[Federal Register Volume 63, Number 88 (Thursday, May 7, 1998)]
[Proposed Rules]
[Pages 25183-25187]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-12157]


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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

29 CFR Part 2700


Rules of Procedure

AGENCY: Federal Mine Safety and Health Review Commission.

ACTION: Proposed rule.

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SUMMARY: The Federal Mine Safety and Health Review Commission (the 
``Commission'') is an independent adjudicatory agency that provides 
trial and appellate review of cases arising under the Federal Mine 
Safety and Health Act of 1977, 30 U.S.C. 801 et seq. (1994) (the ``Mine 
Act''). The Commission's rules of procedure govern practice and 
procedure in Commission proceedings at both trial and review levels. 
The Commission is proposing to revise several of its present rules of 
procedure.
    The Commission's present rules of procedure were adopted in June 
1979

[[Page 25184]]

(see 44 FR 38227 (June 29, 1979)), and last amended in May 1993 (see 58 
FR 12158 (March 3, 1993)). The Commission has determined that certain 
procedural rules require further revision to address various problems 
that were unforeseen in 1993, in a further effort to ensure ``the just, 
speedy, and inexpensive determination of all proceedings'' before the 
Commission (29 CFR 2700.1(c)).

DATES: Written comments must be submitted on or before August 5, 1998.

ADDRESSES: Comments may be mailed to Norman Gleichman, General Counsel, 
Office of the General Counsel, Federal Mine Safety and Health Review 
Commission, 1730 K Street, NW, 6th Floor, Washington, DC 20006. Persons 
submitting comments shall provide an original and three copies of their 
comments.

FOR FURTHER INFORMATION CONTACT: Norman M. Gleichman, General Counsel, 
Office of the General Counsel, 1730 K Street, NW, 6th Floor, 
Washington, DC 20006, telephone 202-653-5610 (202-566-2673 for TDD 
Relay). These are not toll-free numbers.

SUPPLEMENTARY INFORMATION:

I. Background

    The Commission initially adopted rules of procedure to practice 
before it in June 1979. See 44 FR 38227 (June 29, 1979). The rules were 
revised only minimally until March 1993. In March 1993, the Commission 
published the revised procedural rules, which became effective on May 
3, 1993. See 58 FR 12158 (March 3, 1993). Those rules embodied 
significant changes brought about by a reexamination of the rules in 
light of more than ten years' practical experience with their operation 
and evolving Commission case law.
    Since March 1993, the Commission has become aware of several rules 
that require further revision, clarification, or expansion. These 
revisions were the subject of consideration by the Commission's 
administrative law judges, who preside at hearings at the trial level, 
and Commissioners at the review level.
    In the proposed rules, the Commission has revised requirements 
related to motion practice before the Commission. See proposed 
Secs. 2700.9, 2700.10, 2700.70(d), 2700.75(d) and (f). For example, in 
order to increase efficiency in the Commission's disposition of 
procedural motions, the Commission proposes requiring a moving party to 
confer or make reasonable efforts to confer with other parties in a 
proceeding and to state in the motion whether any party does or does 
not oppose the motion. See proposed Sec. 2700.10. In addition, the 
Commission proposes changing the deadline for filing requests for 
extensions of time and allowing such motions and oppositions to those 
motions to be filed and served by facsimile transmission. See proposed 
Secs. 2700.5(d), 2700.7, 2700.9, 2700.75(d). The Commission also 
proposes instituting a deadline for filing motions requesting 
extensions of page limits. See proposed Secs. 2700.70(d), 2700.75(f).
    Furthermore, the Commission proposes expanding the requirements for 
certain pleadings. For instance, under the proposed rules, the 
Commission would require page numbering for all pleadings. See proposed 
Sec. 2700.5(c). The Commission would also institute a page limit for 
petitions for discretionary review. See proposed Sec. 2700.70(d).
    In addition, the Commission proposes to revise and clarify 
procedures for filing pleadings in temporary reinstatement proceedings. 
The proposed revisions include the addition of a captioning requirement 
for petitions for review of temporary reinstatement orders and 
modifications to the requirements regarding the manner and date of 
filing pleadings. See proposed Secs. 2700.5(d), 2700.7, 2700.45(a) and 
(f). The Commission proposes to clarify the pleadings on which it will 
base its ruling and the standard for granting a motion to stay the 
effect of a temporary reinstatement order. See proposed 
Sec. 2700.45(f).
    Because the proposed changes do not constitute a major revision to 
the Commission's procedural rules, the Commission has not proposed 
revising Sec. 2700.84, which provides in pertinent part that the 
procedural rules in part 2700 are effective on May 3, 1993. Notice of 
the effective date of the amended rules will be published in the 
Federal Register when the rules are published as final rules.
    Although these rules are procedural in nature and do not require 
notice and comment publication under the Administrative Procedure Act 
(see 5 U.S.C. 553(b)(3)(A)), the Commission is inviting and will 
consider public comment before adopting in final form any revisions to 
the existing rules. Comments may be mailed to the Commission's General 
Counsel at the address previously stated. It is requested that comments 
be filed no later than August 5, 1998. A section-by-section explanation 
of the proposed changes is set forth below.

II. Section-by-Section Analysis

General Provisions

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

    In order to eliminate unnecessary confusion, paragraph (c) adds the 
requirement that all documents include page numbers. In addition, 
consistent with proposed revisions to Secs. 2700.9 and 2700.45(f), 
paragraph (d) adds the provision that the filing of a motion for an 
extension of time and a petition for review of a temporary 
reinstatement order is effective upon receipt rather than upon mailing.

Section 2700.7 Service.

    Consistent with the proposed changes to Secs. 2700.9 and 
2700.45(f), paragraph (c) has been revised to specify the circumstances 
under which requests for extensions of time and petitions for review of 
temporary reinstatement orders may be served by facsimile transmission. 
In addition, paragraph (c) has been revised to clarify that service by 
mail is effective upon mailing for all types of mail, including first 
class, express, or registered or certified mail, return receipt 
requested.

Section 2700.9 Extensions of time.

    As currently written, Sec. 2700.9 requires that a request for an 
extension of time be filed before the expiration of the time allowed 
for filing or serving of the document. The Commission occasionally 
receives a request for an extension of time on or shortly before the 
due date for filing or serving of the document. In such instances, the 
Commission must dispose of the motion prior to the expiration of the 
time for a response to the motion. The Commission proposes to amend the 
rule to require that a motion for an extension of time be filed no 
later than three days prior to the expiration of the time allowed for 
the filing or serving of the document, and to allow the motion and any 
opposition of the motion to be filed and served by facsimile 
transmission. In addition, in accordance with the proposed revisions to 
Sec. 2700.10, the moving party must confer or make reasonable efforts 
to confer with other parties and shall state in the motion for a time 
extension, whether any other party opposes or does not oppose the 
motion. Finally, in accordance with the proposed revisions to 
Sec. 2700.10, the Commission may decide that circumstances warrant 
ruling on the motion prior to the expiration of the time for a 
response.
    Paragraph (b) adds a provision allowing the Commission to grant a

[[Page 25185]]

motion for an extension of time in exigent circumstances, even though 
the request was filed late. In such circumstances, the moving party 
must show, in writing, the reasons for the party's failure to timely 
file the request.

Section 2700.10 Motions.

    Currently, Sec. 2700.10 does not require that a moving party confer 
with parties to ascertain whether there is opposition to the motion, or 
to inform the Commission of any opposition or lack of opposition. As a 
result, before the Commission disposes of a procedural motion, it must 
wait for the expiration of the time period for filing a statement in 
opposition. For some motions requiring prompt or immediate disposition, 
the Commission must contact other parties or, if such parties are 
unavailable, dispose of the motion without a response. In order to more 
efficiently and fairly dispose of such motions, the Commission proposes 
to amend the rule to require a moving party, prior to filing a 
procedural motion, to confer or make reasonable efforts to confer with 
the other parties and to state in the motion if any other party opposes 
or does not oppose the motion. In addition, the Commission would add 
the provision that, where circumstances warrant, a motion may be ruled 
upon prior to the expiration of the time for response, and that a party 
adversely affected by the ruling may seek reconsideration.

Complaints of Discharge, Discrimination or Interference

Section 2700.45 Temporary reinstatement proceedings.

    As currently written, Sec. 2700.45(f) does not differentiate 
between petitions for review filed pursuant to Sec. 2700.70 and 
petitions for review of judges' temporary reinstatement decisions. The 
two types of appeals are, however, procedurally distinct. To highlight 
this distinction, the Commission proposes to amend the rule to require 
that petitions filed under Sec. 2700.45(f) be captioned ``Petition for 
Review of Temporary Reinstatement Order.''
    Under section 105(c)(2) of the Mine Act, the Commission is directed 
to expedite temporary reinstatement proceedings. 30 U.S.C. 815(c)(2). 
In furtherance of this directive, the Commission proposes to amend 
Sec. 2700.45(f) as follows: (1) To allow any pleadings in a temporary 
reinstatement proceeding to be filed and served by facsimile 
transmission; (2) to provide that the filing of a petition for review 
of a temporary reinstatement order is effective upon receipt; (3) to 
require that any response to a petition must be filed within 5 days 
following service of the petition, rather than 5 days following receipt 
of the petition, as the rule currently provides; and (4) to clarify 
that the Commission's ruling on a petition shall be based on the 
petition and any response, and that any further briefing will be 
entertained only at the express direction of the Commission. Proposed 
Sec. 2700.45(f) also clarifies that the petition shall include proof of 
service on all parties by a means of delivery no less expeditious than 
that used for filing the petition. The proposed revision allowing 
pleadings filed under Sec. 2700.45(f) to be served by facsimile 
transmission is also reflected in proposed Sec. 2700.45(a).
    Current Sec. 2700.8, which the Commission does not propose to 
revise, applies to proposed Sec. 2700.45(f), as well as other sections. 
Accordingly, if a petition for review of a temporary reinstatement 
order is served by mail, under current Sec. 2700.8, 5 days would be 
added to the time allowed by proposed Sec. 2700.45(f) for the filing of 
any response to the petition.
    Presently, a petition for review under Sec. 2700.45(f) does not 
stay the effect of a judge's temporary reinstatement order. Although 
operators have moved to stay the effect of the order when filing a 
petition, in Secretary of Labor on behalf of Bowling v. Perry 
Transport, Inc., 15 FMSHRC 196 (February 1993), the Commission, in 
denying such a motion, stated that ``[a]bsent some extraordinary 
circumstance, yet to be advanced, the granting of such a motion would 
eviscerate the temporary reinstatement provision of the Mine Act.'' Id. 
at 198. The Commission proposes to codify this holding of Perry 
Transport by explicitly providing in Sec. 2700.45(f) that the 
Commission will grant a motion to stay the effect of a temporary 
reinstatement order only under extraordinary circumstances.

Review by the Commission

Section 2700.70 Petitions for discretionary review.

    Paragraph (a) has been revised to clarify that procedures governing 
petitions for review of temporary reinstatement orders may be found in 
proposed Sec. 2700.45(f). In addition, paragraph (d) adds a 35-page 
limit for petitions for discretionary review. Under the present rule, 
there is no page number limitation for petitions for discretionary 
review. In order to promote brevity and concision in pleading, the 
Commission would set a page limit for petitions for discretionary 
review identical to the page limit for a petitioner's opening brief. 
Consistent with proposed changes to Sec. 2700.75, the Commission also 
proposes revising Sec. 2700.70(d) to institute a deadline for filing a 
motion requesting an extension of the 35-page limit, and to provide 
that an extension in page limit will be permitted by the Commission for 
good cause shown.

Section 2700.75 Briefs.

    Under the present rule, a motion for an extension of time to file a 
brief must be filed within the time limit prescribed for filing the 
brief. The Commission would revise Sec. 2700.75 to require that such 
motions comply with the proposed revisions to Sec. 2700.9. See proposed 
Sec. 2700.75(d).
    In addition, the Commission would revise Sec. 2700.75 to institute 
a deadline for filing a motion requesting an extension of page limit 
for a brief. See proposed Sec. 2700.75(f). The Commission often 
receives a motion requesting an extension of page limit and an attached 
brief that exceeds the page limit on, or shortly before, the date that 
the brief is due to be filed. In such instances, the Commission must 
contact other parties to determine whether the motion is opposed or, if 
such parties are unavailable, dispose of the motion without a response. 
If the Commission were to deny the motion, the filing party would have 
little time, if any, to file another brief that conforms to the page 
limit. In order to avoid this harsh result, the Commission on occasion 
has been effectively denied an opportunity to give full consideration 
to whether a page extension is necessary and, if so, the amount that 
the limit should be exceeded. Therefore, the Commission proposes to 
amend the rule by requiring that a motion requesting an extension of 
page limit: (1) Be filed not less than 10 days prior to the date that 
the brief is due to be filed; (2) state the approximate length of the 
extension required; and (3) comply with the requirements of proposed 
section 2700.10, including the requirement that a motion state whether 
any other party opposes or does not oppose the motion. Finally, the 
Commission would revise Sec. 2700.75(c) to specify that an extension in 
page limit will be permitted by the Commission for good cause shown.

Section 2700.76 Interlocutory review.

    Paragraph (a) has been revised to clarify that procedures governing 
petitions for review of temporary reinstatement orders may be found in 
proposed Sec. 2700.45(f).

Matters of Regulatory Procedure

    The Commission has determined that these rules are not subject to 
Office of

[[Page 25186]]

Management and Budget Review under Executive Order 12866.
    The Commission has determined under the Regulatory Flexibility Act 
(5 U.S.C. 601-612) that these rules, if adopted, would 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 Office of Management and Budget.

List of Subjects in 29 CFR Part 2700

    Administrative practice and procedure, Ex parte communications, 
Lawyers, Penalties.

    For the reasons set out in the preamble, it is proposed to amend 29 
CFR part 2700 as follows:

PART 2700--PROCEDURAL RULES

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

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

    2. Section 2700.5 is amended by revising paragraphs (c) and (d) to 
read as follows:


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

* * * * *
    (c) Necessary information. All documents shall be legible and shall 
clearly identify on the cover page the filing party by name. All 
documents shall be dated and shall include the assigned docket number, 
page numbers, and the filing person's address and telephone number. 
Written notice of any change in address or telephone number shall be 
given promptly to the Commission or the Judge and all other parties.
    (d) Manner and date of filing. 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, including courier 
service, or by registered or certified mail, return receipt requested. 
All subsequent documents that are filed with a Judge or the Commission 
may be filed by first class mail, including express mail, or by 
personal delivery. When filing is by personal delivery, filing is 
effective upon receipt. 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, and a 
motion for extension of time is effective upon receipt. See 
Secs. 2700.9, 2700.45(f), and 2700.70. Filing by facsimile transmission 
is permissible only when specifically permitted by these rules (see 
Secs. 2700.9, 2700.45(f), 2700.52 and 2700.70), or when otherwise 
allowed by a Judge or the Commission. Filing by facsimile transmission 
is effective upon receipt.
* * * * *
    3. Section 2700.7 is amended by revising paragraph (c) to read as 
follows:


Sec. 2700.7  Service.

* * * * *
    (c) Methods of service. A notice of contest of a citation or order, 
a proposed penalty assessment, 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 served by personal delivery, 
including courier service, or by registered or certified mail, return 
receipt requested. All subsequent papers may be served by personal 
delivery or by first class mail, including express mail service, except 
as specified in Secs. 2700.9 and 2700.45 (extensions of time and 
temporary reinstatement proceedings). Service by mail, including first 
class, express, or registered or certified mail, return receipt 
requested, is effective upon mailing. Service by personal delivery is 
effective upon receipt. When filing by facsimile transmission (see 
Sec. 2700.5(d)), the filing party must also serve by facsimile 
transmission or by a means as expeditious as facsimile. Service by 
facsimile transmission is effective upon receipt.
* * * * *
    4. Section 2700.9 is revised to read as follows:


Sec. 2700.9  Extensions of time.

    (a) The time for filing or serving any document may be extended for 
good cause shown. Filing of a motion requesting an extension of time, 
including a facsimile transmission, is effective upon receipt. A motion 
requesting an extension of time shall be received no later than 3 days 
prior to the expiration of the time allowed for the filing or serving 
of the document, and shall comply with Sec. 2700.10. The motion shall 
include proof of service on all parties by a means of delivery no less 
expeditious than that used for filing the motion. A motion requesting 
an extension of time and a statement in opposition to such a motion may 
be filed and served by facsimile.
    (b) In exigent circumstances, an extension of time may be granted 
even though the request was filed after the designated time for filing 
has expired. In such circumstances, the party requesting the extension 
must show, in writing, the reasons for the party's failure to make the 
request before the time prescribed for the filing had expired.
    5. Section 2700.10 is amended by redesignating paragraph (c) as 
(d), revising newly redesignated paragraph (d) and by adding a new 
paragraph (c) to read as follows:


Sec. 2700.10  Motions.

* * * * *
    (c) Prior to filing a procedural 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 10 days after service upon the party. Unless otherwise 
ordered, oral argument on motions will not be heard. Where 
circumstances warrant, a motion may be ruled upon prior to the 
expiration of the time for response; a party adversely affected by the 
ruling may seek reconsideration.
    6. Section 2700.45 is amended by revising paragraphs (a) and (f) to 
read as follows:


Sec. 2700.45  Temporary reinstatement proceedings.

    (a) Service of pleadings. A copy of each document filed with the 
Commission in a temporary reinstatement proceeding shall be served on 
all parties by personal delivery, including courier service, by 
certified or registered mail, return receipt requested or, as specified 
in paragraph (f) of this section, by facsimile transmission.
* * * * *
    (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 days following receipt of the 
Judge's written order. The filing of any such petition is effective 
upon receipt. The petition shall include proof of service on all 
parties by a means of delivery no less expeditious than that used for 
filing the petition.

[[Page 25187]]

The filing and service of any pleadings under this rule may be made by 
facsimile transmission. 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 days following service of a 
petition. 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 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.
* * * * *
    7. Section 2700.70 is amended by revising paragraphs (a) and (d) to 
read as follows:


Sec. 2700.70  Petitions for discretionary review.

    (a) Procedure. Any person adversely affected or aggrieved by a 
Judge's decision or order may file with the Commission a petition for 
discretionary review within 30 days after issuance of the decision or 
order. Filing of a petition for discretionary review, including a 
facsimile transmission, is effective upon receipt. Two or more parties 
may join in the same petition; the Commission may consolidate related 
petitions. Procedures governing petitions for review of temporary 
reinstatement orders are found at Sec. 2700.45(f).
* * * * *
    (d) Requirements. Each issue shall be separately numbered and 
plainly and concisely stated, and shall be supported by detailed 
citations to the record, when assignments of error are based on the 
record, and by statutes, regulations, or other principal authorities 
relied upon. Except by permission of the Commission and for good cause 
shown, petitions for discretionary review shall not exceed 35 pages. A 
motion requesting an extension of the page limit shall be filed not 
less than 10 days prior to the date the petition for discretionary 
review is due to be filed, shall state the approximate length of the 
extension required, and shall comply with Sec. 2700.10. Except for good 
cause shown, no assignment of error by any party shall rely on any 
question of fact or law upon which the Judge had not been afforded an 
opportunity to pass.
* * * * *
    8. Section 2700.75 is amended by revising paragraphs (c) and (d), 
by redesignating paragraph (f) as (g), and by adding a new paragraph 
(f) to read as follows:


Sec. 2700.75  Briefs.

* * * * *
    (c) Length of brief. Except by permission of the Commission and for 
good cause shown, opening briefs shall not exceed 35 pages, response 
briefs shall not exceed 25 pages, and reply briefs shall not exceed 15 
pages. A brief of an amicus curiae shall not exceed 25 pages. A brief 
of an intervenor shall not exceed the page limitation applicable to the 
party whose position it supports in affirming or reversing the Judge, 
or if a different position is taken, such brief shall not exceed 25 
pages. Tables of contents or authorities shall not be counted against 
the length of a brief.
    (d) Motion for extension of time. A motion for an extension of time 
to file a brief shall comply with Sec. 2700.9. The Commission may 
decline to accept a brief that is not timely filed.
* * * * *
    (f) Motion for extension of page limit. A motion requesting an 
extension of the page limit for a brief shall be filed not less than 10 
days prior to the date the brief is due to be filed, shall state the 
approximate length of the extension required, and shall comply with 
Sec. 2700.10.
* * * * *
    9. Section 2700.76 is amended by revising paragraph (a) to read as 
follows:


Sec. 2700.76  Interlocutory review.

    (a) Procedure. Interlocutory review by the Commission shall not be 
a matter of right but of the sound discretion of the Commission. 
Procedures governing petitions for review of temporary reinstatement 
orders are found at Sec. 2700.45(f).
* * * * *
Mary Lu Jordan,
Chairman, Federal Mine Safety and Health Review Commission.
[FR Doc. 98-12157 Filed 5-6-98; 8:45 am]
BILLING CODE 6735-01-P