[Federal Register Volume 87, Number 136 (Monday, July 18, 2022)]
[Notices]
[Pages 42725-42727]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-15277]


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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION


Hearing Health and Safety

AGENCY: Federal Mine Safety and Health Review Commission.

ACTION: Notice.

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SUMMARY: Beginning on January 3, 3022, the Federal Mine Safety and 
Health Review Commission (the ``Commission'' or ``FMSHRC'') resumed in-
person hearings in the manner described in an order dated December 3, 
2021, appearing in the Federal Register on December 9, 2021, and posted 
on the Commission's website (www.fmshrc.gov). On July 11, 2022, 
Commission Chief Administrative Law Judge Glynn F. Voisin issued an 
order, which modifies the December 3 order. The July 11 order is posted 
on the Commission's website and contains

[[Page 42726]]

hyperlinks not included within this notice.

DATES: Applicable: July 11, 2022.

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: Commission Administrative Law Judges are 
committed to a high standard to protect the health and safety of all 
persons who may appear before them, during the Coronavirus 2019 (COVID-
19) pandemic, while continuing the agency's mission. By order dated 
December 3, 2021, which was published in the Federal Register (86 FR 
70126 (Dec. 9, 2021) and posted on the Commission's website, the 
Commission resumed in-person hearings as of January 3, 2022. On July 
11, 2022, the Chief Judge issued an order modifying the December 3 
order. The contents of the July 11 order are set forth in this notice, 
and for the duration of the July 11 order, all hearings are subject to 
its terms.
    Commission Judges may, at their sole discretion, hold remote 
hearings (e.g., via Zoom) and in-person hearings. Judges also have the 
discretion to hold a hybrid hearing, that includes both in-person and 
video participation. Commission Judges shall exercise this discretion 
within uniform parameters as set forth herein. Each Judge shall 
determine (1) when to use remote hearings in lieu of in-person hearings 
and (2) specific safety procedures to be used at a hybrid or in-person 
hearing.
    In determining the type of hearing, Judges will consider current 
guidance and safety factors on a case-by-case basis. Judges will ensure 
all parties appearing pro se who are required to participate in a 
remote hearing have access to equipment, an internet connection, and 
other appropriate technology. Prior to conducting an in-person hearing, 
Judges will schedule a conference call with the attorneys and 
representatives of each of the parties to discuss, among other things, 
safety considerations for the in-person hearing. Persons who are not 
comfortable with travel or appearing in person, may request to attend 
the hearing via remote access (e.g., via Zoom). Judges may discuss the 
agency's workplace safety plan that outlines travel guidelines, 
protocols, and safety measures in conjunction with the CDC Community 
Levels.
    The Judge will set a hearing location after considering CDC 
Community Levels using the CDC COVID Data Tracker and the safety and 
health rules currently in place by the state and local public health 
entities. Where community levels are HIGH, Judges are discouraged from 
setting in-person hearings. If in-person participants are traveling to 
attend a hearing, the community levels of where they are traveling from 
need to be taken into account as well. In choosing a courtroom, the 
Judge will take into consideration the rules and requirements of the 
court or hearing facility, as well as all applicable federal, state, 
and local regulations and guidelines. If the hearing is to be a hybrid 
hearing, the Judge will also consider the availability of internet and 
technology needs in the courtroom.
    During the prehearing conference, the Judge will consider federal, 
state, local and courtroom requirements and inform the parties of such 
requirements. The requirements apply to all persons attending the in-
person hearing. The discussion will also address who may enter the 
courtroom, when, and what safety measures, such as masks and physical 
distancing, must be implemented. No person may enter the courtroom, or 
the witness room without the permission of the Judge.
    In addition to any federal, state, local and facility safety and 
health rules, all persons attending in-person hearings are also subject 
to the below requirements:
    <bullet> FMSHRC employees:
    [cir] All FMSHRC employees must adhere to the workplace safety plan 
and CDC guidance on physical distancing, mask wearing, vaccination 
attestation, and testing as well as quarantine, isolation, and official 
travel requirements. The employee vaccination requirement in Executive 
Order 14043 and the contractor vaccination requirement in Executive 
Order 14042 are the subject of an injunction issued by a Federal court. 
In accordance with OMB Guidance, and pending further notice, FMSHRC 
will take no action to enforce the vaccination requirements in those 
executive orders. The Office of the Chief Administrative Law Judge will 
continue to monitor developments on this issue and will comply with 
current vaccination policies.
    <bullet> Visitors and Contractors:
    [cir] Visitors are defined as federal employees from other agencies 
such as the Department of Labor, spectators, and press. Contractors, 
for purposes of this order, are defined as individuals who have been 
contracted by FMSHRC to attend an in-person hearing for a specific 
purpose (e.g., a court reporter creating a transcript).
    [cir] Visitors and contractors must attest to their vaccination 
status using the Certificate of Vaccination Form when Community Levels 
are MEDIUM or HIGH. The vaccination attestation form can be found on 
the Safer Federal Workforce website at https://www.saferfederalworkforce.gov/downloads/CertificationVaccinationPRAv7.pdf. Visitors and contractors who are 
considered not fully vaccinated (as defined by the CDC) shall show 
proof of a negative COVID-19 test result from a Food and Drug 
Administration authorized test taken within three days prior to entry 
to the in-person hearing when Community Levels are MEDIUM or HIGH. The 
Judge shall neither collect documentation to verify their vaccination 
attestation nor collect documentation to verify COVID-19 test results. 
Additionally, all visitors and contractors must adhere to the agency's 
workplace safety plan and CDC guidance on physical distancing and mask 
wearing.
    <bullet> Non-government Parties, Representatives and Witnesses:
    [cir] Persons who are not visitors or contractors as defined above, 
and who are parties, representatives of parties, or witnesses do not 
need to attest to their vaccination status to attend an in-person 
FMSHRC hearing, and Judges shall not inquire into their vaccination 
status. However, they must adhere to the agency's workplace safety plan 
and CDC guidance on physical distancing and mask wearing.
    Furthermore, in the event an in-person hearing is held in a 
location where the CDC Community Level is MEDIUM or HIGH, all persons 
attending the hearing, including visitors and contractors, as well as 
non-government parties, representatives, and witnesses, must present a 
completed FMSHRC COVID-19 Screening Tool form for review. The FMSHRC 
COVID-19 Screening Tool form is available in Appendix C of the agency's 
workplace safety plan. Individuals who plan to attend a hearing can 
also obtain a copy of the form by contacting a Judge's office.
    The Judge may consider all factors, in totality, in determining if 
a remote hearing will be held and who may be present for the hearing. 
No single factor is dispositive.
    These procedures shall remain in place until the July 11 order is 
vacated or otherwise modified by subsequent order.
    Authority: 30 U.S.C. 823; 29 CFR part 2700.


[[Page 42727]]


    Dated: July 12, 2022.
Sarah L. Stewart,
Deputy General Counsel, Federal Mine Safety and Health Review 
Commission.
[FR Doc. 2022-15277 Filed 7-15-22; 8:45 am]
BILLING CODE 6735-01-P