44190 Federal Register / Vol. 71, No. 150 / Friday, August 4, 2006 / Rules and Regulations 

to conform with the statutory change 

and to avoid confusion as to what the 

actual maximum civil monetary penalty 

is, and therefore notice and public 

comment concerning this rule are 

unnecessary. 

Because notice of proposed 

rulemaking and opportunity for public 

comment are not required to be given 

for this rule under the Administrative 

Procedure Act or by any other law, the 

analytical requirements of the 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.) are not applicable. 

List of Subjects in 15 CFR Part 764 

Administrative practice and 

procedure, Exports, Law enforcement, 

Penalties. 

■ Accordingly, part 764 of the Export 

Administration Regulations (15 CFR 

parts 730–774) is amended as follows: 

PART 764—[AMENDED] 

■ 1. The authority citation for part 764 

is revised to read as follows: 

Authority: 50 U.S.C. app. 2401 et seq.; 50 

U.S.C. 1701 et seq.; E.O. 13222, 66 FR 44025, 

3 CFR, 2001 Comp., p. 783; Notice of August 

2, 2005, 70 FR 45273 (August 5, 2005). 

■ 2. In § 764.3, revise paragraph (a)(1)(i), 

remove footnote number 1, and 

redesignate footnote 2 as footnote 1, to 

read as follows: 

§ 764.3 Sanctions. 

(a) Administrative. 

(1) Civil monetary penalty. 

(i) A civil monetary penalty not to 

exceed the amount set forth in the EAA 

may be imposed for each violation, and 

in the event that any provision of the 

EAR is continued by IEEPA or any other 

authority, the maximum monetary civil 

penalty for each violation shall be that 

provided by such other authority. 

* * * * * 

Dated: August 1, 2006. 

Matthew S. Borman, 

Deputy Assistant Secretary for Export 

Administration. 

[FR Doc. E6–12653 Filed 8–3–06; 8:45 am] 

BILLING CODE 3510–33–P 

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 


gechino on PROD1PC61 with RULES
Federal Register / Vol. 71, No. 150 / Friday, August 4, 2006 / Rules and Regulations 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-bysection 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 


gechino on PROD1PC61 with RULES
44192 Federal Register / Vol. 71, No. 150 / Friday, August 4, 2006 / Rules and Regulations 

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 


gechino on PROD1PC61 with RULES
Federal Register / Vol. 71, No. 150 / Friday, August 4, 2006 / Rules and Regulations 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, 


gechino on PROD1PC61 with RULES
44194 Federal Register / Vol. 71, No. 150 / Friday, August 4, 2006 / Rules and Regulations 

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 


gechino on PROD1PC61 with RULES
Federal Register / Vol. 71, No. 150 / Friday, August 4, 2006 / Rules and Regulations 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 nondispositive motion. 69 FR 62633, 

October 27, 2004. 

Most commenters on the ANPRM 

supported clarifying that movants must 

confer with opposing parties on nondispositive 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 


gechino on PROD1PC61 with RULES
44196 Federal Register / Vol. 71, No. 150 / Friday, August 4, 2006 / Rules and Regulations 

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 


gechino on PROD1PC61 with RULES
Federal Register / Vol. 71, No. 150 / Friday, August 4, 2006 / Rules and Regulations 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 nondiscrimination 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 


gechino on PROD1PC61 with RULES
44198 Federal Register / Vol. 71, No. 150 / Friday, August 4, 2006 / Rules and Regulations 

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 


gechino on PROD1PC61 with RULES
Federal Register / Vol. 71, No. 150 / Friday, August 4, 2006 / Rules and Regulations 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 


gechino on PROD1PC61 with RULES
44200 Federal Register / Vol. 71, No. 150 / Friday, August 4, 2006 / Rules and Regulations 

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 


gechino on PROD1PC61 with RULES
Federal Register / Vol. 71, No. 150 / Friday, August 4, 2006 / Rules and Regulations 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-bysection 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. 


gechino on PROD1PC61 with RULES
44202 Federal Register / Vol. 71, No. 150 / Friday, August 4, 2006 / Rules and Regulations 

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-bysection 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’’); 


gechino on PROD1PC61 with RULES
Federal Register / Vol. 71, No. 150 / Friday, August 4, 2006 / Rules and Regulations 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). 


gechino on PROD1PC61 with RULES
44204 Federal Register / Vol. 71, No. 150 / Friday, August 4, 2006 / Rules and Regulations 

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. 

NAICS codes NAICS U.S. industry title 

Size 

standard 

in millions 

of dollars 

Size 

standard 

in number 

of 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 Quarrying ................................................... ........................ 500 

212312 ............................................. Crushed and Broken Limestone Mining and Quarrying ........................... ........................ 500 

212313 ............................................. Crushed and Broken Granite Mining and Quarrying ................................ ........................ 500 

212319 ............................................. Other Crushed and Broken Stone Mining and Quarrying ........................ ........................ 500 

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 Minerals Mining .................................. ........................ 500 

212391 ............................................. Potash, Soda, and Borate Mineral Mining ................................................ ........................ 500 

212392 ............................................. Phosphate Rock Mining ............................................................................ ........................ 500 

212393 ............................................. Other Chemical and Fertilizer Mineral Mining .......................................... ........................ 500 

212399 ............................................. All Other Nonmetallic Mineral Mining ........................................................ ........................ 500 

Subsector 213—Support Activities for Mining 

213111 ............................................. Drilling Oil and Gas Wells ......................................................................... ........................ 500 

213112 ............................................. Support Activities for Oil and Gas Operations .......................................... $6.5 ........................

213113 ............................................. Support Activities for Coal Mining ............................................................. $6.5 ........................

213114 ............................................. Support Activities for Metal Mining ........................................................... $6.5 ........................

213115 ............................................. Support Activities for Nonmetalic Minerals (except Fuels) ....................... $6.5 ........................

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. 


gechino on PROD1PC61 with RULES
Federal Register / Vol. 71, No. 150 / Friday, August 4, 2006 / Rules and Regulations 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. 


gechino on PROD1PC61 with RULES
44206 Federal Register / Vol. 71, No. 150 / Friday, August 4, 2006 / Rules and Regulations 

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. 

■ For the reasons stated in the preamble, 

the Commission amends 29 CFR parts 

2700, 2704, and 2705 as follows: 

PART 2700—PROCEDURAL RULES 

■ 1. The authority citation for part 2700 

continues to read as follows: 

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

■ 2. Section 2700.1 is amended by 

revising paragraphs (a) and (b) to read 

as follows: 

§ 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. 

* * * * * 

■ 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: 

§ 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 §§ 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 

§§ 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 81⁄2 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. 

* * * * * 

■ 4. Section 2700.7 is amended by 

revising paragraph (c) to read as follows: 

§ 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 §§ 2700.70 (Petitions for 

discretionary review), 2700.45 

(Temporary reinstatement proceedings), 


gechino on PROD1PC61 with RULES
Federal Register / Vol. 71, No. 150 / Friday, August 4, 2006 / Rules and Regulations 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 § 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. 

* * * * * 

■ 5. Section 2700.8 is revised to read as 

follows: 

§ 2700.8 Computation of time. 

Except to the extent otherwise 

provided herein (see, e.g., § 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 sameday 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 

§ 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 § 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. 

■ 6. Section 2700.9 is amended by 

revising paragraph (a) and adding a new 

paragraph (c) to read as follows: 

§ 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 § 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 

§ 2700.70(a). 

■ 7. Section 2700.10 is amended by 

revising paragraph (c) and the first 

sentence of paragraph (d) to read as 

follows: 

§ 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. * * * 

■ 8. Section 2700.21 is amended by: 

■ A. Revising the heading; 

■ B. Designating the existing text as 

paragraph (b); and 

■ C. Adding new paragraph (a). 

The revision and addition read as 

follows: 

§ 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 

§ 2700.26. 

* * * * * 

■ 9. Section 2700.26 is revised to read 

as follows: 

§ 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 § 2700.20. 

The Secretary shall immediately 

transmit to the Commission any notice 

of contest of a proposed penalty 

assessment. 

■ 10. Section 2700.28 is amended by 

revising paragraph (b) to read as follows: 

§ 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 

§ 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 § 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, 


gechino on PROD1PC61 with RULES
44208 Federal Register / Vol. 71, No. 150 / Friday, August 4, 2006 / Rules and Regulations 

or proposed penalty assessment 

involved. 

* * * * * 

■ 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: 

§ 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 

§ 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 

§ 2700.40(b) of these rules. 

■ 12. Section 2700.51 is revised to read 

as follows: 

§ 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. 

■ 13. Section 2700.52 is amended by 

revising the first sentence of paragraph 

(a) to read as follows: 

§ 2700.52 Expedition of proceedings. 

(a) Motions. In addition to making a 

written motion pursuant to § 2700.10, a 

party may request expedition of 

proceedings by oral motion, with 

concurrent notice to all parties. * * * 

* * * * * 

■ 14. Section 2700.56 is amended by 

revising paragraphs (d) and (e) to read 

as follows: 

§ 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. 

■ 15. Section 2700.67 is amended by: 

■ A. Revising paragraph (a); 

■ B. Revising paragraph (c); 

■ C. Redesignating paragraph (d) as (f); 

and 

■ D. Adding new paragraphs (d) and (e). 

The revisions and additions read as 

follows: 

§ 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 


gechino on PROD1PC61 with RULES
Federal Register / Vol. 71, No. 150 / Friday, August 4, 2006 / Rules and Regulations 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. 

■ 16. Section 2700.69 is amended by 

adding a new last sentence to paragraph 

(c) and a new paragraph (d) to read as 

follows: 

§ 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. 

■ 17. Section 2700.70 is amended by 

revising the second sentence of 

paragraph (a) and paragraph (f) to read 

as follows: 

§ 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 § 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. 

* * * * * 

§ 2700.72 [Removed] 

■ 18. Section 2700.72 is removed and 

reserved. 

■ 19. Section 2700.74 is amended by 

revising the third sentence of paragraph 

(a) and adding a new paragraph (d) to 

read as follows: 

§ 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 

§ 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 

§ 2700.75(c). 

■ 20. Section 2700.75 is amended by 

revising paragraphs (f) and (g) and 

adding new paragraph (h) to read as 

follows: 

§ 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 

§ 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 

§ 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. 

■ 21. Section 2700.76 is amended by 

revising paragraph (c) to read as follows: 

§ 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. 

* * * * * 

■ 22. Section 2700.78 is amended by 

revising paragraph (b) to read as follows: 

§ 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. 

■ 23. Section 2700.80 is amended by 

revising paragraph (a) to read as follows: 

§ 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. 

* * * * * 

§ 2700.84 [Removed] 

■ 24. Section 2700.84 is removed. 

PART 2704—IMPLEMENTATION OF 

THE EQUAL ACCESS TO JUSTICE 

ACT IN COMMISSION PROCEEDINGS 

■ 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. 

■ 26. Section 2704.100 is revised to read 

as follows: 

§ 2704.100 Purpose of these rules. 

The Equal Access to Justice Act, 5 

U.S.C. 504, provides for the award of 


gechino on PROD1PC61 with RULES
44210 Federal Register / Vol. 71, No. 150 / Friday, August 4, 2006 / Rules and Regulations 

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 nonprevailing 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. 

■ 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: 

§ 2704.104 Eligibility of applicants. 

* * * * * 

(c) For the purposes of awards for 

non-prevailing parties under 

§ 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. 

* * * * * 

■ 28. Section 2704.105 is amended by 

revising paragraph (b) introductory text 

to read as follows: 

§ 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—

* * * * * 

■ 29. Section 2704.206 is amended by 

revising the second sentence of 

paragraph (a) and paragraph (c) to read 

as follows: 

§ 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)). 

■ 30. Section 2704.302 is amended by 

revising the second sentence of 

paragraph (a) to read as follows: 

§ 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 § 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 

■ 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. 

■ 32. Section 2705.1 is amended by 

republishing the introductory text and 

revising paragraph (a) to read as follows: 

§ 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 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 100 

[CGD13–06–038] 

RIN 1625–AA08 

Special Local Regulations, Seattle 

Seafair, Lake Washington, WA 

AGENCY: Coast Guard, DHS. 

ACTION: Temporary final rule. 

SUMMARY: The Coast Guard is 

establishing temporary special local 

regulations (SLR) for the Seattle Seafair, 

Lake Washington, Washington. These 

special local regulations limit the 

movement of non-participating vessels 

in the regulated race area and provide 

for a viewing area for spectator craft. 

This rule is needed to provide for the 

safety of life on navigable waters during 

Seafair. The rule adds four hours to the 

effective time period of the existing SLR 

to accommodate the addition of a 

fireworks display in this year’s Seafair. 

DATES: This rule is effective from 8 p.m. 

(PDT) until 11:59 p.m. (PDT) on August 

5, 2006 unless sooner cancelled by the 

Captain of the Port. 

ADDRESSES: Documents indicated in this 

preamble as being available in the 

docket are part of docket [CGD13–06–

038] and are available for inspection or 

copying at the Waterways Management 

Division, Coast Guard Sector Seattle, 

1519 Alaskan Way South, Seattle, WA 

98134, between 8 a.m. and 4 p.m., 

Monday through Friday, except Federal 

holidays. 


gechino on PROD1PC61 with RULES