[Federal Register Volume 72, Number 11 (Thursday, January 18, 2007)]
[Rules and Regulations]
[Pages 2187-2192]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-557]


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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

29 CFR Part 2700


Emergency Response Plan Dispute Proceedings and Related 
Procedural Rules

AGENCY: Federal Mine Safety and Health Review Commission.

ACTION: Final rule.

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SUMMARY: The Federal Mine Safety and Health Review Commission (the 
``Commission'') is an independent adjudicatory agency that provides 
hearings and appellate review of cases arising under the Federal Mine 
Safety and Health Act of 1977 (the ``Mine Act''). Hearings 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. On July 18, 2006, the Commission 
published an interim rule to implement the Mine Improvement and New 
Emergency Response Act of 2006 (the ``MINER Act''), which amended the 
Mine Act to improve the safety of miners, particularly in underground 
coal mines. The MINER Act provides for Commission review of disputes 
arising over emergency response plans for underground coal mines. The 
interim rule established procedures for the submission and 
consideration of such disputes. The Commission invited public comment 
on the interim rule. The Commission has reviewed the comments on the 
interim rule and has decided to make certain changes in the rule. This 
publication makes final changes to Rule 24, the rule designed to 
implement the MINER Act. In connection with revising Rule 24, the 
Commission is also amending four of its other procedural rules to make 
them consistent with Rule 24.

DATES: This final rule will take effect on January 18, 2007.

ADDRESSES: Comments and questions may be mailed to Michael A. McCord, 
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: Michael A. McCord, 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 apply to 
proceedings pending on the effective date, except to the extent that 
such application would not be feasible, or would work injustice, in 
which event the former rules of procedure would continue to apply.

I. Background

    On June 15, 2006, President George W. Bush signed into law the 
MINER Act, Pub. L. 109-236, 120 Stat. 493 (2006). Section 2 of the 
MINER Act amends section 316 of the Mine Act (30 U.S.C. 876) by adding 
a new section (b), entitled ``Accident Preparedness and Response.'' 
Section 316(b)(2)(A) provides that, within 60 days of enactment, each 
underground coal mine operator is required to develop and adopt a 
``written accident response plan.'' Section 316(b)(2)(B) requires the 
plan to provide for the evacuation of all individuals endangered by an 
emergency and the maintenance of individuals trapped underground in the 
event that miners are not able to evacuate the mine. Under section 
316(b)(2)(C), all plans shall be subject to review and approval by the 
Secretary of Labor (the ``Secretary''), and must: (i) Afford miners a 
level of safety protection at least consistent with the existing 
standards; (ii) reflect the most recent credible scientific research; 
(iii) be technologically feasible, make use of current commercially 
available technology, and account for the specific

[[Page 2188]]

physical characteristics of the mine; and (iv) reflect the improvements 
in mine safety gained from experience under this Act and other worker 
safety and health laws. Section 316(b)(2)(D) specifies that the 
Secretary shall review plans periodically, but at least every 6 months. 
Sections 316(b)(2)(E) and (F) set forth plan content requirements, 
including a provision allowing the Secretary to make additional plan 
requirements with respect to any of the content matters.
    Section 316(b)(2)(G), entitled ``Plan Dispute Resolution,'' 
provides for Commission resolution and administrative appellate review 
of emergency response plan disputes. Section 316(b)(2)(G)(i) states 
that any dispute between the Secretary and an operator with respect to 
the content of the operator's plan or any refusal by the Secretary to 
approve such a plan shall be resolved on an ``expedited basis.'' 
Section 316(b)(2)(G)(ii) further provides that, in the event of a 
dispute or refusal described in clause (i), the Secretary shall issue a 
citation which shall be immediately referred to a Commission 
Administrative Law Judge, and the Secretary and the operator shall 
submit all relevant material regarding the dispute to the 
Administrative Law Judge within 15 days of the date of the referral. 
The section concludes by providing that the Administrative Law Judge 
shall render his or her decision with respect to the plan content 
dispute within 15 days of the receipt of the submission. Section 
316(b)(2)(G)(iii) states that a party adversely affected by a decision 
under clause (ii) may pursue all further available appeal rights with 
respect to the citation involved, except that inclusion of the disputed 
provision in the plan will not be limited by such appeal unless such 
relief is requested by the operator and permitted by the Administrative 
Law Judge.
    On July 18, 2006, the Commission published Interim Rule 24 to 
implement section 316(b)(2)(G), providing for Commission hearings and 
administrative appellate review of emergency response plan disputes. 
The Commission chose to establish an interim rule and then request 
public comments on the rule in order to implement the MINER Act as soon 
as possible after the Act became effective. Although the interim rule 
was procedural in nature and did not require notice-and-comment 
rulemaking under the Administrative Procedure Act, 5 U.S.C. 551, 
553(b)(3)(A), the Commission invited public comment. The comment period 
on the interim rule closed on August 17, 2006. The Commission received 
comments from the Secretary through the U.S. Department of Labor's 
Office of the Solicitor; the United Mine Workers of America (the 
``UMWA''); and other individual members of the mining community or bar 
who practice before the Commission.
    The final rule retains the same approach as the interim rule; 
however, the text of the rule has changed in several areas in response 
to comments received. In addition, the Commission on its own has made 
several changes upon further consideration of the interim rule. 
Finally, the Commission has made conforming changes to four of its 
other procedural rules.

II. Section-by-Section Analysis and Summary of Comments to Rule 24

    The title of the interim rule is ``Accident response plan dispute 
proceedings.'' One commenter stated that the title is confusing because 
section 2 of the MINER Act, which Rule 24 implements, is entitled 
``Emergency Response.'' Congress used both terms--``accident response 
plan'' and ``emergency response plan''--in section 2 in referring to 
the plans and apparently viewed the terms as interchangeable. 
Nevertheless, the term, ``emergency response plans,'' is broader in 
scope than the current title used in the interim rule and provides a 
more precise description of the variety of plans covered by section 2, 
which Rule 24 implements. Therefore, in agreement with the comment, the 
Commission has revised the title of Rule 24 to ``Emergency response 
plan dispute proceedings.'' Consistent with the change in the title, 
all other references in Rule 24 to the plans have been changed to 
``emergency response plans.''
    Interim Rule 24(a) requires that the Secretary refer to the 
Commission, within one day of its issuance, any citation arising from a 
dispute over the content of an emergency response plan. In her comment, 
the Secretary states that the one-day period provided in the interim 
rule for referral of the dispute to the Commission is insufficient to 
complete her administrative review of the documents in the referral. 
The Commission, however, is constrained by the mandate of section 
316(b)(2)(G)(ii) of the MINER Act, which requires that a citation 
issued by the Secretary shall be referred to the Commission 
``immediately.'' In addition, section 316(b)(2)(G)(i) also states that 
any such dispute ``shall be resolved on an expedited basis.'' The 
Commission has determined that a period of two business days should 
address, to some degree, the Secretary's concerns, while adhering to 
the strictures of the MINER Act. In addition, the Commission notes that 
preparation and review of the documentation needed for a referral can 
occur concurrently with the preparation of the citation, thus 
alleviating the need for additional time to prepare the documents after 
issuance of the citation.
    The Secretary also suggested that Rule 24(a) specify that filing, 
as well as service, of the referral can be accomplished through 
facsimile transmission. The Commission concluded that Rule 24(c) and 
its other applicable procedural rules (Rules 5(e)(1) and 7(c)(1)) are 
sufficiently specific on allowing filing and service via facsimile, and 
that no clarification is needed in subparagraph (a). However, the 
Commission is separately amending Rules 5(e)(1) and 7(c)(1) to provide 
that filing of referrals by facsimile transmission is an exception to 
the prohibition in those rules against filing or serving by facsimile 
documents that are more than 15 pages in length. Thus, filing or 
service of documents under Rule 24 may be accomplished through 
facsimile transmission even though such documents exceed 15 pages in 
length.
    Interim Rule 24(b) specifies that the Secretary is required to 
file, as part of a referral: The citation; a notice describing the 
dispute; a short and plain statement of her position on the disputed 
provision; and a copy of the emergency response plan. The Secretary 
states that the rule should not require her to submit a copy of the 
entire emergency response plan, noting that the plan is likely to be 
lengthy and include many undisputed provisions. The Commission agrees, 
and the rule has been revised to provide that copies of only the 
disputed plan provisions shall be submitted with the referral.
    The Secretary also commented that subparagraph (b) does not require 
a ``short and plain statement'' from the operator, as it does from the 
Secretary. The Secretary reasoned that such a statement from the 
operator would assist in framing the issues for resolution and assist 
the parties and the Judge in determining the need for a hearing. The 
Commission agrees with the Secretary's position. The Commission has 
revised the interim rule to add a new subparagraph (c) to require the 
operator to file a ``short and plain statement'' of its position with 
respect to the disputed plan provision within five calendar days after 
the referral. The addition of this subparagraph requires the 
redesignation of the subsequent subparagraphs.
    Interim Rule 24(c) currently specifies that the filing of any 
document with the

[[Page 2189]]

Commission is effective upon receipt and that copies shall be 
expeditiously served on parties, such as by courier service or 
facsimile transmission. Subparagraph (c) is redesignated as (d). One 
commenter suggested that the paragraph be clarified to specify that the 
referral is effective upon receipt. The Commission intends that the 
filing of all documents in emergency response plan dispute proceedings, 
including the referral, is effective upon receipt and has explicitly 
included a reference to the referral in the final rule.
    The UMWA proposed that present subparagraph (c) also require 
service of the referral on miners' representatives. Further, the UMWA 
stated that Rule 4 (Parties, intervenors, and amici curiae) should be 
amended to provide that any miners and miners' representatives who 
submitted comments during the emergency plan review process will be 
designated as parties in the Commission proceeding. Finally, the UMWA 
recommended that the Commission require that the operator, after 
service of the referral, post the referral on its bulletin board at the 
mine.
    The Commission recognizes the importance of miner participation in 
the formulation of emergency response plans. In light of that 
consideration, the Commission is revising the interim rule to provide 
for service of the referral on any miners and miners' representatives 
who have participated in the plan review process. Regarding the 
suggestion that miners and miners' representatives who submitted 
comments be designated as parties, the Commission believes that its 
current intervention rule provides a sufficient mechanism for their 
participation. The Commission does not view the requirements of Rule 4, 
which governs the process for gaining intervenor status in a Commission 
proceeding, as burdensome; nor does the Commission view the interests 
of miners and miners' representatives in an emergency plan dispute 
proceeding as sufficiently different to require an additional rule of 
intervention. As to the suggestion regarding posting of the referral, 
the Commission has concluded that, as with other Mine Act violations, 
posting the citation underlying the referral would sufficiently inform 
miners of the dispute over the emergency response plan provision and 
that posting the referral itself, which may be unwieldy in size, would 
be unnecessary.
    Interim Rule 24(d) has been redesignated as (e), and the heading 
that follows has been revised to read, ``Proceedings before the 
Judge,'' to more accurately describe the content of the provision. 
Interim Rule 24(d)(1) presently requires parties to submit to the Judge 
``all relevant materials regarding the dispute'' within 15 days of the 
referral. The subparagraph further requires that a party who seeks to 
stay the operation of the disputed plan provision, pending an appeal of 
the Judge's decision, should file a request for a stay when its 
materials are submitted to the Judge. Two commenters stated that the 
MINER Act provides that only an operator can seek a stay of the Judge's 
decision. One of the commenters also added that seeking a stay of the 
disputed plan provision before the Judge's decision has been issued 
might be problematic because the dispute regarding the plan provision 
would be, as yet, unresolved, and it might be difficult to know what 
relief to request from the Judge.
    Upon review of the MINER Act and the comments, the Commission has 
concluded that the comments have merit. The Commission has clarified 
that only an operator can seek a stay of the disputed plan provision, 
as is provided for in section 316(b)(2)(G)(iii) of the MINER Act. The 
Commission has also deleted the requirement that a party seek a stay 
before the Judge has issued his decision from Interim Rule 24(d)(1) and 
moved the procedure for seeking a stay to newly designated subparagraph 
(f).
    Interim Rule 24(d)(2) afforded the parties the opportunity for a 
hearing before a Commission Administrative Law Judge, either at the 
request of a party or by order of the Judge. The preamble accompanying 
the interim rule, 71 FR 40655, stated that, although the MINER Act does 
not explicitly provide for hearings on emergency plan disputes, section 
105(d) of the Mine Act states, ``the Commission shall afford an 
opportunity for a hearing [on any notice of contest].'' 30 U.S.C. 
815(d). One commenter disagreed with the Commission's rationale for 
requiring a hearing upon a party's request. The commenter stated that 
section 105(d) applies to orders and citations issued under section 104 
or to proposed penalty assessments issued under section 105. The 
commenter noted that citations relating to emergency response plans are 
issued under section 316, which is silent regarding the right to a 
hearing.
    Upon further consideration of the interim rule, the Mine Act, and 
the MINER Act, the Commission agrees that the mandatory hearing 
procedures specified in section 105(d) of the Mine Act are not directly 
applicable to emergency response plan dispute proceedings. The 
Commission has revised the interim rule to provide in the final rule 
that, when a party requests a hearing on an emergency response plan 
dispute, the Judge has discretion whether to grant the request. The 
commenter further suggested that the Judge should order a hearing only 
when there are factual issues in dispute. However, the Commission views 
the standard governing the need for a hearing more broadly: That is, 
the Judge should order a hearing whenever it would assist in resolving 
the issues. In any event, the Commission expects that the question of 
whether a hearing should be held and the question of the precise form 
that such a hearing will take will be resolved consistent with due 
process considerations.
    Another commenter objected to the reference in the interim rule to 
the ``hearing on the referral.'' The commenter explained that the 
hearing more accurately involves the emergency response plan dispute. 
The Commission agrees with the commenter and has clarified in the final 
rule that the hearing concerns the disputed plan provision. Contrary to 
another comment, the Commission sees no need to define ``disputed plan 
provision.'' The Commission believes that a broad definition of what 
constitutes a ``disputed plan provision'' would likely not be useful 
and that any issue as to whether a particular provision is disputed 
could best be answered in the specific context of an actual case. The 
same commenter also asked the Commission to specify the legal standard 
that would be applied in reviewing plan provisions. The Commission has 
concluded that it would be inappropriate to specify in its procedural 
rules the standard for resolving disputes over emergency response plan 
provisions. The commenter also requested that the Commission specify 
which party bears the burden of proof. While the Commission concludes 
that the burden of proof in establishing a violation alleged in a 
citation is on the Secretary, the Commission believes it is unnecessary 
to address this well-settled principle in its procedural rules.
    Upon further consideration of the requirement in the interim rule 
regarding the Judge's authority to sua sponte order a hearing, the 
Commission has increased the time for a Judge to issue such an order 
from 5 days to 10 days following the filing of the referral, so that 
the Judge has sufficient time to review the record in the proceeding 
and evaluate the need for a hearing.
    Final Rule 24(e)(2)(iii) states that, if a hearing on the referral 
is ordered, the hearing shall be held within 15 calendar days of the 
filing of the referral. The

[[Page 2190]]

Commission anticipates that such a hearing shall be scheduled so as to 
be completed within that time period.
    Interim Rule 24(e) has been redesignated as (f), the heading has 
been changed to more accurately reflect the content of the section 
(including the procedure for requesting a stay), and subheadings have 
been added for clarity. Interim Rule 24(e)(1) presently provides for 
the issuance of the Judge's decision, including a disposition on the 
request for a stay of the inclusion of the disputed provision in the 
emergency response plan, and Interim Rule 24(e)(2) addresses 
notification and service of the decision. In light of the change to 
delete the requirement that a party prospectively seek a stay at the 
time materials are submitted to the Judge, newly designated Rule 
24(f)(1) has also been revised to delete the reference to the Judge's 
issuance of a ruling on the stay at the time of the decision. Further, 
the specifics of the issuance and notification of the Judge's decision 
have been moved into this subparagraph from Interim Rule 24(e)(2).
    Subparagraph (e)(1) of the interim rule states that, within 15 
calendar days following receipt by the Judge of all submissions and 
testimony, the Judge shall issue his or her decision. The Secretary 
commented that this provision arguably conflicts with section 
2(b)(2)(G)(ii) of the MINER Act, 30 U.S.C. 316(b)(2)(G)(ii), which 
requires the parties to submit all relevant material regarding the 
dispute to the judge within 15 days of the referral and requires the 
Judge to issue his or her decision ``within 15 days of the receipt of 
the submission.'' The Secretary stated that, to the extent a hearing 
may last longer than one day, the requirement in Rule 24(e) that the 
Judge issue a decision within 15 calendar days following receipt of all 
submissions and testimony arguably conflicts with this statutory 
provision. She suggested that the final rule should conform to the 
statute.
    Because the Commission expects that hearings shall be scheduled to 
be completed within 15 calendar days of the referral, the Commission 
concludes that the language of the rule is consistent with the statute, 
and therefore retains the relevant language without further revision.
    Newly designated Rule 24(f)(2) specifies the procedures for seeking 
a stay from the Judge after issuance of the decision on the disputed 
plan provision. Initially, the rule provides that, notwithstanding the 
provisions of Rule 69(b), 29 CFR 2700.69(b), the judge retains 
jurisdiction over a request for a stay after the issuance of the 
decision. The subparagraph provides that an operator may seek from the 
Judge, within two business days after service of the decision, a stay 
of the inclusion of the disputed provision in the emergency response 
plan during the pendency of an appeal with the Commission. The 
Secretary has two business days to respond to the stay request 
following service of the operator's motion. The Judge, in turn, has two 
business days following filing of the Secretary's response to issue an 
order granting or denying the stay. One commenter requested that the 
Commission place in the rule the standard under which a Judge would 
issue a stay. The Commission declines to do so because the 
determination of the appropriate standard involves substantive legal 
analysis that is best resolved through individual case disposition.
    Interim Rule 24(f) has been redesignated as (g). The interim rule 
specifies that Commission rules governing petitions for discretionary 
review of Mine Act cases apply to appeals from Judges' decisions in 
proceedings involving emergency response plan disputes. Newly 
designated subparagraph (g) contains a new provision clarifying that a 
Judge's order granting or denying an operator's request for a stay may 
also be reviewed in conjunction with the Judge's disposition of the 
underlying disputed plan provision. One commenter suggested that the 
interim rule did not clearly state whether the procedures in the rules 
that are applicable to a case on appeal before the Commission governed 
emergency response dispute proceedings. In response, the reference in 
Rule 24 to Rule 75, 29 CFR 2700.75, which governs the filing of briefs 
with the Commission, has been modified to clarify that the provisions 
in that rule apply except to the extent that they are superseded by a 
Commission briefing order. Such orders are specifically provided for in 
the rule, and it may be anticipated that, in some instances, the order 
will modify the page limits or time periods for filing in Rule 75.
    Finally, one commenter requested that the Commission incorporate 
into the subparagraph a ``good cause'' standard for extending the time 
for filing briefs, when all parties have agreed to such an extension. 
However, the Commission believes that the ``extraordinary 
circumstances'' test in the interim rule should be retained because a 
more lenient standard would undermine the time-sensitive scheme that 
Congress embodied in the MINER Act for resolving disputes over plan 
provisions in emergency response plans.

III. Summary of Changes to Other Procedural Rules in Light of Rule 24

    The Commission is also amending four of its other Procedural Rules 
to make them consistent with Rule 24. Procedural Rules 5 and 7, 29 CFR 
2700.5 and 2700.7, govern the filing and service of documents by 
facsimile transmission, respectively. Presently, those rules prohibit 
the use of fax for filing or service when the document is more than 15 
pages in length. Accordingly, subparagraph (1) of Rule 5(e), Manner and 
effective date of filing, is revised to add Rule 24 proceedings to the 
list of enumerated exceptions to the 15-page limitation on documents 
that can be filed by fax. Subparagraph (1) of Rule 7(c), Methods of 
service, is also revised to add Rule 24 proceedings to the list of 
enumerated exceptions to the 15-page limitation on documents that can 
be served by fax. These revisions will permit parties to fax documents 
exceeding 15 pages in Rule 24 proceedings, so that parties may file and 
serve lengthy pleadings and other documents expeditiously.
    The Commission is revising Procedural Rule 8, 29 CFR 2700.8, 
governing time computation, to expressly except Rule 24, in addition to 
Rule 45, 29 CFR 2700.45, from the provisions of Rule 8(a). In the 
proposed change to Rule 8, the language excluding the application of 
Rule 8(a) is moved from the prefatory language of Rule 8 to subsection 
(a), where it is more appropriate. In order to clarify time computation 
under Rule 24, the Commission has described time periods in Rule 24 in 
terms of ``calendar'' and ``business'' days, similar to the language in 
Rule 45. In addition, a third example discussing the application of 
Rule 8 to a Rule 24 proceeding has been added to further clarify the 
application of Rule 8. Finally, Rule 69(b), 29 CFR 2700.69(b), is 
revised to recognize that Rule 24(f)(2) creates an exception to the 
general principle that a Judge no longer has jurisdiction over an 
emergency response plan dispute proceeding following the issuance of 
his decision on the merits. Rule 24(f)(2) specifies that a Judge 
retains jurisdiction over the proceeding to dispose of a stay request 
from the operator.

Public Comment

    The Commission, which is always open to comments and suggestions, 
welcomes comment on this procedural rule.

[[Page 2191]]

List of Subjects in 29 CFR Part 2700

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

0
For the reasons stated in the preamble, the Federal Mine Safety and 
Health Review Commission amends 29 CFR part 2700 as follows:

PART 2700--PROCEDURAL RULES

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

    Authority: 30 U.S.C. 815, 820, 823, and 876.


0
2. Section 2700.5 is amended by revising the second sentence of 
paragraph (e)(1) and the second and third sentences of paragraph (e)(2) 
to read as follows:


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

* * * * *
    (e) Manner and effective date of filing. * * *
    (1) * * * With the exception of documents filed pursuant to 
Sec. Sec.  2700.70 (Petitions for discretionary review), 2700.45 
(Temporary reinstatement proceedings), 2700.24 (Emergency response plan 
dispute proceedings), or Subpart F (Applications for temporary relief), 
documents filed by facsimile transmission shall not exceed 15 pages, 
excluding the facsimile cover sheet. * * *
    (2) * * * When filing is by mail, filing is effective upon mailing, 
except that the filing of a motion for extension of time, any document 
in an emergency response plan dispute proceeding, a petition for review 
of a temporary reinstatement order, a motion for summary decision, a 
petition for discretionary review, a motion to exceed page limit is 
effective upon receipt. See Sec. Sec.  2700.9(a), 2700.24(d), 
2700.45(f), 2700.67(a), 2700.70(a), (f), and 2700.75(f).
* * * * *

0
3. Section 2700.7 is amended by revising the second sentence of 
paragraph (c)(1) to read as follows:


Sec.  2700.7  Service.

* * * * *
    (c) Methods of service. * * *
    (1) * * * With the exception of documents served pursuant to 
Sec. Sec.  2700.70 (Petitions for discretionary review), 2700.45 
(Temporary reinstatement proceedings), 2700.24 (Emergency response plan 
dispute proceedings), or subpart F (Applications for temporary relief), 
documents served by facsimile transmission shall not exceed 15 pages, 
excluding the facsimile cover sheet. * * *
* * * * *

0
4. Section 2700.8 is amended by revising its introductory text and 
paragraph (a) and adding Example 3 to read as follows:


Sec.  2700.8  Computation of time.

    The due date for a pleading or other deadline for party or 
Commission action (hereinafter ``due date'') is determined sequentially 
as follows:
    (a) Except to the extent otherwise provided herein (see, e.g., 
Sec. Sec.  2700.24 and 2700.45), 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.
* * * * *
    Example 3:  Pursuant to Sec.  2700.24(a), the Secretary of Labor 
files a referral of a citation arising out of a dispute over the 
content of an operator's emergency response plan. Certain subsequent 
deadlines in such cases are specifically established by reference to 
calendar days, and thus paragraph (a) of this section would not 
necessarily apply in determining due dates. For instance, if the 
referral was filed on Thursday, January 4, 2007, the short and plain 
statement the operator must file in response within 5 calendar days 
would be due Tuesday, January 9, 2007, because the intervening 
weekend days would not be excluded in determining the due date. If 
the fifth calendar day were to fall on a weekend, holiday, or other 
day on which the Commission is not open however, the terms of 
paragraph (c) would apply and the due date would be the next day the 
Commission is open.


0
5. Section 2700.24 is revised to read as follows:


Sec.  2700.24  Emergency response plan dispute proceedings.

    (a) Referral by the Secretary. The Secretary shall immediately 
refer to the Commission any citation arising from a dispute between the 
Secretary and an operator with respect to the content of the operator's 
emergency response plan, or any refusal by the Secretary to approve 
such a plan. Any referral made pursuant to this paragraph shall be made 
within two business days of the issuance of any such citation.
    (b) Contents of referral. A referral shall consist of a notice of 
plan dispute describing the nature of the dispute; a copy of the 
citation issued by the Secretary; a short and plain statement of the 
Secretary's position with respect to any disputed plan provision; and a 
copy of the disputed provision of the emergency response plan.
    (c) Short and plain statement by the operator. Within five calendar 
days following the filing of the referral, the operator shall file with 
the Commission a short and plain statement of its position with respect 
to the disputed plan provision.
    (d) Filing and service of pleadings. The filing with the Commission 
of any document in an emergency response plan dispute proceeding, 
including the referral, is effective upon receipt. A copy of each 
document filed with the Commission in such a proceeding shall be 
expeditiously served on all parties and on any miner or miners' 
representative who has participated in the emergency response plan 
review process, such as by personal delivery, including courier 
service, by express mail, or by facsimile transmission.
    (e) Proceedings before the Judge.
    (1) Submission of materials. Within 15 calendar days of the 
referral, the parties shall submit to the Judge assigned to the matter 
all relevant materials regarding the dispute. Such submissions shall 
include a request for any relief sought and may include proposed 
findings of fact and conclusions of law. Such materials may be 
supported by affidavits or other verified documents, and shall specify 
the grounds upon which the party seeks relief. Supporting affidavits 
shall be made on personal knowledge and shall show affirmatively that 
the affiant is competent to testify to the matters stated.
    (2) Hearing.
    (i) Within 5 calendar days following the filing of the Secretary's 
referral, any party may request a hearing and shall so advise the 
Commission's Chief Administrative Law Judge or his designee, and 
simultaneously notify the other parties.
    (ii) Within 10 calendar days following the filing of the 
Secretary's referral, the Commission's Chief Administrative Law Judge 
or his designee may issue an order scheduling a hearing on the Judge's 
own motion, and must immediately so notify the parties.
    (iii) If a hearing is ordered under paragraphs (e)(2)(i) or (ii) of 
this section, the hearing shall be held within 15 calendar days of the 
filing of the referral. The scope of such a hearing is limited to the 
disputed plan provision or provisions. If no hearing is held, the Judge 
assigned to the matter shall review the materials submitted by the 
parties pursuant to paragraph (e)(1) of this subsection, and shall 
issue a decision pursuant to paragraph (f) of this section.
    (f) Disposition.
    (1) Decision of the Judge. Within 15 calendar days following 
receipt by the Judge of all submissions and testimony made pursuant to 
paragraph (e) of this

[[Page 2192]]

subsection, the Judge shall issue a decision that constitutes the 
Judge's final disposition of the proceedings. The decision shall be in 
writing and shall include all findings of fact and conclusions of law, 
and the reasons or bases for them, on all the material issues of fact, 
law or discretion presented by the record, and an order. The parties 
shall be notified of the Judge's decision by the most expeditious means 
reasonably available. Service of the decision shall be by certified or 
registered mail, return receipt requested.
    (2) Stay of plan provision. Notwithstanding Sec.  2700.69(b), a 
Judge shall retain jurisdiction over a request for a stay in an 
emergency response plan dispute proceeding. Within two business days 
following service of the decision, the operator may file with the judge 
a request to stay the inclusion of the disputed provision in the plan 
during the pendency of an appeal to the Commission pursuant to 
paragraph (g) of this section. The Secretary shall respond to the 
operator's motion within two business days following service of the 
motion. The judge shall issue an order granting or denying the relief 
sought within two business days after the filing of the Secretary's 
response.
    (g) Review of decision. Any party may seek review of a Judge's 
decision, including the Judge's order granting or denying a stay, by 
filing with the Commission a petition for discretionary review pursuant 
to Sec.  2700.70. Neither an operator's request for a stay nor the 
issuance of an order addressing the stay request affects the time 
limits for filing a petition for discretionary review of a Judge's 
decision with the Commission under this subparagraph. The Commission 
shall act upon a petition on an expedited basis. If review is granted, 
the Commission shall issue a briefing order. Except as otherwise 
ordered or provided for herein, the provisions of Sec.  2700.75 apply. 
The Commission will not grant motions for extension of time for filing 
briefs, except under extraordinary circumstances.

0
6. Section 2700.69 is amended by revising paragraph (b) to read as 
follows:


Sec.  2700.69  Decision of the Judge.

* * * * *
    (b) Termination of the Judge's jurisdiction. Except to the extent 
otherwise provided herein, the jurisdiction of the Judge terminates 
when his decision has been issued.
* * * * *

    Dated: January 11, 2007.
Michael F. Duffy,
Chairman, Federal Mine Safety and Health Review Commission.
[FR Doc. E7-557 Filed 1-17-07; 8:45 am]
BILLING CODE 6735-01-P