5610 Federal Register / Vol. 90, No. 11 / Friday, January 17, 2025 / Rules and Regulations 

TABLE 1 TO § 0.1—Continued 

Bureaus: 

Federal Bureau of Investigation. 

Bureau of Prisons. 

Drug Enforcement Administration. 

Office of Justice Programs (and related agencies). 

United States Marshals Service. 

Bureau of Alcohol, Tobacco, Firearms, and Explosives. 

Boards: 

Board of Immigration Appeals. 

U.S. Parole Commission. 

Foreign Claims Settlement Commission. 

■ 3. Add subpart O–1, consisting of 

§ 0.81, to read as follows: 

Subpart O–1—Office of the Executive 

Secretariat 

§ 0.81 Office of the Executive Secretariat. 

(a) The Office of the Executive 

Secretariat is headed by an Executive 

Secretary. The Executive Secretary is 

appointed by the Attorney General and 

reports to the Deputy Attorney General. 

(b) The Office of the Executive 

Secretariat shall: 

(1) Ensure that official documents 

requiring the review, approval, or 

signature by the Attorney General, 

Deputy Attorney General, or Associate 

Attorney General are assigned, tracked, 

and cleared within the Department of 

Justice, as appropriate. 

(2) Manage select correspondence 

within the Department of Justice. 

Correspondence refers to written 

communication from Department 

stakeholders addressed to the Attorney 

General, Deputy Attorney General, or 

the Associate Attorney General, or, as 

appropriate, other leadership within the 

Department of Justice. 

(3) Manage select interagency requests 

for official approval or concurrence by 

the Attorney General, Deputy Attorney 

General, or Associate Attorney General; 

Departmental clearances; and 

submissions from other agencies for 

review within the Department of Justice. 

(4) Ensure that records maintained by 

the Office of the Executive Secretariat 

are managed and preserved in 

accordance with applicable statutes, 

regulations, and policies, including but 

not limited to the Federal Records Act, 

Privacy Act of 1974, Freedom of 

Information Act, and U.S. National 

Archives and Records Administrationapproved records schedules. 

(5) Perform such other duties and 

assignments as directed by the Attorney 

General or the Deputy Attorney General. 

Dated: January 14, 2025. 

Merrick B. Garland, 

Attorney General. 

[FR Doc. 2025–01338 Filed 1–16–25; 8:45 am] 

BILLING CODE 4410–PR–P 

FEDERAL MINE SAFETY AND HEALTH 

REVIEW COMMISSION 

29 CFR Part 2700 

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 (the ‘‘Mine Act’’). 

Trials are held before the Commission’s 

Administrative Law Judges, and 

appellate review is provided by a fivemember Review Commission appointed 

by the President and confirmed by the 

Senate. This rule makes final revisions 

to many of the Commission’s procedural 

rules. The Commission makes these 

changes in a continued effort to ensure 

the just, speedy, and inexpensive 

determination of all proceedings before 

the Commission. 

DATES: These final rules are effective on 

March 3, 2025. The Commission will 

accept written and electronic comments 

received on or before February 18, 2025. 

ADDRESSES: Written comments should 

be mailed to Michael A. McCord, 

General Counsel, Office of the General 

Counsel, Federal Mine Safety and 

Health Review Commission, 1331 

Pennsylvania Ave. NW, Suite 520N, 

Washington, DC 20004–1710. Electronic 

comments should state ‘‘Comments on 

Procedural Rules’’ in the subject line 

and be sent to RulesComments@

fmshrc.gov. 

FOR FURTHER INFORMATION CONTACT: 

Sarah Stewart, Deputy General Counsel, 

Office of the General Counsel, Federal 

Mine Safety and Health Review 

Commission, at (202) 434–9935. 

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 2020, the Commission 

published a Notice of Proposed 

Rulemaking (‘‘NPRM’’). 85 FR 63,047 

(Oct. 6, 2020). In the notice, the 

Commission explained that it proposed 

both new rules and revisions to its 

current rules that reflect the 

Commission’s practices. The 

Commission proposed adding new 

Commission Procedural Rule 32 which 

pertained to motions to reopen orders 

that have become final as the result of 

a failure to make a timely filing. The 

Commission also proposed new 

Commission Procedural Rule 72 which 

described the method by which the 

Commission empanels Commissioners, 

as authorized by section 113(c) of the 

Mine Act, 30 U.S.C. 823(c). The 

Commission proposed adding 

provisions to § 2700.5(e) for protecting 

sensitive commercial information, and 

for placing sensitive documents under 

Commission seal. In addition, the 

Commission proposed numerous 

changes with respect to § 2700.80, 

which more fully describe the 

Commission’s process for investigating 

and making determinations in 

disciplinary proceedings. Finally, the 

Commission proposed more technical 

changes, including those necessitated by 

the evolution of the Commission’s 

electronic management of its dockets, as 

well as other corrections and stylistic 

changes. 

Although the proposed rules were 

procedural in nature and did not require 

notice and comment publication under 


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the Administrative Procedure Act 

(‘‘APA’’), 5 U.S.C. 551, 553(b)(3)(A), the 

Commission invited comment from the 

interested public until December 7, 

2020. The Commission received 

comments from the Secretary of Labor 

through the U.S. Department of Labor’s 

Office of the Solicitor (‘‘the Secretary’’), 

the United Mine Workers of America 

(‘‘the UMWA’’), and another member of 

the mining bar who practices before the 

Commission. As discussed in the 

section-by-section analysis below, some 

changes have been made in response to 

the comments received. 

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. 

A. Changes Related to the Commission’s 

Paperless Docketing System 

In 2014, the Commission began using 

an electronic case management system 

(‘‘eCMS’’) in order to more efficiently 

manage its caseload. In late 2013, the 

Commission published interim rules 

permitting parties to file and serve 

documents electronically. 78 FR 77354 

(Dec. 23, 2013). The Commission later 

adopted those interim rules as final 

rules. 84 FR 59931 (Nov. 7, 2019). 

Although parties may continue to file 

documents non-electronically with the 

Commission as they have in the past, 

unless otherwise directed by the 

Commission in response to emergencies 

and special circumstances such as the 

COVID–19 considerations, experience 

has shown that a vast majority of 

documents are filed electronically 

through eCMS. 

The Commission proposed changes to 

its procedural rules in recognition that 

most documents are filed electronically 

and that eCMS will likely evolve. For 

instance, it is likely that in the future, 

eCMS will allow parties to serve 

documents electronically through the 

system. Currently, parties may serve 

documents electronically only through 

the use of email. The Commission 

proposed changing its service 

requirements to allow parties to serve 

documents electronically by other 

means in addition to email in 

anticipation of such changes to eCMS. 

These proposed changes appear 

identically in §§ 2700.7(c) (general 

service requirements); 2700.9(a) 

(motions for extensions of time); 

2700.24(d) (filing and service of 

documents in emergency response plan 

dispute proceedings; 2700.45(a) and 

2700.45(f) (service in temporary 

reinstatement proceedings); 2700.46(d) 

(service of documents in temporary 

relief proceedings); 2700.70(f) (motions 

for leave to exceed page limit relating to 

petitions for discretionary review); and 

2700.75(f) (motions for leave to exceed 

page limit relating to briefs). 

In addition, documents issued by the 

Commission may be offered in 

electronic format rather than in paper 

format to parties. Consequently, the 

Commission proposed deleting 

provisions in §§ 2700.4(b)(1), 

2700.24(f)(1), 2700.45(e)(3), 2700.54, 

2700.66(a) that specify a method of 

postal mail for the issuance of 

documents by the Commission under 

those provisions. Although the Mine 

Act does not specify the method by 

which the Commission must distribute 

its issuances, the Commission intends to 

use the most expeditious means 

reasonably available which is 

appropriate under the circumstances. 

Because Commission Procedural Rules 

24 (emergency response plan dispute 

proceedings) and 45 (temporary 

reinstatement proceedings) deal with 

expedited proceedings, they shall retain 

their current language stating that the 

parties shall be notified of the Judge’s 

decision or determination by the ‘‘most 

expeditious means reasonably 

available.’’ The Commission proposed 

adding similar language to Commission 

Procedural Rule 66 (summary 

disposition of proceedings) in paragraph 

(a) stating that the order to show cause 

shall be provided to the party who has 

failed to comply by ‘‘the most 

expeditious means reasonably 

available.’’ 

The Commission received no 

comments regarding these proposed 

changes and adopts them as proposed. 

B. Gender-Specific Pronouns 

The masculine gender is currently 

used throughout the Commission’s 

Procedural Rules. The Commission 

proposed changing the gender-specific 

pronouns in its rules to more genderneutral language. Conforming changes 

were proposed for §§ 2700.4(a); 

2700.6(a)(1), (a)(2)(ii) and (b); 2700.8 

(Example 2); 2700.20(d); 2700.24(e)(2)(i) 

and (ii); 2700.25; 2700.26; 2700.27; 

2700.41(a); 2700.45(b), (c), (d) and (g); 

2700.55(h); 2700.56(c); 2700.58(c); 

2700.61; 2700.62; 2700.63(b); 2700.68(a) 

and (b); 2700.69(a), (b) and (c); 

2700.73(b); 2700.75(a)(1) and (e); and 

2700.76(a)(1)(i); 2700.81(a) and (c). The 

Commission also proposed deleting the 

provision in Procedural Rule 1(c) that 

currently states that ‘‘[w]herever the 

masculine gender is used in these rules, 

the feminine gender is also implied.’’ 29 

CFR 2700.1(c). In addition, the 

Commission proposed revising 

references in § 2700.83 from 

‘‘Chairman’’ to ‘‘Chair.’’ 

The Commission received no 

comments regarding these proposed 

changes and adopts them as proposed. 

C. Consistency in Use of Language 

1. References to Pleadings 

The term ‘‘pleading’’ generally refers 

to those documents filed in the 

beginning stage of proceedings in which 

parties formally submit their claims and 

defenses (i.e., petitions, answers). The 

Commission’s rules sometimes 

erroneously use the term ‘‘pleading,’’ 

when the use of a more generic term, 

such as ‘‘document’’ or ‘‘filing’’ is 

intended. The Commission proposed 

changing the term ‘‘pleading’’ to the 

term ‘‘document’’ or ‘‘filing’’ when the 

more generic term is intended in 

§§ 2700.4(c), 2700.5(h), 2700.8(b) and 

Example 2, 2700.10(b), 2700.11, 

2700.24(d), 2700.45(a) and (f), 

2700.46(d), and 2700.53(a)(4). 

The Commission received no 

comments regarding these proposed 

changes and adopts them as proposed. 

2. References to Website 

The Commission proposed changing 

all references from ‘‘website’’ to 

‘‘website,’’ in keeping with current 

accepted usage. Such changes are 

proposed with respect to §§ 2700.1(a)(1), 

and 2700.5(b), (c)(1), (f)(1), and (j). 

The Commission received no 

comments regarding these proposed 

changes and adopts them as proposed. 

3. References to Judge and Secretary of 

Labor 

The Commission proposed 

capitalizing the word ‘‘Judge’’ wherever 

it appears in the Commission’s 

Procedural Rules. Such changes were 

proposed with respect to 

§§ 2700.24(f)(2) and 2700.67(e). 

The Commission also proposed 

making changes to references to the 

Secretary of Labor, noting that the rules 

variously refer to the Secretary of Labor 

as ‘‘Secretary’’ and ‘‘Secretary of Labor.’’ 

The Commission proposed that the first 

reference in the text of a rule would be 

to the ‘‘Secretary of Labor,’’ with a 

parenthetical indicating that subsequent 

references would be to the ‘‘Secretary.’’ 

The Commission received one 

comment regarding these proposed 

changes. The Secretary suggested that in 

order to streamline the rules, the 

Commission could explain the 

shortened reference to the Secretary in 

just one rule, for example, in 

Commission Procedural Rule 1. In 

addition, the Secretary commented that 

the word ‘‘Judge’’ should be replaced by 


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‘‘ALJ’’ or ‘‘administrative law judge’’ in 

order to distinguish between the 

Commission’s administrative law judges 

and federal district court judges. 

The Commission agrees with the 

Secretary that the rules should explain 

the shortened reference to the Secretary 

in just one rule. The Commission 

believes that the explanation is more 

appropriately made in Rule 2, which 

pertains to ‘‘Definitions,’’ rather than in 

Rule 1. Accordingly, in Rule 2, the 

Commission clarifies that references to 

the ‘‘Secretary’’ are to ‘‘the Secretary of 

Labor’’ or the ‘‘Acting Secretary of 

Labor.’’ This change affects § 2700.8, 

Example 3. 

In addition, the Commission has 

revised Rule 2 to clarify that a 

Commission Administrative Law Judge 

shall be referred to as an ‘‘ALJ’’ 

throughout the Commission’s rules. 

This change affects §§ 2700.1, 2700.3, 

2700.4, 2700.5, 2700.8, 2700.11, 

2700.12, 2700.24, 2700.30, 2700.31, 

2700.44, 2700.45, 2700.47, 2700.50, 

2700.51, 2700.53, 2700.55, 2700.56, 

2700.57, 2700.58, 2700.59, 2700.60, 

2700.61, 2700.62, 2700.64, 2700.65, 

2700.66, 2700.67, 2700.68, 2700.69, 

2700.70, 2700.71, 2700.73, 2700.75, 

2700.76, 2700.80, 2700.81, and 2700.82. 

4. References to Discrimination 

The Commission did not propose any 

changes to references to discrimination 

in the NPRM. 

The Secretary commented that 

references to ‘‘discrimination’’ that 

appear in the rules should also be to 

‘‘interference.’’ 

Section 105(c) of the Mine Act, 30 

U.S.C. 815(c), refers to both 

discrimination and interference. The 

Commission recognizes that 

proceedings involving alleged 

discrimination, interference, or both are 

processed in an identical manner 

procedurally. The Commission agrees 

that references to ‘‘discrimination’’ in 

the Commission’s Procedural Rules 

should also be to ‘‘interference.’’ This 

change impacts Rules 7(a); 40(a) and (b); 

41(a) and (b); 42, 43, 44(a) and (b); and 

45(b). 

D. Subpart A—General Provisions 

§ 2700.3 Who May Practice 

The Commission proposed revising 

Commission Procedural Rule 3 to clarify 

who may appear before the Commission 

as a representative of a party, and the 

conduct required of, and actions 

prohibited by, those who appear before 

the Commission. The proposed 

revisions set forth the requirements for 

making an appearance and listed those 

persons who may represent a party or 

subpoenaed witness. The proposed 

revisions further provided that all 

individuals authorized to practice 

before the Commission, including 

attorney representatives and other nonattorney persons, shall be subject to the 

standards of conduct and disciplinary 

proceedings set forth in 29 CFR 2700.80. 

As discussed below, the Commission 

proposed revising Commission 

Procedural Rule 80(a) to state in part 

that the American Bar Association’s 

Model Rules of Professional Conduct 

shall be considered in the Commission’s 

disciplinary proceedings. 

The Commission received only one 

comment regarding the proposed 

changes. The Secretary agreed with 

proposed paragraph (b)(4), which states 

in part that an employee of a 

governmental agency need not seek the 

presiding Judge’s approval before 

representing a party before the 

Commission. The Secretary further 

commented that, consistent with 

proposed paragraph (b)(4), because 

Conference and Litigation 

Representatives (‘‘CLRs’’) need not get 

prior approval before representing a 

party, conforming changes should be 

made to Rule 31(c)(2). The Secretary 

noted that § 2700.31(c)(2) currently 

requires CLRs to include language in 

proposed settlement orders stating that 

the Judge accepts the CLR to represent 

the Secretary. 

Upon further consideration, the 

Commission found unnecessary 

proposed paragraph (e) specifying 

actions prohibited by representatives. 

The Commission believes that the 

standard of conduct required of 

representatives is adequately addressed 

by the changes to Rule 80. Accordingly, 

the Commission is withdrawing 

proposed paragraph (e) pertaining to 

prohibited actions. The Commission 

otherwise adopts Rule 3 as proposed. In 

addition, the Commission agrees with 

the Secretary’s comment and has made 

conforming changes to Rule 31. 

§ 2700.4 Parties, Intervenors, and 

Amici Curiae 

Current Commission Procedural Rule 

5, 29 CFR 2700.5, provides that parties 

may file documents by electronic means 

and non-electronic means and provides 

instructions for doing so. The 

Commission proposed revising 

§ 2700.4(b) to state that notices of 

intervention shall be filed in accordance 

with the filing requirements set forth in 

Commission Procedural Rule 5. In 

addition, as noted with respect to 

changes related to the Commission’s 

paperless docketing system, the 

Commission proposed deleting the 

reference in current § 2700.4(b)(1) that 

appears to recognize that copies of a 

notice of intervention may be provided 

by the Commission only by postal mail. 

The Commission received no 

comments regarding these proposed 

changes and adopts them as proposed. 

§ 2700.5 General Requirements for 

Pleadings and Other Documents; Status 

or Informational Requests 

The Commission proposed inserting 

‘‘filing requirements’’ in the title of Rule 

5 in recognition that a large part of Rule 

5 pertains to filing requirements. The 

Commission received no comments 

regarding this proposed change and 

adopts it as proposed. 

The Commission also proposed 

revising paragraph (a) to replace an 

erroneous citation of ‘‘30 U.S.C. 820(c)’’ 

with the correct citation of ‘‘30 U.S.C. 

820.’’ The Commission received no 

comments regarding this proposed 

change and adopts it as proposed. 

Paragraph (c)(2) of Rule 5 

(§ 2700.5(c)(2)) provides instructions for 

filing documents by non-electronic 

means. The Commission proposed two 

changes with respect to this paragraph. 

First, the Commission proposed 

amending paragraph (c)(2)(i) of Rule 5 to 

require that filings submitted by a 

means other than electronic 

transmission should be sent to the 

Commission’s Docket Office rather than 

to the Commission’s Executive Director. 

The Commission’s Executive Director 

plays no role with respect to filings, and 

the proposed change reflects the 

Commission’s actual practice. The 

Commission proposed a conforming 

change to Rule 4(b)(1) (§ 2700.4(b)(1)). 

The Commission received no comments 

regarding these proposed changes and 

adopts them as proposed. 

Second, the Commission proposed 

deleting paragraph (c)(2)(iii) as 

superfluous and possibly confusing. 

Paragraph (2)(c) sets forth filing 

instructions pertaining to the following 

specific timeframes: (i) before a Judge 

has been assigned; (ii) after a Judge has 

been assigned; (iii) interlocutory review; 

and (iv) after a Judge has issued a final 

decision. Section 2700.5(c)(2)(iii) 

relating to documents filed in 

connection with interlocutory review is 

unnecessary and possibly confusing 

because such documents also fall under 

§ 2700.5(c)(2)(ii) (after a Judge has been 

assigned). In addition, § 2700.5(c)(2)(iii) 

refers the reader to § 2700.76, which 

does not provide detailed information 

about how to file documents nonelectronically. The Commission 

received no comments regarding this 

proposed change and adopts it as 

proposed. 


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Federal Register / Vol. 90, No. 11 / Friday, January 17, 2025 / Rules and Regulations 5613 

The Commission proposed revising 

paragraph (e) of Commission Procedural 

Rule 5 in order to address various 

privacy considerations. Parties 

sometimes provide confidential 

commercial information to the 

Commission. Further, a party may 

request documents from an opposing 

party that contain such information. The 

Commission proposed adding paragraph 

(5) to § 2700.5(e) in order to include a 

requirement that parties take steps to 

protect their confidential commercial 

information. In addition, while the 

Commission’s Judges already consider 

and decide motions to place records 

under seal, currently there is no 

Commission rule that specifically 

addresses the Commission’s procedure 

for doing so. The Commission proposed 

adding paragraph (6) to § 2700.5(e) in 

order to expressly address the 

procedures for placing documents under 

Commission seal. 

The Commission received two 

comments regarding the proposed 

changes to § 2700.5(e). The Secretary 

commented that proposed § 2700.5(e)(6) 

should be revised to permit in camera 

review in appropriate cases. The 

UMWA commented that the 

Commission should clarify what 

constitutes ‘‘sensitive commercial 

information.’’ 

The Commission recognizes that 

Judges already order in-camera review 

in appropriate circumstances. The 

Commission has added language to Rule 

5(e)(6) to permit in-camera review in 

order to clarify and codify the 

Commission’s practice. 

Regarding the UMWA’s comment that 

the Commission should clarify what 

constitutes ‘‘sensitive commercial 

information,’’ the Commission notes 

that such language appears only in the 

preamble of the NPRM, rather than in 

Rule 5. Proposed § 2700.5(e) referred to 

‘‘confidential commercial information.’’ 

The Commission added language to 

§ 2700.5(e) clarifying that ‘‘confidential 

commercial information’’ is defined in 

29 CFR 2702.6(a)(1). 

Paragraph (j) of Rule 5 sets forth the 

manner in which status or informational 

requests shall be made. It provides that 

such requests may be satisfied by 

accessing the Commission’s website or 

by directing the request to the address 

of the Docket Office. The Commission 

proposed revising the rule to include a 

telephone number for contacting the 

Docket Office for those who need to 

contact the Docket Office in an 

expeditious manner but who do not 

have access to a computer. The 

Commission received no comments 

regarding this proposed change and 

adopts it as proposed. 

Finally, the Commission deleted the 

option to file documents by facsimile 

transmission from §§ 2700.5(b), 

2700.5(c)(2)(i), and 2700.5(f)(2) in 

recognition that the Commission no 

longer has the capability of receiving 

facsimile transmissions. Conforming 

changes have also been made to 

§§ 2700.7(c)(1), 2700.7(c)(2), 2700.8(d), 

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

2700.45(f), and 2700.70(f). 

§ 2700.6 Signing of Documents 

Although Commission Procedural 

Rule 6 states how and by whom 

documents filed with the Commission 

must be signed, there is no specific 

requirement that all such documents 

shall be signed. The Commission 

proposed adding a requirement that all 

documents filed with the Commission 

must be signed. 

The Commission received no 

comments regarding this proposed 

change and adopts it as proposed. 

§ 2700.8 Computation of Time 

Section 2700.8(b) currently provides 

that five additional days are added to 

the due date for responding to a 

pleading served by a method of delivery 

resulting in other than same-day service. 

As noted above with respect to 

references to pleadings, the Commission 

proposed changing the term ‘‘pleading’’ 

to ‘‘filing’’ since the Commission 

intends for the provision to apply to 

more documents than just those filed 

with the Commission during the initial 

stage of proceedings that set forth a 

party’s claims and defenses. 

The Commission also proposed 

adding a clarification to Rule 8(b) that 

the five extra days are not added for a 

response to a proposed penalty 

assessment because a proposed penalty 

assessment is not a filing with the 

Commission. Rather, a proposed penalty 

assessment is a notification sent by the 

Secretary to the operator or any other 

person against whom a civil penalty is 

proposed. 

The Commission received no 

comments regarding these proposed 

changes and adopts them as proposed. 

§ 2700.10 Motions 

Commission Procedural Rule 10, 

which addresses motions, currently 

provides that oral motions may be made 

during a hearing or a conference. 

However, the rule does not require that 

any proceedings on such oral motions 

shall be on the record. A lack of such 

record makes review of proceedings on 

oral motions difficult. The Commission 

proposed adding a provision requiring 

that proceedings on any motion made at 

hearing or during a conference shall be 

on the record. The Commission also 

proposed making a conforming revision 

to § 2700.53(a) recognizing that a Judge 

has the discretion to record any inperson or telephonic conference. 

The Commission received two 

comments on these proposed changes. 

The Secretary agreed with the proposed 

changes to Rule 10. With respect to the 

proposed changes to Rule 53, the 

Secretary commented that transcripts 

should be made available upon request 

and that ‘‘reasonable’’ should be deleted 

from the phrase, ‘‘a transcript should be 

made available upon reasonable 

request’’ since transcripts should be 

readily accessible and because 

‘‘reasonable’’ is not defined. In addition, 

the Secretary suggested that Rule 53 

should clarify that the Judge will notify 

the parties when a Judge records a 

conference. 

A member of the mining bar 

commented that the recording of all inperson or telephonic motions should be 

mandatory rather than within the 

Judge’s discretion unless the conference 

is purely non-substantive in nature. 

The Commission modified the 

proposed language of Rule 10(a) to 

specify that proceedings on any motion 

made at a hearing or during a 

conference shall be ‘‘recorded’’ rather 

than stating that such proceedings shall 

be ‘‘on the record.’’ The Commission 

found the phrase ‘‘on the record’’ to be 

somewhat vague and colloquial and 

potentially confusing. 

Upon further consideration of the 

proposed changes to Rule 53(a), the 

Commission included language 

clarifying that any in-person or 

telephonic conference shall be recorded 

at a party’s request in addition to being 

recorded within the Judge’s discretion. 

If the conference concerns a settlement 

discussion or mediation, the parties may 

request that the matter not be recorded. 

The Commission deleted the proposed 

change pertaining to transcript requests 

as unnecessary. 

E. Subpart C—Contests of Proposed 

Penalties 

§ 2700.25 Proposed Penalty 

Assessment 

The Commission received a 

suggestion that the service requirements 

in a regulation promulgated by the 

Department of Labor’s Mine Safety and 

Health Administration (‘‘MSHA’’) at 30 

CFR 100.8(a) are inconsistent with the 

service requirements in § 2700.25, and 

that changes should be made to 

Commission Procedural Rule 25. 

Section 2700.25 requires that the 

Secretary shall send a notice of a 

proposed civil penalty to an operator or 


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5614 Federal Register / Vol. 90, No. 11 / Friday, January 17, 2025 / Rules and Regulations 

any other person against whom a 

penalty is proposed by ‘‘certified mail.’’ 

The requirements of Commission 

Procedural Rule 25 are taken directly 

from the language of § 105(a) of the 

Mine Act, 30 U.S.C. 815(a), which 

authorizes notification of a proposed 

penalty by ‘‘certified mail’’ only. 

In contrast, § 100.8 states that 

proposed penalty assessments shall be 

‘‘delivered’’ to an operator’s name and 

address of record. Section 100.8 sets 

forth what constitutes a proper service 

address but does not state how service 

to that address should be made. The 

Commission declined proposing 

changes to Commission Procedural Rule 

25 since the rule is wholly consistent 

with the Mine Act. There were no 

comments on the Commission’s 

determination that changes should not 

be proposed. 

§ 2700.28 Filing of Petition for 

Assessment of Penalty With the 

Commission 

The Commission proposed two 

changes to Rule 28. First, the 

Commission proposed adding a 

provision to § 2700.28(b)(1) indicating 

that no more than 20 citations or orders 

may be the subject of a petition for 

assessment of penalty. The Commission 

recognized that past practice has 

demonstrated that more than 20 

citations or orders make a docket too 

large and unwieldy for the Commission 

to efficiently manage. 

The Commission received one 

comment on this proposed change. The 

Secretary commented that the current 

system results in penalty petitions 

containing more than 20 violations only 

on rare occasions. The Secretary urged 

the Commission not to adopt the 

proposed change, citing the 

Commission’s ability to manually split 

dockets as one of several reasons why 

the practical need for this rule change 

was not clear. The Secretary also cited 

logistical confusion, inefficiency, and 

unintended substantive consequences, 

particularly when multiple dockets 

contain citations and orders involving 

the same inspection, inspector, and 

mine personnel. 

The Commission has determined that 

it shall adopt this change as proposed. 

The Commission’s Docket Office 

currently is required to manually split 

dockets containing more than 20 

citations and orders. This approach is 

not sustainable in light of anticipated 

increasing numbers of large dockets and 

the Commission’s limited resources. As 

to the Secretary’s other concerns, the 

Commission may address such concerns 

on a case-by-case basis, including by 

consolidating proceedings as 

appropriate pursuant to 29 CFR 2700.12. 

Second, the Commission proposed 

making a correction to 29 CFR 

2700.28(b)(2). Current Commission 

Procedural Rule 28(b)(2) mistakenly 

refers to a ‘‘single penalty assessment 

[that] has been proposed under 30 CFR 

100.4.’’ The Commission proposed 

deleting the reference to single penalty 

assessments in recognition that single 

penalty assessments have been 

subsumed by regular assessments. 

The Commission received no 

comments regarding this proposed 

change and adopts it as proposed. 

§ 2700.31 Penalty Settlement 

The Commission proposed three 

changes with respect to Rule 31. First, 

the Commission proposed making a 

correction to § 2700.31(a). Paragraph (a) 

of § 2700.31 currently provides that ‘‘in 

all penalty proceedings, except for 

discrimination proceedings arising 

under section 105(c) of the Mine Act,’’ 

a settlement motion must be 

accompanied by a proposed order 

approving settlement. In 

‘‘discrimination proceedings, a party 

need not file a proposed order.’’ 29 CFR 

2700.31(a). The Commission proposed 

deleting the reference to discrimination 

proceedings because the reference 

appears to erroneously include 

discrimination proceedings arising 

under section 105(c) of the Act as a 

subcategory of ‘‘all penalty 

proceedings.’’ 

For purposes of concision, the 

Commission is further revising this 

proposed change to delete the reference 

to ‘‘all penalty proceedings.’’ Although 

the Commission has deleted this 

language, the remaining language of 

Rule 31 provides the necessary context 

clarifying that parties are required to file 

proposed orders approving settlement in 

all penalty proceedings, including 

penalty proceedings associated with a 

discrimination proceeding. 

Second, the Commission proposed 

deleting unnecessary filing 

requirements. Section 2700.31(d) 

currently sets forth requirements for 

electronically filing proposed settlement 

documents under the rule. Paragraph (d) 

was added to Rule 31 prior to the 

development of e-CMS. After the 

development of e-CMS, the Commission 

promulgated rule changes for the 

electronic filing and service of 

documents, which are now final rules 

and include all documents filed in 

accordance with Rule 31. See, e.g., 29 

CFR 2700.5, 2700.7. The Commission 

proposed deleting references to 

electronic filing appearing in Rule 31 as 

superfluous and potentially confusing. 

The Commission received no 

comments regarding this proposed 

change and adopts it as proposed. 

The Commission also proposed 

deleting references that appear in Rule 

31 regarding forms for approved orders 

approving settlement. The Commission 

prefers exercising flexibility regarding 

whether it shall provide sample forms 

for proposed orders approving 

settlement on its website. 

The Commission received no 

comments regarding this proposed 

change and adopts it as proposed. 

§ 2700.32 Motions To Reopen 

The Commission receives requests to 

reopen final orders that generally fall 

into two categories. Requests in the first 

category involve circumstances in 

which a party has failed to file a timely 

contest of a proposed penalty 

assessment and the proposed penalty 

thereby becomes a final order of the 

Commission by operation of section 

105(a) of the Mine Act, 30 U.S.C. 815(a). 

See 29 CFR 2700.27. Requests in the 

second category involve circumstances 

in which a Commission Administrative 

Law Judge issues a default order 

because a party has failed to file an 

answer to a petition for assessment of 

penalty filed by the Secretary. See 29 

CFR 2700.28 and 2700.29. 

The Commission proposed a new rule 

setting forth procedures for motions to 

reopen drawn from the Commission’s 

experience in receiving and disposing of 

such motions. The Secretary 

commented on the proposed rule and 

suggested wording changes. 

Upon further consideration, the 

Commission is withdrawing the 

proposed rule at this time. The 

Commission recognizes that the creation 

of a rule may not necessarily increase 

the efficiency of the Commission’s 

processing of motions to reopen or 

reduce the instances in which a party 

seeks relief. The Commission may 

revisit the issue of promulgating a new 

rule in the future. In the meantime, the 

Commission will continue to provide 

guidance concerning motions to reopen 

in its case law and in informal guidance 

available on the Commission’s website. 

F. Subpart E—Complaints of Discharge, 

Discrimination or Interference 

§ 2700.44 Petition for Assessment of 

Penalty in Discrimination Cases 

The Commission proposed revisions 

to Commission Procedural Rule 44 so 

that cases brought under 30 U.S.C. 

815(c)(3) could be treated in a manner 

similar to those brought under 30 U.S.C. 

815(c)(2) in terms of when a decision 

becomes ripe for review. In addition, in 


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recognition of the Mine Act’s 

requirement that proceedings under 

section 105(c) ‘‘shall be expedited by 

the Secretary and the Commission,’’ the 

Commission proposed changes to 

§ 2700.44 that permitted expedition and 

eliminated unnecessary delay. 30 U.S.C. 

815(c)(3). 

The Commission also proposed 

adding a new paragraph (c) to 29 CFR 

2700.41, stating that proceedings under 

subpart E of the part 2700, which 

pertain to complaints of discharge, 

discrimination or interference, are to be 

expedited. 

The Commission further proposed 

making a conforming change to 

§ 2700.69(a) to explicitly require that 

any decision of a Judge that is not final 

shall be denoted as an ‘‘interim 

decision.’’ 

The Commission received two 

comments regarding these changes. The 

Secretary suggested wording changes to 

proposed Rule 44. The UMWA and the 

Secretary expressed concern about the 

impact that proposed Rule 41(c) would 

have upon adequate case preparation. 

Upon further consideration, the 

Commission withdraws these proposed 

revisions. The Commission recognizes 

that the proposed changes may create 

confusion rather than clarity and 

efficiency. The Commission may revisit 

these proposed changes in future 

rulemakings. 

§ 2700.45 Temporary Reinstatement 

Proceedings 

The Commission did not propose any 

changes to 29 CFR 2700.45 in the 

NPRM. However, a member of the 

mining bar commented that a provision 

should be added to Rule 45 requiring 

that a Complainant’s counsel or 

representative must be notified if the 

operator requests a hearing regarding 

the Secretary’s application for 

temporary reinstatement. The rule 

currently provides that such notice must 

be provided only to the Chief 

Administrative Law Judge and the 

Secretary. 

The Commission agrees with the 

commenter that the rule should be 

changed. The Commission has revised 

§§ 2700.45(a) and 2700.45(c) to make 

explicit who must receive hearing 

requests, as well as documents, in a 

temporary reinstatement proceeding. 

G. Subpart G—Hearings 

§ 2700.64 Retention of Exhibits 

Commission Procedural Rule 64 

pertains generally to exhibits which are 

made part of the official record. The 

Commission proposed revising the title 

of the rule to more generally refer to 

‘‘exhibits,’’ rather than ‘‘retention of 

exhibits’’ since the rule encompasses 

more than the retention of exhibits. In 

addition, the Commission proposed 

changing the rule to reflect that exhibits 

shall be ‘‘deemed part of’’ the official 

record, rather than ‘‘retained with’’ the 

official record. The Commission’s 

official record is electronic and some 

physical exhibits will be deemed to be 

part of the official record although they 

may not be retained in a digital format 

with the other parts of the official 

record. 

The Commission received no 

comments on these proposed changes 

and adopts them as proposed. 

H. Subpart H—Review by the 

Commission 

§ 2700.72 Commission Panels 

Rule 72 is currently reserved. In order 

to promote transparency as to its 

functioning, the Commission proposed 

creating a new Procedural Rule 72 

which would explain the Commission’s 

process for empaneling Commissioners. 

Section 113(c) of the Mine Act, 30 

U.S.C. 823(c), provides in part that the 

Commission is authorized ‘‘to delegate 

to any group of three or more members 

any or all of the powers of the 

Commission.’’ Proposed Rule 72 

provided that the Commission may 

empanel a group of three or more 

members to hear any pending matter, 

and that a Commissioner’s assignment 

to such a panel may be made by a 

random method agreed upon by a 

majority of Commissioners. 

The Commission received two 

comments regarding proposed Rule 72. 

The UMWA commented that Rule 72 

should specify that the parties should be 

informed about the ‘‘random method’’ 

used to determine the Commission 

panel so that parties could object if they 

believed the method used was not truly 

random. Another commenter questioned 

the need for 3-member panels given that 

the Commission’s caseload is not 

extensive. The commenter stated that if 

the Commission decides to keep the 

rule, Rule 72 should be revised to 

include a provision whereby the losing 

side in a 2–1 decision issued by a panel 

has the right to petition the full 

Commission to re-hear the matter. 

Upon further consideration, the 

Commission withdraws proposed Rule 

72. The Commission believes that 

section 113(c) of the Mine Act provides 

sufficient information about the 

Commission’s empanelment authority. 

§ 2700.75 Briefs 

The Commission did not propose any 

changes to its rules in the NPRM 

regarding briefs on appeal before the 

Commission. 

The Secretary, however, commented 

that the Commission should revise its 

rules to set the required length of 

appellate briefs based on word count 

rather than page count. The Secretary 

explained that such a change would 

conform the Commission’s rules to the 

approach that Federal Courts of Appeals 

have taken. In addition, the Secretary 

states the change would also eliminate 

the differing number of pages that result 

from setting the same text in different 

typefaces or from manipulating type. 

The Commission has determined that 

it shall not make the suggested change 

at this time. Some documents filed with 

the Commission do not use word 

processing programs and are handwritten. In addition, § 2700.5 has 

procedural requirements in place that 

prohibit a filer from using word 

processing features to avoid page limits. 

§ 2700.76 Interlocutory Review 

The Commission proposed no 

changes to 29 CFR 2700.76 in the 

NPRM. 

A member of the mining bar 

commented that the Commission should 

revise Rule 76 to establish a time limit 

for Judges to make a determination on 

a motion to certify a matter for 

interlocutory review. The commenter 

expressed a concern that a Judge could 

fail to act on a motion for certification 

until the issue became moot. 

The Commission has determined that 

it will not make this change at this time. 

However, the Commission will consider 

this suggestion in future rulemakings. 

§ 2700.78 Reconsideration 

The Commission proposed revising 

Commission Procedural Rule 78 in 

order to clarify when a motion for 

reconsideration must be filed. Rule 78 

currently provides that a petition for 

reconsideration must be filed with the 

Commission within 10 days after a 

decision or order. The proposed 

revision clarified that the ten-day period 

is counted from the issuance of the 

decision or order. 

The Commission received no 

comments on the proposed change and 

adopts it as proposed. 

I. Subpart I—Miscellaneous 

§ 2700.80 Standards of Conduct; 

Disciplinary Proceedings 

The Commission proposed making 

changes to Commission Procedural Rule 

80 that would clarify the Commission’s 

procedure in disciplinary proceedings 

and the standards applicable in such 

proceedings. 


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Rule 80(a) currently provides that 

individuals practicing before the 

Commission or its Judges shall conform 

to the standards of ethical conduct 

required of practitioners in the courts of 

the United States. The Commission 

proposed revising Rule 80(a) to state 

that the American Bar Association’s 

Model Rules of Professional Conduct 

shall be considered in the Commission’s 

disciplinary proceedings. 

The Commission also proposed 

revising § 2700.80(c) to provide 

appropriate notice to the person named 

in a disciplinary referral, and to permit 

the person an opportunity for response. 

Proposed paragraph (c)(1) of Rule 80 

required the Commission to provide 

written notice to the person named in a 

disciplinary referral of the initiation of 

an investigation. The Commission 

proposed revising paragraph (c)(2) of 

rule 80 to provide that after the 

Commission has determined that a 

hearing is warranted on the matter 

described in the disciplinary referral, 

the Commission shall specify the 

disciplinary issues to be resolved 

through hearing. 

Proposed paragraph (c)(3) permitted 

the respondent named in the 

disciplinary proceeding an opportunity 

to file a response. In addition, proposed 

paragraph (c)(3) provided that the Chief 

Administrative Law Judge may assign 

the proceeding to a Commission 

Administrative Law Judge or to a nonCommission Administrative Law Judge. 

Proposed paragraph (c)(3) clarified that 

subpart G of part 2700, pertaining to 

hearings before the Commission’s 

Administrative Law Judges, also applies 

as appropriate to all Commission 

disciplinary proceedings. 

The Commission received one 

comment on the proposed changes. The 

Secretary commented on a 

typographical error in the proposed 

changes to Rule 80, noting that the word 

‘‘Model’’ had been omitted in 

identifying the ABA Rules in 

§ 2700.80(a). The Secretary further 

commented that to the extent an 

attorney may be a member of a state bar 

with any rule that may conflict in any 

way with the ABA Model Rules, the 

Commission should exercise discretion 

in favor of the attorney’s state bar rules. 

The Commission has made the 

correction noted by the Secretary but 

has determined that it will not accept 

the Secretary’s suggestion to apply state 

ethics laws in Rule 80 proceedings. 

Practitioners appearing before the 

Commission live, work, and appear in 

various locations, making a number of 

jurisdictions’ rules of conduct 

potentially applicable. The Commission 

believes it is more equitable to apply the 

same standards of conduct to all 

individuals appearing before the 

Commission. The Commission adopted 

all other changes as proposed. 

§ 2700.82 Ex Parte Communications 

Commission Procedural Rule 5(j) sets 

forth requirements regarding the manner 

in which status or informational 

requests shall be made. Section 

2700.82(d) sets forth slightly different 

requirements for making status or 

informational requests. In keeping with 

the Commission’s actual practice, the 

Commission proposed making changes 

to § 2700.82(d) so that it conforms with 

the provisions of § 2700.5(j). 

The Commission received no 

comments regarding the proposed 

change and adopts it as proposed. 

§ 2700.83 Authority To Sign Orders 

Currently under § 2700.83, the 

Chairman or other designated 

Commissioner is authorized to sign an 

order on behalf of the other 

Commissioners disposing of certain 

procedural motions. The motions 

subject to Commission Procedural Rule 

83 are non-substantive and involve 

minor procedural issues such as 

motions for extensions of time. The vast 

majority of those motions are 

unopposed. 

The Commission proposed three 

changes to 29 CFR 2700.83. First, the 

Commission proposed adding a 

provision to § 2700.83 clarifying that in 

the absence of a quorum, the remaining 

Commissioner or Commissioners may 

dispose of the procedural motions 

subject to the rule. 

The Commission received one 

comment on this proposed change. The 

Secretary commented that although the 

proposed change was practical, the 

Mine Act does not appear to permit a 

single Commissioner to act alone. 

The Commission is withdrawing this 

proposed change at this time. 

Second, the Commission proposed 

deleting the provision in Procedural 

Rule 83 stating that a person aggrieved 

by an order signed by the Chairman or 

designated Commissioner under the rule 

may request that the order be signed by 

the participating Commissioners. The 

Commission has not received such a 

request and, given the unopposed 

nature of the motions at issue, considers 

it unlikely that it would receive such a 

request in the future. 

The Commission received no 

comments regarding this proposed 

change and adopts it as proposed. 

Third, consistent with changing 

gender-specific pronouns to more 

gender-neutral language throughout its 

rules, the Commission proposed 

changing references from ‘‘Chairman’’ to 

‘‘Chair.’’ 

The Commission received no 

comments regarding this proposed 

change and adopts it as proposed. 

III. Notice and Public Procedure 

A. Executive Orders 

The Commission is an independent 

regulatory agency under section 3(b) of 

Executive Order (‘‘E.O.’’) 12866 (Sept. 

30, 1993), 58 FR 51735 (Oct. 4, 1993); 

E.O. 13563 (Jan. 18, 2011), 76 FR 3821 

(Jan. 21, 2011); E.O. 13771 (Jan. 30, 

2017), 82 FR 9339 (Feb. 3, 2017), 

repealed by E.O. 13992 (Jan. 20, 2021), 

86 FR 7049 (Jan. 25, 2021); E.O. 13777 

(Feb. 24, 2017), 82 FR 12285 (Mar. 1, 

2017), repealed by E.O. 13992 (Jan. 20, 

2021), 86 FR 7049 (Jan. 25, 2021); and 

E.O. 13132 (Aug. 4, 1999), 64 FR 43255 

(Aug. 10, 1999). 

The Commission has determined that 

this rulemaking does not have ‘‘takings 

implications’’ under E.O. 12630 (Mar. 

15. 1988), 53 FR 8859 (Mar. 18, 1988). 

The Commission has determined that 

these regulations meet all applicable 

standards set forth in E.O. 12988 (Feb. 

5, 1996), 61 FR 4729 (Feb. 7, 1996). 

B. Statutory Requirements 

Although notice-and-comment 

rulemaking requirements under the 

Administrative Procedure Act (‘‘APA’’) 

do not apply to rules of agency 

procedure (5 U.S.C. 553(b)(4)(A)), the 

Commission invites members of the 

interested public to submit comments 

on this final rule. The Commission will 

accept public comment until February 

18, 2025. 

The Commission has determined that 

this rulemaking is exempt from the 

requirements of the Regulatory 

Flexibility Act (‘‘RFA’’) (5 U.S.C. 601 et 

seq.), because the proposed rule would 

not have a significant economic impact 

on a substantial number of small 

entities. 

The Commission has determined that 

this rule is not a ‘‘major rule’’ under the 

Small Business Regulatory Enforcement 

Fairness Act (‘‘SBREFA’’) (5 U.S.C. 

804(2)). 

The Commission has determined that 

the Paperwork Reduction Act (‘‘PRA’’) 

(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. 

The Commission has determined that 

the Congressional Review Act (‘‘CRA’’) 

(5 U.S.C. 801 et seq.) does not apply 

because, pursuant to 5 U.S.C. 804(3)(C), 

these rules are rules of agency 

procedure or practice that do not 

substantially affect the rights or 

obligations of non-agency parties. 


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The Commission has determined that 

this rulemaking is not a major Federal 

action significantly affecting the quality 

of the human environment requiring an 

environmental assessment under the 

National Environmental Policy Act 

(‘‘NEPA’’) (42 U.S.C. 4321 et seq.). 

The Commission is an independent 

regulatory agency, and as such, is not 

subject to the requirements of the 

Unfunded Mandates Reform Act 

(‘‘UMRA’’) (2 U.S.C. 1532 et seq.). 

List of Subjects in 29 CFR Part 2700 

Administrative practice and 

procedure, Confidential business 

information, Mine safety and health, 

Penalties, Whistleblowing. 

For the reasons stated in the 

preamble, the 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, and 823. 

Subpart A—General Provisions 

■ 2. Revise § 2700.1 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 (‘‘ALJs’’). 

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 1331 Pennsylvania 

Avenue NW, Suite 520N, Washington, 

DC 20004–1710; and its primary phone 

number is 202–434–9900. The 

Commission maintains a website at 

http://www.fmshrc.gov where these 

rules, recent and many past decisions of 

the Commission and its ALJs, 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 ALJs shall be 

guided so far as practicable by the 

Federal Rules of Civil Procedure and the 

Federal Rules of Appellate Procedure. 

(c) Construction. These rules shall be 

construed to secure the just, speedy and 

inexpensive determination of all 

proceedings, and to encourage the 

participation of miners and their 

representatives. 

■ 3. Revise § 2700.2 to read as follows: 

§ 2700.2 Definitions. 

For purposes of this part, the 

definitions contained in section 3 of the 

Act, 30 U.S.C. 802, apply. For ease of 

reference throughout this part, the 

‘‘Secretary of Labor’’ or ‘‘Acting 

Secretary of Labor’’ shall be referred to 

as the ‘‘Secretary.’’ Similarly, a 

Commission Administrative Law Judge 

shall be referred to as an ‘‘ALJ.’’ 

■ 4. Revise § 2700.3 to read as follows: 

§ 2700.3 Who may appear before the 

Commission as a representative of a party. 

(a) Notice of appearance. When first 

making an appearance, each 

representative of a party must file a 

notice of appearance that indicates on 

whose behalf the appearance is made 

and the proceeding name and docket 

number. 

(b) Who may appear. Persons who 

may represent a party or subpoenaed 

witness before an ALJ or the 

Commission include: 

(1) An attorney who is a member of 

a bar in good standing of the highest 

court of a State, Commonwealth, or 

Territory of the United States, or the 

District of Columbia where the attorney 

has been licensed to practice law, who 

will promptly disclose to the ALJ any 

action suspending, enjoining, 

restraining, disbarring, or otherwise 

currently restricting the attorney in the 

practice of law in any jurisdiction where 

the attorney is licensed to practice law; 

(2) A party; 

(3) A representative of miners; 

(4) An owner, partner, officer or 

employee of a party when the party is 

a labor organization, an association, a 

partnership, a corporation, a 

governmental agency, other business 

entity, or a political subdivision; or 

(5) Any other person with the 

permission of the presiding ALJ or the 

Commission. 

(c) Entry of appearance. A 

representative of a party shall enter an 

appearance in a proceeding under the 

Act or these procedural rules by signing 

the first document filed on behalf of the 

party with the Commission or ALJ in 

accordance with § 2700.6; filing a 

written entry of appearance with the 

Commission or ALJ; or, if the 

Commission or ALJ permits, by orally 

entering an appearance in open hearing. 

(d) Duties. All representatives 

authorized to appear before the 

Commission shall be subject to 

§ 2700.80 (Standards of conduct; 

disciplinary proceedings). A 

representative must be diligent, prompt, 

and forthright when dealing with 

parties, other representatives and the 

ALJ, and act in a manner that furthers 

the fair and orderly conduct of the 

proceeding. 

(e) Withdrawal of appearance. A 

representative who desires to withdraw 

after filing a notice of appearance, or a 

party desiring to withdraw the 

appearance of a representative, must file 

a motion with the Commission or ALJ. 

The motion must state that a notice of 

the withdrawal has been provided to all 

parties. The Commission or ALJ may 

deny a representative’s motion to 

withdraw when necessary to avoid 

undue delay or prejudice to the rights of 

a party. 

■ 5. Revise § 2700.4 to read as follows: 

§ 2700.4 Parties, intervenors, and amici 

curiae. 

(a) Party status. A person, including 

the Secretary or an operator, who is 

named as a party or who is permitted to 

intervene, is a party. In a proceeding 

instituted by the Secretary under section 

105(c)(2) of the Act, 30 U.S.C. 815(c)(2), 

the complainant on whose behalf the 

Secretary has filed the complaint is a 

party and may present additional 

evidence. A miner, applicant for 

employment, or representative of a 

miner who has filed a complaint with 

the Commission under section 105(c)(3) 

or 111 of the Act, 30 U.S.C. 815(c)(3) 

and 821, and an affected miner or the 

miner’s representative who has become 

a party in accordance with paragraph (b) 

of this section, are parties. 

(b) Intervention—(1) Intervention by 

affected miners and their 

representatives. Before a case has been 

assigned to an ALJ, affected miners or 

their representatives shall be permitted 

to intervene upon filing a written notice 

of intervention with the Commission. If 

the case has been assigned to an ALJ, 

the notice of intervention shall be filed 

with the ALJ. Notices of intervention 

shall be filed with the Commission or 

ALJ in accordance with § 2700.5(c). The 


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Commission or the ALJ shall provide 

forthwith a copy of the notice to all 

parties. After the start of the hearing, 

affected miners or their representatives 

may intervene upon just terms and for 

good cause shown. 

(2) Intervention by other persons. (i) 

Motions by other persons for leave to 

intervene shall be filed before the start 

of a hearing on the merits unless the 

ALJ, for good cause shown, allows a 

later filing. The motion shall set forth: 

(A) The interest of the movant relating 

to the property or events that are the 

subject of the proceeding; 

(B) The reasons why such interest is 

not otherwise adequately represented by 

the parties already involved in the 

proceeding; and 

(C) A showing that intervention will 

not unduly delay or prejudice the 

adjudication of the issues. 

(ii) Such intervention is not a matter 

of right but of the sound discretion of 

the ALJ. In denying a motion to 

intervene, the ALJ may alternatively 

permit the movant to participate in the 

proceeding as amicus curiae. 

(c) Procedure for participation as 

amicus curiae. Any person may move to 

participate as amicus curiae in a 

proceeding before an ALJ. Such 

participation as amicus curiae shall not 

be a matter of right but of the sound 

discretion of the ALJ. A motion for 

participation as amicus curiae shall set 

forth the interest of the movant and 

show that the granting of the motion 

will not unduly delay or prejudice the 

adjudication of the issues. If the ALJ 

permits amicus curiae participation, the 

ALJ’s order shall specify the time within 

which such amicus curiae 

memorandum, brief, or other filing must 

be filed and the time within which a 

reply may be made. The movant may 

conditionally attach its memorandum, 

brief, or other filing to its motion for 

participation as amicus curiae. 

■ 6. Revise § 2700.5 to read as follows: 

§ 2700.5 General requirements for 

pleadings and other documents; filing 

requirements; status or informational 

requests. 

(a) Jurisdiction. A proposal for a 

penalty under section 110, 30 U.S.C. 

820; an answer to a notice of contest of 

a citation or withdrawal order issued 

under section 104, 30 U.S.C. 814; an 

answer to a notice of contest of an order 

issued under section 107, 30 U.S.C. 817; 

a complaint issued under section 105(c) 

or 111, 30 U.S.C. 815(c) and 821; and an 

application for temporary reinstatement 

under section 105(c)(2), 30 U.S.C. 

815(c)(2), shall allege that the violation 

or imminent danger took place in or 

involves a mine that has products which 

enter commerce or has operations or 

products that affect commerce. 

Jurisdictional facts that are alleged are 

deemed admitted unless specifically 

denied in a responsive pleading. 

(b) How to file. Unless otherwise 

provided for in the Act, these rules, or 

by order, filing may be accomplished in 

person, by U.S. Postal Service, by thirdparty commercial carrier, or by 

electronic transmission. Instructions for 

electronic filing may be accessed on the 

Commission’s website (http://

www.fmshrc.gov). 

(c) Where to file. Unless otherwise 

provided for in the Act, these rules, or 

by order: 

(1) Filing by electronic transmission. 

A document may be filed by electronic 

transmission with the Commission and 

its ALJs. Instructions for electronic 

filing may be accessed on the 

Commission’s website (http://

www.fmshrc.gov). 

(2) Filing in person, by U.S. Postal 

Service, or by third-party commercial 

carrier—(i) Before an ALJ has been 

assigned. Before an ALJ has been 

assigned to a case, all documents shall 

be filed with the Commission. 

Documents filed with the Commission 

shall be addressed to the Docket Office, 

Federal Mine Safety and Health Review 

Commission, 1331 Pennsylvania 

Avenue NW, Suite 520N, Washington, 

DC 20004–1710. 

(ii) After an ALJ has been assigned. 

After an ALJ has been assigned, and 

before a decision has been issued, 

documents shall be filed with the ALJ 

at the address set forth on the notice of 

the assignment. 

(iii) After an ALJ has issued a final 

decision. After the ALJ has issued a final 

decision, documents shall be filed with 

the Commission as described in 

paragraph (c)(2)(i) of this section. 

(d) 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, business 

telephone number, cellular telephone 

number if available, and email address 

if available. Written notice of any 

change in contact information shall be 

given promptly to the Commission or 

the ALJ and all other parties. 

(e) Privacy considerations. Persons 

submitting information to the 

Commission shall protect information 

that tends to identify certain 

individuals, constitute an unwarranted 

intrusion of personal privacy, or 

disclose confidential commercial 

information as defined by 29 CFR 

2702.6(a)(1) in the following manner: 

(1) 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 materials 

unnecessary to a disposition of the case, 

provided the party gives notice to other 

parties and the ALJ of the types of 

material redacted and the reason for 

such redactions. 

(5) Parties shall, consistent with 29 

CFR 2702.6, exercise caution when 

providing corporate or commercial 

information and, with the permission of 

the ALJ, shall redact or exclude any 

portion of its filing unnecessary to a 

disposition of the case or shall designate 

by appropriate markings any portion 

that it considers to be confidential. 

(6) The Commission may order, sua 

sponte or pursuant to a party’s motion, 

that a filing be submitted for in-camera 

review or placed under seal. The 

Commission may subsequently unseal 

the filing or order the person who made 

the submission to substitute a redacted 

version in the record. Prior to unsealing 

a filing, the Commission shall provide 

the party that submitted the filing a 

reasonable opportunity to object to the 

sealing or to withdraw the filing. If no 

response is received, the Commission 

will take appropriate action at its 

discretion. No placements under seal, 

redactions or withdrawals shall be 

permitted during the pendency of a 

subpoena duces tecum validly issued to 

the Commission or a valid request 

pursuant to 29 CFR part 2702 related to 

the filing. 

(f) Effective date of filing. Unless 

otherwise provided for in the Act, these 

rules, or by order: 

(1) Filing by electronic transmission. 

When filing is by electronic 

transmission, filing is effective upon 

successful receipt by the Commission. 

The electronic transmission shall be in 

the manner specified by the 

Commission’s website (http://

www.fmshrc.gov). 

(2) Filing in person, by U.S. Postal 

Service, or by third-party commercial 

carrier. When filing is by U.S. Postal 

Service, 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 


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for summary decision, a petition for 

discretionary review, and a motion to 

exceed page limit is effective only upon 

receipt. See §§ 2700.9(a), 2700.24(d), 

2700.45(f), 2700.67(a), 2700.70(a), (f), 

and 2700.75(f). When filing is in person 

or by third-party commercial carrier, 

filing is effective upon successful 

receipt by the Commission. 

(g) Number of copies. Unless 

otherwise ordered or stated in this part, 

only the original of a document shall be 

filed. 

(h) Form of filings. All documents, 

including those filed electronically, 

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 (h) or the use of compacted 

or otherwise compressed printing 

features may be grounds for rejection of 

a filing. 

(i) Citation to a decision of an ALJ. 

Each citation to a decision of an ALJ 

should include ‘‘(ALJ)’’ at the end of the 

citation. 

(j) Status or informational requests. 

Information concerning filing 

requirements, the status of cases, or 

docket information may be accessed 

through the Commission’s website 

(http://www.fmshrc.gov). In the event 

such information is unavailable through 

the Commission’s website or the 

requesting party does not have access to 

the website, such status or informational 

requests must be directed to the Docket 

Office of the Federal Mine Safety and 

Health Review Commission, 1331 

Pennsylvania Avenue NW, Suite 520N, 

Washington, DC 20004–1710; 202–434– 

9950. 

■ 7. Revise § 2700.6 to read as follows: 

§ 2700.6 Signing of documents. 

(a) Signature. All documents filed 

with the Commission must be signed by 

a party or representative of the party. 

(1) Documents not filed by electronic 

transmission. A party or representative 

of the party shall sign a document by 

handwritten signature. 

(2) Documents filed by electronic 

transmission. (i) A party or 

representative of the party may sign a 

document by including the notation ‘‘/ 

s/’’ followed by the typewritten name of 

the party or representative of the party 

filing the document. 

(ii) A party or representative of the 

party may sign a document by including 

a graphical duplicate of the handwritten 

signature. 

(b) Meaning of signature. A document 

or signature may not be denied legal 

effect or enforceability solely because it 

is in electronic form. When a party or 

representative of the party signs a 

document in the manner described in 

paragraph (a) of this section, that 

person’s signature shall constitute a 

certification: 

(1) That under the provisions of the 

law, including these rules and all 

federal conflict of interest statutes, the 

person is authorized and qualified to 

represent the particular party in the 

matter; and 

(2) That the person has read the 

document; that based on knowledge, 

information, and belief formed after 

reasonable inquiry it is well grounded 

in fact and is warranted by existing law 

or a good faith argument for extension, 

modification, or reversal of existing law; 

and that it is not interposed for any 

improper purpose, such as to harass or 

to cause unnecessary delay or needless 

increase in the cost of litigation. 

■ 8. In § 2700.7, revise paragraphs (a) 

and (c)(1) and (2) to read as follows: 

§ 2700.7 Service. 

(a) Generally. A copy of each 

document filed with the Commission 

shall be served on all parties. Whenever 

a party is represented by an attorney or 

other authorized representative who has 

entered an appearance on behalf of such 

party pursuant to § 2700.3, service 

thereafter shall be made upon the 

attorney or other authorized 

representative. In addition, a copy of a 

notice of contest of a citation or order, 

a petition for assessment of penalty, a 

discrimination or interference 

complaint, a complaint for 

compensation, and an application for 

temporary relief shall be served upon 

the representative of miners, if known. 

* * * * * 

(c) * * * 

(1) Methods of service. Documents 

may be served in person, by U.S. Postal 

Service, by third-party commercial 

carrier, or by email or other electronic 

transmission. For documents filed 

pursuant to §§ 2700.9(a), 2700.24, 

2700.45, 2700.70(f), 2700.75(f), and 

subpart F (applications for temporary 

relief), the method of service used must 

be no less expeditious than that used for 

filing, except that if service by email or 

other electronic transmission is 

impossible, the filing party must serve 

in person, or by third-party commercial 

carrier, resulting in same-day delivery. 

(2) Effective date of service. When 

service is by U.S. Postal service, service 

is effective upon mailing. When service 

is in person, by third-party commercial 

carrier, or by email or other electronic 

transmission, service is effective upon 

successful receipt by the party intended 

to be served. 

* * * * * 

■ 9. In § 2700.8: 

■ a. Revise the introductory text and 

paragraphs (b) and (d); 

■ b. Remove examples 1, 2, and 3 from 

the end of the section; and 

■ c. Add paragraph (e). 

The revisions and additions read as 

follows: 

§ 2700.8 Computation of time. 

Unless otherwise provided for in the 

Act, these rules, or by order, the due 

date for a filing or other deadline for 

party or Commission action (hereinafter 

‘‘due date’’) is determined sequentially 

as follows: 

* * * * * 

(b) When a party serves a filing by a 

method of delivery resulting in other 

than same-day service, the due date for 

party action in response is extended 5 

additional calendar days beyond the 

date otherwise prescribed, after 

consideration of paragraph (a) of this 

section where applicable. (n.b. A 

proposed penalty assessment is not a 

filing with the Commission and 

additional days are not added to the 

time for responding to a proposed 

assessment.) 

* * * * * 

(d) The time of filing with the 

Commission shall be determined using 

Washington, DC, local time. For filing 

by electronic means, the due date ends 

at midnight Washington, DC, local time. 

For filing by other means, the due date 

ends at 5:00 p.m. Washington, DC, local 

time. 

(e)(1) Example 1. A motion is filed 

with the Commission on Tuesday, July 

2, 2025. 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 Friday, July 4, 2025, 

are excluded in determining the due 

date. A response is thus due by 

Tuesday, July 15, 2025. In addition, 

those parties not served with the motion 

on the day it was filed have 5 additional 

calendar days in which to respond, or 

until Monday, July 21, 2025. 

(2) Example 2. An ALJ issues a final 

decision in a case on Friday, July 11, 

2025. Under § 2700.70(a), parties have 

until August 11, 2025, to file with the 

Commission a petition for discretionary 

review of the ALJ’s decision. Even 

though the decision was mailed, 5 


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additional calendar days are not added, 

because paragraph (b) of this section 

only applies to actions in response to 

parties’ filings. However, because 

August 10, 2025, is a Sunday, the actual 

due date for the petition is Monday, 

August 11, 2025. 

(3) Example 3. Pursuant to 

§ 2700.24(a), the Secretary 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, July 

10, 2025, the short and plain statement 

the operator must file in response 

within 5 calendar days would be due 

Tuesday, July 15, 2025, 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) of 

this section would apply and the due 

date would be the next day the 

Commission is open. 

■ 10. In § 2700.9, revise paragraph (a) 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 email 

or other electronic transmission is 

impossible, the filing party must serve 

in person, or by third-party commercial 

carrier, resulting in same-day delivery. 

* * * * * 

■ 11. In § 2700.10, revise paragraphs (a) 

and (b) to read as follows: 

§ 2700.10 Motions. 

(a) An application for an order shall 

be by motion which, unless made 

during a hearing or a conference, shall 

be made in writing and shall set forth 

the relief or order sought. Proceedings 

on any motion made at a hearing or 

during a conference shall be recorded. 

(b) Written motions shall be set forth 

in a document separate from other 

filings. 

* * * * * 

■ 12. Revise § 2700.11 to read as 

follows: 

§ 2700.11 Withdrawal of filing. 

A party may withdraw a filing at any 

stage of a proceeding with the approval 

of the ALJ or the Commission. 

■ 13. Revise § 2700.12 to read as 

follows: 

§ 2700.12 Consolidation of proceedings. 

The Commission and its ALJs may at 

any time, upon their own motion or a 

party’s motion, order the consolidation 

of proceedings that involve similar 

issues. 

Subpart B—Contests of Citations and 

Orders 

■ 14. In § 2700.20, revise paragraphs (b) 

and (d) to read as follows: 

§ 2700.20 Notice of contest of a citation or 

order issued under § 104 of the Act. 

* * * * * 

(b) Time to contest. Contests filed by 

an operator pursuant to paragraph (a)(1) 

of this section shall be filed with the 

Secretary at the appropriate Regional 

Solicitor’s Office or at the Solicitor’s 

Office, Mine Safety and Health Division, 

Washington, DC, within 30 days of 

receipt by the operator of the contested 

citation, order, or modification. Contests 

filed by a miner or representative of 

miners pursuant to paragraph (a)(2) of 

this section shall be filed in the same 

manner within 30 days of receipt by the 

miner or representative of miners of the 

contested order, modification, or 

termination. 

* * * * * 

(d) Copy to Commission. The 

contesting party shall also file a copy of 

the notice of contest with the 

Commission at the time the party files 

with the Secretary. 

* * * * * 

■ 15. In § 2700.24, revise paragraphs (d), 

(e), (f), and (g) to read as follows: 

§ 2700.24 Emergency response plan 

dispute proceedings. 

* * * * * 

(d) Filing and service of documents. 

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 served on all parties and on any 

miner or miners’ representative who has 

participated in the emergency response 

plan review process by a method of 

service no less expeditious than that 

used for filing, except that if service by 

email or other electronic transmission is 

impossible, the filing party must serve 

in person, or by third-party commercial 

carrier, resulting in same-day delivery. 

(e) Proceedings before the ALJ—(1) 

Submission of materials. Within 15 

calendar days of the referral, the parties 

shall submit to the ALJ 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 ALJ or designee, and 

simultaneously notify the other parties. 

(ii) Within 10 calendar days following 

the filing of the Secretary’s referral, the 

Commission’s Chief ALJ or designee 

may issue an order scheduling a hearing 

on the ALJ’s own motion, and must 

immediately so notify the parties. 

(iii) If a hearing is ordered under 

paragraph (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 

ALJ assigned to the matter shall review 

the materials submitted by the parties 

pursuant to paragraph (e)(1) of this 

section, and shall issue a decision 

pursuant to paragraph (f) of this section. 

(f) Disposition—(1) Decision of the 

ALJ. Within 15 calendar days following 

receipt by the ALJ of all submissions 

and testimony made pursuant to 

paragraph (e) of this section, the ALJ 

shall issue a decision that constitutes 

the ALJ’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 ALJ’s 

decision by the most expeditious means 

reasonably available. 

(2) Stay of plan provision. 

Notwithstanding § 2700.69(b), an ALJ 

shall retain jurisdiction over a request 

for a stay in an emergency response plan 

dispute proceeding. Within two 


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business days following service of the 

decision, the operator may file with the 

ALJ 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 ALJ 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 an ALJ’s decision, 

including the ALJ’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 an 

ALJ’s decision with the Commission 

under this paragraph (g). 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. 

Subpart C—Contests of Proposed 

Penalties 

■ 16. Revise § 2700.25 to read as 

follows: 

§ 2700.25 Proposed penalty assessment. 

The Secretary, by certified mail, 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 the intent to contest the 

proposed penalty assessment. 

■ 17. Revise § 2700.26 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 of the 

contest of 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. 

■ 18. Revise § 2700.27 to read as 

follows: 

§ 2700.27 Effect of failure to contest 

proposed penalty assessment. 

If, within 30 days from the receipt of 

the proposed penalty assessment, the 

operator or other person fails to notify 

the Secretary of the contest of the 

proposed penalty, the Secretary’s 

proposed penalty assessment shall be 

deemed to be a final order of the 

Commission not subject to review by 

any court or agency. 

■ 19. In § 2700.28, revise paragraphs 

(b)(1) and (2) to read as follows: 

§ 2700.28 Filing of petition for assessment 

of penalty with the Commission. 

* * * * * 

(b) * * * 

(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. The list shall include no more 

than 20 citations or orders which are the 

subject of the petition for assessment of 

penalty. 

(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). 

* * * * * 

■ 20. Revise § 2700.30 to read as 

follows: 

§ 2700.30 Assessment of penalty. 

(a) In assessing a penalty the ALJ shall 

determine the amount of penalty in 

accordance with the six statutory 

criteria contained in section 110(i) of 

the Act, 30 U.S.C. 820(i), and 

incorporate such determination in a 

written decision. The decision shall 

contain findings of fact and conclusions 

of law on each of the statutory criteria 

and an order requiring that the penalty 

be paid. 

(b) In determining the amount of 

penalty, neither the ALJ nor the 

Commission shall be bound by a penalty 

proposed by the Secretary or by any 

offer of settlement made by a party. 

■ 21. Revise § 2700.31 to read as 

follows: 

§ 2700.31 Penalty settlement. 

(a) General. A proposed penalty that 

has been contested before the 

Commission may be settled only with 

the approval of the Commission upon 

motion. A settlement motion must be 

accompanied by a proposed order 

approving settlement. 

(b) Content of motion—(1) Factual 

support. A motion to approve a penalty 

settlement shall include for each 

violation the amount of the penalty 

proposed by the Secretary, the amount 

of the penalty agreed to in settlement, 

and facts in support of the penalty 

agreed to by the parties. 

(2) Certification. The party filing a 

motion must certify that the opposing 

party has authorized the filing party to 

represent that the opposing party 

consents to the granting of the motion 

and the entry of the proposed order 

approving settlement. 

(c) Content of proposed order. A 

proposed order approving a penalty 

settlement shall include for each 

violation the amount of the penalty 

proposed by the Secretary, the amount 

of the penalty agreed to in settlement, 

and facts in support of the penalty 

agreed to by the parties. Proposed orders 

shall not be submitted in PDF format. 

(d) Filing of motion and proposed 

order prior to filing of petition. If a 

motion to approve settlement and 

proposed order is filed with the 

Commission before the Secretary has 

filed a petition for assessment of 

penalty, the filing party must also 

submit as attachments, electronic copies 

of the proposed penalty assessment and 

citations and orders at issue. If such 

attachments are filed, the Secretary need 

not file a petition for assessment of 

penalty. 

(e) Final order. Any order by the ALJ 

approving a settlement shall set forth 

the reasons for approval and shall be 

supported by the record. Such order 

shall become the final order of the 

Commission 40 days after issuance 

unless the Commission has directed that 

the order be reviewed. An ALJ may 

correct clerical errors in an order 

approving settlement in accordance 

with the provisions of § 2700.69(c). 

Subpart E—Complaints of Discharge, 

Discrimination or Interference 

■ 22. Revise § 2700.40 to read as 

follows: 

§ 2700.40 Who may file. 

(a) The Secretary. A discrimination or 

interference complaint under section 

105(c)(2) of the Act, 30 U.S.C. 815(c)(2), 

shall be filed by the Secretary if, after an 

investigation conducted pursuant to 

section 105(c)(2), the Secretary 

determines that a violation of section 

105(c)(1), 30 U.S.C. 815(c)(1), has 

occurred. 

(b) Miner, representative of miners, or 

applicant for employment. A 

discrimination or interference 

complaint under section 105(c)(3) of the 

Act, 30 U.S.C. 815(c)(3), may be filed by 

the complaining miner, representative 


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of miners, or applicant for employment 

if the Secretary, after investigation, has 

determined that the provisions of 

section 105(c)(1) of the Act, 30 U.S.C. 

815(c)(1), have not been violated. 

■ 23. Revise § 2700.41 to read as 

follows: 

§ 2700.41 Time to file. 

(a) The Secretary. A discrimination or 

interference complaint shall be filed by 

the Secretary within 30 days after the 

Secretary’s written determination that a 

violation has occurred. 

(b) Miner, representative of miners, or 

applicant for employment. A 

discrimination or interference 

complaint may be filed by a 

complaining miner, representative of 

miners, or applicant for employment 

within 30 days after receipt of a written 

determination by the Secretary that no 

violation has occurred. 

■ 24. Revise § 2700.42 to read as 

follows: 

§ 2700.42 Contents of complaint. 

A discrimination or interference 

complaint shall include a short and 

plain statement of the facts, setting forth 

the alleged discharge, discrimination or 

interference, and a statement of the 

relief requested. 

■ 25. Revise § 2700.43 to read as 

follows: 

§ 2700.43 Answer. 

Within 30 days after service of a 

discrimination or interference 

complaint, the respondent shall file an 

answer responding to each allegation of 

the complaint. 

■ 26. Revise § 2700.44 to read as 

follows: 

§ 2700.44 Petition for assessment of 

penalty in discrimination or interference 

cases. 

(a) Petition for assessment of penalty 

in Secretary’s complaint. A 

discrimination or interference 

complaint filed by the Secretary shall 

propose a civil penalty of a specific 

amount for the alleged violation of 

section 105(c) of the Act, 30 U.S.C. 

815(c). The 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, 30 

U.S.C. 820(i). 

(b) Petition for assessment of penalty 

after sustaining of complaint by miner, 

representative of miners, or applicant 

for employment. Immediately upon 

issuance of a decision by an ALJ 

sustaining a discrimination or 

interference complaint brought pursuant 

to section 105(c)(3), 30 U.S.C. 815(c)(3), 

the ALJ shall notify the Secretary in 

writing of such determination. The 

Secretary file with the Commission a 

petition for assessment of civil penalty 

within 45 days of receipt of such notice. 

■ 27. Revise § 2700.45 to read as 

follows: 

§ 2700.45 Temporary reinstatement 

proceedings. 

(a) Service of documents. A copy of 

each document filed with the 

Commission in a temporary 

reinstatement proceeding shall be 

served on all parties, the miner (in cases 

where the miner is without 

representation), and also on any 

representative of the complainant miner 

so identified in the miner’s complaint to 

the Secretary or identified in subsequent 

filings, by a method of service as 

expeditious as that used for filing, 

except that, if service by email or other 

electronic transmission is impossible, 

the filing party must serve in person, or 

by third-party commercial carrier, 

resulting in same-day delivery. 

(b) Contents of application. An 

application for temporary reinstatement 

shall state the Secretary’s finding that 

the miner’s discrimination or 

interference complaint was not 

frivolously brought and shall be 

accompanied by an affidavit setting 

forth the Secretary’s reasons supporting 

this finding. The application also shall 

include a copy of the miner’s complaint 

to the Secretary and proof of notice to 

and service on the person against whom 

relief is sought by the most expeditious 

method of notice and delivery 

reasonably available. 

(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 ALJ or designee, 

and simultaneously notify the Secretary, 

the miner (in cases where the miner is 

without representation), and any 

miner’s representative who is due 

service under paragraph (a) of this 

section, whether a hearing on the 

application is requested. If no hearing is 

requested, the ALJ assigned to the 

matter shall immediately review the 

Secretary’s application and, if based on 

the contents thereof the ALJ determines 

that the miner’s complaint was not 

frivolously brought, the ALJ shall 

immediately issue a written order of 

temporary reinstatement. 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 ALJ 

or designee, unless compelling reasons 

are shown in an accompanying request 

for an extension of time. 

(d) Hearing. The scope of a hearing on 

an application for temporary 

reinstatement is limited to a 

determination as to whether the miner’s 

complaint was frivolously brought. The 

burden of proof shall be upon the 

Secretary to establish that the complaint 

was not frivolously brought. In support 

of the application for temporary 

reinstatement, the Secretary may limit 

presentation to the testimony of the 

complainant. The respondent shall have 

an opportunity to cross-examine any 

witnesses called by the Secretary and 

may present testimony and 

documentary evidence in support of its 

position that the complaint was 

frivolously brought. 

(e) Order on application. (1) Within 7 

calendar days following the close of a 

hearing on an application for temporary 

reinstatement, the ALJ shall issue a 

written order granting or denying the 

application. However, in extraordinary 

circumstances, the ALJ’s time for 

issuing an order may be extended as 

deemed necessary by the ALJ. 

(2) The ALJ’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 

ALJ’s determination by the most 

expeditious means reasonably available. 

(4) An ALJ’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 ALJ shall retain 

jurisdiction over the temporary 

reinstatement proceeding. 

(f) Review of order. Review by the 

Commission of an ALJ’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 ALJ’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 

ALJ’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. Filings 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 email or other 

electronic transmission is impossible, 

the filing party must serve in person, or 


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by third-party commercial carrier, 

resulting in same-day 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 ALJ shall be 

so notified. An order dissolving the 

order of reinstatement shall not bar the 

filing of an action by the miner on the 

miner’s own behalf under section 

105(c)(3) of the Act, 30 U.S.C. 815(c)(3), 

and § 2700.40(b). 

Subpart F—Applications for 

Temporary Relief 

■ 28. In § 2700.46, revise paragraph (d) 

to read as follows: 

§ 2700.46 Procedure. 

* * * * * 

(d) Service of documents. A copy of 

each document filed with the 

Commission under subpart F of this part 

must be served on all parties by a means 

of delivery no less expeditious than that 

used for filing, except that if service by 

email or other electronic transmission is 

impossible, the filing party must serve 

in person, or by third-party commercial 

carrier, resulting in same-day delivery. 

■ 29. In § 2700.47, revise paragraph (a) 

to read as follows: 

§ 2700.47 Contents of application. 

(a) An application for temporary relief 

shall contain: 

(1) A showing of substantial 

likelihood that the findings and 

decision of the ALJ or the Commission 

will be favorable to the applicant; 

(2) A statement of the specific relief 

requested; and 

(3) A showing that such relief will not 

adversely affect the health and safety of 

miners in the affected mine. 

* * * * * 

Subpart G—Hearings 

■ 30. Revise § 2700.50 to read as 

follows: 

§ 2700.50 Assignment of ALJs. 

ALJs shall be assigned cases in 

rotation as far as practicable. 

■ 31. Revise § 2700.51 to read as 

follows: 

§ 2700.51 Hearing dates and sites. 

All cases will be assigned a hearing 

date and site by order of the ALJ. In 

fixing the time and place of the hearing, 

the ALJ 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. 

■ 32. Revise § 2700.53 to read as 

follows: 

§ 2700.53 Prehearing conferences and 

statements. 

(a) The ALJ may require the parties to 

participate in a prehearing conference, 

either in person or by telephone or other 

video/audio teleconferencing. 

Notwithstanding the mandatory 

recordings of motions on the record in 

accordance with § 2700.10(a), any inperson or telephonic conference shall be 

recorded at a party’s request or within 

the ALJ’s discretion. The participants at 

any such conference may consider and 

take action with respect to: 

(1) The formulation and 

simplification of the issues; 

(2) The possibility of obtaining 

stipulations, admissions of fact and of 

documents that will avoid unnecessary 

proof and advance rulings from the ALJ 

on the admissibility of evidence; 

(3) The exchange of exhibits and the 

names of witnesses and a synopsis of 

the testimony expected from each 

witness; 

(4) The necessity or desirability of 

amendments to the filings and the 

joinder of parties; 

(5) The possibility of agreement 

disposing of any or all of the issues in 

dispute; 

(6) Such other matters as may aid in 

the expedition of the hearing or the 

disposition of the case. 

(b) The ALJ may also require the 

parties to submit prehearing statements 

addressing one or more of the matters 

set forth in paragraph (a) of this section. 

■ 33. Revise § 2700.54 to read as 

follows: 

§ 2700.54 Notice of hearing. 

Except in expedited proceedings, 

written notice of the time, place, and 

nature of the hearing, the legal authority 

under which the hearing is to be held, 

and the matters of fact and law asserted 

shall be given to all parties at least 20 

days before the date set for hearing. 

■ 34. Revise § 2700.55 to read as 

follows: 

§ 2700.55 Powers of ALJs. 

Subject to these rules, an ALJ is 

empowered to: 

(a) Administer oaths and affirmations; 

(b) Issue subpoenas authorized by 

law; 

(c) Rule on offers of proof and receive 

relevant evidence; 

(d) Order depositions to be taken; 

(e) Regulate the course of the hearing; 

(f) Hold conferences for the settlement 

or simplification of the issues; 

(g) Dispose of procedural requests or 

similar matters; 

(h) Make decisions in the 

proceedings, provided that the ALJ shall 

not be assigned to make a recommended 

decision; and 

(i) Take other action authorized by 

these rules, by 5 U.S.C. 556, or by the 

Act. 

■ 35. In § 2700.56, revise paragraphs (c) 

and (e) to read as follows: 

§ 2700.56 Discovery; general. 

* * * * * 

(c) Limitation of discovery. Upon 

motion by a party or by the person from 

whom discovery is sought or upon the 

ALJ’s own motion, an ALJ may, for good 

cause shown, limit discovery to prevent 

undue delay or to protect a party or 

person from oppression or undue 

burden or expense. 

* * * * * 

(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 ALJ 

may extend or shorten the time for 

discovery. 

■ 36. Revise § 2700.57 to read as 

follows: 

§ 2700.57 Depositions. 

(a) Generally. Any party, without 

leave of the ALJ, may take the testimony 

of any person, including a party, by 

deposition upon oral examination or 

written interrogatories. 

(b) Orders for deposition. If the parties 

are unable to agree, the time, place, and 

manner of taking depositions shall be 

governed by order of the ALJ. 

■ 37. Revise § 2700.58 to read as 

follows: 

§ 2700.58 Interrogatories, requests for 

admissions and requests for production of 

documents. 

(a) Interrogatories. Any party, without 

leave of the ALJ, may serve written 

interrogatories upon another party. A 

party served with interrogatories shall 

answer each interrogatory separately 

and fully in writing under oath within 

25 days of service unless the proponent 

of the interrogatories agrees to a longer 

time. The ALJ may order a shorter or 

longer time period for responding. A 

party objecting to an interrogatory shall 

state the basis for the objection in its 

answer. 


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(b) Requests for admissions. Any 

party, without leave of the ALJ, may 

serve on another party a written request 

for admissions. A party served with a 

request for admissions shall respond to 

each request separately and fully in 

writing within 25 days of service, unless 

the party making the request agrees to 

a longer time. The ALJ may order a 

shorter or longer time period for 

responding. A party objecting to a 

request for admissions shall state the 

basis for the objection in its response. 

Any matter admitted under this rule is 

conclusively established for the purpose 

of the pending proceeding unless the 

ALJ, on motion, permits withdrawal or 

amendment of the admission. 

(c) Request for production, entry or 

inspection. Any party, without leave of 

the ALJ, may serve on another party a 

written request to produce and permit 

inspection, copying or photocopying of 

designated documents or objects, or to 

permit a party or its agent to enter upon 

designated property to inspect and 

gather information. A party served with 

such a request shall respond in writing 

within 25 days of service unless the 

party making the request agrees to a 

longer time. The ALJ may order a 

shorter or longer period for responding. 

A party objecting to a request for 

production, entry or inspection shall 

state the basis for the objection in its 

response. 

■ 38. Revise § 2700.59 to read as 

follows: 

§ 2700.59 Failure to cooperate in 

discovery; sanctions. 

Upon the failure of any person, 

including a party, to respond to a 

discovery request or upon an objection 

to such a request, the party seeking 

discovery may file a motion with the 

ALJ requesting an order compelling 

discovery. If any person, including a 

party, fails to comply with an order 

compelling discovery, the ALJ may 

make such orders with regard to the 

failure as are just and appropriate, 

including deeming as established the 

matters sought to be discovered or 

dismissing the proceeding in favor of 

the party seeking discovery. For good 

cause shown the ALJ may excuse an 

objecting party from complying with the 

request. 

■ 39. Revise § 2700.60 to read as 

follows: 

§ 2700.60 Subpoenas. 

(a) Compulsory attendance of 

witnesses and production of documents. 

The Commission and its ALJs are 

authorized to issue subpoenas, on their 

own motion or on the oral or written 

application of a party, requiring the 

attendance of witnesses and the 

production of documents or physical 

evidence. A subpoena may be served by 

any person who is at least 18 years of 

age. A subpoena may also be served by 

registered or certified mail, return 

receipt requested, but, in such case, any 

risk of delivery is on the serving party. 

A copy of the subpoena bearing a 

certificate of service shall be filed with 

the Commission or the ALJ. 

(b) Fees payable to witnesses. 

Subpoenaed witnesses shall be paid the 

same fees and mileage as are paid in the 

district courts of the United States. The 

witness fees and mileage shall be paid 

by the party at whose request the 

witness appears, or by the Commission 

if a witness is subpoenaed on the 

motion of the Commission or an ALJ. 

This paragraph does not apply to 

Government employees who are called 

as witnesses by the Government. 

(c) Motions to revoke or modify 

subpoenas. Any person served with a 

subpoena may move within 5 days of 

service or at the hearing, whichever is 

sooner, to revoke or modify the 

subpoena. The Commission or the ALJ, 

as appropriate, shall revoke or modify 

the subpoena if it seeks information 

outside the proper scope of discovery as 

set forth in § 2700.56(b); or if it does not 

describe with sufficient particularity the 

evidence required to be produced; or if 

for any other reason it is found to be 

invalid or unreasonable. The 

Commission or the ALJ shall set forth a 

concise statement of the grounds for 

such ruling. 

(d) Availability of transcript. Persons 

compelled to submit evidence at a 

public proceeding are entitled to obtain, 

on payment of prescribed costs, a 

transcript of that part of the proceeding 

that sets forth their testimony or refers 

to their production of evidence. 

(e) Failure to comply. Upon the failure 

of any person to comply with an order 

to testify or with a subpoena issued by 

the Commission or the ALJ, the ALJ or 

the Commission’s General Counsel, at 

the request of the ALJ or at the direction 

of the Commission, may undertake to 

initiate proceedings in the appropriate 

district court of the United States for the 

enforcement of the subpoena. 

■ 40. Revise § 2700.61 to read as 

follows: 

§ 2700.61 Name of miner informant. 

An ALJ shall not, except in 

extraordinary circumstances, disclose or 

order a person to disclose to an operator 

or its agent the name of an informant 

who is a miner. 

■ 41. Revise § 2700.62 to read as 

follows: 

§ 2700.62 Name of miner witness. 

An ALJ shall not, until 2 days before 

a hearing, disclose or order a person to 

disclose to an operator or its agent the 

name of a miner who is expected by the 

ALJ to testify or whom a party expects 

to summon or call as a witness. 

■ 42. In § 2700.63, revise paragraph (b) 

to read as follows: 

§ 2700.63 Evidence; presentation of case. 

* * * * * 

(b) The proponent of an order has the 

burden of proof. A party shall have the 

right to present a case or defense by oral 

or documentary evidence, to submit 

rebuttal evidence, and to conduct such 

cross-examination as may be required 

for a full and true disclosure of the facts. 

■ 43. Revise § 2700.64 to read as 

follows: 

§ 2700.64 Exhibits. 

All exhibits received in evidence in a 

hearing or submitted for the record in 

any proceeding before the Commission 

shall be deemed part of the official 

record of the proceeding. The 

withdrawal of original exhibits may be 

permitted by the Commission or the 

ALJ, upon request and after notice to the 

other parties, if true copies are 

substituted, where practical, for the 

originals. 

■ 44. Revise § 2700.65 to read as 

follows: 

§ 2700.65 Proposed findings, conclusions 

and orders. 

The ALJ may require the submission 

of proposed findings of fact, conclusions 

of law, and orders, together with 

supporting briefs. The proposals shall 

be served upon all parties, and shall 

contain adequate references to the 

record and authorities. 

■ 45. Revise § 2700.66 to read as 

follows: 

§ 2700.66 Summary disposition of 

proceedings. 

(a) Generally. When a party fails to 

comply with an order of an ALJ or these 

rules, except as provided in paragraph 

(b) of this section, an order to show 

cause shall be directed to the party 

before the entry of any order of default 

or dismissal. The order shall be 

provided to the party by the most 

expeditious means reasonably available. 

(b) Failure to attend hearing. If a party 

fails to attend a scheduled hearing, the 

ALJ, where appropriate, may find the 

party in default or dismiss the 

proceeding without issuing an order to 

show cause. 

(c) Penalty proceedings. When the 

ALJ finds a party in default in a civil 

penalty proceeding, the ALJ shall also 


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Federal Register / Vol. 90, No. 11 / Friday, January 17, 2025 / Rules and Regulations 5625 

enter an order assessing appropriate 

penalties and directing that such 

penalties be paid. 

■ 46. In § 2700.67, revise paragraphs (a), 

(e), and (f) to read as follows: 

§ 2700.67 Summary decision of the ALJ. 

(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 ALJ 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. 

* * * * * 

(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 

ALJ shall permit affidavits to be 

supplemented or opposed by 

depositions, answers to interrogatories, 

admissions, or further affidavits. 

(f) Case not fully adjudicated on 

motion. If a motion for summary 

decision is denied in whole or in part, 

the ALJ shall ascertain what material 

facts are controverted and shall issue an 

order directing further proceedings as 

appropriate. 

■ 47. Revise § 2700.68 to read as 

follows: 

§ 2700.68 Substitution of the ALJ. 

(a) Generally. Should an ALJ become 

unavailable to the Commission, the 

proceedings assigned to that ALJ shall 

be reassigned to a substitute ALJ. 

(b) Substitution following a hearing. 

The substitute ALJ may render a 

decision based upon the existing record, 

provided the parties are notified of the 

ALJ’s intent and they are given an 

opportunity to object. An objection to 

the ALJ rendering a decision based upon 

the existing record shall be filed within 

10 days following receipt of the ALJ’s 

notice, or the objection shall be deemed 

to be waived. An objection shall be 

founded upon a showing of a need for 

the resolution of conflicting material 

testimony requiring credibility 

determinations. Upon good cause 

shown the ALJ may order a further 

hearing on the merits, which shall be 

limited, so far as practicable, to the 

testimony in dispute. 

■ 48. Revise § 2700.69 to read as 

follows: 

§ 2700.69 Decision of the ALJ. 

(a) Form and content of the ALJ’s 

decision. The ALJ shall make a decision 

that constitutes a 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. 

If a decision is announced orally from 

the bench, it shall be reduced to writing 

after the filing of the transcript. An 

order by an ALJ approving a settlement 

proposal is a decision of the ALJ. 

(b) Termination of the ALJ’s 

jurisdiction. Except to the extent 

otherwise provided herein, the 

jurisdiction of the ALJ terminates when 

the ALJ’s decision has been issued. 

(c) Correction of clerical errors. At any 

time before the Commission has 

directed that an ALJ’s decision be 

reviewed, and on the ALJ’s own motion 

or the motion of a party, the ALJ may 

correct clerical errors in decisions, 

orders, or other parts of the record. After 

the Commission has directed that an 

ALJ’s decision be reviewed, the ALJ may 

correct such errors with the leave of the 

Commission. If an ALJ’s decision has 

become the final order of the 

Commission, the ALJ may correct such 

errors with the leave of the Commission. 

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 ALJ’s decision on the merits. 

(d) Effect of decision of the ALJ. A 

decision of an ALJ is not a precedent 

binding upon the Commission. 

Subpart H—Review by the 

Commission 

■ 49. Revise § 2700.70 to read as 

follows: 

§ 2700.70 Petitions for discretionary 

review. 

(a) Procedure. Any person adversely 

affected or aggrieved by an ALJ’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 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 

§ 2700.45(f). 

(b) Review discretionary. Review by 

the Commission shall not be a matter of 

right but of the sound discretion of the 

Commission. Review by the 

Commission shall be granted only by 

affirmative vote of at least two of the 

Commissioners present and voting. 

(c) Grounds. Petitions for 

discretionary review shall be filed only 

upon one or more of the following 

grounds: 

(1) A finding or conclusion of material 

fact is not supported by substantial 

evidence; 

(2) A necessary legal conclusion is 

erroneous; 

(3) The decision is contrary to law or 

to the duly promulgated rules or 

decisions of the Commission; 

(4) A substantial question of law, 

policy, or discretion is involved; or 

(5) A prejudicial error of procedure 

was committed. 

(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. Except for good 

cause shown, no assignment of error by 

any party shall rely on any question of 

fact or law upon which the ALJ had not 

been afforded an opportunity to pass. 

(e) Statement in opposition to 

petition. A statement in opposition to a 

petition for discretionary review may be 

filed, but the opportunity for such filing 

shall not require the Commission to 

delay its action on the petition. 

(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 email or other 

electronic transmission is impossible, 

the filing party must serve in person, or 

by third-party commercial carrier, 

resulting in same-day delivery. 

(g) Scope of review. If a petition is 

granted, review shall be limited to the 

issues raised by the petition, unless the 

Commission directs review of additional 

issues pursuant to § 2700.71. 

(h) Denial of petition. A petition not 

granted within 40 days after the 

issuance of the ALJ’s decision is deemed 

denied. 


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5626 Federal Register / Vol. 90, No. 11 / Friday, January 17, 2025 / Rules and Regulations 

■ 50. Revise § 2700.71 to read as 

follows: 

§ 2700.71 Review by the Commission on 

its own motion. 

At any time within 30 days after the 

issuance of an ALJ’s decision, the 

Commission may, by the affirmative 

vote of at least two of the 

Commissioners present and voting, 

direct the case for review on its own 

motion. Review shall be directed only 

upon the ground that the decision may 

be contrary to law or Commission policy 

or that a novel question of policy has 

been presented. The Commission shall 

state in such direction for review the 

specific issue of law, Commission 

policy, or novel question of policy to be 

reviewed. Review shall be limited to the 

issues specified in such direction for 

review. 

■ 51. In § 2700.73, revise paragraphs (b) 

and (d) to read as follows: 

§ 2700.73 Procedure for intervention. 

* * * * * 

(b) A showing that the disposition of 

the proceeding may impair or impede 

the movant’s ability to protect that 

interest; 

* * * * * 

(d) The reasons why the movant 

should be excused for failing to file for 

intervention before the ALJ. A motion 

for intervention shall also show that the 

granting of the motion will not unduly 

delay the proceeding or prejudice any 

party and shall explain why the 

movant’s participation as an amicus 

curiae would be inadequate. If the 

Commission permits intervention, the 

Commission’s order shall specify the 

time within which the intervenor’s brief 

and any response or reply may be filed. 

In denying a motion to intervene, the 

Commission may alternatively permit 

the movant to participate in the 

proceeding as amicus curiae. 

■ 52. In § 2700.75, revise paragraphs 

(a)(1), (c), (e), and (f) to read as follows: 

§ 2700.75 Briefs. 

(a) * * * 

(1) Opening and response briefs. 

Within 30 days after the Commission 

grants a petition for discretionary 

review, the petitioner shall file an 

opening brief. The petitioner may notify 

the Commission and all other parties 

within the 30-day period that the 

petition and any supporting 

memorandum are to constitute the 

opening brief. Other parties may file 

response briefs within 30 days after the 

petitioner’s brief is served. If the 

Commission directs review on its own 

motion, all parties shall file any opening 

briefs within 30 days of the direction for 

review. In such cases, a party may file 

a response brief within 20 days after 

service of the opposing party’s opening 

brief. 

* * * * * 

(c) Length of brief. Except by 

permission of the Commission and for 

good cause shown, opening and 

response briefs shall not exceed 35 

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 ALJ, 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. 

* * * * * 

(e) Consequences of petitioner’s 

failure to file brief. If a petitioner fails 

to timely file a brief or to designate the 

petition as the opening brief, the 

direction for review may be vacated. 

(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 email or other 

electronic transmission is impossible, 

the filing party must serve in person, or 

by third-party commercial carrier, 

resulting in same-day delivery. 

* * * * * 

■ 53. Revise § 2700.76 to read as 

follows: 

§ 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 

§ 2700.45(f). 

(1) Review cannot be granted unless: 

(i) The ALJ has certified, upon the 

ALJ’s own motion or the motion of a 

party, that an interlocutory ruling 

involves a controlling question of law 

and that in the ALJ’s opinion immediate 

review will materially advance the final 

disposition of the proceeding; or 

(ii) The ALJ has denied a party’s 

motion for certification of the 

interlocutory ruling to the Commission, 

and the party files with the Commission 

a petition for interlocutory review 

within 30 days of the ALJ’s denial of 

such motion for certification. 

(2) In the case of either paragraph 

(a)(1)(i) or (ii) of this section, the 

Commission, by a majority vote of the 

full Commission or a majority vote of a 

duly constituted panel of the 

Commission, may grant interlocutory 

review upon a determination that the 

ALJ’s interlocutory ruling involves a 

controlling question of law and that 

immediate review may materially 

advance the final disposition of the 

proceeding. Interlocutory review by the 

Commission shall not operate to 

suspend the hearing unless otherwise 

ordered by the Commission. Any grant 

or denial of interlocutory review shall 

be by written order of the Commission. 

(b) Petitions for interlocutory review. 

Where the ALJ denies a party’s motion 

for certification of an interlocutory 

ruling and the party seeks interlocutory 

review, a petition for interlocutory 

review shall be in writing and shall not 

exceed 15 pages. A copy of the ALJ’s 

interlocutory ruling sought to be 

reviewed and of the ALJ’s order denying 

the petitioner’s motion for certification 

shall be attached to the petition. 

(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. 

(d) Scope of review. Unless otherwise 

specified in the Commission’s order 

granting interlocutory review, review 

shall be confined to the issues raised in 

the ALJ’s certification or to the issues 

raised in the petition for interlocutory 

review. 

■ 54. In § 2700.78, revise paragraph (a) 

to read as follows: 

§ 2700.78 Reconsideration. 

(a) A petition for reconsideration must 

be filed with the Commission within 10 

days after the issuance of a decision or 

order of the Commission. Any response 

must be filed with the Commission 

within 10 days of service of the petition. 

* * * * * 

Subpart I—Miscellaneous 

■ 55. Revise § 2700.80 to read as 

follows: 

§ 2700.80 Standards of conduct; 

disciplinary proceedings. 

(a) Standards of conduct. 

Representatives appearing before the 

Commission or before Commission ALJs 

pursuant to § 2700.3(b) shall conform to 

the standards of ethical conduct 


KHAMMOND on DSK9W7S144PROD with RULES
Federal Register / Vol. 90, No. 11 / Friday, January 17, 2025 / Rules and Regulations 5627 

required of practitioners under the 

American Bar Association’s Model 

Rules of Professional Conduct (‘‘ABA’s 

Model Rules’’). The Commission shall 

apply the ABA’s Model rules as far as 

practicable. 

(b) Grounds. Disciplinary proceedings 

may be instituted against anyone who is 

appearing or has appeared before the 

Commission on grounds that such 

person has engaged in unethical or 

unprofessional conduct; has failed to 

comply with these rules or an order of 

the Commission or its ALJs; has been 

disbarred or suspended by a court or 

administrative agency; or has been 

disciplined by an ALJ under paragraph 

(e) of this section. 

(c) Procedure. Disciplinary 

proceedings shall be subject to the 

following procedure: 

(1) Disciplinary referral. Except as 

provided in paragraph (e) of this 

section, an ALJ or other person having 

knowledge of circumstances that may 

warrant disciplinary proceedings 

against a representative who is 

appearing or has appeared before the 

Commission shall forward to the 

Commission for action such information 

in the form of a written disciplinary 

referral. Whenever the Commission 

receives a disciplinary referral, the 

matter shall be assigned a docket 

number and a notice will be issued to 

the individual named in the referral of 

the initiation of an investigation. 

(2) Inquiry and preliminary 

determination by the Commission. The 

Commission shall conduct an inquiry 

concerning a disciplinary referral and 

shall determine whether disciplinary 

proceedings are warranted. The 

Commission may require persons to 

submit affidavits setting forth their 

knowledge of relevant circumstances. 

(i) Termination of referral. If the 

Commission determines that 

disciplinary proceedings are not 

warranted, it shall issue an order 

terminating the referral. 

(ii) Further disciplinary proceedings. 

Whenever, as a result of its inquiry, the 

Commission, by a majority vote of the 

full Commission or a majority vote of a 

duly constituted panel of the 

Commission, determines that the 

circumstances warrant a hearing, the 

Commission shall issue an order 

specifying the disciplinary issues to be 

resolved through hearing and order the 

Commission’s Chief ALJ to assign the 

matter to an ALJ, from within or outside 

of the Commission, other than the 

referring ALJ, for hearing and decision. 

The Commission may designate counsel 

from within or outside of the 

Commission to prosecute the matter 

before the ALJ. 

(3) Hearing before an ALJ—(i) 

Assignment. Upon the Commission’s 

order determining that further 

proceedings are warranted, the 

Commission’s Chief ALJ shall select a 

Commission ALJ, or select a nonCommission ALJ, and issue an order of 

assignment for hearing. The order of 

assignment shall advise the respondent 

that the respondent may file a statement 

in accordance with paragraph (c)(3)(ii) 

of this section. 

(ii) Response. The respondent named 

in the disciplinary proceeding may file 

a statement responding to the 

Commission’s decision within 30 days 

after service of the order of assignment. 

(iii) Evidence and applicability of 

hearing rules. The parties shall have the 

opportunity to present evidence and 

cross-examine witnesses. Subpart G of 

this part, governing Commission 

hearings before ALJs shall apply as 

appropriate to all Commission 

disciplinary proceedings. 

(iv) ALJ’s decision. The ALJ’s decision 

shall include findings of fact and 

conclusions of law and either an order 

dismissing the proceedings or an 

appropriate disciplinary order, which 

may include reprimand, suspension, or 

prohibition from appearing before the 

Commission. 

(d) Appeal from ALJ’s decision. Any 

person adversely affected or aggrieved 

by the ALJ’s decision is entitled to 

review by the Commission. A person 

seeking such review shall file a notice 

of appeal with the Commission within 

30 days after the issuance of the ALJ’s 

decision. 

(e) Misconduct before an ALJ. An ALJ 

may order the removal of any person, 

including a representative of a party, 

who engages in disruptive conduct in 

the ALJ’s presence. If a representative is 

ordered removed, the ALJ shall allow 

the party represented by the person a 

reasonable time to engage another 

representative. In all instances of 

removal of a person for disruptive 

conduct, the ALJ shall place in the 

record a written statement on the 

matter. A party aggrieved by an ALJ’s 

order of removal may appeal by 

requesting interlocutory review 

pursuant to § 2700.76 or, alternatively, 

may assign the ALJ’s ruling as error in 

a petition for discretionary review. 

■ 56. Revise § 2700.81 to read as 

follows: 

§ 2700.81 Recusal and disqualification. 

(a) Recusal. Whenever a 

Commissioner or an ALJ deems 

appropriate, the Commissioner or ALJ 

may choose to be recused from a 

proceeding. 

(b) Request to withdraw. A party may 

request a Commissioner or an ALJ to 

withdraw on grounds of personal bias or 

other disqualification. A party shall 

make such a request by promptly filing 

an affidavit setting forth in detail the 

matters alleged to constitute personal 

bias or other grounds for 

disqualification. 

(c) Procedure if Commissioner or ALJ 

does not withdraw. If, upon being 

requested to withdraw pursuant to 

paragraph (b) of this section, the 

Commissioner or the ALJ does not 

withdraw from the proceeding, the 

Commissioner or ALJ shall so rule upon 

the record, stating the grounds for such 

ruling. If the ALJ does not withdraw, the 

ALJ shall proceed with the hearing, or, 

if the hearing has been completed, the 

ALJ shall proceed with the issuance of 

a decision, unless the Commission stays 

the hearing or further proceedings upon 

the granting of a petition for 

interlocutory review of the ALJ’s 

decision not to withdraw. 

■ 57. In § 2700.82, revise paragraphs (b), 

(c), and (d) to read as follows: 

§ 2700.82 Ex parte communications. 

* * * * * 

(b) Prohibited ex parte 

communication. There shall be no ex 

parte communication with respect to the 

merits of a case not concluded, between 

the Commission, including any member, 

ALJ, officer, or agent of the Commission 

who is employed in the decisional 

process, and any of the parties, 

intervenors, representatives, amici, or 

other interested persons. 

(c) Procedure in case of violation. (1) 

In the event a prohibited ex parte 

communication occurs, the Commission 

or the ALJ may make such orders or take 

such action to remedy the effect of the 

ex parte communication as 

circumstances require. Upon notice and 

hearing, the Commission may take 

disciplinary action against any person 

who knowingly and willfully makes or 

causes to be made a prohibited ex parte 

communication. 

(2) A memorandum setting forth all ex 

parte communications, whether 

prohibited or not, shall be placed on the 

public record of the proceeding. 

(d) Status or informational requests. 

Information concerning filing 

requirements, the status of cases, or 

docket information may be accessed 

through the Commission’s website 

(http://www.fmshrc.gov). In the event 

such information is unavailable through 

the Commission’s website, such status 

or informational requests must be 

directed to the Docket Office of the 

Federal Mine Safety and Health Review 

Commission, 1331 Pennsylvania 


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5628 Federal Register / Vol. 90, No. 11 / Friday, January 17, 2025 / Rules and Regulations 

Avenue NW, Suite 520N, Washington, 

DC 20004–1710; 202–434–9950. 

■ 58. Revise § 2700.83 to read as 

follows: 

§ 2700.83 Authority to sign orders. 

The Chair or other designated 

Commissioner is authorized to sign on 

behalf of a quorum of the Commission, 

orders disposing of the following 

procedural motions: motions for 

extensions of time, motions for 

permission to file briefs in excess of 

page limits, motions to accept late filed 

briefs, motions to consolidate, motions 

to expedite proceedings, motions for 

oral argument, and similar procedural 

motions. In the absence of a designated 

Chair or Acting Chair, Commissioners 

continue to be authorized to sign orders 

disposing of procedural motions as 

identified above. 

Dated: January 8, 2025. 

Mary Lu Jordan, 

Chair, Federal Mine Safety and Health Review 

Commission. 

[FR Doc. 2025–00703 Filed 1–16–25; 8:45 am] 

BILLING CODE 6735–01–P 

DEPARTMENT OF THE INTERIOR 

Office of Surface Mining Reclamation 

and Enforcement 

30 CFR Part 948 

[SATS No. WV–118–FOR (partial); Docket 

ID: OSM–2011–0009; SATS No. WV–126– 

FOR; Docket ID: OSM–2019–0012 S1D1S 

SS08011000 SX064A000 240S180110; 

S2D2S SS08011000 SX064A000 

245XS501520] 

West Virginia Regulatory Program; 

Correction 

AGENCY: Office of Surface Mining 

Reclamation and Enforcement, Interior. 

ACTION: Final rule; correction. 

SUMMARY: We, the Office of Surface 

Mining Reclamation and Enforcement 

(OSMRE), published a document in the 

Federal Register on March 18, 2024, 

approving in part, and not approving in 

part, amendments to the West Virginia 

regulatory program (the West Virginia 

program) under the Surface Mining 

Control and Reclamation Act of 1977 

(SMCRA or the Act). We made an error 

in the document by overwriting a 

provision that should not have been 

removed; instead, we should have 

added a new paragraph under the not 

approved section. Additionally, we did 

not include a provision in the table 

where our approvals were listed. We 

published a correction to the March 18, 

2024, Federal Register document on 

August 28, 2024, but because the March 

18 revisions had already become 

effective, the amendatory instructions 

became erroneous and the August 28, 

2024, corrections could not be 

incorporated into the Code of Federal 

Regulations. This document corrects the 

final regulations. 

DATES: This correction is effective 

January 17, 2025. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Justin Adams, Director, Charleston Field 

Office, Telephone: (304) 977–7177. 

Email: osm-chfo@osmre.gov. 

SUPPLEMENTARY INFORMATION: This is a 

summary of errata from our final rule 

published March 18, 2024 (89 FR 

19262), FR Doc. 2024–05682, on page 

19273, columns 2 and 3. We are 

correcting 30 CFR 948.12 (State 

statutory, regulatory, and proposed 

program amendment provisions not 

approved) to re-letter subsection (k) as 

subsection (l), and reinstate the version 

of subsection (k) that existed in the CFR 

prior to the publication of the March 18, 

2024 Federal Register document. See 

also 89 FR 2133 (Jan. 12, 2024). We are 

also adding subsection 38–2–12.5.d of 

West Virginia’s regulations to the table 

at 30 CFR 948.15 (Approval of West 

Virginia regulatory program 

amendments). We had approved its 

deletion from West Virginia’s 

regulations in the March 18, 2024, 

Federal Register, but it was omitted 

from the table. 

List of Subjects in 30 CFR Part 948 

Intergovernmental relations, Surface 

mining, Underground mining. 

Accordingly, 30 CFR part 948 is 

amended by making the following 

correcting amendments: 

PART 948—WEST VIRGINIA 

■ 1. The authority citation for part 948 

continues to read as follows: 

Authority: 30 U.S.C. 1201 et seq. 

■ 2. In § 948.12, revise paragraph (k) 

and add paragraph (l) to read as follows: 

§ 948.12 State statutory, regulatory, and 

proposed program amendment provisions 

not approved. 

* * * * * 

(k) We are not approving the 

following portions of provisions of the 

proposed program amendment that 

West Virginia submitted on May 15, 

2017: 

(1) We are deferring our decision on 

the deletion of provisions from W.Va. 

Code 22–3–11(g)(2) regarding the 

development of a long-range planning 

process for the selection and 

prioritization of sites to be reclaimed. 

We defer our decision until we make a 

determination on West Virginia’s related 

amendment docketed as WV–128–FOR, 

which relates to the complete and 

accurate listing of all outstanding 

reclamation obligations (including water 

treatment) on active permits in the 

State. 

(2) [Reserved] 

(l) We are not approving the following 

provisions of the proposed West 

Virginia program amendments dated 

May 2, 2018: 

(1) At W.Va. Code 22–3–9, revisions 

substituting notice by newspaper with 

notice in a form and manner determined 

by the Secretary which may be 

electronic. 

(2) At W.Va. Code 22–3–20, revisions 

substituting notice by newspaper with 

notice in a form and manner determined 

by the Secretary which may be 

electronic. 

(3) At CSR 38–2–2.37, the removal of 

the definition ‘‘completion of 

reclamation’’. 

(4) At CSR 38–2–12.2.d., the 

elimination to the existing prohibition 

on bond release for any site specific 

bonding (i.e., open-acre bonding) until 

all coal extraction is completed and the 

disturbed area is completely backfilled 

and regraded. 

(5) At CSR 38–2–12.2.e., to restructure 

and revise existing approved language 

in this section and move it to CSR 38– 

2–12.2.a.4. 

(6) At CSR 38–2–12.2.f., to move, 

unchanged, this existing language to 

CSR 38–2–12.2.d. 

(7) At CSR 38–2–12.2.g., to move, 

unchanged, this existing language to 

CSR 38–2–12.2.f. 

(8) At CSR 38–2–12.2.h., to renumber 

existing CSR 38–2–12.2.h to 12.2.i. and 

to insert it as a new CSR 38–2–12.2.h. 

(9) At CSR 38–2–12.4.c., to eliminate 

an existing 180 day window for 

initiating reclamation operations to 

reclaim the site in accordance with the 

approved reclamation plan or 

modification thereof. 

(10) At CSR 38–2–12.5., to delete 

subsection 12.5 of the West Virginia 

regulations, which directs WVDEP’s 

collection, analysis and reporting on 

sites where bond has been forfeited 

including, in particular, data relating to 

the water quality of water being 

discharged from forfeited sites. 

■ 3. In § 948.15, revise the table entry 

‘‘April 25, 2011, May 8, 2018’’ to read 

as follows: 

§ 948.15 Approval of West Virginia 

regulatory program amendments. 

* * * * * 


KHAMMOND on DSK9W7S144PROD with RULES