Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Rules and Regulations 2187 

Regulatory Certifications 

Executive Order 12866 

This final rule has been written and 

reviewed in accordance with Executive 

Order 12866, Sec. 1(b), Principles of 

Regulation. OJP has determined that this 

final rule is not a ‘‘significant regulatory 

action’’ under Executive Order 12866, 

Sec. 3(f), Regulatory Planning and 

Review, and accordingly this rule has 

not been reviewed by the Office of 

Management and Budget. 

Regulatory Flexibility Act of 1980 

OJP, in accordance with the 

Regulatory Flexibility Act (5 U.S.C. 

605(b)), has reviewed this final rule and 

by approving it certifies that this rule 

will not have a significant economic 

impact on a substantial number of small 

entities because the economic impact is 

limited to OJP’s appropriated funds. 

Unfunded Mandates Act of 1995 

This final rule will not result in the 

expenditure by State, local and tribal 

governments, in the aggregate, or by the 

private sector, of $100,000,000 or more 

in any one year, and it will not 

significantly or uniquely affect small 

governments. Therefore, no actions were 

deemed necessary under the provisions 

of the Unfunded Mandates Reform Act 

of 1995. 

Small Business Regulatory Enforcement 

Fairness Act of 1996 

This final rule is not a major rule as 

defined by section 251 of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, 5 U.S.C. 804. This 

rule will not result in an annual effect 

on the economy of $100,000,000 or 

more; a major increase in costs or prices; 

or significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or on the 

ability of United States-based 

companies to compete with foreignbased companies in domestic and 

export markets. 

Paperwork Reduction Act 

No new collection of information 

requirements as defined under the 

Paperwork Reduction Act (44 U.S.C. 

3504(h)) are being added by this final 

rule. 

Environmental Impact 

OJP has evaluated this final rule in 

accordance with its procedures for 

ensuring full consideration of the 

potential environmental impacts of 

OJP’s actions, as required by the 

National Environmental Policy Act (42 

U.S.C. 4321 et seq.) and related 

directives. OJP has concluded that the 

issuance of this final rule does not have 

a significant impact on the quality of the 

human environment and, therefore, 

does not require the preparation of an 

Environmental Impact Statement. 

Energy Impact Statement 

OJP has evaluated this final rule and 

has determined that it creates no new 

impact on the energy supply or 

distribution. 

List of Subjects in 28 CFR Part 91 

Grant programs law. 

PART 91—GRANTS FOR 

CORRECTIONAL FACILITIES 

■ Accordingly, OJP is adopting as a final 

rule, without change, the second interim 

rule that amended 28 CFR part 91 and 

that was published at 69 FR 2298 on 

January 15, 2004. 

Regina B. Schofield, 

Assistant Attorney General, Office of Justice 

Programs. 

[FR Doc. E7–619 Filed 1–17–07; 8:45 am] 

BILLING CODE 4410–18–P 

FEDERAL MINE SAFETY AND HEALTH 

REVIEW COMMISSION 

29 CFR Part 2700 

Emergency Response Plan Dispute 

Proceedings and Related Procedural 

Rules 

AGENCY: Federal Mine Safety and Health 

Review Commission. 

ACTION: Final rule. 

SUMMARY: The Federal Mine Safety and 

Health Review Commission (the 

‘‘Commission’’) is an independent 

adjudicatory agency that provides 

hearings and appellate review of cases 

arising under the Federal Mine Safety 

and Health Act of 1977 (the ‘‘Mine 

Act’’). Hearings are held before the 

Commission’s Administrative Law 

Judges, and appellate review is provided 

by a five-member Review Commission 

appointed by the President and 

confirmed by the Senate. On July 18, 

2006, the Commission published an 

interim rule to implement the Mine 

Improvement and New Emergency 

Response Act of 2006 (the ‘‘MINER 

Act’’), which amended the Mine Act to 

improve the safety of miners, 

particularly in underground coal mines. 

The MINER Act provides for 

Commission review of disputes arising 

over emergency response plans for 

underground coal mines. The interim 

rule established procedures for the 

submission and consideration of such 

disputes. The Commission invited 

public comment on the interim rule. 

The Commission has reviewed the 

comments on the interim rule and has 

decided to make certain changes in the 

rule. This publication makes final 

changes to Rule 24, the rule designed to 

implement the MINER Act. In 

connection with revising Rule 24, the 

Commission is also amending four of its 

other procedural rules to make them 

consistent with Rule 24. 

DATES: This final rule will take effect on 

January 18, 2007. 

ADDRESSES: Comments and questions 

may be mailed to Michael A. McCord, 

General Counsel, Office of the General 

Counsel, Federal Mine Safety and 

Health Review Commission, 601 New 

Jersey Avenue, NW., Suite 9500, 

Washington, DC 20001, or sent via 

facsimile to 202–434–9944. 

FOR FURTHER INFORMATION CONTACT: 

Michael A. McCord, General Counsel, 

Office of the General Counsel, 601 New 

Jersey Avenue, NW., Suite 9500, 

Washington, DC 20001; telephone 202–

434–9935; fax 202–434–9944. 

SUPPLEMENTARY INFORMATION: The final 

rules will apply to cases initiated after 

the rules take effect. The final rules also 

apply to proceedings pending on the 

effective date, except to the extent that 

such application would not be feasible, 

or would work injustice, in which event 

the former rules of procedure would 

continue to apply. 

I. Background 

On June 15, 2006, President George 

W. Bush signed into law the MINER 

Act, Pub. L. 109–236, 120 Stat. 493 

(2006). Section 2 of the MINER Act 

amends section 316 of the Mine Act (30 

U.S.C. 876) by adding a new section (b), 

entitled ‘‘Accident Preparedness and 

Response.’’ Section 316(b)(2)(A) 

provides that, within 60 days of 

enactment, each underground coal mine 

operator is required to develop and 

adopt a ‘‘written accident response 

plan.’’ Section 316(b)(2)(B) requires the 

plan to provide for the evacuation of all 

individuals endangered by an 

emergency and the maintenance of 

individuals trapped underground in the 

event that miners are not able to 

evacuate the mine. Under section 

316(b)(2)(C), all plans shall be subject to 

review and approval by the Secretary of 

Labor (the ‘‘Secretary’’), and must: (i) 

Afford miners a level of safety 

protection at least consistent with the 

existing standards; (ii) reflect the most 

recent credible scientific research; (iii) 

be technologically feasible, make use of 

current commercially available 

technology, and account for the specific 


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physical characteristics of the mine; and 

(iv) reflect the improvements in mine 

safety gained from experience under 

this Act and other worker safety and 

health laws. Section 316(b)(2)(D) 

specifies that the Secretary shall review 

plans periodically, but at least every 6 

months. Sections 316(b)(2)(E) and (F) set 

forth plan content requirements, 

including a provision allowing the 

Secretary to make additional plan 

requirements with respect to any of the 

content matters. 

Section 316(b)(2)(G), entitled ‘‘Plan 

Dispute Resolution,’’ provides for 

Commission resolution and 

administrative appellate review of 

emergency response plan disputes. 

Section 316(b)(2)(G)(i) states that any 

dispute between the Secretary and an 

operator with respect to the content of 

the operator’s plan or any refusal by the 

Secretary to approve such a plan shall 

be resolved on an ‘‘expedited basis.’’

Section 316(b)(2)(G)(ii) further provides 

that, in the event of a dispute or refusal 

described in clause (i), the Secretary 

shall issue a citation which shall be 

immediately referred to a Commission 

Administrative Law Judge, and the 

Secretary and the operator shall submit 

all relevant material regarding the 

dispute to the Administrative Law Judge 

within 15 days of the date of the 

referral. The section concludes by 

providing that the Administrative Law 

Judge shall render his or her decision 

with respect to the plan content dispute 

within 15 days of the receipt of the 

submission. Section 316(b)(2)(G)(iii) 

states that a party adversely affected by 

a decision under clause (ii) may pursue 

all further available appeal rights with 

respect to the citation involved, except 

that inclusion of the disputed provision 

in the plan will not be limited by such 

appeal unless such relief is requested by 

the operator and permitted by the 

Administrative Law Judge. 

On July 18, 2006, the Commission 

published Interim Rule 24 to implement 

section 316(b)(2)(G), providing for 

Commission hearings and 

administrative appellate review of 

emergency response plan disputes. The 

Commission chose to establish an 

interim rule and then request public 

comments on the rule in order to 

implement the MINER Act as soon as 

possible after the Act became effective. 

Although the interim rule was 

procedural in nature and did not require 

notice-and-comment rulemaking under 

the Administrative Procedure Act, 5 

U.S.C. 551, 553(b)(3)(A), the 

Commission invited public comment. 

The comment period on the interim rule 

closed on August 17, 2006. The 

Commission received comments from 

the Secretary through the U.S. 

Department of Labor’s Office of the 

Solicitor; the United Mine Workers of 

America (the ‘‘UMWA’’); and other 

individual members of the mining 

community or bar who practice before 

the Commission. 

The final rule retains the same 

approach as the interim rule; however, 

the text of the rule has changed in 

several areas in response to comments 

received. In addition, the Commission 

on its own has made several changes 

upon further consideration of the 

interim rule. Finally, the Commission 

has made conforming changes to four of 

its other procedural rules. 

II. Section-by-Section Analysis and 

Summary of Comments to Rule 24 

The title of the interim rule is 

‘‘Accident response plan dispute 

proceedings.’’ One commenter stated 

that the title is confusing because 

section 2 of the MINER Act, which Rule 

24 implements, is entitled ‘‘Emergency 

Response.’’ Congress used both terms—

‘‘accident response plan’’ and 

‘‘emergency response plan’’—in section 

2 in referring to the plans and 

apparently viewed the terms as 

interchangeable. Nevertheless, the term, 

‘‘emergency response plans,’’ is broader 

in scope than the current title used in 

the interim rule and provides a more 

precise description of the variety of 

plans covered by section 2, which Rule 

24 implements. Therefore, in agreement 

with the comment, the Commission has 

revised the title of Rule 24 to 

‘‘Emergency response plan dispute 

proceedings.’’ Consistent with the 

change in the title, all other references 

in Rule 24 to the plans have been 

changed to ‘‘emergency response 

plans.’’

Interim Rule 24(a) requires that the 

Secretary refer to the Commission, 

within one day of its issuance, any 

citation arising from a dispute over the 

content of an emergency response plan. 

In her comment, the Secretary states 

that the one-day period provided in the 

interim rule for referral of the dispute to 

the Commission is insufficient to 

complete her administrative review of 

the documents in the referral. The 

Commission, however, is constrained by 

the mandate of section 316(b)(2)(G)(ii) of 

the MINER Act, which requires that a 

citation issued by the Secretary shall be 

referred to the Commission 

‘‘immediately.’’ In addition, section 

316(b)(2)(G)(i) also states that any such 

dispute ‘‘shall be resolved on an 

expedited basis.’’ The Commission has 

determined that a period of two 

business days should address, to some 

degree, the Secretary’s concerns, while 

adhering to the strictures of the MINER 

Act. In addition, the Commission notes 

that preparation and review of the 

documentation needed for a referral can 

occur concurrently with the preparation 

of the citation, thus alleviating the need 

for additional time to prepare the 

documents after issuance of the citation. 

The Secretary also suggested that Rule 

24(a) specify that filing, as well as 

service, of the referral can be 

accomplished through facsimile 

transmission. The Commission 

concluded that Rule 24(c) and its other 

applicable procedural rules (Rules 

5(e)(1) and 7(c)(1)) are sufficiently 

specific on allowing filing and service 

via facsimile, and that no clarification is 

needed in subparagraph (a). However, 

the Commission is separately amending 

Rules 5(e)(1) and 7(c)(1) to provide that 

filing of referrals by facsimile 

transmission is an exception to the 

prohibition in those rules against filing 

or serving by facsimile documents that 

are more than 15 pages in length. Thus, 

filing or service of documents under 

Rule 24 may be accomplished through 

facsimile transmission even though 

such documents exceed 15 pages in 

length. 

Interim Rule 24(b) specifies that the 

Secretary is required to file, as part of 

a referral: The citation; a notice 

describing the dispute; a short and plain 

statement of her position on the 

disputed provision; and a copy of the 

emergency response plan. The Secretary 

states that the rule should not require 

her to submit a copy of the entire 

emergency response plan, noting that 

the plan is likely to be lengthy and 

include many undisputed provisions. 

The Commission agrees, and the rule 

has been revised to provide that copies 

of only the disputed plan provisions 

shall be submitted with the referral. 

The Secretary also commented that 

subparagraph (b) does not require a 

‘‘short and plain statement’’ from the 

operator, as it does from the Secretary. 

The Secretary reasoned that such a 

statement from the operator would 

assist in framing the issues for 

resolution and assist the parties and the 

Judge in determining the need for a 

hearing. The Commission agrees with 

the Secretary’s position. The 

Commission has revised the interim rule 

to add a new subparagraph (c) to require 

the operator to file a ‘‘short and plain 

statement’’ of its position with respect 

to the disputed plan provision within 

five calendar days after the referral. The 

addition of this subparagraph requires 

the redesignation of the subsequent 

subparagraphs. 

Interim Rule 24(c) currently specifies 

that the filing of any document with the 


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Commission is effective upon receipt 

and that copies shall be expeditiously 

served on parties, such as by courier 

service or facsimile transmission. 

Subparagraph (c) is redesignated as (d). 

One commenter suggested that the 

paragraph be clarified to specify that the 

referral is effective upon receipt. The 

Commission intends that the filing of all 

documents in emergency response plan 

dispute proceedings, including the 

referral, is effective upon receipt and 

has explicitly included a reference to 

the referral in the final rule. 

The UMWA proposed that present 

subparagraph (c) also require service of 

the referral on miners’ representatives. 

Further, the UMWA stated that Rule 4 

(Parties, intervenors, and amici curiae) 

should be amended to provide that any 

miners and miners’ representatives who 

submitted comments during the 

emergency plan review process will be 

designated as parties in the Commission 

proceeding. Finally, the UMWA 

recommended that the Commission 

require that the operator, after service of 

the referral, post the referral on its 

bulletin board at the mine. 

The Commission recognizes the 

importance of miner participation in the 

formulation of emergency response 

plans. In light of that consideration, the 

Commission is revising the interim rule 

to provide for service of the referral on 

any miners and miners’ representatives 

who have participated in the plan 

review process. Regarding the 

suggestion that miners and miners’

representatives who submitted 

comments be designated as parties, the 

Commission believes that its current 

intervention rule provides a sufficient 

mechanism for their participation. The 

Commission does not view the 

requirements of Rule 4, which governs 

the process for gaining intervenor status 

in a Commission proceeding, as 

burdensome; nor does the Commission 

view the interests of miners and miners’

representatives in an emergency plan 

dispute proceeding as sufficiently 

different to require an additional rule of 

intervention. As to the suggestion 

regarding posting of the referral, the 

Commission has concluded that, as with 

other Mine Act violations, posting the 

citation underlying the referral would 

sufficiently inform miners of the dispute 

over the emergency response plan 

provision and that posting the referral 

itself, which may be unwieldy in size, 

would be unnecessary. 

Interim Rule 24(d) has been 

redesignated as (e), and the heading that 

follows has been revised to read, 

‘‘Proceedings before the Judge,’’ to more 

accurately describe the content of the 

provision. Interim Rule 24(d)(1) 

presently requires parties to submit to 

the Judge ‘‘all relevant materials 

regarding the dispute’’ within 15 days of 

the referral. The subparagraph further 

requires that a party who seeks to stay 

the operation of the disputed plan 

provision, pending an appeal of the 

Judge’s decision, should file a request 

for a stay when its materials are 

submitted to the Judge. Two 

commenters stated that the MINER Act 

provides that only an operator can seek 

a stay of the Judge’s decision. One of the 

commenters also added that seeking a 

stay of the disputed plan provision 

before the Judge’s decision has been 

issued might be problematic because the 

dispute regarding the plan provision 

would be, as yet, unresolved, and it 

might be difficult to know what relief to 

request from the Judge. 

Upon review of the MINER Act and 

the comments, the Commission has 

concluded that the comments have 

merit. The Commission has clarified 

that only an operator can seek a stay of 

the disputed plan provision, as is 

provided for in section 316(b)(2)(G)(iii) 

of the MINER Act. The Commission has 

also deleted the requirement that a party 

seek a stay before the Judge has issued 

his decision from Interim Rule 24(d)(1) 

and moved the procedure for seeking a 

stay to newly designated subparagraph 

(f). 

Interim Rule 24(d)(2) afforded the 

parties the opportunity for a hearing 

before a Commission Administrative 

Law Judge, either at the request of a 

party or by order of the Judge. The 

preamble accompanying the interim 

rule, 71 FR 40655, stated that, although 

the MINER Act does not explicitly 

provide for hearings on emergency plan 

disputes, section 105(d) of the Mine Act 

states, ‘‘the Commission shall afford an 

opportunity for a hearing [on any notice 

of contest].’’ 30 U.S.C. 815(d). One 

commenter disagreed with the 

Commission’s rationale for requiring a 

hearing upon a party’s request. The 

commenter stated that section 105(d) 

applies to orders and citations issued 

under section 104 or to proposed 

penalty assessments issued under 

section 105. The commenter noted that 

citations relating to emergency response 

plans are issued under section 316, 

which is silent regarding the right to a 

hearing. 

Upon further consideration of the 

interim rule, the Mine Act, and the 

MINER Act, the Commission agrees that 

the mandatory hearing procedures 

specified in section 105(d) of the Mine 

Act are not directly applicable to 

emergency response plan dispute 

proceedings. The Commission has 

revised the interim rule to provide in 

the final rule that, when a party requests 

a hearing on an emergency response 

plan dispute, the Judge has discretion 

whether to grant the request. The 

commenter further suggested that the 

Judge should order a hearing only when 

there are factual issues in dispute. 

However, the Commission views the 

standard governing the need for a 

hearing more broadly: That is, the Judge 

should order a hearing whenever it 

would assist in resolving the issues. In 

any event, the Commission expects that 

the question of whether a hearing 

should be held and the question of the 

precise form that such a hearing will 

take will be resolved consistent with 

due process considerations. 

Another commenter objected to the 

reference in the interim rule to the 

‘‘hearing on the referral.’’ The 

commenter explained that the hearing 

more accurately involves the emergency 

response plan dispute. The Commission 

agrees with the commenter and has 

clarified in the final rule that the 

hearing concerns the disputed plan 

provision. Contrary to another 

comment, the Commission sees no need 

to define ‘‘disputed plan provision.’’

The Commission believes that a broad 

definition of what constitutes a 

‘‘disputed plan provision’’ would likely 

not be useful and that any issue as to 

whether a particular provision is 

disputed could best be answered in the 

specific context of an actual case. The 

same commenter also asked the 

Commission to specify the legal 

standard that would be applied in 

reviewing plan provisions. The 

Commission has concluded that it 

would be inappropriate to specify in its 

procedural rules the standard for 

resolving disputes over emergency 

response plan provisions. The 

commenter also requested that the 

Commission specify which party bears 

the burden of proof. While the 

Commission concludes that the burden 

of proof in establishing a violation 

alleged in a citation is on the Secretary, 

the Commission believes it is 

unnecessary to address this well-settled 

principle in its procedural rules. 

Upon further consideration of the 

requirement in the interim rule 

regarding the Judge’s authority to sua 

sponte order a hearing, the Commission 

has increased the time for a Judge to 

issue such an order from 5 days to 10 

days following the filing of the referral, 

so that the Judge has sufficient time to 

review the record in the proceeding and 

evaluate the need for a hearing. 

Final Rule 24(e)(2)(iii) states that, if a 

hearing on the referral is ordered, the 

hearing shall be held within 15 calendar 

days of the filing of the referral. The 


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Commission anticipates that such a 

hearing shall be scheduled so as to be 

completed within that time period. 

Interim Rule 24(e) has been 

redesignated as (f), the heading has been 

changed to more accurately reflect the 

content of the section (including the 

procedure for requesting a stay), and 

subheadings have been added for 

clarity. Interim Rule 24(e)(1) presently 

provides for the issuance of the Judge’s 

decision, including a disposition on the 

request for a stay of the inclusion of the 

disputed provision in the emergency 

response plan, and Interim Rule 24(e)(2) 

addresses notification and service of the 

decision. In light of the change to delete 

the requirement that a party 

prospectively seek a stay at the time 

materials are submitted to the Judge, 

newly designated Rule 24(f)(1) has also 

been revised to delete the reference to 

the Judge’s issuance of a ruling on the 

stay at the time of the decision. Further, 

the specifics of the issuance and 

notification of the Judge’s decision have 

been moved into this subparagraph from 

Interim Rule 24(e)(2). 

Subparagraph (e)(1) of the interim 

rule states that, within 15 calendar days 

following receipt by the Judge of all 

submissions and testimony, the Judge 

shall issue his or her decision. The 

Secretary commented that this provision 

arguably conflicts with section 

2(b)(2)(G)(ii) of the MINER Act, 30 

U.S.C. 316(b)(2)(G)(ii), which requires 

the parties to submit all relevant 

material regarding the dispute to the 

judge within 15 days of the referral and 

requires the Judge to issue his or her 

decision ‘‘within 15 days of the receipt 

of the submission.’’ The Secretary stated 

that, to the extent a hearing may last 

longer than one day, the requirement in 

Rule 24(e) that the Judge issue a 

decision within 15 calendar days 

following receipt of all submissions and 

testimony arguably conflicts with this 

statutory provision. She suggested that 

the final rule should conform to the 

statute. 

Because the Commission expects that 

hearings shall be scheduled to be 

completed within 15 calendar days of 

the referral, the Commission concludes 

that the language of the rule is 

consistent with the statute, and 

therefore retains the relevant language 

without further revision. 

Newly designated Rule 24(f)(2) 

specifies the procedures for seeking a 

stay from the Judge after issuance of the 

decision on the disputed plan provision. 

Initially, the rule provides that, 

notwithstanding the provisions of Rule 

69(b), 29 CFR 2700.69(b), the judge 

retains jurisdiction over a request for a 

stay after the issuance of the decision. 

The subparagraph provides that an 

operator may seek from the Judge, 

within two business days after service of 

the decision, a stay of the inclusion of 

the disputed provision in the emergency 

response plan during the pendency of 

an appeal with the Commission. The 

Secretary has two business days to 

respond to the stay request following 

service of the operator’s motion. The 

Judge, in turn, has two business days 

following filing of the Secretary’s 

response to issue an order granting or 

denying the stay. One commenter 

requested that the Commission place in 

the rule the standard under which a 

Judge would issue a stay. The 

Commission declines to do so because 

the determination of the appropriate 

standard involves substantive legal 

analysis that is best resolved through 

individual case disposition. 

Interim Rule 24(f) has been 

redesignated as (g). The interim rule 

specifies that Commission rules 

governing petitions for discretionary 

review of Mine Act cases apply to 

appeals from Judges’ decisions in 

proceedings involving emergency 

response plan disputes. Newly 

designated subparagraph (g) contains a 

new provision clarifying that a Judge’s 

order granting or denying an operator’s 

request for a stay may also be reviewed 

in conjunction with the Judge’s 

disposition of the underlying disputed 

plan provision. One commenter 

suggested that the interim rule did not 

clearly state whether the procedures in 

the rules that are applicable to a case on 

appeal before the Commission governed 

emergency response dispute 

proceedings. In response, the reference 

in Rule 24 to Rule 75, 29 CFR 2700.75, 

which governs the filing of briefs with 

the Commission, has been modified to 

clarify that the provisions in that rule 

apply except to the extent that they are 

superseded by a Commission briefing 

order. Such orders are specifically 

provided for in the rule, and it may be 

anticipated that, in some instances, the 

order will modify the page limits or 

time periods for filing in Rule 75. 

Finally, one commenter requested 

that the Commission incorporate into 

the subparagraph a ‘‘good cause’’

standard for extending the time for 

filing briefs, when all parties have 

agreed to such an extension. However, 

the Commission believes that the 

‘‘extraordinary circumstances’’ test in 

the interim rule should be retained 

because a more lenient standard would 

undermine the time-sensitive scheme 

that Congress embodied in the MINER 

Act for resolving disputes over plan 

provisions in emergency response plans. 

III. Summary of Changes to Other 

Procedural Rules in Light of Rule 24 

The Commission is also amending 

four of its other Procedural Rules to 

make them consistent with Rule 24. 

Procedural Rules 5 and 7, 29 CFR 

2700.5 and 2700.7, govern the filing and 

service of documents by facsimile 

transmission, respectively. Presently, 

those rules prohibit the use of fax for 

filing or service when the document is 

more than 15 pages in length. 

Accordingly, subparagraph (1) of Rule 

5(e), Manner and effective date of filing, 

is revised to add Rule 24 proceedings to 

the list of enumerated exceptions to the 

15-page limitation on documents that 

can be filed by fax. Subparagraph (1) of 

Rule 7(c), Methods of service, is also 

revised to add Rule 24 proceedings to 

the list of enumerated exceptions to the 

15-page limitation on documents that 

can be served by fax. These revisions 

will permit parties to fax documents 

exceeding 15 pages in Rule 24 

proceedings, so that parties may file and 

serve lengthy pleadings and other 

documents expeditiously. 

The Commission is revising 

Procedural Rule 8, 29 CFR 2700.8, 

governing time computation, to 

expressly except Rule 24, in addition to 

Rule 45, 29 CFR 2700.45, from the 

provisions of Rule 8(a). In the proposed 

change to Rule 8, the language 

excluding the application of Rule 8(a) is 

moved from the prefatory language of 

Rule 8 to subsection (a), where it is 

more appropriate. In order to clarify 

time computation under Rule 24, the 

Commission has described time periods 

in Rule 24 in terms of ‘‘calendar’’ and 

‘‘business’’ days, similar to the language 

in Rule 45. In addition, a third example 

discussing the application of Rule 8 to 

a Rule 24 proceeding has been added to 

further clarify the application of Rule 8. 

Finally, Rule 69(b), 29 CFR 2700.69(b), 

is revised to recognize that Rule 24(f)(2) 

creates an exception to the general 

principle that a Judge no longer has 

jurisdiction over an emergency response 

plan dispute proceeding following the 

issuance of his decision on the merits. 

Rule 24(f)(2) specifies that a Judge 

retains jurisdiction over the proceeding 

to dispose of a stay request from the 

operator. 

Public Comment 

The Commission, which is always 

open to comments and suggestions, 

welcomes comment on this procedural 

rule. 


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Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Rules and Regulations 2191 

List of Subjects in 29 CFR Part 2700 

Administrative practice and 

procedure, Mine safety and health, 

Penalties, Whistleblowing. 

■ For the reasons stated in the preamble, 

the Federal Mine Safety and Health 

Review Commission amends 29 CFR 

part 2700 as follows: 

PART 2700—PROCEDURAL RULES 

■ 1. The authority citation for part 2700 

is revised to read as follows: 

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

876. 

■ 2. Section 2700.5 is amended by 

revising the second sentence of 

paragraph (e)(1) and the second and 

third sentences of paragraph (e)(2) to 

read as follows: 

§ 2700.5 General requirements for 

pleadings and other documents; status or 

information requests. 

* * * * * 

(e) Manner and effective date of filing. 

* * * 

(1) * * * With the exception of 

documents filed pursuant to §§ 2700.70 

(Petitions for discretionary review), 

2700.45 (Temporary reinstatement 

proceedings), 2700.24 (Emergency 

response plan dispute proceedings), or 

Subpart F (Applications for temporary 

relief), documents filed by facsimile 

transmission shall not exceed 15 pages, 

excluding the facsimile cover sheet. 

* * * 

(2) * * * When filing is by mail, 

filing is effective upon mailing, except 

that the filing of a motion for extension 

of time, any document in an emergency 

response plan dispute proceeding, a 

petition for review of a temporary 

reinstatement order, a motion for 

summary decision, a petition for 

discretionary review, a motion to exceed 

page limit is effective upon receipt. See 

§§ 2700.9(a), 2700.24(d), 2700.45(f), 

2700.67(a), 2700.70(a), (f), and 

2700.75(f). 

* * * * * 

■ 3. Section 2700.7 is amended by 

revising the second sentence of 

paragraph (c)(1) to read as follows: 

§ 2700.7 Service. 

* * * * * 

(c) Methods of service. * * * 

(1) * * * With the exception of 

documents served pursuant to 

§§ 2700.70 (Petitions for discretionary 

review), 2700.45 (Temporary 

reinstatement proceedings), 2700.24 

(Emergency response plan dispute 

proceedings), or subpart F (Applications 

for temporary relief), documents served 

by facsimile transmission shall not 

exceed 15 pages, excluding the facsimile 

cover sheet. * * * 

* * * * * 

■ 4. Section 2700.8 is amended by 

revising its introductory text and 

paragraph (a) and adding Example 3 to 

read as follows: 

§ 2700.8 Computation of time. 

The due date for a pleading or other 

deadline for party or Commission action 

(hereinafter ‘‘due date’’) is determined 

sequentially as follows: 

(a) Except to the extent otherwise 

provided herein (see, e.g., §§ 2700.24 

and 2700.45), when the period of time 

prescribed for action is less than 11 

days, Saturdays, Sundays, and federal 

holidays shall be excluded in 

determining the due date. 

* * * * * 

Example 3: Pursuant to § 2700.24(a), the 

Secretary of Labor files a referral of a citation 

arising out of a dispute over the content of 

an operator’s emergency response plan. 

Certain subsequent deadlines in such cases 

are specifically established by reference to 

calendar days, and thus paragraph (a) of this 

section would not necessarily apply in 

determining due dates. For instance, if the 

referral was filed on Thursday, January 4, 

2007, the short and plain statement the 

operator must file in response within 5 

calendar days would be due Tuesday, 

January 9, 2007, because the intervening 

weekend days would not be excluded in 

determining the due date. If the fifth calendar 

day were to fall on a weekend, holiday, or 

other day on which the Commission is not 

open however, the terms of paragraph (c) 

would apply and the due date would be the 

next day the Commission is open. 

■ 5. Section 2700.24 is revised to read 

as follows: 

§ 2700.24 Emergency response plan 

dispute proceedings. 

(a) Referral by the Secretary. The 

Secretary shall immediately refer to the 

Commission any citation arising from a 

dispute between the Secretary and an 

operator with respect to the content of 

the operator’s emergency response plan, 

or any refusal by the Secretary to 

approve such a plan. Any referral made 

pursuant to this paragraph shall be 

made within two business days of the 

issuance of any such citation. 

(b) Contents of referral. A referral 

shall consist of a notice of plan dispute 

describing the nature of the dispute; a 

copy of the citation issued by the 

Secretary; a short and plain statement of 

the Secretary’s position with respect to 

any disputed plan provision; and a copy 

of the disputed provision of the 

emergency response plan. 

(c) Short and plain statement by the 

operator. Within five calendar days 

following the filing of the referral, the 

operator shall file with the Commission 

a short and plain statement of its 

position with respect to the disputed 

plan provision. 

(d) Filing and service of pleadings. 

The filing with the Commission of any 

document in an emergency response 

plan dispute proceeding, including the 

referral, is effective upon receipt. A 

copy of each document filed with the 

Commission in such a proceeding shall 

be expeditiously served on all parties 

and on any miner or miners’

representative who has participated in 

the emergency response plan review 

process, such as by personal delivery, 

including courier service, by express 

mail, or by facsimile transmission. 

(e) Proceedings before the Judge. 

(1) Submission of materials. Within 

15 calendar days of the referral, the 

parties shall submit to the Judge 

assigned to the matter all relevant 

materials regarding the dispute. Such 

submissions shall include a request for 

any relief sought and may include 

proposed findings of fact and 

conclusions of law. Such materials may 

be supported by affidavits or other 

verified documents, and shall specify 

the grounds upon which the party seeks 

relief. Supporting affidavits shall be 

made on personal knowledge and shall 

show affirmatively that the affiant is 

competent to testify to the matters 

stated. 

(2) Hearing. 

(i) Within 5 calendar days following 

the filing of the Secretary’s referral, any 

party may request a hearing and shall so 

advise the Commission’s Chief 

Administrative Law Judge or his 

designee, and simultaneously notify the 

other parties. 

(ii) Within 10 calendar days following 

the filing of the Secretary’s referral, the 

Commission’s Chief Administrative Law 

Judge or his designee may issue an order 

scheduling a hearing on the Judge’s own 

motion, and must immediately so notify 

the parties. 

(iii) If a hearing is ordered under 

paragraphs (e)(2)(i) or (ii) of this section, 

the hearing shall be held within 15 

calendar days of the filing of the 

referral. The scope of such a hearing is 

limited to the disputed plan provision 

or provisions. If no hearing is held, the 

Judge assigned to the matter shall 

review the materials submitted by the 

parties pursuant to paragraph (e)(1) of 

this subsection, and shall issue a 

decision pursuant to paragraph (f) of 

this section. 

(f) Disposition. 

(1) Decision of the Judge. Within 15 

calendar days following receipt by the 

Judge of all submissions and testimony 

made pursuant to paragraph (e) of this 


jlentini on PROD1PC65 with RULES
2192 Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Rules and Regulations 

1The Uniform Offering Circular was published as 

a final rule on January 5, 1993 (58 FR 412). The 

circular, as amended, is codified at 31 CFR part 356. 

A final rule converting the UOC to plain language 

and making certain other minor changes was 

published in the Federal Register on July 28, 2004 

(69 FR 45202). 

2On September 30, 2005, Treasury issued a final 

amendment to the UOC to make the changes 

necessary to accommodate participation in Treasury 

marketable auctions for securities to be held in 

either the TreasuryDirect or the Legacy Treasury 

Direct system (70 FR 57347). 

3Legacy Treasury Direct was called 

TreasuryDirect from 1986 to 2005. The regulations 

for Legacy Treasury Direct are found at 31 CFR part 

357. The regulations for TreasuryDirect are found 

at 31 CFR part 363. 

subsection, the Judge shall issue a 

decision that constitutes the Judge’s 

final disposition of the proceedings. The 

decision shall be in writing and shall 

include all findings of fact and 

conclusions of law, and the reasons or 

bases for them, on all the material issues 

of fact, law or discretion presented by 

the record, and an order. The parties 

shall be notified of the Judge’s decision 

by the most expeditious means 

reasonably available. Service of the 

decision shall be by certified or 

registered mail, return receipt requested. 

(2) Stay of plan provision. 

Notwithstanding § 2700.69(b), a Judge 

shall retain jurisdiction over a request 

for a stay in an emergency response plan 

dispute proceeding. Within two 

business days following service of the 

decision, the operator may file with the 

judge a request to stay the inclusion of 

the disputed provision in the plan 

during the pendency of an appeal to the 

Commission pursuant to paragraph (g) 

of this section. The Secretary shall 

respond to the operator’s motion within 

two business days following service of 

the motion. The judge shall issue an 

order granting or denying the relief 

sought within two business days after 

the filing of the Secretary’s response. 

(g) Review of decision. Any party may 

seek review of a Judge’s decision, 

including the Judge’s order granting or 

denying a stay, by filing with the 

Commission a petition for discretionary 

review pursuant to § 2700.70. Neither an 

operator’s request for a stay nor the 

issuance of an order addressing the stay 

request affects the time limits for filing 

a petition for discretionary review of a 

Judge’s decision with the Commission 

under this subparagraph. The 

Commission shall act upon a petition on 

an expedited basis. If review is granted, 

the Commission shall issue a briefing 

order. Except as otherwise ordered or 

provided for herein, the provisions of 

§ 2700.75 apply. The Commission will 

not grant motions for extension of time 

for filing briefs, except under 

extraordinary circumstances. 

■ 6. Section 2700.69 is amended by 

revising paragraph (b) to read as follows: 

§ 2700.69 Decision of the Judge. 

* * * * * 

(b) Termination of the Judge’s 

jurisdiction. Except to the extent 

otherwise provided herein, the 

jurisdiction of the Judge terminates 

when his decision has been issued. 

* * * * * 

Dated: January 11, 2007. 

Michael F. Duffy, 

Chairman, Federal Mine Safety and Health 

Review Commission. 

[FR Doc. E7–557 Filed 1–17–07; 8:45 am] 

BILLING CODE 6735–01–P 

DEPARTMENT OF THE TREASURY 

Fiscal Service 

31 CFR Part 356 

[Docket No. BPD GSRS 06–03] 

Sale and Issue of Marketable BookEntry Treasury Bills, Notes and 

Bonds—Securities Eligible for 

Purchase in Legacy Treasury Direct 

AGENCY: Bureau of the Public Debt, 

Fiscal Service, Treasury. 

ACTION: Final rule. 

SUMMARY: This final rule provides that 

the Department of the Treasury may 

announce that certain marketable 

Treasury securities to be offered will not 

be eligible for purchase or holding in 

the Legacy Treasury Direct system. 

Treasury is issuing this amendment to 

the auction rules because the Legacy 

Treasury Direct system will eventually 

be phased out. 

DATES: Effective January 18, 2007. 

ADDRESSES: You may download this 

final rule from the Bureau of the Public 

Debt’s Web site at http:// 

www.treasurydirect.gov or from the 

Electronic Code of Federal Regulations 

(e-CFR) Web site at http:// 

www.gpoaccess.gov/ecfr. It is also 

available for public inspection and 

copying at the Treasury Department 

Library, Room 1428, Main Treasury 

Building, 1500 Pennsylvania Avenue, 

NW., Washington, DC 20220. To visit 

the library, call (202) 622–0990 for an 

appointment. 

FOR FURTHER INFORMATION CONTACT: Lori 

Santamorena (Executive Director) or 

Chuck Andreatta (Associate Director), 

Bureau of the Public Debt, Government 

Securities Regulations Staff, (202) 504–

3632 or e-mail us at 

govsecreg@bpd.treas.gov. 

SUPPLEMENTARY INFORMATION: The 

Uniform Offering Circular (‘‘UOC’’), in 

conjunction with the announcement for 

each auction, provides the terms and 

conditions for the sale and issuance in 

an auction to the public of marketable 

Treasury bills, notes and bonds.1 There 

are three book-entry securities 

systems—the commercial book-entry 

system, TreasuryDirect , and Legacy 

Treasury Direct —into which we issue 

marketable Treasury securities.2 The 

current UOC generally authorizes 

purchases of all types of marketable 

Treasury securities in any of the three 

book-entry systems. The Legacy 

Treasury Direct system, which was 

implemented in 1986, will eventually be 

phased out, leaving only the newer, online TreasuryDirect system as the 

system for purchasing marketable 

Treasury securities directly on the 

records of the Bureau of the Public Debt, 

Department of the Treasury.3 The 

commercial book-entry system will 

remain an option for all securities for 

those investors who want to purchase 

and hold their securities through a 

depository institution or dealer. 

As we begin phasing out Legacy 

Treasury Direct, we plan to discontinue 

the practice of generally allowing all 

marketable Treasury securities being 

offered by Treasury to be purchased and 

held in this system. This final rule 

amendment states explicitly that we 

may announce that certain marketable 

securities to be offered will not be 

eligible for purchase or holding in 

Legacy Treasury Direct. Any such 

restriction will be included in that 

security’s offering announcement. This 

change will not affect any outstanding 

securities currently held in Legacy 

Treasury Direct. 

Procedural Requirements 

This final rule is not a significant 

regulatory action for purposes of 

Executive Order 12866. The notice and 

public procedures and delayed effective 

date requirements of the Administrative 

Procedure Act do not apply, under 5 

U.S.C. 533(a)(2). 

Since a notice of proposed rulemaking 

is not required, the provisions of the 

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

et seq.) do not apply. 

The Office of Management and Budget 

previously approved the collections of 

information in this final amendment in 

accordance with the Paperwork 

Reduction Act under control number 


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