`[Federal Register Volume 90, Number 11 (Friday, January 17, 2025)]
[Rules and Regulations]
[Pages 5610-5628]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-00703]


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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

29 CFR Part 2700


Procedural Rules

AGENCY: Federal Mine Safety and Health Review Commission.

ACTION: Final rule.

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SUMMARY: The Federal Mine Safety and Health Review Commission (the 
``Commission'') is an independent adjudicatory agency that provides 
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 five-member Review Commission appointed by the 
President and confirmed by the Senate. This rule makes final revisions 
to many of the Commission's procedural rules. 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 
[email protected].

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 Sec.  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 Sec.  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

[[Page 5611]]

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 Sec. Sec.  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 Sec. Sec.  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 gender-neutral language. Conforming 
changes were proposed for Sec. Sec.  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 Sec.  
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 
Sec. Sec.  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 Sec. Sec.  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 Sec. Sec.  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

[[Page 5612]]

``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 Sec.  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 Sec. Sec.  
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

Sec.  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 non-attorney 
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 Sec.  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.
Sec.  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 Sec.  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 Sec.  
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.
Sec.  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 (Sec.  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) (Sec.  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 Sec.  2700.5(c)(2)(ii) 
(after a Judge has been assigned). In addition, Sec.  2700.5(c)(2)(iii) 
refers the reader to Sec.  2700.76, which does not provide detailed 
information about how to file documents non-electronically. The 
Commission received no comments regarding this proposed change and 
adopts it as proposed.

[[Page 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 Sec.  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 Sec.  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 Sec.  2700.5(e). The Secretary commented that proposed Sec.  
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 Sec.  2700.5(e) referred to 
``confidential commercial information.'' The Commission added language 
to Sec.  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 Sec. Sec.  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 Sec. Sec.  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).
Sec.  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.
Sec.  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.
Sec.  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 Sec.  
2700.53(a) recognizing that a Judge has the discretion to record any 
in-person 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 in-
person 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

Sec.  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 Sec.  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

[[Page 5614]]

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 Sec.  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, Sec.  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.
Sec.  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 Sec.  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.
Sec.  2700.31 Penalty Settlement
    The Commission proposed three changes with respect to Rule 31. 
First, the Commission proposed making a correction to Sec.  2700.31(a). 
Paragraph (a) of Sec.  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.
Sec.  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

Sec.  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

[[Page 5615]]

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 Sec.  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 Sec.  
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.
Sec.  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 Sec. Sec.  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

Sec.  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

Sec.  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.
Sec.  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 hand-written. In addition, Sec.  
2700.5 has procedural requirements in place that prohibit a filer from 
using word processing features to avoid page limits.
Sec.  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.
Sec.  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

Sec.  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.

[[Page 5616]]

    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 Sec.  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 non-Commission 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 Sec.  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.
Sec.  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 
Sec.  2700.82(d) so that it conforms with the provisions of Sec.  
2700.5(j).
    The Commission received no comments regarding the proposed change 
and adopts it as proposed.
Sec.  2700.83 Authority To Sign Orders
    Currently under Sec.  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 Sec.  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.

[[Page 5617]]

    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

0
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

0
2. Revise Sec.  2700.1 to read as follows:


Sec.  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.


0
3. Revise Sec.  2700.2 to read as follows:


Sec.  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.''


0
4. Revise Sec.  2700.3 to read as follows:


Sec.  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 Sec.  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 Sec.  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.


0
5. Revise Sec.  2700.4 to read as follows:


Sec.  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 Sec.  2700.5(c). The

[[Page 5618]]

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.


0
6. Revise Sec.  2700.5 to read as follows:


Sec.  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 third-party 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

[[Page 5619]]

for summary decision, a petition for discretionary review, and a motion 
to exceed page limit is effective only upon receipt. See Sec. Sec.  
2700.9(a), 2700.24(d), 2700.45(f), 2700.67(a), 2700.70(a), (f), and 
2700.75(f). 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 8\1/2\ 
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.

0
7. Revise Sec.  2700.6 to read as follows:


Sec.  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.

0
8. In Sec.  2700.7, revise paragraphs (a) and (c)(1) and (2) to read as 
follows:


Sec.  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 Sec.  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 Sec. Sec.  
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.
* * * * *

0
9. In Sec.  2700.8:
0
a. Revise the introductory text and paragraphs (b) and (d);
0
b. Remove examples 1, 2, and 3 from the end of the section; and
0
c. Add paragraph (e).
    The revisions and additions read as follows:


Sec.  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 Sec.  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 Sec.  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

[[Page 5620]]

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 Sec.  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.

0
10. In Sec.  2700.9, revise paragraph (a) to read as follows:


Sec.  2700.9   Extensions of time.

    (a) The time for filing or serving any document may be extended for 
good cause shown. Filing of a motion requesting an extension of time is 
effective upon receipt. A motion requesting an extension of time shall 
be received no later than 3 days prior to the expiration of the time 
allowed for the filing or serving of the document, and shall comply 
with Sec.  2700.10. The motion 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.
* * * * *

0
11. In Sec.  2700.10, revise paragraphs (a) and (b) to read as follows:


Sec.  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.
* * * * *

0
12. Revise Sec.  2700.11 to read as follows:


Sec.  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.

0
13. Revise Sec.  2700.12 to read as follows:


Sec.  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

0
14. In Sec.  2700.20, revise paragraphs (b) and (d) to read as follows:


Sec.  2700.20   Notice of contest of a citation or order issued under 
Sec.  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.
* * * * *

0
15. In Sec.  2700.24, revise paragraphs (d), (e), (f), and (g) to read 
as follows:


Sec.  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 Sec.  2700.69(b), an 
ALJ shall retain jurisdiction over a request for a stay in an emergency 
response plan dispute proceeding. Within two

[[Page 5621]]

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 Sec.  2700.70. Neither an operator's request for a stay nor the 
issuance of an order addressing the stay request affects the time 
limits for filing a petition for discretionary review of 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 Sec.  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

0
16. Revise Sec.  2700.25 to read as follows:


Sec.  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.

0
17. Revise Sec.  2700.26 to read as follows:


Sec.  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 Sec.  2700.20. The Secretary shall immediately transmit to 
the Commission any notice of contest of a proposed penalty assessment.

0
18. Revise Sec.  2700.27 to read as follows:


Sec.  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.

0
19. In Sec.  2700.28, revise paragraphs (b)(1) and (2) to read as 
follows:


Sec.  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).
* * * * *

0
20. Revise Sec.  2700.30 to read as follows:


Sec.  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.

0
21. Revise Sec.  2700.31 to read as follows:


Sec.  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 Sec.  2700.69(c).

Subpart E--Complaints of Discharge, Discrimination or Interference

0
22. Revise Sec.  2700.40 to read as follows:


Sec.  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

[[Page 5622]]

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.

0
23. Revise Sec.  2700.41 to read as follows:


Sec.  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.

0
24. Revise Sec.  2700.42 to read as follows:


Sec.  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.

0
25. Revise Sec.  2700.43 to read as follows:


Sec.  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.

0
26. Revise Sec.  2700.44 to read as follows:


Sec.  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.

0
27. Revise Sec.  2700.45 to read as follows:


Sec.  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 Sec.  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

[[Page 5623]]

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 Sec.  
2700.40(b).

Subpart F--Applications for Temporary Relief

0
28. In Sec.  2700.46, revise paragraph (d) to read as follows:


Sec.  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.

0
29. In Sec.  2700.47, revise paragraph (a) to read as follows:


Sec.  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

0
30. Revise Sec.  2700.50 to read as follows:


Sec.  2700.50  Assignment of ALJs.

    ALJs shall be assigned cases in rotation as far as practicable.

0
31. Revise Sec.  2700.51 to read as follows:


Sec.  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.

0
32. Revise Sec.  2700.53 to read as follows:


Sec.  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 Sec.  2700.10(a), any in-person 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.

0
33. Revise Sec.  2700.54 to read as follows:


Sec.  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.

0
34. Revise Sec.  2700.55 to read as follows:


Sec.  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.

0
35. In Sec.  2700.56, revise paragraphs (c) and (e) to read as follows:


Sec.  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.

0
36. Revise Sec.  2700.57 to read as follows:


Sec.  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.

0
37. Revise Sec.  2700.58 to read as follows:


Sec.  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.

[[Page 5624]]

    (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.

0
38. Revise Sec.  2700.59 to read as follows:


Sec.  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.

0
39. Revise Sec.  2700.60 to read as follows:


Sec.  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 Sec.  
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.

0
40. Revise Sec.  2700.61 to read as follows:


Sec.  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.

0
41. Revise Sec.  2700.62 to read as follows:


Sec.  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.

0
42. In Sec.  2700.63, revise paragraph (b) to read as follows:


Sec.  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.

0
43. Revise Sec.  2700.64 to read as follows:


Sec.  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.

0
44. Revise Sec.  2700.65 to read as follows:


Sec.  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.

0
45. Revise Sec.  2700.66 to read as follows:


Sec.  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

[[Page 5625]]

enter an order assessing appropriate penalties and directing that such 
penalties be paid.

0
46. In Sec.  2700.67, revise paragraphs (a), (e), and (f) to read as 
follows:


Sec.  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.

0
47. Revise Sec.  2700.68 to read as follows:


Sec.  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.

0
48. Revise Sec.  2700.69 to read as follows:


Sec.  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

0
49. Revise Sec.  2700.70 to read as follows:


Sec.  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 
Sec.  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 Sec.  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 Sec.  2700.71.
    (h) Denial of petition. A petition not granted within 40 days after 
the issuance of the ALJ's decision is deemed denied.

[[Page 5626]]


0
50. Revise Sec.  2700.71 to read as follows:


Sec.  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.

0
51. In Sec.  2700.73, revise paragraphs (b) and (d) to read as follows:


Sec.  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.

0
52. In Sec.  2700.75, revise paragraphs (a)(1), (c), (e), and (f) to 
read as follows:


Sec.  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 Sec.  
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.
* * * * *

0
53. Revise Sec.  2700.76 to read as follows:


Sec.  2700.76   Interlocutory review.

    (a) Procedure. Interlocutory review by the Commission shall not be 
a matter of right but of the sound discretion of the Commission. 
Procedures governing petitions for review of temporary reinstatement 
orders are found at Sec.  2700.45(f).
    (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.

0
54. In Sec.  2700.78, revise paragraph (a) to read as follows:


Sec.  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

0
55. Revise Sec.  2700.80 to read as follows:


Sec.  2700.80   Standards of conduct; disciplinary proceedings.

    (a) Standards of conduct. Representatives appearing before the 
Commission or before Commission ALJs pursuant to Sec.  2700.3(b) shall 
conform to the standards of ethical conduct

[[Page 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 non-
Commission 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 Sec.  2700.76 or, alternatively, may 
assign the ALJ's ruling as error in a petition for discretionary 
review.

0
56. Revise Sec.  2700.81 to read as follows:


Sec.  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.

0
57. In Sec.  2700.82, revise paragraphs (b), (c), and (d) to read as 
follows:


Sec.  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

[[Page 5628]]

Avenue NW, Suite 520N, Washington, DC 20004-1710; 202-434-9950.

0
58. Revise Sec.  2700.83 to read as follows:


Sec.  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`