 7(c) contains corresponding provisions 
governing service when filing is by fax. The documents which can be 
filed by fax are motions for extension of time (29 CFR 2700.9), 
petitions for Commission review of a Judge's temporary reinstatement 
decision (29 CFR 2700.45(f)), motions for expedition of proceedings (29 
CFR 2700.52(a)), petitions for discretionary review (``PDRs'') (29 CFR 
2700.70(a)), motions to file a PDR in excess of the applicable page 
limit (29 CFR 2700.70(f)), and motions to file a brief in excess of the 
applicable page limit (29 CFR 2700.75(f)). Under that paragraph, a 
Judge or the Review Commission can also permit the filing of other 
documents via fax.
    In the ANPRM, the Commission stated that it was reviewing whether 
present sections 2700.5(d) and 2700.7(c) should permit parties to use 
other methods, such as commercial mail services, to file and serve the 
documents for which personal delivery or registered or certified mail 
are presently required. 69 FR 62632, October 27, 2004. In addition, the 
Commission stated that it was considering whether notices designating a 
PDR as an opening brief should be added to the list of pleadings that 
may be filed by fax. Id.
    The Secretary opposed changing the rules in the manner described in 
the ANPRM on the use of registered or certified mail because she does 
not consider the rules to be burdensome and considers the availability 
of the return receipt desirable for proving that a document has been 
filed or served. Another commenter also stated that the requirements 
for certified mail should not be changed, except that the Commission 
should codify its current practice of mailing documents by certified 
mail. Most commenters supported changing the rule to allow the use of 
commercial mail services but further suggested that the Commission 
allow filing by fax to a greater degree than allowed under current 
rules. Those commenters stated that the use of commercial mail services 
could provide reliable information about the date of filing or service 
and that most fax machines will also print a verification of 
transmission. One commenter explained that because some mines are 
located in remote locations, it may be difficult to satisfy the 
requirements for certified or registered mail in a timely manner.
    The pleadings and other documents which require personal delivery 
or certified or registered mail as the method for filing and service 
are generally those that initiate Commission proceedings. The purpose 
for requiring such methods of filing and service is to provide the 
party initiating the proceeding with proof that filing and service had 
taken place in the event a question later arises. The documents that 
can be filed by fax are generally those requesting Commission action of 
a time-sensitive nature.
    Whenever a party initiates a Commission proceeding, the party is 
assuming a certain degree of risk that it may not be successful in 
initiating the proceeding due to unexpected circumstances involving the 
document it is filing or serving once the document has left the party's 
control. It is in the filing party's best interest to ensure against 
that risk by using a method of delivery that provides adequate proof of 
proper filing and service. While a signed receipt is reliable proof 
that filing and service were actually accomplished, the Commission 
believes that a receipt provided by a private carrier that contains 
tracking information or a fax machine transmission report may also 
provide sufficiently reliable information that proper filing and 
service have been accomplished.
    Accordingly, the Commission proposed revising the filing and 
service requirements in redesignated Procedural Rule 5(e) in an effort 
to require a method of filing and service that would be convenient to 
most parties yet would provide reliable verification of the time of 
filing and service. 71 FR 554 through 555, January 5, 2006. Proposed 
section 2700.5(e) provided that the filing party could choose the 
manner for filing a document, unless a certain method were otherwise 
required by the Mine Act or the Commission's procedural rules. Under 
the proposed rule, it would be incumbent upon parties to use a method 
of delivery that provides adequate proof of timely filing and service, 
particularly if a filing party is initiating a proceeding. It would be 
the responsibility of that filing or serving party to confirm receipt 
of the document filed or served.
    The Commission did not include a specific description of documents 
which could be filed by fax in proposed section 2700.5(e). Rather, 
virtually any document could be filed by fax, subject to a 15-page 
length limit. Documents filed pursuant to 30 CFR 2700.70 (petitions for 
discretionary review), 30 CFR 2700.45 (temporary reinstatement 
proceedings) or 30 CFR subpart F (applications for temporary relief) 
could be filed by fax and would not be subject to the 15-page limit. 
Under the proposed rule, a notice designating a PDR as an opening brief 
would be filed by fax, as it certainly would be 15 pages or less. The 
Commission proposed that the effective date of filing would depend upon 
the method of delivery chosen. The Commission also proposed deleting 
references to permissible fax filing, presently found in other rules 
(see 29 CFR 2700.9(a), 2700.45(f), 2700.52(a), 2700.70(a), 2700.75(f)), 
to avoid the misperception that those are the only instances in which 
fax filing is permitted. The Commission further proposed in section 
2700.7(c), revisions to the service requirements that conform with 
those set forth in proposed section 2700.5(e) related to filing 
requirements.
    The Commission received one comment on the proposed rule which 
generally supported the proposed changes. The commenter expressed 
concern, however, that a litigant filing a document by fax may not be 
able to verify with certainty that the document had been filed if a 
question later arose. In addition, the commenter suggested that the 
Commission's rules should differentiate between business and calendar 
days, and that proposed Rule 5(e) should specify that when a document 
is filed by fax, the original document should be filed within three 
``business'' days.
    The Commission has determined to adopt Procedural Rule 5(e) as 
proposed. The Commission declines to confirm receipt of fax 
transmissions, as suggested, because such confirmation would unduly 
strain the Commission's limited resources. The Commission leaves such 
confirmation to parties who choose to file or serve documents by fax.
    The Commission has further determined that it is unnecessary at 
this time to differentiate between business and calendar days in 
Procedural Rule 5(e) and throughout the Commission's rules. The 
Commission has concluded that it is appropriate to conform its rules 
more closely to federal rules of procedure, and federal rules generally 
do not differentiate between business and calendar days. The Commission 
believes that it is appropriate to continue the use of the terms only 
where necessary to avoid confusion, and that their use is not necessary 
in Procedural Rule 5(e).
    Finally, the Commission has declined to codify its current practice 
of mailing

[[Page 44193]]

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

Number of File Copies

    In the NPRM, the Commission proposed redesignating current 
Commission Procedural Rule 5(e) as 5(f). Paragraph (e) of Rule 5 
currently sets forth the number of copies to be submitted in cases 
before a Judge and the Review Commission, requiring represented parties 
to file two copies per docket in cases before Judges and seven copies 
in cases before the Review Commission. 29 CFR 2700.5(e). The rule 
further requires that when filing by fax a party must file the required 
number of copies with the Judge or Review Commission within 3 days of 
the facsimile transmission. Id.
    In the ANPRM, the Commission stated that it was considering 
requiring fewer copies than were currently required by the rule. 69 FR 
62632, October 27, 2004. All commenters supported reducing the number 
of copies that must be filed.
    In newly redesignated Commission Procedural Rule 5(f), the 
Commission proposed requiring that only those parties represented by a 
lawyer needed to file, unless otherwise ordered, the original document 
and one copy for each docket in cases before a Judge, and the original 
document and six copies in cases before the Review Commission. 71 FR 
555, January 5, 2006. The proposed rule further stated that filing the 
original document would be sufficient for ``part[ies] * * * not 
represented by a lawyer.'' Id. at 566. Under the proposed rule, when 
filing was by fax, the original document would have to be filed with 
the Judge or Review Commission within 3 days of transmission, but no 
other copies needed to be filed. The Commission proposed making a 
conforming change to 29 CFR 2700.75(g), setting forth the number of 
copies of briefs to be filed.
    Commenters generally agreed with the Commission's proposed changes. 
One commenter, however, suggested that new Procedural Rule 5(f) should 
state that only ``pro se litigants'' are permitted to file the original 
document without copies. Another commenter requested that the reference 
to three days be changed to specify 3 ``business'' days.
    The Commission has determined to adopt Procedural Rule 5(f) as 
proposed. The Commission declines to refer in the rule to a party who 
is permitted to file an original document without copies as a ``pro se 
litigant'' rather than as a ``party'' who is ``not represented by a 
lawyer.'' The term ``pro se litigant'' would overly restrict the scope 
of the exception to those representing themselves. The Commission 
intends that all parties with non-attorney representatives appearing in 
Commission proceedings, rather than only parties who are representing 
themselves, should be subject to the exception. In addition, as 
discussed above, the Commission has determined that it is unnecessary 
to differentiate between business and calendar days throughout the 
Commission's rules.

Form of Pleadings

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

Citations to Judges' Decisions

    Commission Procedural Rule 72 currently provides that an unreviewed 
decision of a Judge is not a precedent binding upon the Commission. 29 
CFR 2700.72. In the ANPRM, the Commission stated that it was 
considering adding the requirement that any citation in a pleading to 
an unreviewed decision of a Judge should be designated parenthetically 
as such. 69 FR 62634, October 27, 2004. The Commission explained that 
such a revision would provide the reader with information regarding 
whether the citation is binding precedent for the proposition for which 
it is cited. Id.
    The majority of commenters on the ANPRM did not oppose the 
suggested change. However, a few commenters suggested that a system for 
designating cases should be published. One commenter suggested that a 
change is unnecessary because citation to a Judge's decision without 
subsequent Commission history is presumptively an unreviewed decision.
    In an effort to maximize clarity and precision in citation format, 
the Commission proposed adding a requirement that citations to a 
Judge's decision include ``(ALJ)'' at the end of the citation. 71 FR 
556, January 5, 2006. The Commission explained that there was no 
current requirement that citations to Commission cases in pleadings 
differentiate between Judge and Review Commission decisions, regardless 
of whether the former are reviewed or unreviewed. Id. The Commission 
proposed including the requirement in Commission Procedural Rule 5 
because such a change would be general and apply to pleadings before 
the Judges and the Review Commission. The Commission also proposed 
redesignating current Commission Procedural Rule 5(g) as 5(i) and 
placing the requirement regarding citation to a Judge's decision as a 
new provision in paragraph (h) of Procedural Rule 5. Id. In addition, 
the Commission further clarified that Judges' decisions are not binding 
precedent upon the Review Commission and included that clarification in 
29 CFR 2700.69, which addresses Judges' decisions. Id. The Commission 
proposed deleting the current provisions of 29 CFR 2700.72, and 
reserving Commission Procedural Rule 72 for future use. Id.
    One commenter suggested that proposed Procedural Rule 5(h) should 
be revised to provide that citations to Judges' decisions ``should,'' 
rather than ``shall,'' include the ``(ALJ)'' designation so as to allow 
the Review Commission and Judges discretion to reject documents not in 
compliance with the citation requirement. The Commission agrees with 
the suggested change and has revised the rule accordingly.

29 CFR 2700.8

    Commission Procedural Rule 8 provides in part that the last day of 
a period computed shall be included unless that day is a Saturday, 
Sunday,

[[Page 44194]]

or Federal holiday, in which event the period runs until the next 
business day. 29 CFR 2700.8. The rule further provides that when a 
period of time prescribed in the rules is less than 7 days, 
intermediate Saturdays, Sundays, and Federal holidays shall be excluded 
in the computation of time. Id. Procedural Rule 8 also states that when 
the service of a document is by mail, 5 days shall be added to the time 
allowed by the rules for the filing of a response or other documents. 
Id.
    In the ANPRM, the Commission stated that it was considering whether 
to more closely conform its time computation with Federal procedural 
rules. 69 FR 62633, October 27, 2004. It specified that the Commission 
was considering whether it should increase the period for which 
intervening Saturdays, Sundays, and Federal holidays shall be excluded, 
and decrease the number of days added for filing a response if service 
is by mail. Id. The Commission further stated that it was considering 
clarifying changes to Procedural Rule 8 that would dispel confusion 
regarding the circumstances and the types of mail and delivery that 
qualify for the additional days for filing when service is by mail. Id. 
Finally, the Commission stated that it was considering making explicit 
that the Review Commission may act on a PDR on the first business day 
following the 40th day after the Judge's decision, where the 40th day 
falls on a weekend or Federal holiday. Id.
    Most commenters on the ANPRM supported expanding the period in 
which intervening weekends and holidays would not be counted, in 
conformance with Federal procedural rules. The Secretary also agreed 
that the period should be expanded, but further stated that no 
additional time should be added to the time periods set forth in 29 CFR 
2700.45 pertaining to temporary reinstatement proceedings. In addition, 
the Secretary suggested that Procedural Rule 8 should be revised to 
provide that the last day of a filing period should not be counted if 
the Commission's office is closed due to inclement weather or other 
conditions. Most commenters also supported clarifying Procedural Rule 8 
to explain the circumstances in which 5 days are added to time periods 
when service is by mail. Most commenters did not support reducing the 
5-day period added for filing when service is by mail. Most commenters 
supported making explicit that the Commission may act on a PDR on the 
first business day following the 40th day after the Judge's decision, 
where the 40th day falls on a weekend or Federal holiday.
    After considering these comments, the Commission determined that it 
would be appropriate to harmonize Procedural Rule 8 with Federal 
procedural rules in order to decrease confusion and to better afford 
parties ample time in which to prepare their pleadings. 71 FR 556 
through 557, January 5, 2006. Federal procedural rules provide that 
when a period of time prescribed is less than 11 days, intermediate 
Saturdays, Sundays, and legal holidays are excluded in the computation. 
Fed. R. Civ. P. 6(a); Fed. R. App. P. 26(a)(2). The Commission proposed 
revising Procedural Rule 8 to expand the period in which intervening 
weekends and holidays are excluded from time computation from 7 to 11 
days. Id. at 556.
    However, adopting the 11-day period set forth in Federal procedural 
rules, without other Commission procedural rule changes, would have had 
an unintended negative impact on the efficient adjudication of 
proceedings before the Review Commission and its Judges. Under 
Commission Procedural Rule 10(d), a party has 10 days to respond to a 
motion. 29 CFR 2700.10(d). Under proposed Commission Procedural Rule 8, 
weekends and holidays that occur within the 10-day response time of 
current Procedural Rule 10(d) would not be counted, which could result 
in the return response period being unreasonably extended to nearly 3 
weeks where parties are served by mail. In order to avoid this result, 
the Commission also proposed changing the period of time for responding 
to a motion set forth in 29 CFR 2700.10(d) from 10 days to 8 days. This 
proposed change would guarantee parties 8 business days to respond to a 
motion, which is the greatest number of business days provided by the 
current rules.
    The Commission agreed with the Secretary's comment that any 
proposed change to Procedural Rule 8 providing for an expanded response 
time should not apply to the time periods set forth in 29 CFR 2700.45 
pertaining to temporary reinstatement proceedings. 71 FR 556 through 
557, January 5, 2006. Section 105(c)(2) of the Mine Act requires the 
Commission to consider applications for temporary reinstatement on an 
expedited basis. 30 U.S.C. 815(c)(2). Therefore, the Commission 
proposed that Commission Procedural Rule 45 be amended to specify time 
periods in ``business'' days when the time period prescribed for action 
is less than 7 days, and ``calendar'' days when the time period 
prescribed is 7 or more days under that rule. This proposed change 
would maintain the same time frames currently provided in Procedural 
Rule 45. 71 FR 557.
    The Commission also agreed with the Secretary's comment that 
Commission Procedural Rule 8 should be revised to recognize that the 
last day of a filing period should not be counted if the Commission's 
offices are closed due to inclement weather or other similar 
conditions. Id. The Commission proposed revising Procedural Rule 8 to 
include more general language stating that the last day of a prescribed 
period for action shall be the due date unless the Commission's offices 
are not open or the Commission is otherwise unable to accept filings. 
Id. This proposed revision would apply to deadlines for both Commission 
and party action. Id.
    In addition, the Commission agreed with commenters that the 5-day 
period that is added under Procedural Rule 8 when service is by mail 
should not be reduced. Id. Commenters explained that for many operators 
in isolated areas, it would be unreasonable to expect delivery within a 
shorter period of time. In addition, there have been mail delays caused 
by security concerns and increased screening procedures. Nonetheless, 
the Commission proposed specifying that the 5 days added when service 
is by mail would be 5 additional ``calendar'' days. The rule is 
presently silent as to whether the 5 days are calendar days or business 
days.
    Furthermore, in order to better explain the circumstances in which 
the 5 additional days would be added, the Commission proposed inserting 
language to clarify that 5 calendar days would be added to the due date 
for a responding party's reply to a pleading which has been served by a 
method of delivery other than one providing for same-day service. Id. 
This proposed change clarified that the 5-day period would be added 
when documents responded to a party's pleading, rather than when 
documents responded to orders from the Commission. Service by courier 
or fax would result in same-day delivery so that the 5 days would not 
be added to the time for response to such pleadings. However, service 
by U.S. Postal Service first-class mail or any other mail service 
resulting in other than same-day delivery would result in the addition 
of 5 days to the response time.
    The Commission determined that, given these proposed changes, it 
did not need to further clarify that the Review Commission may act on a 
PDR on the first business day following the 40th day after the Judge's 
decision, where the 40th day falls on a weekend or Federal holiday. Id. 
Rather, the proposed changes to Procedural Rule 8

[[Page 44195]]

sufficiently clarified that the Review Commission may act on the PDR 
until the end of the next day that the Commission's offices are open. 
Such proposed language would apply to other deadlines for Commission 
action as well. See, e.g., 30 U.S.C. 823(d)(2)(B) (providing the period 
within which the Review Commission may direct sua sponte review).
    The various provisions of proposed Procedural Rule 8 could result 
in different determinations of due dates depending upon the order in 
which the provisions are applied. Therefore, the Commission proposed 
stating in the rule that its subsections apply in sequential order. 71 
FR 557, January 5, 2006. That is, in computing time, a party must apply 
the subsections in order, beginning with subsection (a) and ending with 
subsection (c). The Commission proposed including as a part of the rule 
two examples demonstrating how the provisions would apply sequentially. 
Id.
    The Commission received one comment on these proposed changes in 
which the commenter stated that while it generally supports the 
changes, it believes that the terms ``business'' and ``calendar'' days 
that are used in Procedural Rule 45 and a portion of Procedural Rule 8 
should be used throughout the Commission's rules wherever time periods 
are set forth, including throughout Rule 8. The Commission has 
determined that it is unnecessary at this time to so differentiate 
between business and calendar days throughout the Commission's rules. 
In addition, the Commission has concluded that it is appropriate to 
conform its rules more closely to the Federal rules of procedure, and 
Federal rules do not generally use the business and calendar day 
terminology. The Commission believes that it is appropriate to continue 
the use of the terms, as set forth in the proposed rules, only where 
necessary in order to avoid confusion. For example, the use of the 
terms ``calendar'' or ``business'' days as proposed in Procedural Rules 
8 and 45 is appropriate because such use forecloses the necessity of 
creating exceptions to the Commission's time computation rule. 
Accordingly, the Commission adopts Procedural Rule 8 as proposed.

29 CFR 2700.9

    Commission Procedural Rule 9 currently provides in part that the 
time for filing or serving ``any document'' may be extended for good 
cause and that a motion for extension of time shall be received no 
later than 3 days prior to the expiration of time allowed for the 
filing or serving of the document. 29 CFR 2700.9(a). Experience has 
shown that a number of parties believe that they can seek an extension 
of time to file a petition for discretionary review. The Commission 
proposed revising the rule to clarify that the rule does not apply to 
petitions for discretionary review filed pursuant to section 
113(d)(2)(A)(i) of the Mine Act, 30 U.S.C. 823(d)(2)(A)(i), and 29 CFR 
2700.70(a). 71 FR 557, January 5, 2006.
    The Commission received one comment on the proposed change, in 
which the commenter stated that it supported the change, but that the 
provision requiring that requests for extensions of time must be filed 
at least 3 days before the due date should be restated as 3 
``business'' days. The Commission has declined to make the suggested 
change because it believes that it is sufficiently clear from the 
proposed rule, read in conjunction with Commission Procedural Rule 8, 
that requests for extension must be made at least three ``business'' 
days prior to the due date of a pleading. In addition, as stated with 
respect to Procedural Rule 8, the Commission has concluded that it is 
appropriate to conform its rules more closely to the Federal rules of 
procedure, and such rules do not generally differentiate between 
business and calendar days. Accordingly, the Commission adopts 
Procedural Rule 9 as proposed.

29 CFR 2700.10(c)

    Commission Procedural Rule 10(c) currently provides that prior to 
filing a ``procedural motion,'' the moving party shall make reasonable 
efforts to confer with other parties and state in the motion whether 
the other parties oppose the motion. 29 CFR 2700.10(c). In the ANPRM, 
the Commission stated that it was considering whether the phrase 
``procedural motion'' should be changed to clarify that it refers to 
any non-dispositive motion. 69 FR 62633, October 27, 2004.
    Most commenters on the ANPRM supported clarifying that movants must 
confer with opposing parties on non-dispositive motions. The Secretary 
stated that she did not oppose the change, provided that it was 
intended to exclude summary decision motions from the rule.
    In an effort to dispel confusion created by the overly broad phrase 
``procedural motion,'' the Commission proposed revising the rule to 
state that consultation with opposing parties is required for any 
motion other than a dispositive motion. 71 FR 557, January 5, 2006. The 
Commission believes that the phrase ``dispositive motion'' more 
accurately describes the type of motion about which parties need not 
confer. The Commission received no objections to the proposed change 
and adopts the rule as proposed.

29 CFR 2700.10(d)

    As discussed in the section above regarding 29 CFR 2700.8, the 
Commission proposed decreasing the period of time for responding to a 
motion from 10 days to 8 days. Such a change was proposed in 
combination with the proposed changes to 29 CFR 2700.8. The Commission 
proposed revising Commission Procedural Rule 8 to expand the period in 
which intervening weekends and holidays are excluded from time 
computation from 7 to 11 days. 71 FR 557, January 5, 2006. If the 
Commission were to leave unchanged the time period for responding to a 
motion in current 29 CFR 2700.10(d), the response period could be 
unreasonably extended. The proposed change to Procedural Rule 10(d) 
guarantees parties 8 business days to respond to a motion, which is the 
greatest number of business days provided by the current rules.
    The Commission received one comment on the proposed change in which 
the commenter suggested that the 8 days referred to in the proposed 
rule as the time for responding to a motion should be specified as 8 
``business'' days. The Commission declines to make the suggested 
change. As stated with respect to Procedural Rule 8, the Commission has 
concluded that it is appropriate to conform its rules more closely to 
Federal rules of procedure, which generally do not differentiate 
between business and calendar days.
Subpart B--Contests of Citations and Orders; Subpart C--Contests of 
Proposed Penalties

29 CFR 2700.25

    Commission Procedural Rule 25 currently provides that the Secretary 
shall notify the operator or any other person against whom a penalty is 
proposed of the violation alleged, the amount of the proposed penalty 
assessment, and that such person shall have 30 days to notify the 
Secretary of any contest of the proposed penalty assessment. 29 CFR 
2700.25.
    The Commission received two comments on the ANPRM suggesting that 
the Commission adopt a time limit after a citation or order is issued 
for the Secretary to issue a proposed penalty assessment for the 
violations involved. The commenters stated that a time limit of 6 or 12 
months would be appropriate

[[Page 44196]]

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

29 CFR 2700.26 and 2700.21

    The Commission has dual filing requirements under subparts B and C 
that reflect the filing procedures set forth in sections 105(a) and (d) 
of the Mine Act, 30 U.S.C. 815(a) and (d). Subpart B sets forth the 
manner in which a party may contest a citation or order before the 
Secretary has proposed a civil penalty for the alleged violation 
described in the citation or order. Subpart C sets forth the manner in 
which a party may contest a civil penalty after a proposed penalty 
assessment has been issued. If a party chooses not to file a contest of 
a citation or order under subpart B, it may nonetheless contest the 
proposed penalty assessment under subpart C. In such circumstances, in 
addition to contesting the proposed penalty assessment, the party may 
challenge the fact of violation and any special findings alleged in the 
citation or order. See 29 CFR 2700.21. However, if a party files a 
contest of a citation or order under subpart B, it must also file 
additional pleadings under subpart C in order to challenge the proposed 
penalty assessment related to the citation or order.
    In the ANPRM, the Commission stated that it was considering whether 
the filing requirements relating to contesting citations, orders, and 
proposed penalties could be streamlined while remaining consistent with 
the procedures set forth in sections 105(a) and (d) of the Mine Act. 69 
FR 62633, October 27, 2004. It explained that the dual filing 
requirements under subparts B and C are inconsistent and can sometimes 
lead to confusion. Id. For instance, parties have failed to contest a 
proposed penalty assessment or to answer the Secretary's petition for 
assessment of penalty under subpart C based on the mistaken belief that 
they have been relieved of those obligations by having filed a notice 
of contest of a citation or order under subpart B. In such 
circumstances, a final order requiring the payment of the proposed 
penalty may have been entered against the party by default.
    After publishing the ANPRM, the Commission considered streamlining 
the filing procedures by adding a provision stating that the timely 
filing of a notice of contest of a citation or order shall also be 
deemed the timely filing of a notice of contest of a proposed penalty 
assessment. The Commission discussed the provision with MSHA because 
such a provision would impact the manner in which MSHA processes 
notices of contests and issues proposed penalty assessments and related 
documents. During those discussions, the Commission was informed that, 
due to administrative and technological problems, the provision would 
be extremely difficult for MSHA to implement and that the expense of 
implementing it might not be justified by the relatively low number of 
default cases that would be eliminated.
    The Commission determined that it was inadvisable to add a 
provision stating that the timely filing of a notice of contest of a 
citation or order shall also be deemed to include the timely filing of 
a notice of contest of a proposed penalty assessment. 71 FR 558, 
January 5, 2006. Rather, the Commission proposed adding a provision to 
Procedural Rule 26 which clarified that a party who wishes to contest a 
proposed penalty assessment must provide such notification regardless 
of whether that party has previously contested the underlying citation 
or order pursuant to 29 CFR 2700.20. Id. The Commission also proposed 
explaining, in Commission Procedural Rule 28(b), 29 CFR 2700.28(b), 
that an answer to a petition for assessment of penalty must be filed 
regardless of whether the party has already filed a notice of contest 
of the citation, order, or proposed penalty assessment.
    The Commission also stated its intent to employ a number of 
informal practices in an effort to reduce the number of cases resulting 
in default. Id. Toward that end, the Commission has been working with 
MSHA to clarify the instructions provided to parties for the filing of 
various documents. The Commission also intends to distribute and make 
available to the interested public a document that summarizes the 
Commission's procedural rules in simple terms, and to place on its Web 
site a page of frequently asked questions and answers regarding 
Commission procedures.
    The Commission received one comment that supported adding the 
proposed changes. The Commission adopts Procedural Rule 26 as proposed.
    After publication of the NPRM, the Commission determined that it 
would be appropriate to make changes in subpart B that conform to the 
revisions to subpart C, set forth in Commission Procedural Rules 26 and 
28(b)(2). Accordingly, the Commission revised Commission Procedural 
Rule 21 to state that the filing of a notice of contest of a citation 
or order under subpart B does not constitute a challenge to a proposed 
penalty assessment that may be subsequently issued by the Secretary 
based on that citation or order. The Commission set forth these 
conforming changes in a new paragraph (a) of Commission Procedural Rule 
21. The current provisions of Procedural Rule 21 are set forth without 
change in new paragraph (b) of Rule 21.

29 CFR 2700.28(b)

    Commission Procedural Rule 44(a), which pertains to a petition for 
the assessment of a penalty in a discrimination proceeding arising 
under section 105(c) of the Mine Act, 30 U.S.C. 815(c), currently 
provides that ``[t]he petition for assessment of penalty shall include 
a short and plain statement of supporting reasons based on the criteria 
for penalty assessment set forth in section 110(i) of the Act.'' 29 CFR

[[Page 44197]]

2700.44(a), citing 30 U.S.C. 820(i). Procedural Rule 28, which sets 
forth the procedure for the Secretary to file a petition for assessment 
of penalty when an operator has contested a proposed penalty in non-
discrimination cases, does not include the ``short and plain 
statement'' requirement of Procedural Rule 44(a). Rather, Procedural 
Rule 28(b) provides merely that the petition for assessment of penalty 
shall state whether the citation or order has been contested, the 
docket number of any contest, and that the party against whom a penalty 
petition is filed has 30 days to answer the petition. 29 CFR 
2700.28(b).
    In the ANPRM, the Commission stated that it was considering whether 
the provisions of Procedural Rules 44(a) and 28(b) should be made 
consistent by adding to Procedural Rule 28(b) the ``short and plain 
statement'' requirement of Procedural Rule 44(a) so as to provide 
notice to the party against whom the penalty is filed of the bases for 
the penalty. 69 FR 62633, October 27, 2004.
    Most of the comments received by the Commission on the ANPRM 
supported requiring the Secretary to provide a short and plain 
statement of supporting reasons for a penalty based on the section 
110(i) criteria. The reasons given in support of amending Procedural 
Rule 28 were that it would provide a better understanding of the bases 
for the Secretary's allegations, enable a more complete response to the 
petition, make Procedural Rule 28 consistent with Procedural Rule 44, 
and promote more expeditious disposition of the case. One commenter did 
not support making the change because it perceived that such a change 
would likely result in the consumption of additional resources and lead 
to delays in the issuance of paperwork. The Secretary stated that 
requiring a short and plain statement would be unnecessary because the 
supporting reasons for the penalty are set forth in the proposed 
penalty assessment (referred to by MSHA as ``Exhibit A''), which is 
attached to the petition for assessment of penalty.
    In response to the comments on the ANPRM and upon further 
consideration, the Commission proposed revising Procedural Rule 28(b) 
by adding two requirements. First, as described in the section above 
regarding 29 CFR 2700.26, the Commission proposed adding to Procedural 
Rule 28(b) an explanation that an answer to a petition for assessment 
of penalty must be filed regardless of whether the party has already 
filed a notice of contest of the citation, order, or proposed penalty 
assessment. 71 FR 559, January 5, 2006.
    In addition, the Commission proposed that the petition include a 
short and plain statement of the supporting reasons based on the 
criteria for penalty assessment set forth in section 110(i) of the Mine 
Act, 30 U.S.C. 820(i). Id. at 558-59, 567. The Commission explained 
that the Secretary's regulations in part 100 describe three methods for 
calculating civil penalties: The regular assessment, the special 
assessment, and the single penalty assessment. Id. at 559, citing 30 
CFR 100.3, 100.4, 100.5. For regular assessments, Exhibit A generally 
identifies in non-narrative form, among other things, the citation or 
order by number; whether the alleged violation is significant and 
substantial within the meaning of section 104(d)(1) of the Mine Act, 30 
U.S.C. 814(d)(1); the date of issuance; the standard allegedly 
violated; and the points assigned to each of 10 listed factors listed, 
which correspond to 5 of the section 110(i) penalty criteria. The 
Secretary adds a narrative describing the bases of the penalty to 
Exhibit A only when she assesses a special assessment. However, in a 
proceeding in which individual liability is sought under section 110(c) 
of the Mine Act, 30 U.S.C. 820(c), Exhibit A does not include a 
narrative or other document explaining the proposed assessment. See, 
e.g., Wayne R. Steen, 20 FMSHRC 381, 386 (April 1998) (applying the 
section 110(i) criteria in a section 110(c) agent case). The Commission 
stated its belief that inclusion of a narrative description for the 
bases of a penalty within a petition would better provide a party 
notice of the rationale behind the penalty amount. 71 FR 559. In 
addition, the Commission questioned whether Exhibit A provided an 
adequate explanation of the bases of a proposed assessment. Id.
    When the Secretary issues a single penalty assessment, there is no 
enumeration of the points attributed for each criterion in Exhibit A. 
The Commission recognized that since single penalty assessments do not 
involve individualized application of section 110(i) criteria (see Coal 
Employment Project v. Dole, 889 F.2d 1127, 1134 (D.C. Cir. 1989)), a 
narrative description requirement may not apply to these penalties. 71 
FR 559. Accordingly, the Commission invited comment from members of the 
interested public regarding whether, if a short and plain statement 
requirement were added to Procedural Rule 28(b), an exception to that 
requirement for single penalty assessments should be explicitly stated. 
Id.
    The Commission further stated its belief that requiring the 
inclusion of a short and plain statement in a petition for assessment 
of penalty for regular and special assessments would not impose an 
onerous burden on the Secretary's resources. Id. It reasoned that while 
section 110(i) does not require the Secretary to make findings on the 
six criteria, the Secretary generally bears the burden of presenting 
the evidence concerning section 110(i) penalty criteria in support of 
her proposed assessment in a civil penalty proceeding. Id., citing Hubb 
Corp., 22 FMSHRC 606, 613 (May 2000); see also Sec'y of Labor on behalf 
of Hannah v. Consolidation Coal Co., 20 FMSHRC 1293, 1302 (December 
1998) (noting that the Secretary ``must initially produce preliminary 
information that will assist the Judge in making findings concerning 
the statutory penalty criteria''). 71 FR 559. The Commission 
anticipated that providing the operator with notice of the bases of the 
Secretary's proposed penalty assessment and allowing the operator the 
opportunity to identify issues with respect to the proposed penalty 
would ultimately lead to a more efficient resolution of penalty cases. 
Id.
    Moreover, the Commission noted that the revision would make the 
requirements for petitions for assessment of penalties in both 
discrimination and non-discrimination cases consistent under the 
Commission's procedural rules. Id. It observed that the Secretary's own 
regulations in 30 CFR part 100 consistently require the consideration 
of the same six criteria when proposing penalties in discrimination and 
non-discrimination cases. Id., citing 30 CFR 100.1.
    The commenters objected to the addition of a requirement for a 
short and plain statement and did not address whether an exception to 
the requirement should be made for single penalty assessments. Both 
commenters reiterated the concern that the requirement would require 
the consumption of additional resources which might result in delay. 
The Secretary also reiterated her objection that there is no 
discernible need for the requirement because the operator already has 
notice of all of the matters in dispute when litigation begins. The 
Secretary further objected to the requirement on the basis that section 
110(i) of the Mine Act gives her discretion in proposing penalties and 
explicitly states that the Secretary ``shall not'' be required to make 
findings of fact concerning the section 110(i) criteria.
    Upon consideration of the comments on the NPRM, the Commission has

[[Page 44198]]

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

29 CFR 2700.45

Judge's Jurisdiction

    Commission Procedural Rule 45, 29 CFR 2700.45, sets forth 
procedures governing the temporary reinstatement of a miner alleging 
discrimination under section 105(c) of the Mine Act, 30 U.S.C. 815(c). 
Currently, as to a Judge's jurisdiction, Procedural Rule 45 states only 
that a Judge shall dissolve an order of temporary reinstatement if the 
Secretary's investigation reveals that the provisions of section 
105(c)(1) of the Mine Act have not been violated. 29 CFR 2700.45(g). 
The rule further provides that an order dissolving the order of 
reinstatement shall not bar the filing of an action by the miner in his 
own behalf under section 105(c)(3) of the Act, 30 U.S.C. 815(c)(3). Id.
    In the ANPRM, the Commission stated that it was considering whether 
to revise Rule 45 to codify the Review Commission's holding in 
Secretary of Labor on behalf of York v. BR&D Enterprises, Inc., 23 
FMSHRC 386, 388-89 (April 2001), that a Commission Judge retains 
jurisdiction over a temporary reinstatement proceeding pending issuance 
of a final Commission order on the underlying complaint of 
discrimination. 69 FR 62634, October 27, 2004. All commenters on the 
ANPRM agreed with the suggested change.
    The Commission proposed revising Procedural Rule 45(e) by inserting 
a statement explaining that the Judge's order temporarily reinstating a 
miner is not a final decision within the meaning of 29 CFR 2700.69 and 
that the Judge shall retain jurisdiction over a temporary reinstatement 
proceeding except during Review Commission or court review of the 
Judge's order of temporary reinstatement. 71 FR 559 through 560, 
January 5, 2006. The Commission received comments supporting the 
proposed revisions to Procedural Rule 45(e). The Commission adopts the 
rule as proposed.

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

    The Secretary submitted a comment on the ANPRM in which she 
suggested that Commission Procedural Rule 45(g) be amended to provide 
that once temporary reinstatement is ordered, absent agreement of the 
parties, the order of temporary reinstatement shall remain in effect 
until there is a final decision on the merits of the miner's complaint 
of discrimination even when the Secretary determines that there was no 
violation of section 105(c) of the Mine Act. The Secretary explained 
that the current language of 29 CFR 2700.45(g) suggests that if, after 
temporary reinstatement has been ordered, the Secretary determines not 
to proceed on the complaint of discrimination under section 105(c)(2) 
of the Act, but the miner files a complaint of discrimination under 
section 105(c)(3), the order of reinstatement should be dissolved. The 
Secretary contended that such a result is at odds with the meaning of 
section 105(c)(2). The Secretary reads section 105(c)(2) to require 
that the temporary reinstatement order remain in effect until the 
underlying discrimination complaint is resolved regardless of whether 
the complaint of discrimination is litigated by the Secretary under 
section 105(c)(2) of the Act or whether it is litigated by the miner 
under section 105(c)(3) of the Act.
    The Commission declined proposing to revise Procedural Rule 45(g) 
in the manner suggested by the Secretary. 71 FR 560, January 5, 2006. 
The Commission explained that the Review Commission has not decided the 
issue of whether a temporary reinstatement order remains in effect 
during a miner's pursuit of his or her discrimination complaint before 
the Commission under section 105(c)(3). Id. The Commission stated its 
belief that the issue of statutory interpretation raised by the 
Secretary's comment is more appropriately addressed in the context of 
litigation rather than rulemaking. Id.
    The Commission received comments requesting further revision to 
Procedural Rule 45(g). One commenter supported the initial revision 
suggested by the Secretary in her comments on the ANPRM that the rules 
should be revised to state that a Judge's reinstatement order should 
remain in effect pending a miner's discrimination complaint under 
section 105(c)(3). The Secretary, however, agreed with the Commission's 
conclusion in the NPRM that the issue of whether a temporary 
reinstatement order remains in effect during a miner's pursuit of his 
or her discrimination

[[Page 44199]]

complaint under section 105(c)(3) would best be resolved in the context 
of litigation. She observed, however, that current Procedural Rule 
45(g) appears to address the issue and resolve it in the negative: That 
is, that a Judge's reinstatement order should not remain in effect 
pending a miner's discrimination complaint under section 105(c)(3). The 
Secretary requested that, because the matter should be resolved in 
litigation, the Commission should delete the current provision of 
Procedural Rule 45(g).
    The Commission agrees with the Secretary that Procedural Rule 45(g) 
should be revised so that it does not appear to resolve the question of 
whether a temporary reinstatement order remains in effect pending a 
miner's discrimination complaint under section 105(c)(3). Accordingly, 
the Commission has deleted from Procedural Rule 45(g) the provision 
directing the Judge to enter an order dissolving an order of temporary 
reinstatement upon notification by the Secretary of her determination 
that the provisions of section 105(c)(1) have not been violated. The 
deletion of such language leaves open for litigation the issue of 
whether an order for temporary reinstatement remains in effect pending 
a miner's discrimination complaint under section 105(c)(3) of the Mine 
Act.

Time Computation

    The Commission proposed that Procedural Rule 45 be amended to 
reflect time periods in ``business'' days when the time period 
described for action is less than 7 days, and ``calendar'' days when 
the time period prescribed is 7 or more days. 71 FR 560, January 5, 
2006. The Commission explained that, as discussed in the section above 
regarding 29 CFR 2700.8, it does not intend the proposed rule revisions 
regarding time computation to affect the filing and service 
requirements of temporary reinstatement proceedings currently set forth 
in 29 CFR 2700.45. Id. The proposed change maintained the time frames 
currently provided in 29 CFR 2700.45. There were no objections to the 
proposed changes. The Commission adopts the rule as proposed.
Subpart G--Hearings

Amendment of Pleadings

    The Commission received two comments on the ANPRM suggesting that 
the Commission adopt a rule limiting the amendment of pleadings by the 
Secretary. The Commission declined to do so, concluding that the issue 
should be determined on a case-by-case basis. 71 FR 560, January 5, 
2006. The Commission explained that the comments raised an issue which 
falls within the sound discretion of the Commission's Judges. See 
Cyprus Empire Corp., 12 FMSHRC 911, 916 (May 1990) (setting forth 
guidance in the exercise of discretion regarding amendment of 
pleadings).
    The Secretary submitted a comment on the NPRM, agreeing with the 
Commission and stating that, in any event, any rule limiting the 
amendment of pleadings should apply to all parties and not just to the 
Secretary. The Commission declines to take further action and leaves 
the matter to the discretion of its Judges.

29 CFR 2700.51 and 2700.54

    Commission Procedural Rule 54 currently provides in part that 
written notice of the time, place, and nature of a hearing shall be 
given to all parties at least 20 days before the date set for hearing. 
29 CFR 2700.54. In the ANPRM, the Commission stated that it was 
considering whether Rule 54 should be revised to require a Judge to 
consult with all parties before setting a date for hearing. 69 FR 
62634, October 27, 2004.
    The comments on the ANPRM favored imposing a requirement that a 
Judge confer with the parties before establishing a hearing date. The 
comments noted that when hearing dates are set ex parte, one or both 
parties must often move for a continuance to avoid schedule conflicts. 
The Secretary added that the requirement to confer should be extended 
to the choice of a hearing site, while another commenter suggested at 
least 45 days' notice of a hearing should be required. Another 
commenter suggested that Judges should be required to hold the hearing 
without undue delay, and that a time frame within which the hearing 
must be held should be established.
    The Mine Act requires that hearings before the Commission's Judges 
be held pursuant to 5 U.S.C. 554 of the APA. 30 U.S.C. 815(c), (d). The 
APA requires that in ``fixing the time and place for hearings, due 
regard shall be had for the convenience and necessity of the parties or 
their representatives.'' 5 U.S.C. 554(b). Commission Procedural Rule 51 
currently provides in part that a Judge shall give due regard to the 
convenience and necessity of parties or their representatives and 
witnesses in setting a hearing site. 29 CFR 2700.51.
    Rather than propose changes to Procedural Rule 54, the Commission 
proposed that Procedural Rule 51 should be revised to explicitly 
require a Judge to consider the convenience of parties or their 
representatives and witnesses in setting the hearing date in addition 
to setting the site. 71 FR 560, January 5, 2006. The Commission 
declined to require Commission Judges to consult with all parties 
before setting a date for hearing. Id. The Commission explained that 
experience has revealed that requiring Judges to confer with parties 
prior to setting a hearing date may result in undue delay in situations 
in which it is difficult to contact a party or a party's 
representative. Id. For instance, difficulties can sometimes arise in 
contacting pro se parties or operators of seasonal or intermittent 
mining operations during periods when those facilities are not in 
operation. Id. In any event, many of the Commission's Judges confer 
with parties before setting a hearing in all cases, and others confer 
in certain types of cases, e.g., where discovery has been initiated 
and/or the case appears complex.
    The Commission further declined to establish a time within which 
hearings must be held. Id. It explained that in practice, a hearing 
date is typically set within 45-90 days after the case has been 
assigned. Id. Later dates may be established with the agreement of the 
parties. The Commission noted that under the current and proposed 
rules, any party would be free to request or move for an expedited 
hearing in appropriate cases, pursuant to 29 CFR 2700.52. Id.
    The Commission received one comment on the proposed changes. The 
commenter supported the proposed revision but stated further that 
Judges should be encouraged to set hearings without undue delay. As the 
Commission stated in the NPRM, any party is free to request or move for 
an expedited hearing pursuant to Commission Procedural Rule 52. Id. The 
Commission adopts Procedural Rule 51 as proposed.

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. Procedural Rule 56(e) sets 
forth a time for completing discovery, providing that ``[d]iscovery 
shall be completed within 40 days after its initiation.'' 29 CFR 
2700.56(e).
    In the ANPRM, the Commission stated that it was considering whether 
there should be no specific time frame

[[Page 44200]]

for initiating discovery, and whether 40 days is too short a period of 
time for the completion of discovery. 69 FR 62634, October 27, 2004.
    The comments on the ANPRM favored eliminating the present rules' 
specific time periods for commencing and completing discovery, and 
suggested substituting language providing that discovery not cause 
undue delay and that it be completed 30 days in advance of a hearing. 
Several commenters noted that the present time frames are outmoded and, 
if enforced, would require initiation of potentially costly and 
burdensome discovery before settlement options could be explored. 
Several also noted that a specific provision should be added allowing 
the Judge to permit discovery within the 30-day period prior to the 
hearing for good cause shown.
    The Commission proposed amending Procedural Rule 56 to permit 
discovery to begin with the filing of a responsive pleading and 
requiring that it be completed 20 days in advance of a scheduled 
hearing. 71 FR 560 through 561, January 5, 2006. The Commission 
explained that the 20-day period, combined with a general provision 
that discovery not unduly delay or otherwise impede disposition of the 
case, would assure that discovery be completed in time to allow the 
filing of comprehensive prehearing statements and full presentation of 
the case. Id. at 561.
    The Commission received one comment supporting the proposed change. 
The Commission adopts Procedural Rule 56 as proposed.

29 CFR 2700.61 and 2700.62

    Commission Procedural Rule 61 currently provides that a ``Judge 
shall not, except in extraordinary circumstances, disclose or order a 
person to disclose to an operator or his agent the name of an informant 
who is a miner.'' 29 CFR 2700.61. Commission Procedural Rule 62 
currently states that a ``Judge shall not, until 2 days before a 
hearing, disclose or order a person to disclose to an operator or his 
agent the name of a miner who is expected by the Judge to testify or 
whom a party expects to summon or call as a witness.'' 29 CFR 2700.62.
    The Commission received two comments on the ANPRM suggesting that 
the Commission should modify Procedural Rule 62 to require disclosure 
of the names of miner witnesses, along with any documents containing 
statements by the miner witnesses, at the time of the filing of a 
prehearing statement or no later than 15 days before a scheduled 
hearing. The commenters suggested that the 2-day period precludes 
proper preparation for hearing. The commenters further stated that the 
Commission should also modify Procedural Rule 61 to provide that the 
Secretary cannot rely upon evidence from miner informants without 
providing the names of these informants and the substance of their 
testimony to the operator 15 days before the hearing.
    In the NPRM, the Commission declined to propose any changes to 
Procedural Rules 61 and 62. Id. at 561. It explained that extending the 
time period for identifying anticipated miner witnesses from 2 days to 
15 days before the start of a hearing, as suggested, would unacceptably 
weaken the protection afforded to miners under Procedural Rules 61 and 
62. Id. It noted that in the majority of cases, an operator would be 
able to independently depose miners who might be witnesses well in 
advance of the trial and therefore would not be harmed by the 2-day 
limitation. Id. In most instances, the universe of potential witnesses, 
i.e., those with knowledge of the facts of a violative condition or an 
accident, is generally limited, and the operator would know who has 
knowledge of the facts of the alleged violation. Such information could 
also be available to the operator through discovery. If the potential 
miner informant/witness is an employee, the operator would be able to 
easily contact the employee for purposes of arranging a deposition. 
Moreover, the identification of miner witnesses, who may also be 
informants, 15 days in advance of a hearing would not be necessary to 
ensure the operator a fair trial in circumstances in which a hearing is 
continued to a later date or eliminated altogether for unrelated 
reasons.
    The Commission further observed that its Judges have indicated that 
they generally have not experienced problems applying Procedural Rules 
61 and 62 and have been able to balance the interests of all parties 
under the current rules. Id. The Commission also noted that because the 
2-day period set forth in Procedural Rule 62 refers to 2 business days, 
under current Procedural Rule 8 and its revisions, the operator also 
could use weekend days contiguous to the 2-day period for depositions 
of miner witnesses. Id. In any event, should there be an occasion where 
the late identification of a miner witness or the late discovery of the 
scope of his testimony causes prejudice to the operator, the operator 
could request a continuance in order to have time to adequately prepare 
for the hearing.
    The Commission received one comment on the NPRM supporting the 
Commission's determination not to revise Procedural Rules 61 and 62. 
The Commission retains Procedural Rules 61 and 62 without further 
revision.

29 CFR 2700.63(a)

    Commission Procedural Rule 63(a) currently provides that 
``[r]elevant evidence, including hearsay evidence, that is not unduly 
repetitious or cumulative is admissible.'' 29 CFR 2700.63(a). The 
Commission received two comments on the ANPRM suggesting that the 
Commission modify its rule to require that hearsay evidence be 
supported by some evidence of reliability in order to be admissible.
    In the NPRM, the Commission concluded that further rulemaking was 
not warranted because Commission precedent sufficiently addresses the 
commenters' concerns. 71 FR 561, January 5, 2006. Under Commission 
precedent, hearsay evidence is admissible in proceedings before the 
Commission's Judges as long as the evidence is ``material and 
relevant.'' Kenny Richardson, 3 FMSHRC 8, 12 n.7 (January 1981), affd, 
689 F.2d 632 (6th Cir. 1982), cert. denied, 461 U.S. 928 (1983). 
Hearsay evidence can constitute substantial evidence supporting a 
Judge's decision only if that evidence ``is surrounded by adequate 
indicia of probativeness and trustworthiness.'' Mid-Continent Res., 
Inc., 6 FMSHRC 1132, 1135-36 (May 1984) (citations omitted). The 
Commission received no comments on the NPRM on this issue. The 
Commission retains Procedural Rule 63(a) without further revision.

29 CFR 2700.67(a)

    Commission Procedural Rule 67(a) currently provides that ``[a]t any 
time after commencement of a proceeding and no later than 10 days 
before the date fixed for the hearing on the merits, a party may move 
the Judge to render summary decision disposing of all or part of the 
proceeding.'' 29 CFR 2700.67(a).
    In the ANPRM, the Commission stated that it was considering whether 
the filing deadline for a summary decision motion should be changed 
from 10 days to 20 or 30 days before the hearing, allowing the Judge a 
greater period of time to rule on the motion. 69 FR 62634, October 27, 
2004.
    Most of the comments received by the Commission on the ANPRM 
supported changing the time period for filing a motion for summary 
decision from 10 days to 20 days before the hearing date. The Secretary 
and another commenter favored increasing the time period to 30 days. 
That commenter further suggested adding a requirement that the Judge 
rule

[[Page 44201]]

on the motion at least 10 days before the hearing.
    An appropriate deadline for filing a motion for summary decision 
prior to a hearing must be considered in light of other rule provisions 
governing filing and time computation. Under the present rules, which 
provide that filing is effective upon mailing (29 CFR 2700.5(d)), a 
party has 10 days to respond to a motion (29 CFR 2700.10(d)), and an 
additional 5 days is added to that time when the motion is served by 
mail (29 CFR 2700.8). Consequently, a party could file by mail a motion 
for summary decision 10 days prior to a hearing, and the opposition 
would not have to be filed by mail until 5 days after commencement of 
the hearing.
    The Commission proposed revising Procedural Rule 67(a) to provide 
that a motion for summary decision may be filed no later than 25 days 
prior to a hearing, and that the filing of such motions and responses 
would be effective upon receipt. 71 FR 562, January 5, 2006. The 
Commission explained that the proposed revision should ensure adequate 
time for a Judge to review the motion and the opposition, and to make 
an informed decision as to whether a hearing will be necessary. Id. The 
Commission noted that, pursuant to 29 CFR 2700.9, a party may request 
an extension of time if it is unable to meet the deadline for filing a 
motion for summary decision. Id. The Commission further declined to 
revise the rule to require a Judge to decide a motion for summary 
decision by a time certain. Id. The Commission explained that under the 
proposed rule, the Judge may not have the opposition until 
approximately 10 days before the hearing. Id. Such a time period should 
be sufficient to allow the Judge to make an informed determination of 
whether to cancel, postpone, or go forward with the hearing, without 
inconveniencing the parties. Requiring a decision on the motion 10 days 
prior to hearing, as one commenter suggested, would not in all 
instances allow the Judge sufficient time to make a decision and 
prepare an opinion.
    The Commission received one comment supporting the proposed change. 
The Commission adopts Procedural Rule 67(a) as proposed.

29 CFR 2700.67(c), (d), (e) and (f)

    Commission Procedural Rule 67(c) currently sets forth the 
requirements for the form of a motion for summary decision and any 
supporting affidavits. 29 CFR 2700.67(c). After publication of the 
NPRM, proceedings before the Commission brought to light the need to 
include a provision setting forth a requirement that a statement of 
material facts as to which the moving party contends there is no 
genuine issue must be submitted with a motion for summary decision. The 
Commission also determined that it was necessary to clarify the 
procedure for opposing a motion for summary decision. The Commission is 
revising paragraph (c) of Procedural Rule 67 to add requirements for 
filing a statement of material facts with a motion for summary 
decision. In addition, the Commission is redesignating current 
paragraph (d) of Procedural Rule 67 as paragraph (f). Finally, the 
Commission is adding new paragraph (d), which sets forth requirements 
for opposing a motion for summary decision, and new paragraph (e), 
which sets forth the requirements for affidavits.

29 CFR 2700.69

    Commission Procedural Rule 69(c) sets forth the procedure for 
correcting clerical errors in a Judge's decision. 29 CFR 2700.69(c). It 
provides that, at any time before the Review 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 Review 
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 Review 
Commission. Id.
    In the ANPRM (69 FR 62634, Oct. 27, 2004), the Commission stated 
that it was 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 PDR of the Judge's 
decision on the merits. See Earl Begley, 22 FMSHRC 943, 944 (August 
2000).
    Most of the comments received by the Commission on the ANPRM 
favored making the change. The Secretary, however, stated that a 
Judge's authority to correct decisions should be ``expanded'' in the 
rule to include errors that result from oversight or omission, and that 
such a corrected decision be appealable in its own right.
    The Commission proposed amending Procedural Rule 69(c) to make 
explicit that clerical corrections made subsequent to the issuance of a 
Judge's decision do not toll the period for filing a PDR. 71 FR 562, 
January 5, 2006. The Commission further declined to make the change 
suggested by the Secretary because broadening a Judge's authority to 
alter or amend a decision to cover more substantive changes, like those 
addressed under Fed. R. Civ. P. 59(e) and 60(a), could create questions 
involving finality and appealability that could result in a delay in 
Commission proceedings. Id.
    In addition, as described in the section-by-section analysis of 29 
CFR 2700.5 and 2700.72, the Commission proposed adding Procedural Rule 
69(d) to clarify that Judges' decisions are not binding precedent upon 
the Commission. Id.
    The Commission received no objections to the proposed revisions. 
The Commission adopts Procedural Rule 69 as proposed.
Subpart H--Review by the Commission

29 CFR 2700.70(h)

    Commission Procedural Rule 70(h) currently provides that a PDR that 
is not granted within 40 days after the issuance of a Judge's decision 
is deemed denied. 29 CFR 2700.70(h).
    In the ANPRM, the Commission stated that it was considering making 
explicit its present practice under the rule that the Review Commission 
may act on a PDR on the 1st business day following the 40th day after a 
Judge's decision, where the 40th day would otherwise fall on a weekend 
or federal holiday. 69 FR 62634, October 27, 2004.
    In the NPRM, the Commission declined to propose any changes to 
Procedural Rule 70. 71 FR 562, January 5, 2006. The Commission 
explained that it need not clarify in Procedural Rule 70 that the 
Review Commission may act on a PDR on the next day that the 
Commission's offices are open if the Commission's offices are closed on 
the 40th day. Id. It noted that the changes that the Commission had 
proposed with respect to Procedural Rule 8 would sufficiently clarify 
the Review Commission's authority in this respect. Id. The Commission 
received no objections to its determination that it need not revise 
Rule 70. The Commission retains Procedural Rule 70 without revision.

29 CFR 2700.72

    As noted above in the section-by-section analysis of 29 CFR 2700.5, 
the Commission proposed deleting the current provisions of 29 CFR 
2700.72, and reserving Commission Procedural Rule 72 for future use. 
Presently, Procedural Rule 72 provides that an unreviewed decision of a 
Judge is not a precedent binding upon the Commission. 29 CFR 2700.72. 
In the ANPRM, the Commission stated that it was considering adding the 
requirement that any citation to an unreviewed decision of a Judge 
should be designated parenthetically as such. 69 FR 62634, October 27, 
2004.

[[Page 44202]]

    The Commission proposed including in Procedural Rule 5 a 
requirement that citations to a Judge's decision shall include 
``(ALJ)'' at the end of the citation. 71 FR 562, January 5, 2006. In 
addition, the Commission proposed adding to Procedural Rule 69 a 
provision stating that all Judge's decisions are not binding precedent 
upon the Commission. The Commission adopts those proposed changes and 
removes and reserves present Procedural Rule 72.

29 CFR 2700.74

    Commission Procedural Rule 74 currently sets forth the provisions 
applicable to amicus curiae participation in Commission proceedings. 29 
CFR 2700.74. After publication of the NPRM, proceedings before the 
Commission brought to light the need to clarify that, under Procedural 
Rule 74, a movant may seek to enter an appearance as an amicus curiae 
in a Commission proceeding, even if the movant does not specifically 
support any of the positions of the parties in that proceeding. The 
Commission is revising paragraph (a) of Procedural Rule 74 and adding a 
new paragraph (d). These revisions clarify the procedures for seeking 
participation as an amicus when the movant does not support a party in 
a Commission proceeding.

29 CFR 2700.75

    As noted above in the section-by-section analysis regarding 29 CFR 
2700.5, the Commission proposed to revise Commission Procedural Rule 5 
to require that fewer copies be filed. The Commission proposed making 
conforming changes to 29 CFR 2700.75(g) which require that each party 
shall file the original and six copies of its brief with the Review 
Commission, or if the party is not represented by a lawyer, it need 
file only the original document. 71 FR 562, January 5, 2006.
    In addition, the Commission proposed adding a new paragraph (h) to 
Commission Procedural Rule 75 requiring a table of contents for opening 
and response briefs filed with the Review Commission. Id. The 
Commission suggested that a table of contents in opening and response 
briefs would be helpful to the Review Commission and parties, 
particularly in lengthy briefs involving multiple issues. Id. As 
provided in current Procedural Rule 75(c), the table of contents would 
be excluded from the page limit allowed for such briefs. 29 CFR 
2700.75(c).
    The Commission received no objections on the proposed revisions. 
The Commission adopts Procedural Rule 75 as proposed.

29 CFR 2700.76

    Commission Procedural Rule 76 currently sets forth the procedure 
for interlocutory review by the Commission. 29 CFR 2700.76. The rule 
provides for the simultaneous filing of briefs within 20 days of the 
order granting interlocutory review. 29 CFR 2700.76(c). While the rule 
specifies that the Review Commission's consideration 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. In 
the ANPRM, the Commission stated that it was considering whether 
Procedural Rule 76 should be revised to state what constitutes the 
record on interlocutory review. 69 FR 62634, October 27, 2004.
    A few commenters on the ANPRM supported amending the rule to 
clarify what constitutes the record on interlocutory review, while 
others stated that such a change is unnecessary. The Secretary further 
suggested that Procedural Rule 76 should be revised to provide for the 
filing of briefs seriatim, and that the party seeking review should be 
permitted to file a reply brief.
    After publication of the ANPRM, the Commission improved its 
internal processes to better provide the Review Commission with the 
record on interlocutory review in the event the parties do not supply 
the Commission with all the relevant record excerpts. Because the 
changes in the Commission's internal processes do not impose any 
additional or different requirements upon parties, the Commission 
determined that it need not revise Procedural Rule 76 to describe what 
constitutes the record on interlocutory review.
    The Commission proposed, however, that Procedural Rule 76 should be 
amended to substitute for the rule's current briefing requirement, 
language stating that when the Commission grants interlocutory review, 
it will also issue an order addressing the sequence and timing of 
briefs, including any reply briefs. 71 FR 563, January 5, 2006. The 
Commission explained that, while it agrees with the Secretary that 
there may be occasions when it is useful for parties to file briefs 
seriatim or for the filing party to have the opportunity to file a 
reply brief, the briefing schedule for interlocutory appeals is best 
determined on a case-by-case basis. Id.
    One commenter on the NPRM supported the proposed changes to 
Procedural Rule 76, while the other commenter stated a preference for a 
briefing schedule that requires briefs to be filed seriatim and 
provides an opportunity for the filing of a reply brief. For the 
reasons stated in the NPRM, the Commission has determined that it shall 
revise Procedural Rule 76 as proposed. In its petition for 
interlocutory review, a party may request a briefing schedule that 
requires briefs to be filed seriatim and provides an opportunity for 
the filing of a reply brief.

29 CFR 2700.78

    Commission Procedural Rule 78(b) currently provides in part that, 
unless the Review Commission orders otherwise, the filing of a petition 
for reconsideration does not stay the effect of a Review Commission 
decision and does not affect the finality of a decision for purposes of 
review in the courts. 29 CFR 2700.78(b). In the ANPRM, the Commission 
stated that it was considering whether it should revise 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 Review 
Commission has issued an order disposing of the petition for 
reconsideration. 69 FR 62634, October 27, 2004.
    Some commenters on the ANPRM did not support revising the rule, 
stating that judicial review would simply be delayed, given the 
unlikelihood that the Review Commission would grant a petition for 
reconsideration, or that the revision could encourage parties to file 
petitions for reconsideration in order to delay court review, with the 
result being an increase in the duration of Commission proceedings. 
Another commenter supported the revision on the ground that it could 
help avoid unnecessary court review and expedite final resolution. The 
Secretary supported the revision on the ground that it would make the 
Commission's rules consistent with the decisions of Federal courts of 
appeal on the question.
    In the NPRM, the Commission proposed deleting the present language 
that the filing of a petition for reconsideration with the Review 
Commission shall not affect the finality of a decision or order for 
purposes of judicial review. 71 FR 563, January 5, 2006. The Commission 
explained that such a revision is consistent with precedent recognizing 
that court review is precluded while a petition for reconsideration 
before an agency is pending. Id., citing United Transportation Union v. 
ICC, 871 F.2d 1114, 1116-18 (D.C. Cir. 1989) (``UTU'');

[[Page 44203]]

West Penn Power Co. v. EPA, 860 F.2d 581, 585 (3d Cir. 1988). Courts 
have reasoned that court review should be so precluded in order to 
prevent the waste of judicial resources and consideration of questions 
that may be disposed of by the agency when acting upon a 
reconsideration request. See UTU, 871 F.2d at 1116-18 (discussing 
rationale of the different courts addressing the issue). The Commission 
stated that it would otherwise leave to the courts the determination of 
the extent to which court review will proceed while a petition for 
reconsideration is before the Review Commission. 71 FR 563.
    The Commission declined to insert a statement that filing a 
petition for reconsideration tolls the time period for filing an appeal 
for judicial review, however. Id. It reasoned that such an insertion 
may lead to the misperception that a Review Commission decision that is 
the subject of a petition for reconsideration is non-final with respect 
to even those parties who did not petition for reconsideration. Id. 
Courts generally have determined that a pending reconsideration request 
at the administrative level does not make the underlying decision non-
final for parties who do not seek administrative reconsideration. ICG 
Concerned Workers Ass'n v. United States, 888 F.2d 1455 (D.C. Cir. 
1989).
    One commenter supported the proposed revision. Another commenter 
suggested that the Commission should revise the rule to incorporate an 
explanation of how courts have precluded judicial review during the 
pendency of a reconsideration request sought by those parties that 
filed for reconsideration, but not for those parties that did not seek 
reconsideration. The Commission has determined that it is not 
appropriate at this time to codify court precedent on the issue, 
particularly given the paucity of precedent directly applying relevant 
provisions of the Mine Act. In the absence of such codification, 
parties may seek guidance on the issue from court precedent. 
Accordingly, the Commission adopts Procedural Rule 78 as proposed.
Subpart I--Miscellaneous

29 CFR 2700.80

    Commission Procedural Rule 80(a) presently provides that 
``[i]ndividuals practicing before the Commission and Commission Judges 
shall conform to the standards of ethical conduct required of 
practitioners in the courts of the United States.'' 29 CFR 2700.80(a).
    The Commission proposed revising Procedural Rule 80(a) to clarify 
that certain ethical conduct is required of individuals practicing 
before the Review Commission or practicing before Commission Judges. 71 
FR 563, January 5, 2006. It noted that, by its literal terms, the 
standard could be misinterpreted to require certain ethical conduct of: 
(a) Individuals practicing before the Review Commission; and (b) 
Commission Judges. Id. The Commission explained that the rule was 
intended to require certain ethical conduct of individuals practicing 
in Commission proceedings, and that other Commission rules explicitly 
impose standards of conduct upon Judges. Id., citing 29 CFR 2700.81 
(recusal and disqualification); 29 CFR 2700.82 (ex parte 
communications).
    One commenter did not object to the proposed change. Another 
commenter suggested that Procedural Rule 80 should be revised to 
specifically cite the American Bar Association Model Rules of 
Professional Conduct as the applicable ethical standard for individuals 
practicing in Commission proceedings. That commenter further suggested 
that Procedural Rule 80 should also be revised to cite the American Bar 
Association Model Code of Judicial Conduct as the applicable standard 
of conduct for Commission Judges. The Commission declines to specify 
the standards of ethical conduct required in Commission proceedings as 
beyond the scope of this procedural rulemaking. The Commission adopts 
Procedural Rule 80 as proposed.

29 CFR 2700.84

    As discussed in the section above regarding 29 CFR 2700.1, the 
Commission has revised Commission Procedural Rule 1 to add a provision 
stating the effective date of amendments to the Commission's procedural 
rules. The Commission has repealed Commission Procedural Rule 84, which 
states the effective date of the Commission's procedural rules which 
were revised and republished in 1993.

B. Part 2704--Implementation of the Equal Access to Justice Act in 
Commission Proceedings

Interplay of parts 2700 and 2704
    Experience under the agency's EAJA rules of procedure has 
highlighted procedural matters in Commission EAJA proceedings that are 
governed by the Commission's rules of procedure in 29 CFR part 2700. 
Issues including scope of review by the Review Commission once review 
has been granted (29 CFR 2700.70(g)); motion practice (29 CFR 2700.10); 
and standards of conduct (29 CFR 2700.80), for example, are not 
separately covered in the Commission's EAJA rules. These rules stand in 
contrast to other rules in part 2700 that clearly are applicable only 
to Mine Act proceedings, such as 29 CFR 2700.25 (proposed penalty 
assessments). Therefore, the Commission proposed revising its EAJA rule 
at 29 CFR 2704.100 to clarify that its rules of procedure at part 2700 
apply to EAJA proceedings where appropriate. 71 FR 564, January 5, 
2006. The Commission received no comments on the proposed revision. The 
Commission adopts EAJA Rule 100 as proposed.
Eligibility for Fees
    In Colorado Lava, Inc., 27 FMSHRC 186, 188-95 (March 2005), the 
Review Commission ruled unanimously that prevailing parties are not 
eligible for fees under the ``excessive and unreasonable demand'' prong 
of EAJA and the Commission's regulations implementing it. As currently 
written, the Commission's regulations are silent as to whether 
prevailing parties may obtain fees under this provision. The Commission 
proposed clarifying these rules and revising 29 CFR 2704.100, 2704.104, 
2704.105, and 2704.206 to make it clear, consistent with its decision 
in Colorado Lava, that only non-prevailing parties may be awarded fees 
under EAJA's ``excessive and unreasonable demand'' provision. 71 FR 
564, January 5, 2006. The Commission received no comments on the 
proposed changes and adopts the rules as proposed.
Aggregation of Assets and Employees of Prevailing Parties
    Commission EAJA Rule 104(b)(2) presently provides for the 
aggregation of assets or employees of affiliates of a prevailing party 
to determine eligibility for an EAJA award. 29 CFR 2704.104(b)(2). In 
response to the ANPRM, one commenter requested that the Commission 
revise its present rules by deleting the requirement for aggregation of 
assets or employees of affiliates. In the NPRM, the Commission asked 
for further comments on the rule and requested commenters to focus 
their attention on judicial and administrative developments since the 
Commission last revised its EAJA rules in 1998. 71 FR 564, Jan. 5, 
2006, citing Tri-State Steel Constr. Co. v. Herman, 164 F.3d 973 (6th 
Cir. 1999), and 70 FR 22785, 22787, May 3, 2005. In response to the 
NPRM, the Commission received one comment in support of the present 
rule. After considering the comments on the ANPRM and NPRM and recent 
judicial and administrative developments, the Commission has determined 
to repeal EAJA Rule 104(b)(2).

[[Page 44204]]

SBA Rule Changes
    Commission EAJA Rule 104(c) cross references the regulations of the 
Small Business Administration (``SBA'') that establish the standards 
for the eligibility of an applicant who has been the subject of an 
excessive and unreasonable demand from MSHA. Since the last publication 
of the Commission's EAJA rules (63 FR 63172 through 63178, November 12, 
1998), there have been minor changes in the SBA rules governing when 
applicants qualify as ``small entities,'' as defined in 5 U.S.C. 601. 
Therefore, for the convenience of the public, the Commission has 
reproduced the annual-receipts and number-of-employees standards, for 
various mining entities, identified by the North American 
Classification System (``NAICS'') code, which is established by the SBA 
at 13 CFR 121.201.

----------------------------------------------------------------------------------------------------------------
                                                                                  Size  standard  Size  standard
                NAICS codes                       NAICS U.S. industry title         in millions    in number  of
                                                                                    of dollars       employees
----------------------------------------------------------------------------------------------------------------
                                   Subsector 212--Mining (Except Oil and Gas)
----------------------------------------------------------------------------------------------------------------
212111.....................................  Bituminous Coal and Lignite Surface  ..............             500
212112.....................................  Bituminous Coal Underground Mining.  ..............             500
212113.....................................  Anthracite Mining..................  ..............             500
212210.....................................  Iron Ore Mining....................  ..............             500
212221.....................................  Gold Ore Mining....................  ..............             500
212222.....................................  Silver Ore Mining..................  ..............             500
212231.....................................  Lead Ore and Zinc Ore Mining.......  ..............             500
212234.....................................  Copper Ore and Nickel Ore Mining...  ..............             500
212291.....................................  Uranium-Radium-Vanadium Ore Mining.  ..............             500
212299.....................................  All Other Metal Ore Mining.........  ..............             500
212311.....................................  Dimension Stone Mining and           ..............             500
                                              Quarrying.
212312.....................................  Crushed and Broken Limestone Mining  ..............             500
                                              and Quarrying.
212313.....................................  Crushed and Broken Granite Mining    ..............             500
                                              and Quarrying.
212319.....................................  Other Crushed and Broken Stone       ..............             500
                                              Mining and Quarrying.
212321.....................................  Construction Sand and Gravel Mining  ..............             500
212322.....................................  Industrial Sand Mining.............  ..............             500
212324.....................................  Kaolin and Ball Clay Mining........  ..............             500
212325.....................................  Clay and Ceramic and Refractory      ..............             500
                                              Minerals Mining.
212391.....................................  Potash, Soda, and Borate Mineral     ..............             500
                                              Mining.
212392.....................................  Phosphate Rock Mining..............  ..............             500
212393.....................................  Other Chemical and Fertilizer        ..............             500
                                              Mineral Mining.
212399.....................................  All Other Nonmetallic Mineral        ..............             500
                                              Mining.
----------------------------------------------------------------------------------------------------------------
                                  Subsector 213--Support Activities for Mining
----------------------------------------------------------------------------------------------------------------
213111.....................................  Drilling Oil and Gas Wells.........  ..............             500
213112.....................................  Support Activities for Oil and Gas             $6.5  ..............
                                              Operations.
213113.....................................  Support Activities for Coal Mining.            $6.5  ..............
213114.....................................  Support Activities for Metal Mining            $6.5  ..............
213115.....................................  Support Activities for Nonmetalic              $6.5  ..............
                                              Minerals (except Fuels).
----------------------------------------------------------------------------------------------------------------

Standards for Awards
    Commission EAJA Rule 105(b) presently provides that a non-
prevailing party may establish that the Secretary's demand is excessive 
when compared to the Commission's decision and that the Secretary may 
avoid an award by establishing that the demand is not unreasonable when 
compared to the decision. 29 CFR 2704.105(b). The Commission received a 
comment on the ANPRM that EAJA Rule 105(b) improperly places the burden 
of proof on EAJA applicants to show that the Secretary's demand is both 
excessive and unreasonable. In the NPRM, the Commission declined to 
make any revisions to the rule. 71 FR 564, January 5, 2006. The 
Commission explained that Commission EAJA Rules 105(b) and 203(a) 
require that the EAJA applicant ``show'' that the Secretary's demand is 
excessive, while the Secretary can only avoid an award by establishing 
that the demand is not unreasonable when compared to the Commission's 
decision. Id., citing 29 CFR 2704.203(a). The Commission reasoned that 
contrary to the commenter's suggestion, the rule does not require the 
applicant to prove that the penalty is unreasonable. 71 FR at 564. The 
Commission further noted that experience under the rules has not 
indicated any change to the pleading requirements is necessary. Id., 
citing L&T Fabrication & Constr., Inc., 22 FMSHRC 509, 514 (April 
2000). The Commission received one comment on the NPRM supporting its 
determination not to revise EAJA Rule 105(b). The Commission retains 
EAJA Rule 105(b) without revision.
Hourly Rate
    Commission EAJA Rule 106(b) currently provides that the award for 
the fee of an attorney or agent to those parties who are successful on 
EAJA claims may not exceed $125 per hour, except as provided in 29 CFR 
2704.107. 29 CFR 2704.106(b). The Commission received one comment on 
the ANPRM recommending that the Commission amend the rule to provide 
for an automatic increase in the $125 hourly rate. The Commission 
considered the recommendation but stated in the NPRM that no change was 
necessary because no party had sought an increase in the present rate 
for attorney's fees since the rule was revised in 1998. 71 FR 564, 
January 5, 2006. Further, the Commission noted that 29 CFR 2704.107(a) 
allows parties to petition the Review Commission or its Judges for a 
higher rate. Id. The Commission received one comment on the NPRM 
supporting its determination not to revise EAJA Rule 106(b). The 
Commission retains EAJA Rule 106(b) without revision.

[[Page 44205]]

EAJA Application Deadline
    Commission EAJA Rule 206(a) requires that an application be filed 
no later than 30 days after the Commission's final disposition of the 
underlying proceeding (or 30 days after a final and nonappealable court 
judgment in a Commission case). 29 CFR 2704.206(a). Commission EAJA 
Rule 206(c) currently defines ``final disposition'' as the date on 
which a case on the merits becomes final pursuant to sections 105(d) 
and 113(d) of the Mine Act, 30 U.S.C. 815(d) and 823(d). 29 CFR 
2704.206(c). As currently written, it is not clear whether this term 
means ``final and not appealable.''
    In the NPRM, the Commission proposed amending the definition of 
``final disposition'' in EAJA Rule 206(c) to clarify that it means the 
date on which a decision or order on the merits becomes final and 
unappealable. 71 FR 564, January 5, 2006. The Commission explained that 
the proposed revision is consistent with court precedent holding that 
an EAJA application is due 30 days following the expiration of the time 
for an appeal on the merits--that is, the time for appeal must lapse or 
the appeal be completed before the 30-day deadline begins to run. Id., 
citing Scafar Contracting, Inc. v. Sec'y of Labor, 325 F.3d 422 (3d 
Cir. 2003); Adams v. SEC, 287 F.3d 183 (D.C. Cir. 2002).
    The Commission received no objections to the proposed change and 
adopts EAJA Rule 206(c) as proposed.
Automatic Stay of Proceedings
    Commission EAJA Rule 206(b) currently provides that if review or 
reconsideration is sought or taken of a decision on the merits, EAJA 
proceedings shall be stayed pending final disposition of the underlying 
case. 29 CFR 2704.206(b). The Secretary submitted a comment on the 
ANPRM stating that generally she files a motion for stay in these 
circumstances, and that the stay is routinely granted. The Secretary 
suggested that the Commission revise EAJA Rule 206(b) to provide that 
the stay of EAJA proceedings is automatic, which will make the filing 
of such motions unnecessary.
    In the NPRM, the Commission declined to revise EAJA Rule 206(b) in 
the manner suggested by the Secretary. 71 FR 564, January 5, 2006. The 
Commission explained that the issuance of an order in response to a 
motion creates certainty as to the procedural posture of a case. Id. It 
noted that the absence of a stay order could lead to uncertainty among 
the parties, particularly those unfamiliar with the Commission's 
procedures, and that the advantage of certainty among the parties is 
not outweighed by the minimal hardship imposed on the Secretary when 
she is required to file a stay motion. Id.
    The Secretary submitted a comment on the NPRM reiterating the 
suggestion that the rule should be revised to state that the stay of an 
EAJA proceeding is automatic pending final disposition of the 
underlying case. The Secretary stated that an automatic stay would 
clarify that a party who appeals a Judge's decision need not file an 
EAJA application until the Commission has finished its review of the 
merits proceeding. The Commission declines to revise EAJA Rule 206(b) 
in the manner suggested. An explicit stay order from a Judge is 
preferable because it makes clear the procedural posture of the case. 
In addition, revisions to EAJA Rule 206(c) regarding EAJA application 
deadlines sufficiently clarify when an EAJA application must be filed.
Effect of Stay on Filing Answer
    Commission EAJA Rule 302(a), as currently worded, sets forth time 
frames for the filing of an answer in an EAJA proceeding without taking 
into account the possible existence of a stay. 29 CFR 2704.302(a). The 
Commission received a comment on the ANPRM from the Secretary stating 
that the Commission should consider revising this rule to address the 
interplay of Commission EAJA Rule 206(b), 29 CFR 2704.206(b) (providing 
for a stay of EAJA proceedings under certain circumstances) and the 30-
day requirement for answering the EAJA application. The Secretary 
suggested that the Commission should revise its rules to require that 
the Secretary file an answer within 30 days after service of an 
application unless the matter has been stayed under Rule 206(b), in 
which case the Secretary must file an answer within 30 days after the 
expiration of the stay.
    In the NPRM, the Commission agreed with the Secretary's suggestion 
and proposed amending EAJA Rule 302(a), which provides guidance 
regarding the filing of an answer, to clarify that an answer must be 
filed within 30 days after service of an application unless the matter 
has been stayed under EAJA Rule 206(b). 71 FR 565, January 5, 2006. The 
Commission received no objections to the proposed change and adopts the 
rule as proposed.

C. Part 2705--Privacy Act Implementation

29 CFR 2705.1

Privacy Act Rules and the Commission's Case Files Under the Mine Act
    After publication of the ANPRM, the Commission examined its 
practices under the Privacy Act of 1974, 5 U.S.C. 552a (2000), to 
determine whether any revisions to its rules implementing the Privacy 
Act were necessary. In the NPRM, the Commission proposed revising 29 
CFR 2705.1 to clarify that the Commission's Privacy Act rules do not 
apply to its files generated under the Mine Act. 71 FR 565, January 5, 
2006. The Commission recognized that its files that pertain to its 
personnel are covered by the Privacy Act. Id. Certain Commission files 
are retrievable by a ``personal identifier,'' one of the criteria for 
coverage under the Privacy Act. Those files involve circumstances 
arising under the Mine Act when a case adjudicatory file may bear the 
name of an individual, such as miner discrimination complaints under 30 
U.S.C. 815(c); violations involving operators that do business as sole 
proprietorships; violations involving individual directors, owners, or 
officers under 30 U.S.C. 820(c); violations involving miners for 
carrying smoking materials under 30 U.S.C. 820(g); and persons charged 
with giving advance notice of mine inspections under 30 U.S.C. 820(e). 
The Commission explained, however, that while these files are 
retrievable by a personal identifier, it is not apparent that files 
generated in Mine Act enforcement proceedings are ``records'' within 
the meaning of the Privacy Act. Id.
    The Commission received no comments on the issue. The Commission 
adopts the rule as proposed.

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. If the Commission determines that electronic filing is feasible, 
the Commission will amend its rules as necessary.

III. Matters of Regulatory Procedure

    The Commission has determined that these rules are not subject to 
the Office of Management and Budget (``OMB'') review under Executive 
Order 12866, 58 FR 51735, September 30, 1993.

[[Page 44206]]

    The Commission has determined under the Regulatory Flexibility Act 
(5 U.S.C. 601 et seq.) that these rules will 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 OMB.

List of Subjects

29 CFR Part 2700

    Administrative practice and procedure, Mine safety and health, 
Penalties, Whistleblowing.

29 CFR Part 2704

    Claims, Equal access to justice, Lawyers.

29 CFR Part 2705

    Privacy.

0
For the reasons stated in the preamble, the Commission amends 29 CFR 
parts 2700, 2704, and 2705 as follows:

PART 2700--PROCEDURAL RULES

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

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


0
2. Section 2700.1 is amended by revising paragraphs (a) and (b) 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 601 New Jersey Avenue, NW., Suite 9500, Washington, 
DC 20001; its primary phone number is 202-434-9900; and the fax number 
of its Docket Office is 202-434-9954. The Commission maintains a Web 
site at http://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.
    (2) Unless the Commission provides otherwise, amendments to these 
rules are effective 60 days following publication in the Federal 
Register, and apply to cases initiated after they take effect. They 
also apply to further proceedings in cases pending on the effective 
date, except to the extent that application of the amended rules would 
not be feasible, or would work injustice, in which event the former 
rules of procedure would continue to apply.
    (b) Applicability of other rules. On any procedural question not 
regulated by the Act, these Procedural Rules, or the Administrative 
Procedure Act (particularly 5 U.S.C. 554 and 556), the Commission and 
its Judges shall be guided so far as practicable by the Federal Rules 
of Civil Procedure and the Federal Rules of Appellate Procedure.
* * * * *

0
3. Section 2700.5 is amended by redesignating paragraphs (d), (e), (f), 
and (g) as (e), (f), (g), and (i), revising newly redesignated 
paragraphs (e), (f), and (g), and adding new paragraphs (d) and (h) to 
read as follows:


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

* * * * *
    (d) Privacy considerations. Persons submitting information to the 
Commission shall protect information that tends to identify certain 
individuals or tends to constitute an unwarranted intrusion of personal 
privacy in the following manner:
    (1) All but the last four digits of 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 certain materials unnecessary to a disposition of the case.
    (e) Manner and effective date of filing. Unless otherwise provided 
for in the Act, these rules, or by order:
    (1) Documents may be filed with a Judge or the Commission by any 
means of delivery a party chooses, including facsimile transmission. 
With the exception of documents filed pursuant to Sec. Sec.  2700.70 
(Petitions for discretionary review), 2700.45 (Temporary reinstatement 
proceedings), or subpart F (Applications for temporary relief), 
documents filed by facsimile transmission shall not exceed 15 pages, 
excluding the facsimile cover sheet. Parties filing by facsimile are 
also required to file the original document with the Judge or 
Commission within 3 days of the facsimile transmission.
    (2) When filing is by personal delivery or facsimile, filing is 
effective upon successful receipt by the Commission. When filing is by 
mail, filing is effective upon mailing, except that the filing of a 
petition for discretionary review, a petition for review of a temporary 
reinstatement order, a motion for extension of time, a motion for 
summary decision, or a motion to exceed page limit is effective upon 
receipt. See Sec. Sec.  2700.9(a), 2700.45(f), 2700.67(a), 2700.70(a), 
(f), and 2700.75(f).
    (f) Number of copies. In cases before a Judge, unless otherwise 
ordered, the original document, along with one copy for each docket, 
shall be filed; in cases before the Commission, the original and six 
copies shall be filed; but if the filing party is not represented by a 
lawyer, the original shall be sufficient. When filing is by facsimile 
transmission, the original must be filed with the Judge or Commission 
within 3 days of the facsimile transmission, but no additional copies 
should be filed.
    (g) 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 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 or the use of compacted or otherwise compressed printing 
features may be grounds for rejection of a pleading.
    (h) Citation to a decision of a Judge. Each citation to a decision 
of a Judge should include ``(ALJ)'' at the end of the citation.
* * * * *

0
4. Section 2700.7 is amended by revising paragraph (c) to read as 
follows:


Sec.  2700.7  Service.

* * * * *
    (c) Methods of service. Unless otherwise provided for in the Act, 
these rules, or by order:
    (1) Documents may be served by any means of delivery a party 
chooses, including facsimile transmission. With the exception of 
documents served pursuant to Sec. Sec.  2700.70 (Petitions for 
discretionary review), 2700.45 (Temporary reinstatement proceedings),

[[Page 44207]]

or subpart F (Applications for temporary relief), documents served by 
facsimile transmission shall not exceed 15 pages, excluding the 
facsimile cover sheet. When filing by facsimile transmission (see Sec.  
2700.5(e)), the filing party must also serve by facsimile transmission 
or, if service by facsimile transmission is impossible, the filing 
party must serve by a third-party commercial overnight delivery service 
or by personal delivery.
    (2) When service is by personal delivery or facsimile, service is 
effective upon successful receipt by the party intended to be served. 
When service is by mail, service is effective upon mailing.
* * * * *

0
5. Section 2700.8 is revised to read as follows:


Sec.  2700.8  Computation of time.

    Except to the extent otherwise provided herein (see, e.g., Sec.  
2700.45), the due date for a pleading or other deadline for party or 
Commission action (hereinafter ``due date'') is determined sequentially 
as follows:
    (a) When the period of time prescribed for action is less than 11 
days, Saturdays, Sundays, and Federal holidays shall be excluded in 
determining the due date.
    (b) When a party serves a pleading by a method of delivery 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.
    (c) The day from which the designated period begins to run shall 
not be included in determining the due date. The last day of the 
prescribed period for action, after consideration of paragraphs (a) and 
(b) of this section where applicable, shall be included and be the due 
date, unless it is a Saturday, Sunday, Federal holiday, or other day on 
which the Commission's offices are not open or the Commission is open 
but unable to accept filings, in which event the due date shall be the 
next day which is not one of the aforementioned days.

    Example 1: A motion is filed with the Commission on Friday, July 
1, 2005. Under Sec.  2700.10(d), other parties in the proceeding 
have 8 days in which to respond to the motion. Because the response 
period is less than 11 days, intervening weekends and holidays, such 
as Monday, July 4, 2005, are excluded in determining the due date. A 
response is thus due by Thursday, July 14, 2005. In addition, those 
parties not served with the motion on the day it was filed, such as 
by facsimile or messenger, have 5 additional calendar days in which 
to respond, or until Tuesday, July 19, 2005.
    Example 2: A Commission Judge issues his final decision in a 
case on Friday, July 1, 2005. Under Sec.  2700.70(a), parties have 
until July 31, 2005, 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'' pleadings. However, because July 31, 2005, is 
a Sunday, the actual due date for the petition is Monday, August 1, 
2005.


0
6. Section 2700.9 is amended by revising paragraph (a) and adding a new 
paragraph (c) 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 facsimile transmission is impossible, the filing party shall 
serve by a third-party commercial overnight delivery service or by 
personal delivery.
* * * * *
    (c) This rule does not apply to petitions for discretionary review 
filed pursuant to section 113(d)(2)(A)(i) of the Act, 30 U.S.C. 
823(d)(2)(A)(i), and Sec.  2700.70(a).

0
7. Section 2700.10 is amended by revising paragraph (c) and the first 
sentence of paragraph (d) to read as follows:


Sec.  2700.10  Motions.

* * * * *
    (c) Prior to filing any motion other than a dispositive motion, the 
moving party shall confer or make reasonable efforts to confer with the 
other parties and shall state in the motion if any other party opposes 
or does not oppose the motion.
    (d) A statement in opposition to a written motion may be filed by 
any party within 8 days after service upon the party. * * *

0
8. Section 2700.21 is amended by:
0
A. Revising the heading;
0
B. Designating the existing text as paragraph (b); and
0
C. Adding new paragraph (a).
    The revision and addition read as follows:


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 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
9. Section 2700.26 is revised 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 that he contests 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 Commission any notice of contest of a proposed penalty assessment.

0
10. Section 2700.28 is amended by revising paragraph (b) to read as 
follows:


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

* * * * *
    (b) Contents. The petition for assessment of penalty shall:
    (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.
    (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), unless a single penalty assessment has been 
proposed under 30 CFR 100.4.
    (3) State whether the citation or order has been contested pursuant 
to Sec.  2700.20 and the docket number of any contest proceeding.
    (4) Advise the party against whom the petition is filed that an 
answer to the petition must be filed within 30 days pursuant to Sec.  
2700.29 and that the answer must be filed regardless of whether the 
party has already filed a notice of contest of the citation, order,

[[Page 44208]]

or proposed penalty assessment involved.
* * * * *

0
11. Section 2700.45 is amended by revising paragraph (a), the first and 
last sentences of paragraph (c), and paragraphs (e), (f), and (g) to 
read as follows:


Sec.  2700.45  Temporary reinstatement proceedings.

    (a) Service of pleadings. A copy of each document filed with the 
Commission in a temporary reinstatement proceeding shall be 
expeditiously served on all parties, such as by personal delivery, 
including courier service, by express mail, or by facsimile 
transmission.
* * * * *
    (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 his designee, and simultaneously notify the 
Secretary, whether a hearing on the application is requested.
    * * * 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 his 
designee, unless compelling reasons are shown in an accompanying 
request for an extension of time.
* * * * *
    (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. Service of the order 
granting or denying the application shall be by certified or registered 
mail, return receipt requested.
    (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 facsimile transmission is 
impossible, the filing party shall serve by a third-party commercial 
overnight delivery service or by personal 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 in his 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
12. Section 2700.51 is revised to read as follows:


Sec.  2700.51  Hearing dates and sites.

    All cases will be assigned a hearing date and site by order of the 
Judge. In fixing the time and place of the hearing, the Judge shall 
give due regard to the convenience and necessity of the parties or 
their representatives and witnesses, the availability of suitable 
hearing facilities, and other relevant factors.

0
13. Section 2700.52 is amended by revising the first sentence of 
paragraph (a) to read as follows:


Sec.  2700.52  Expedition of proceedings.

    (a) Motions. In addition to making a written motion pursuant to 
Sec.  2700.10, a party may request expedition of proceedings by oral 
motion, with concurrent notice to all parties. * * *
* * * * *

0
14. Section 2700.56 is amended by revising paragraphs (d) and (e) to 
read as follows:


Sec.  2700.56  Discovery; general.

* * * * *
    (d) Initiation of discovery. Discovery may be initiated 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 105(c) or 111 of 
the Act has been filed. 30 U.S.C. 815(c) and 821.
    (e) Completion of discovery. Discovery shall not unduly delay or 
otherwise impede disposition of the case, and must be completed at 
least 20 days prior to the scheduled hearing date. For good cause 
shown, the Judge may extend or shorten the time for discovery.

0
15. Section 2700.67 is amended by:
0
A. Revising paragraph (a);
0
B. Revising paragraph (c);
0
C. Redesignating paragraph (d) as (f); and
0
D. Adding new paragraphs (d) and (e).
    The revisions and additions read as follows:


Sec.  2700.67  Summary decision of the Judge.

    (a) Filing of motion for summary decision. At any time after 
commencement of a proceeding and no later than 25 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. 
Filing of a summary decision motion and an opposition thereto shall be 
effective upon receipt.
* * * * *
    (c) Form of motion. A motion shall be accompanied by a memorandum 
of points and authorities specifying the grounds upon which the party 
seeks summary decision and a statement of material facts specifying 
each material fact as to which the party contends there is no genuine 
issue. Each material fact set forth in the statement shall be supported 
by a reference to accompanying affidavits or other verified documents.
    (d) Form of opposition. An opposition to a motion for summary 
decision shall include a memorandum of points and authorities 
specifying why the moving party is not entitled to summary decision and 
may be supported by affidavits or other verified documents. The 
opposition shall also include a separate concise statement of each 
genuine issue of material fact necessary to be litigated, supported by 
a reference

[[Page 44209]]

to any accompanying affidavits or other verified documents. Material 
facts identified as not in issue by the moving party shall be deemed 
admitted for purposes of the motion unless controverted by the 
statement in opposition. If a party does not respond in opposition, 
summary decision, if appropriate, shall be entered in favor of the 
moving party.
    (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
16. Section 2700.69 is amended by adding a new last sentence to 
paragraph (c) and a new paragraph (d) to read as follows:


Sec.  2700.69  Decision of the Judge.

* * * * *
    (c) Correction of clerical errors. * * * 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.
    (d) Effect of decision of Judge. A decision of a Judge is not a 
precedent binding upon the Commission.

0
17. Section 2700.70 is amended by revising the second sentence of 
paragraph (a) and paragraph (f) to read as follows:


Sec.  2700.70  Petitions for discretionary review.

    (a) Procedure. * * * Filing of a petition for discretionary review 
is effective upon receipt. * * *
* * * * *
    (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 facsimile transmission is impossible, the 
filing party shall serve by a third-party commercial overnight delivery 
service or by personal delivery.
* * * * *


Sec.  2700.72  [Removed]

0
18. Section 2700.72 is removed and reserved.

0
19. Section 2700.74 is amended by revising the third sentence of 
paragraph (a) and adding a new paragraph (d) to read as follows:


Sec.  2700.74  Procedure for participation as amicus curiae.

    (a) * * * A motion for participation as amicus curiae shall set 
forth the interest of the movant; indicate which party's position, if 
any, the movant supports; the reason why an amicus brief is desirable 
and why the matters asserted are relevant to the disposition of the 
case; and show that the granting of the motion will not unduly delay 
the proceeding or prejudice any party; * * *
* * * * *
    (d) Any person who does not support a party in the proceeding must 
file its motion for participation as amicus curiae and brief no later 
than 20 days after initial briefs are filed (see Sec.  2700.75(a)(1)). 
A motion for participation as amicus curiae must comply with the 
requirements set forth in paragraph (a) of this section. A brief of 
amicus curiae must comply with Sec.  2700.75(c).

0
20. Section 2700.75 is amended by revising paragraphs (f) and (g) and 
adding new paragraph (h) to read as follows:


Sec.  2700.75  Briefs.

* * * * *
    (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 facsimile transmission is impossible, the filing party shall 
serve by a third-party commercial overnight delivery service or by 
personal delivery.
    (g) Number of copies. As provided in Sec.  2700.5(f), each party 
shall file the original and six copies of its brief. If the filing 
party is not represented by a lawyer, the original shall be sufficient. 
When filing is by facsimile transmission, the original must be filed 
with the Commission within 3 days of the facsimile transmission, but no 
additional copies should be filed.
    (h) Table of contents. Each opening and response brief filed with 
the Commission shall contain a table of contents. Unless otherwise 
ordered by the Commission, a party is not required to submit a table of 
contents for a previously filed petition for discretionary review that 
has been designated as the party's opening brief pursuant to paragraph 
(a) of this section.

0
21. Section 2700.76 is amended by revising paragraph (c) to read as 
follows:


Sec.  2700.76  Interlocutory review.

* * * * *
    (c) Briefs. When the Commission grants interlocutory review, it 
shall also issue an order which addresses page limits on briefs and the 
sequence and schedule for filing of initial briefs, and, if permitted 
by the order, reply briefs.
* * * * *

0
22. Section 2700.78 is amended by revising paragraph (b) to read as 
follows:


Sec.  2700.78  Reconsideration.

* * * * *
    (b) Unless the Commission orders otherwise, the filing of a 
petition for reconsideration shall not stay the effect of a decision or 
order of the Commission.

0
23. Section 2700.80 is amended by revising paragraph (a) to read as 
follows:


Sec.  2700.80  Standards of conduct; disciplinary proceedings.

    (a) Standards of conduct. Individuals practicing before the 
Commission or before Commission Judges shall conform to the standards 
of ethical conduct required of practitioners in the courts of the 
United States.
* * * * *


Sec.  2700.84  [Removed]

0
24. Section 2700.84 is removed.

PART 2704--IMPLEMENTATION OF THE EQUAL ACCESS TO JUSTICE ACT IN 
COMMISSION PROCEEDINGS

0
25. The authority citation for part 2704 continues to read as follows:

    Authority: 5 U.S.C. 504(c)(1); Public Law 99-80, 99 Stat. 183; 
Public Law 104-121, 110 Stat. 862.


0
26. Section 2704.100 is revised to read as follows:


Sec.  2704.100  Purpose of these rules.

    The Equal Access to Justice Act, 5 U.S.C. 504, provides for the 
award of

[[Page 44210]]

attorney fees and other expenses to eligible individuals and entities 
who are parties to certain administrative proceedings (called 
``adversary adjudications'') before this Commission. An eligible party 
may receive an award when it prevails over the U.S. Department of 
Labor, Mine Safety and Health Administration (``MSHA''), unless the 
Secretary of Labor's position in the proceeding was substantially 
justified or special circumstances make an award unjust. In addition to 
the foregoing ground of recovery, a non-prevailing eligible party may 
receive an award if the demand of the Secretary is substantially in 
excess of the decision of the Commission and unreasonable, unless the 
applicant party has committed a willful violation of law or otherwise 
acted in bad faith, or special circumstances make an award unjust. The 
rules in this part describe the parties eligible for each type of 
award. They also explain how to apply for awards, and the procedures 
and standards that this Commission will use to make the awards. In 
addition to the rules in this part, the Commission's general rules of 
procedure, part 2700 of this chapter, apply where appropriate.

0
27. Section 2704.104 is amended by removing paragraph (b)(2), 
redesignating paragraphs (b)(3) and (b)(4) as paragraphs (b)(2) and 
(b)(3), and revising paragraph (c) to read as follows:


Sec.  2704.104  Eligibility of applicants.

* * * * *
    (c) For the purposes of awards for non-prevailing parties under 
Sec.  2704.105(b), eligible applicants are small entities as defined in 
5 U.S.C. 601, subject to the annual-receipts and number-of-employees 
standards as set forth by the Small Business Administration at 13 CFR 
part 121.
* * * * *

0
28. Section 2704.105 is amended by revising paragraph (b) introductory 
text to read as follows:


Sec.  2704.105  Standards for awards.

* * * * *
    (b) If the demand of the Secretary is substantially in excess of 
the decision of the Commission and is unreasonable when compared with 
such decision, under the facts and circumstances of the case, the 
Commission shall award to an eligible applicant who does not prevail 
the fees and expenses related to defending against the excessive 
demand, unless the applicant has committed a willful violation of law 
or otherwise acted in bad faith or special circumstances make an award 
unjust. The burden of proof is on the applicant to establish that the 
Secretary's demand is substantially in excess of the Commission's 
decision; the Secretary may avoid an award by establishing that the 
demand is not unreasonable when compared to that decision. As used in 
this section, ``demand'' means the express demand of the Secretary 
which led to the adversary adjudication, but does not include a 
recitation by the Secretary of the maximum statutory penalty--
* * * * *

0
29. Section 2704.206 is amended by revising the second sentence of 
paragraph (a) and paragraph (c) to read as follows:


Sec.  2704.206  When an application may be filed.

    (a) * * * An application may also be filed by a non-prevailing 
party when a demand by the Secretary is substantially in excess of the 
decision of the Commission and is unreasonable when compared with such 
decision. * * *
* * * * *
    (c) For purposes of this part, final disposition before the 
Commission means the date on which a decision or order disposing of the 
merits of the proceeding or any other complete resolution of the 
proceeding, such as a settlement or voluntary dismissal, becomes final 
(pursuant to sections 105(d) and 113(d) of the Mine Act (30 U.S.C. 
815(d) and 823(d)) and unappealable, both within the Commission and to 
the courts (pursuant to section 106(a) of the Mine Act (30 U.S.C. 
816(a)).

0
30. Section 2704.302 is amended by revising the second sentence of 
paragraph (a) to read as follows:


Sec.  2704.302  Answer to application.

    (a) * * * Unless counsel requests an extension of time for filing, 
files a statement of intent to negotiate under paragraph (b), or a 
proceeding is stayed pursuant to Sec.  206(b), failure to file an 
answer within the 30-day period may be treated as a consent to the 
award requested.
* * * * *

PART 2705--PRIVACY ACT IMPLEMENTATION

0
31. The authority citation for part 2705 continues to read as follows:

    Authority: 5 U.S.C. 552a; Public Law 93-579, 88 Stat. 1896.

0
32. Section 2705.1 is amended by republishing the introductory text and 
revising paragraph (a) to read as follows:


Sec.  2705.1  Purpose and scope.

    The purposes of these regulations are to:
    (a) Establish a procedure by which an individual can determine if 
the Federal Mine Safety and Health Review Commission, hereafter the 
``Commission,'' maintains a system of records which includes a record 
pertaining to the individual. This does not include Commission files 
generated in adversary proceedings under the Federal Mine Safety and 
Health Act; and
* * * * *

    Dated: July 28, 2006.
Michael F. Duffy,
Chairman, Federal Mine Safety and Health Review Commission.
[FR Doc. 06-6642 Filed 8-3-06; 8:45 am]
BILLING CODE 6735-01-P