Federal Register / Vol. 85, No. 194 / Tuesday, October 6, 2020 / Proposed Rules 63047 

Document 

ADAMS Accession No./ 

web link/Federal 

Register citation 

SECY–16–0041, ‘‘Closure of Fukushima Tier 3 Recommendations Related to Containment Vents, Hydrogen Control, 

and Enhanced Instrumentation,’’ March 31, 2016. 

ML16049A079 (Package) 

SECY–11–0093, ‘‘Near-Term Report and Recommendations for Agency Actions Following the Events in Japan,’’ July 

12, 2012. 

ML11186A950 (Package) 

Federal Register notice for the final rule, ‘‘Combustible Gas Control in Containment,’’ September 16, 2003. 68 FR 54123 

NUREG–1150, ‘‘Severe Accident Risks: An Assessment for Five U.S. Nuclear Power Plants,’’ December 1990. ML120960691 

NUREG–1935, ‘‘State-of-the-Art Reactor Consequence Analyses (SOARCA) Report,’’ November 2012. ML12332A053 (Package) 

‘‘Safety Goals for the Operations of Nuclear Power Plants; Policy Statement Correction and Republication,’’ August 

21, 1986. 

ML011210381 

Draft report ‘‘State-of-the-Art Reactor Consequence Analysis Project—Uncertainty Analysis of the Unmitigated ShortTerm Station Blackout of the Surry Power Station,’’ August 2015. ML15224A001 

NUREG/CR–7245, ‘‘State-of-the-Art Reactor Consequence Analyses (SOARCA) Project—Sequoyah Integrated Deterministic and Uncertainty Analyses,’’ November 2017. ML17340B209 

NUREG/CR–7110, Vol. 2, ‘‘State-of-the-Art Reactor Consequence Analyses Project—Volume 2: Surry Integrated 

Analysis,’’ January 2012. 

ML120260681 

Order EA–12–049, ‘‘Order Modifying Licenses With Regard to Requirements for Mitigation Strategies for Beyond-Design-Basis External Events,’’ March 12, 2012. ML12054A735 

Order EA–13–109, ‘‘Order Modifying Licenses with Regard to Reliable Hardened Containment Vents Capable of Operation Under Severe Accident Conditions,’’ June 6, 2013. ML13130A067 

SRM–SECY–15–0065, ‘‘Proposed Rulemaking: Mitigation of Beyond-Design-Basis Events (RIN 3150–AJ49),’’ August 

27, 2015. 

ML15239A767 

SRM–SECY–16–0142, ‘‘Final Rule: Mitigation of Beyond-Design-Basis Events (RIN 3150–AJ49),’’ January 24, 2019. ML19023A038 

Federal Register notice, ‘‘Policy Statement on Severe Reactor Accidents Regarding Future Designs and Existing 

Plants,’’ August 8, 1985. 

50 FR 32138 

NUREG/CR–7155, ‘‘State-of-the-Art Reactor Consequence Analyses Project—Uncertainty Analysis of the Unmitigated Long-Term Station Blackout of the Peach Bottom Atomic Power Station,’’ May 2016. ML16133A461 

NUREG–2206, ‘‘Technical Basis for the Containment Protection and Release Reduction Rulemaking for Boiling 

Water Reactors with Mark I and Mark II Containments,’’ March 2018. 

ML18065A048 

‘‘Draft Regulatory Basis for Containment Protection and Release Reduction for Mark I and Mark II Boiling Water Reactors (10 CFR Part 50),’’ May 2015. ML15022A214 

SRM–SECY–15–0085, ‘‘Evaluation of the Containment Protection and Release Reduction for Mark I and Mark II 

Boiling Water Reactors Rulemaking Activities (10 CFR Part 50) (RIN–3150–AJ26),’’ August 19, 2015. 

ML15231A471 

SECY–00–0198, ‘‘Status Report on Study of Risk-Informed Changes to the Technical Requirements of 10 CFR 

PART 50 (Option 3) and Recommendations on Risk-Informed Changes to 10 CFR 50.44 (Combustible Gas Control),’’ September 14, 2000. 

ML003747725 (Package) 

NUREG–0737, ‘‘Clarification of TMI Action Plan Requirements,’’ November 1980. ML051400209 

Regulatory Guide 1.7, Revision 3, ‘‘Control of Combustible Gas Concentrations in Containment,’’ March 2007. ML070290080 

‘‘Confirmatory Order Modifying Post-TMI Requirements Pertaining to Containment Hydrogen Monitors for Arkansas 

Nuclear One, Units 1 and 2 (TAC NOS. MA1267 and 1268),’’ September 28, 1998. 

ML021270103 

Federal Register notice, ‘‘Notice of Availability of Model Application Concerning Technical Specification Improvement to Eliminate Hydrogen Recombiner Requirement and Relax the Hydrogen and Oxygen Monitor Requirements 

for Light Water Reactors Using the Consolidated Line Item Improvement Process,’’ September 25, 2003. 

68 FR 55416 

License amendment, ‘‘Arkansas Nuclear One, Unit 1, License Amendment 222 regarding Elimination of Requirements for Hydrogen Recombiners and Hydrogen Monitors,’’ August 12, 2004. ML042290464 (Package) 

Regulatory Guide 1.97, Revision 3, ‘‘Instrumentation for Light-Water-Cooled Nuclear Power Plants to Assess Plant 

and Environs Conditions During and Following an Accident,’’ May 1983. 

ML003740282 

IV. Conclusion 

For the reasons cited in this 

document, the NRC is denying PRM– 

50–103. The petitioner did not present 

sufficient new information or arguments 

to warrant the requested requirements. 

The NRC continues to conclude that the 

current design and licensing 

requirements for the control of hydrogen 

for operating and new reactors provide 

adequate protection of public health and 

safety. 

Dated at Rockville, Maryland, this 15th day 

of September, 2020. 

For the Nuclear Regulatory Commission. 

Annette L. Vietti-Cook, 

Secretary of the Commission. 

[FR Doc. 2020–20708 Filed 10–5–20; 8:45 am] 

BILLING CODE 7590–01–P 

FEDERAL MINE SAFETY AND HEALTH 

REVIEW COMMISSION 

29 CFR Part 2700 

Procedural Rules 

AGENCY: Federal Mine Safety and Health 

Review Commission. 

ACTION: Notice of Proposed Rulemaking. 

SUMMARY: The Federal Mine Safety and 

Health Review Commission (the 

‘‘Commission’’) is an independent 

adjudicatory agency that provides trials 

and appellate review of cases arising 

under the Federal Mine Safety and 

Health Act of 1977 (the ‘‘Mine Act’’). 

Trials are held before the Commission’s 

Administrative Law Judges, and 

appellate review is provided by a fivemember Review Commission appointed 

by the President and confirmed by the 

Senate. The Commission proposes 

revising its procedural rules in order to 

aid the just and efficient adjudication of 

such proceedings. 

DATES: Written and electronic comments 

must be submitted on or before 

December 7, 2020. 


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63048 Federal Register / Vol. 85, No. 194 / Tuesday, October 6, 2020 / Proposed Rules 

ADDRESSES: Written comments should 

be mailed to Michael A. McCord, 

General Counsel, Office of the General 

Counsel, Federal Mine Safety and 

Health Review Commission, 1331 

Pennsylvania Ave. NW, Suite 520N, 

Washington, DC 20004–1710. Electronic 

comments should state ‘‘Comments on 

Procedural Rules’’ in the subject line 

and be sent to RulesComments@

fmshrc.gov. 

FOR FURTHER INFORMATION CONTACT: 

Sarah Stewart, Deputy General Counsel, 

Office of the General Counsel, Federal 

Mine Safety and Health Review 

Commission, at (202) 434–9935. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The Commission last significantly 

revised its procedural rules, 29 CFR part 

2700, in August 2006. 71 FR 44,190 

(Aug. 4, 2006). Since that time, the 

Commission has identified several rules 

that require revision or clarification in 

order to aid the efficient adjudication of 

proceedings at the Commission’s trial 

and appellate levels. For instance, 

confusion has arisen in discrimination 

proceedings brought pursuant to section 

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

815(c)(3), regarding when a decision on 

the merits of discrimination becomes 

ripe for review. The Commission 

proposes changing procedures relating 

to section 105(c)(3) discrimination 

proceedings in order to make them more 

consistent with procedures relating to 

discrimination proceedings brought 

pursuant to section 105(c)(2) of the 

Mine Act, 30 U.S.C. 815(c)(2). Such 

changes are intended to provide greater 

clarity and to eliminate unnecessary 

delay. 

In order to provide transparency as to 

its processes, the Commission has 

proposed both new rules and revisions 

to its current rules that reflect the 

Commission’s actual practices. The 

Commission has proposed adding new 

Commission Procedural Rule 32 which 

pertains to motions to reopen orders 

that have become final as the result of 

a failure to make a timely filing. The 

Commission has also proposed new 

Commission Procedural Rule 72 which 

describes 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 has proposed adding 

provisions to § 2700.5(e) for protecting 

sensitive commercial information, and 

for placing sensitive documents under 

Commission seal. In addition, the 

Commission has proposed numerous 

changes with respect to § 2700.80, 

which more fully describe the 

Commission’s process for investigating 

and making determinations in 

disciplinary proceedings. 

Finally, the Commission has proposed 

more technical changes. A number of 

changes are necessitated by the 

evolution of the Commission’s 

electronic management of its dockets. In 

addition, the Commission has proposed 

a number of corrections and stylistic 

changes to word usage throughout its 

rules. 

The proposed changes are described 

more fully in the following section-bysection analysis. The Commission 

welcomes all comments and suggestions 

regarding the proposed changes and any 

necessary changes that have not been 

included. 

II. Section-by-Section Analysis 

Set forth below is an analysis of 

proposed changes to the Commission’s 

procedural rules. Some proposals 

involve similar or identical changes to 

multiple rules. Those changes are 

described immediately below by subject 

matter. Other changes generally pertain 

to one rule and are described following 

the subject matter discussion on a ruleby-rule basis. 

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 77,354 

(Dec. 23, 2013). The Commission later 

adopted those interim rules as final 

rules. 84 FR 59,931 (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 recognizes that, as 

eCMS evolves, the Commission’s 

procedural rules should reflect any 

necessary changes. 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 proposes 

changing its service requirements to 

allow parties to serve documents 

electronically by other means in 

addition to email in anticipation of such 

changes to eCMS. These proposed 

changes appear identically in 

§§ 2700.7(c) (general service 

requirements); 2700.9(a) (motions for 

extensions of time); 2700.24(d) (filing 

and service of pleadings in emergency 

response plan dispute proceedings; 

2700.45(a) and 2700.45(f) (service in 

temporary reinstatement proceedings); 

2700.46(d) (service of pleadings 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 proposes deleting 

provisions in §§ 2700.4(b)(1), 

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

and 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 proposes 

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.’’ 

B. Gender-Specific Pronouns 

The masculine gender is currently 

used throughout the Commission’s 

Procedural Rules. The Commission 

proposes changing the gender-specific 

pronouns in its rules to more genderneutral language. Conforming changes 

have been proposed for §§ 2700.4(a); 

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

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

and (ii); 2700.25; 2700.26; 2700.27; 

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

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

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

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

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

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

The Commission also proposes deleting 


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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 proposes revising 

references in § 2700.83 from 

‘‘Chairman’’ to ‘‘Chair.’’ 

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 proposes 

changing the term ‘‘pleading’’ to the 

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

more generic term is intended in 

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

Example 2, 2700.10(b), 2700.11, 

2700.24(d), 2700.45(a), and 2700.46(d). 

2. References to a Judge 

The Commission proposes 

capitalizing the word ‘‘Judge’’ wherever 

it appears in the Commission’s 

Procedural Rules. Such changes are 

proposed with respect to 

§§ 2700.24(f)(2) and 2700.67(e). 

3. References to the Secretary of Labor 

The rules variously refer to the 

Secretary of Labor as ‘‘Secretary’’ and 

‘‘Secretary of Labor.’’ For purposes of 

clarity and consistency, the Commission 

proposes making revisions so that the 

first reference in the text of a rule shall 

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

parenthetical indicating that subsequent 

references shall be to the ‘‘Secretary.’’ 

No parenthetical is included if 

‘‘Secretary of Labor’’ appears only once 

in the rule. In addition, no parenthetical 

is included with the first reference to 

‘‘Secretary of Labor’’ that appears in a 

title of the rule or in the title of its 

paragraphs. The Commission proposes 

making such changes to §§ 2700.4(a), 

2700.20(b), 2700.21(a), 2700.22(c), 

2700.24(a), 2700.25, 2700.26, 2700.27, 

2700.28(a), 2700.30(b), 2700.31(b)(1), 

2700.40(a), 2700.41(a), 2700.44(a), and 

2700.45(b). 

4. References to Website 

The Commission proposes changing 

all references from ‘‘website’’ to 

‘‘website,’’ in keeping with current 

accepted usage. Such changes are 

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

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

D. Subpart A—General Provisions 

§ 2700.3 Who may practice. 

The Commission proposes revising 

Commission Procedural Rule 3 to clarify 

the conduct required of, and actions 

prohibited by, those who appear before 

the Commission and its Judges as a 

representative. The proposed revisions 

state 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 proposes revising 

Commission Procedural 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. 

§ 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 proposes revising 

§ 2700.4(b) to state that notices of 

intervention shall be filed in accordance 

with the filing requirements set forth in 

Commission Procedural Rule 5. In 

addition, as noted with respect to 

changes proposed that are related to the 

Commission’s paperless docketing 

system, the Commission proposes 

deleting the reference in current 

§ 2700.4(b)(1) that appears to recognize 

that copies of a notice of intervention 

may be provided by the Commission 

only by postal mail. 

§ 2700.5 General requirements for 

pleadings and other documents; status or 

informational requests. 

Commission Procedural Rule 5 is 

currently entitled, ‘‘General 

requirements for pleadings and other 

documents; status or informational 

requests.’’ A large part of Rule 5 pertains 

to filing requirements. A party who is 

unfamiliar with the Commission’s 

Procedural Rules would not know 

which rule to consult for filing 

requirements. The Commission 

proposes inserting ‘‘filing requirements’’ 

in the title of Rule 5. 

The Commission also proposes 

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.’’ 

Paragraph (c)(2) of Rule 5 

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

filing documents by non-electronic 

means. The Commission proposes two 

changes with respect to this paragraph. 

First, the Commission proposes 

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. 

Second, the Commission proposes 

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

superfluous and possibly confusing. 

Paragraph (2)(c) sets forth filing 

instructions pertaining to the following 

specific time-frames: (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 

section 5(c)(2)(ii) (after a Judge has been 

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

refers the reader to § 2700.76, which 

does not provide detailed information 

about how to file documents nonelectronically. 

The Commission proposes revising 

paragraph (e) of Commission Procedural 

Rule 5 in order to address various 

privacy considerations. Parties 

sometimes provide sensitive 

commercial information to the 

Commission. Further, a party may 

request documents from an opposing 

party that contain such information. The 

Commission proposes adding paragraph 

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

requirement that parties take steps to 

protect their sensitive commercial 

information. In addition, while the 

Commission’s Judges already consider 

and decide motions to place records 

under seal, there currently is no 

Commission rule that specifically 

addresses the Commission’s procedure 

for doing so. The Commission proposes 

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

order to expressly address the 

procedures for placing sensitive 

documents under Commission seal. 

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 

proposes 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. 


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63050 Federal Register / Vol. 85, No. 194 / Tuesday, October 6, 2020 / Proposed Rules 

§ 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 

proposes adding a requirement that all 

documents filed with the Commission 

must be signed. 

§ 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 

proposes 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 proposes 

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 of Labor to the operator or any 

other person against whom a civil 

penalty is proposed. 

§ 2700.10 Motions. 

Commission Procedural Rule 10, 

which addresses motions, currently 

provides that oral motions may be made 

during a hearing or a conference. 

However, the rule does not require that 

any proceedings on such oral motions 

shall be on the record. A lack of such 

record makes review of proceedings on 

oral motions difficult. The Commission 

proposes adding a provision requiring 

that proceedings on any motion made at 

hearing or during a conference shall be 

on the record. The Commission also 

proposes making a conforming revision 

to § 2700.53(a) recognizing that a Judge 

has the discretion to record any inperson or telephonic conference. 

E. Subpart C—Contests of Proposed 

Penalties 

§ 2700.25 Proposed penalty assessment. 

The Commission received a 

suggestion that the service requirements 

in a regulation promulgated by the 

Department of Labor’s Mine Safety and 

Health Administration (‘‘MSHA’’) at 30 

CFR 100.8(a) are inconsistent with the 

service requirements in § 2700.25, and 

that changes should be made to 

Commission Procedural Rule 25. The 

Commission has considered the matter 

and has concluded not to propose any 

such changes. 

Section 2700.25 requires that the 

Secretary of Labor shall send a notice of 

a proposed civil penalty to an operator 

or 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 section 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, section 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 declines proposing changes 

to Commission Procedural Rule 25 since 

the rule is wholly consistent with the 

Mine Act. 

§ 2700.28 Filing of petition for assessment 

of penalty with the Commission. 

The Commission proposes adding a 

provision to § 2700.28(b)(1) indicating 

that no more than 20 citations or orders 

may be the subject of a petition for 

assessment of penalty. Past practice has 

demonstrated that more than 20 

citations or orders make a docket too 

large and unwieldy for the Commission 

to efficiently manage. 

Current Commission Procedural Rule 

28(b)(2) mistakenly refers to a ‘‘single 

penalty assessment that has been 

proposed under 30 CFR 100.4.’’ Single 

penalty assessments have been 

subsumed by regular assessments. The 

Commission proposes deleting the 

reference to single penalty assessments. 

§ 2700.31 Penalty settlement. 

Paragraph (a) of § 2700.31 currently 

provides that in ‘‘all penalty 

proceedings, except for discrimination 

proceedings arising under section 105(c) 

of the Mine Act,’’ a settlement motion 

must be accompanied by a proposed 

order approving settlement. In 

‘‘discrimination proceedings, a party 

need not file a proposed order.’’ 29 CFR 

2700.31(a). The Commission proposes 

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.’’ The proposed change to 

paragraph (a) of Rule 31 would require 

parties to file proposed orders 

approving settlement in penalty 

proceedings associated with a 

discrimination proceeding as they are 

required to do in all penalty 

proceedings. 

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 eCMS, 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 proposes deleting 

references to electronic filing appearing 

in Rule 31 as superfluous and 

potentially confusing. 

The Commission also proposes 

deleting references that appear in Rule 

31 regarding forms for approved orders 

approving settlement. The Commission 

no longer provides sample forms for 

proposed orders approving settlement 

on its website. Rather, parties draft 

proposed orders appropriate to each 

case. 

§ 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 of Labor. 

See 29 CFR 2700.28, 2700.29. 

In 2008, the Commission published 

an Advanced Notice of Proposed 

Rulemaking (‘‘ANPRM’’). 73 FR 51,256 

(Sept. 2, 2008). In the notice, the 

Commission sought suggestions for 

improving its procedures for processing 

requests to reopen and reducing the 

number of cases in which a party seeks 

relief before the Commission after 

default. The Commission stated that one 

of its key considerations was whether it 

should set forth requirements for 

requesting relief from default in a rule, 

or whether further guidance should be 

provided in an informal document. 

The Commission ultimately decided 

to provide guidance concerning motions 

to reopen in its case law and in informal 

guidance available on the Commission’s 

website. In 2016, the Court of Appeals 

for the Fifth Circuit held that the 

Commission applied its case law 


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precedent arbitrarily in denying a 

motion to reopen. Noranda Alumina, 

LLC v. Perez, 841 F.3d 661, 665–69 (5th 

Cir. 2016). The Court noted that the 

Commission has not promulgated any 

regulations concerning motions to 

reopen, ‘‘although it has provided 

nonbinding guidance on its website.’’ 

Id. at 666 n.1. 

From the comments received on the 

ANPRM and the Commission’s own 

experience, the Commission recognizes 

that there are many arguments in favor 

of adopting a rule and arguments against 

such a rule. For instance, creating a rule 

may provide more visibility for the 

Commission’s expectations regarding 

information necessary to support a 

motion to reopen. Application of a rule 

may result in more consistency in the 

Commission’s case law. However, 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 has proposed a rule 

setting forth a procedure for motions to 

reopen drawn from the Commission’s 

experience in receiving and disposing of 

such motions. The Commission invites 

comment regarding whether a rule 

would be beneficial and, if so, whether 

any changes to the proposed rule are 

appropriate. 

F. Subpart E—Complaints of Discharge, 

Discrimination or Interference 

§ 2700.44 Petition for assessment of 

penalty in discrimination cases. 

In discrimination proceedings arising 

under section 105(c)(2) of the Act, 30 

U.S.C. 815(c)(2), a Judge’s decision is 

not considered final and reviewable by 

the Commission until the Judge has 

ruled upon the merits of the 

discrimination complaint, and, in 

instances in which discrimination has 

been found, awarded compensation to 

the miner and assessed a civil penalty 

against the operator. A Judge’s decision 

that reaches only the merits of the 

complaint, and reserves for later such 

issues as compensation and the penalty, 

is an ‘‘interim decision’’ and is thus not 

appealable to the Commission (except 

by a petition for interlocutory review) 

until the resolution of the outstanding 

issues. 

Because the Secretary of Labor is not 

involved in a discrimination proceeding 

brought by a miner under section 

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

815(c)(3), in the past the Commission 

has often separately docketed the 

Secretary’s civil penalty proposal, 

which is made subsequent to the Judge’s 

determination of discrimination. Thus, 

unlike in section 105(c)(2) proceedings, 

the discrimination docket is separate 

from the associated civil penalty docket 

in section 105(c)(3) proceedings. 

In a section 105(c)(3) proceeding, if a 

penalty determination is unresolved at 

the time that the Judge’s merits and 

compensation decision becomes ripe for 

court review, a question arises regarding 

whether the pendency of the penalty 

before the Commission renders the 

merits determination in the 

discrimination proceeding non-final for 

court review purposes. 

Consequently, in order to afford more 

clarity, the Commission has proposed 

revisions to Commission Procedural 

Rule 44 so that section 105(c)(3) cases 

may be treated in a manner similar to 

section 105(c)(2) cases in terms of when 

a decision becomes ripe for review. In 

addition, in recognition of the Mine 

Act’s requirement that proceedings 

under section 105(c) ‘‘shall be expedited 

by the Secretary and the Commission,’’ 

the Commission has proposed changes 

to § 2700.44 that permit expedition and 

eliminate unnecessary delay. 30 U.S.C. 

815(c)(3). 

More specifically, the Commission 

proposes making changes to 

§ 2700.44(b) that clarify that a Judge’s 

finding of discrimination in a section 

105(c)(3) proceeding is an interim 

decision, rather than a final decision. 

Under the proposed changes, after the 

Judge sustains a discrimination 

complaint brought pursuant to section 

105(c)(3), the Secretary must enter an 

appearance within 10 days in that 

discrimination proceeding and file a 

petition for assessment of penalty 

within 30 days. When necessary to 

expedite the issuance of a final decision 

in the proceeding, the Judge is 

authorized under the proposed changes 

to shorten the 30-day period and the 

period within which the operator has to 

respond to the petition. The proposed 

changes also set forth other procedural 

safeguards to prevent unnecessary 

delay. Under these proposed revisions, 

the final decision of the Judge will 

include the compensation to the miner 

and the penalty to be assessed against 

the operator. 

The Commission also proposes 

making a conforming change to 

Commission § 2700.41 by adding a new 

paragraph (c). Proposed Commission 

Procedural Rule 41(c) would state 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 proposes 

making a conforming change to 

Commission Procedural Rule 69. The 

Commission proposes revising 

§ 2700.69(a) to explicitly require that 

any decision of a Judge that is not final 

shall be denoted as an ‘‘interim 

decision.’’ 

G. Subpart G—Hearings 

§ 2700.53 Prehearing conferences and 

statements. 

The Commission proposes revising 

§ 2700.53(a) to add a provision stating 

that a Judge has the discretion to record 

any in-person or telephonic conference. 

As discussed with respect to § 2700.10, 

the Commission also proposes making 

changes to Commission Procedural Rule 

10 by adding a requirement that 

proceedings on any motion made at a 

hearing or during a conference shall be 

on the record. Thus, while a Judge may 

record any in-person or telephonic 

conference within the Judge’s 

discretion, proceedings on any motion 

must be made part of the record. 

§ 2700.64 Retention of exhibits. 

Commission Procedural Rule 64 

pertains generally to exhibits which are 

made part of the official record. The 

Commission proposes 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 proposes 

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. 

H. Subpart H—Review by the 

Commission 

§ 2700.72 Commission panels. 

Rule 72 is currently reserved. In order 

to promote transparency as to its 

functioning, the Commission proposes 

creating a new Procedural Rule 72 

which would explain the Commission’s 

process for impaneling 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 would 

provide that the Commission may 

impanel 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. 


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§ 2700.78 Reconsideration. 

The Commission proposes 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 clarifies that the ten-day period 

is counted from the issuance of the 

decision or order. 

I. Subpart I—Miscellaneous 

§ 2700.80 Standards of conduct; 

disciplinary proceedings. 

The Commission proposes making 

changes to Commission Procedural Rule 

80 that would clarify the Commission’s 

procedure in disciplinary proceedings 

and the standards applicable in such 

proceedings. 

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. Practitioners 

appearing before the Commission could 

appear in Commission proceedings, 

live, and work, in varying locations, 

making a number of jurisdictions’ rules 

of conduct potentially applicable. The 

Commission considers it more equitable 

to apply the same standards of conduct 

to all individuals practicing before the 

Commission. Therefore, the 

Commission proposes 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 proposes 

revising § 2700.80(c) to provide 

appropriate notice to the person named 

in a disciplinary referral, and to permit 

the person an opportunity for response. 

Proposed paragraph (c)(1) of Rule 80 

would require the Commission to 

provide written notice to the person 

named in a disciplinary referral of the 

initiation of an investigation. The 

Commission proposes 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. 

Paragraph (c)(3) permits the 

respondent named in the disciplinary 

proceeding an opportunity to file a 

response. In addition, paragraph (c)(3) 

provides that the Chief Administrative 

Law Judge may assign the proceeding to 

a Commission Administrative Law 

Judge or to a non-Commission 

Administrative Law Judge. Such 

assignment will be made in an impartial 

manner. Paragraph (c)(3) clarifies 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. 

§ 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 proposes making changes 

to § 2700.82(d) so that it conforms with 

the provisions of § 2700.5(j). 

§ 2700.83 Authority to sign orders. 

Under current § 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 proposes adding a 

provision to § 2700.83 clarifying that in 

the absence of a quorum, the remaining 

Commissioner or Commissioners may 

dispose of the procedural motions 

subject to the rule. The proposed change 

would reflect the Commission’s 

practice. 

The Commission also proposes 

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. Thus, the 

Commission considers the provision 

unnecessary. 

Finally, consistent with changing 

gender-specific pronouns to more 

gender neutral language throughout its 

rules, the Commission proposes 

changing references from ‘‘Chairman’’ to 

‘‘Chair.’’ 

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); E.O. 

13777 (Feb. 24, 2017), 82 FR 12285 

(Mar. 1, 2017); 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)(3)(A)), the 

Commission invites members of the 

interested public to submit comments 

on this final rule. The Commission will 

accept public comment until [Insert date 

60 days after date of publication in the 

Federal Register. 

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. 

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.). 


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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 proposes 

amending 29 CFR part 2700 as follows: 

PART 2700—PROCEDURAL RULES 

■ 1. The authority citation for part 2700 

is revised to read as follows: 

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

■ 2. In § 2700.1, revise paragraphs (a)(1) 

and (c) to read as follows: 

§ 2700.1 Scope; applicability of other 

rules; construction. 

(a) Scope. (1) This part sets forth rules 

applicable to proceedings before the 

Federal Mine Safety and Health Review 

Commission (‘‘the Commission’’) and its 

Administrative Law Judges. 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; its primary phone 

number is 202–434–9900; and the fax 

number of its Docket Office is 202–434– 

9954. The Commission maintains a 

website at http://www.fmshrc.gov where 

these rules, recent and many past 

decisions of the Commission and its 

Judges, and other information regarding 

the Commission, can be accessed. 

* * * * * 

(c) Construction. These rules shall be 

construed to secure the just, speedy and 

inexpensive determination of all 

proceedings, and to encourage the 

participation of miners and their 

representatives. 

■ 3. Revise § 2700.3 to read as follows: 

§ 2700.3 Who may appear before the 

Commission as a representative of a party. 

(a) Notice of appearance. When first 

making an appearance, each 

representative of a party must file a 

notice of appearance that indicates on 

whose behalf the appearance is made 

and the proceeding name and docket 

number. 

(b) Persons who may represent a party 

or subpoenaed witness before an 

Administrative Law Judge or the 

Commission. (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 Judge 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, 

governmental agency, other business 

entity, or a political subdivision; or 

(5) Any other person with the 

permission of the presiding Judge 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 Judge in 

accordance with § 2700.6; filing a 

written entry of appearance with the 

Commission or Judge; or, if the 

Commission or Judge permits, by orally 

entering an appearance in open hearing. 

(d) Duties. All individuals authorized 

to practice before the Commission shall 

be subject to § 2700.80 (Standards of 

conduct; disciplinary proceedings). A 

representative must be diligent, prompt, 

and forthright when dealing with 

parties, other representatives and the 

Judge, and act in a manner that furthers 

the fair and orderly conduct of the 

proceeding. 

(e) Prohibited actions. A 

representative must not: 

(1) Threaten, coerce, intimidate, 

deceive or knowingly mislead a party, 

representative, witness, potential 

witness, Judge, or anyone participating 

in the proceeding regarding any matter 

related to the proceeding. 

(2) Knowingly make or present false 

or misleading statements, assertions, or 

misrepresentations about a material fact 

or law related to the proceeding; 

(3) Unreasonably delay, or cause to be 

delayed without good cause, any 

proceeding; 

(4) Violate or attempt to violate the 

standards of conduct (see 29 CFR 

2700.80(a)), knowingly assist or induce 

another to do so, or do so through acts 

of another; or 

(5) Engage in any other action or 

behavior prejudicial to the fair and 

orderly conduct of the proceeding. 

(f) 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 Judge. 

The motion must state that a notice of 

the withdrawal has been provided to all 

parties. The Commission or Judge may 

deny a representative’s motion to 

withdraw when necessary to avoid 

undue delay or prejudice to the rights of 

a party. 

■ 4. In § 2700.4, revise paragraphs (a), 

(b)(1), and (c) to read as follows: 

§ 2700.4 Parties, intervenors, and amici 

curiae. 

(a) Party status. A person, including 

the Secretary of Labor (‘‘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 a Judge, 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 a Judge, 

the notice of intervention shall be filed 

with the Judge. Notices of intervention 

shall be filed with the Commission or 

Judge in accordance with § 2700.5(c). 

The Commission or the Judge 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. 

* * * * * 

(c) Procedure for participation as 

amicus curiae. Any person may move to 

participate as amicus curiae in a 

proceeding before a Judge. Such 

participation as amicus curiae shall not 

be a matter of right but of the sound 

discretion of the Judge. 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 Judge 

permits amicus curiae participation, the 

Judge’s order shall specify the time 

within which such amicus curiae 

memorandum, brief, or other filing must 


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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. 

■ 5. Revise § 2700.5 to read as follows: 

§ 2700.5 General requirements for 

pleadings and other documents; filing 

requirements; status or informational 

requests. 

(a) Jurisdiction. A proposal for a 

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

820; an answer to a notice of contest of 

a citation or withdrawal order issued 

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

answer to a notice of contest of an order 

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

a complaint issued under section 105(c) 

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

application for temporary reinstatement 

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

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

or imminent danger took place in or 

involves a mine that has products which 

enter commerce or has operations or 

products that affect commerce. 

Jurisdictional facts that are alleged are 

deemed admitted unless specifically 

denied in a responsive pleading. 

(b) How to file. Unless otherwise 

provided for in the Act, these rules, or 

by order, filing may be accomplished in 

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

transmission, 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 Judges. 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, by third-party commercial 

carrier, or by facsimilie transmission. 

(i) Before a Judge has been assigned. 

Before a Judge 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; facsimile 

delivery shall be transmitted to (202) 

434–9954. 

(ii) After a Judge has been assigned. 

After a Judge has been assigned, and 

before a decision has been issued, 

documents shall be filed with the Judge 

at the address set forth on the notice of 

the assignment. 

(iii) After a Judge has issued a final 

decision. After the Judge 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, cell telephone 

number if available, fax 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 Judge and all 

other parties. 

(e) Privacy considerations. Persons 

submitting information to the 

Commission shall protect information 

that tends to identify certain 

individuals, to constitute an 

unwarranted intrusion of personal 

privacy, or disclose confidential 

commercial information 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 Judge 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 Judge, 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 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, by third-party commercial 

carrier, or by facsimile transmission. 

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 for 

summary decision, a petition for 

discretionary review, and a motion to 

exceed page limit is effective only upon 

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

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

and 2700.75(f). When filing is in person, 

by third-party commercial carrier, or by 

facsimile, filing is effective upon 

successful receipt by the Commission. 

(g) Number of copies. Unless 

otherwise ordered or stated in this part, 

only the original of a document shall be 

filed. 

(h) Form of filings. All documents, 

including those filed electronically, 

shall appear in at least 12-point type on 

paper 81⁄2 by 11 inches in size, with 

margins of at least 1 inch on all four 

sides. Text and footnotes shall appear in 

the same size type. Text shall be double 

spaced. Headings and footnotes may be 

single spaced. Quotations of 50 words or 

more may be single spaced and 

indented left and right. Excessive 

footnotes are prohibited. The failure to 

comply with the requirements of this 

paragraph (h) or the use of compacted 

or otherwise compressed printing 

features may be grounds for rejection of 

a filing. 

(i) Citation to a decision of a Judge. 

Each citation to a decision of a Judge 

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 


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Federal Register / Vol. 85, No. 194 / Tuesday, October 6, 2020 / Proposed Rules 63055 

(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. 

■ 6. Revise § 2700.6 to read as follows: 

§ 2700.6 Signing of documents. 

(a) Signature. All documents filed 

with the Commission must be signed by 

a party or representative of the party. 

(1) Documents not filed by electronic 

transmission. A party or representative 

of the party shall sign a document by 

handwritten signature. 

(2) Documents filed by electronic 

transmission. (i) A party or 

representative of the party may sign a 

document by including the notation 

‘‘/s/’’ followed by the typewritten name 

of the party or representative of the 

party filing the document. 

(ii) A party or representative of the 

party may sign a document by including 

a graphical duplicate of the handwritten 

signature. 

(b) Meaning of Signature. A document 

or signature may not be denied legal 

effect or enforceability solely because it 

is in electronic form. When a party or 

representative of the party signs a 

document in the manner described in 

paragraph (a) of this section, that 

person’s signature shall constitute a 

certification: 

(1) That under the provisions of the 

law, including these rules and all 

federal conflict of interest statutes, the 

person is authorized and qualified to 

represent the particular party in the 

matter; and 

(2) That the person has read the 

document; that based on knowledge, 

information, and belief formed after 

reasonable inquiry it is well grounded 

in fact and is warranted by existing law 

or a good faith argument for extension, 

modification, or reversal of existing law; 

and that it is not interposed for any 

improper purpose, such as to harass or 

to cause unnecessary delay or needless 

increase in the cost of litigation. 

■ 7. In § 2700.7, revise paragraphs (c)(1) 

and (2) to read as follows: 

§ 2700.7 Service. 

* * * * * 

(c) * * * 

(1) Methods of service. Documents 

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

Service, by third-party commercial 

carrier, by facsimile transmission, or by 

email or other electronic transmission. 

For documents filed pursuant to 

§§ 2700.9(a), 2700.24, 2700.45, 

2700.70(f), 2700.75(f), and subpart F 

(applications for temporary relief), the 

method of service used must be no less 

expeditious than that used for filing, 

except that if service by email or other 

electronic transmission is impossible, 

the filing party must serve in person, by 

third party commercial carrier, or 

facsimile transmission, 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, by facsimile transmission, or by 

email or other electronic transmission, 

service is effective upon successful 

receipt by the party intended to be 

served. 

* * * * * 

■ 8. In § 2700.8, revise paragraph (b) 

and Example 2 to read as follows: 

§ 2700.8 Computation of time. 

* * * * * 

(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.) 

* * * * * 

Example 2: A Commission Judge 

issues a final decision in a case on 

Friday, July 5, 2013. Under § 2700.70(a), 

parties have until August 4, 2013, to file 

with the Commission a petition for 

discretionary review of the Judge’s 

decision. Even though the decision was 

mailed, 5 additional calendar days are 

not added, because paragraph (b) of this 

section only applies to actions in 

response to parties’ filings. However, 

because August 4, 2013, is a Sunday, the 

actual due date for the petition is 

Monday, August 5, 2013. 

* * * * * 

■ 9. In § 2700.9, revise paragraph (a) to 

read as follows: 

§ 2700.9 Extensions of time. 

(a) The time for filing or serving any 

document may be extended for good 

cause shown. Filing of a motion 

requesting an extension of time is 

effective upon receipt. A motion 

requesting an extension of time shall be 

received no later than 3 days prior to the 

expiration of the time allowed for the 

filing or serving of the document, and 

shall comply with § 2700.10. The 

motion and any statement in opposition 

shall include proof of service on all 

parties by a means of delivery no less 

expeditious than that used for filing the 

motion, except that if service by email 

or other electronic transmission is 

impossible, the filing party must serve 

in person, by third party commercial 

carrier, or by facsimile transmission 

resulting in same-day delivery. 

* * * * * 

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

and (b) to read as follows: 

§ 2700.10 Motions. 

(a) An application for an order shall 

be by motion which, unless made 

during a hearing or a conference, shall 

be made in writing and shall set forth 

the relief or order sought. Proceedings 

on any motion made at a hearing or 

during a conference shall be on the 

record. 

(b) Written motions shall be set forth 

in a document separate from other 

filings. 

* * * * * 

■ 11. Revise § 2700.11 to read as 

follows: 

§ 2700.11 Withdrawal of filing. 

A party may withdraw a filing at any 

stage of a proceeding with the approval 

of the Judge or the Commission. 

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

and (d) to read as follows: 

§ 2700.20 Notice of contest of a citation or 

order issued under section 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 of Labor (‘‘Secretary’’) at the 

appropriate Regional Solicitor’s Office 

or at the Solicitor’s Office, Mine Safety 

and Health Division, Arlington, 

Virginia, 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. 

* * * * * 

■ 13. In § 2700.21, revise paragraph (a) 

to read as follows: 


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§ 2700.21 Effect of filing notice of contest 

of citation or order. 

(a) The filing of a notice of contest of 

a citation or order issued under section 

104 of the Act, 30 U.S.C. 814, does not 

constitute a challenge to a proposed 

penalty assessment that may 

subsequently be issued by the Secretary 

of Labor under section 105(a) of the Act, 

30 U.S.C. 815(a), which is based on that 

citation or order. A challenge to such a 

proposed penalty assessment must be 

filed as a separate notice of contest of 

the proposed penalty assessment. See 

§ 2700.26. 

* * * * * 

■ 14. In § 2700.22, revise paragraph (c) 

to read as follows: 

§ 2700.22 Notice of contest of imminent 

danger withdrawal orders under section 107 

of the Act. 

* * * * * 

(c) Answer. Within 15 days after 

service of the notice of contest, the 

Secretary of Labor shall file an answer 

responding to each allegation of the 

notice of contest. 

■ 15. Revise § 2700.24 to read as 

follows: 

§ 2700.24 Emergency response plan 

dispute proceedings. 

(a) Referral by the Secretary of Labor. 

The Secretary of Labor (‘‘Secretary’’) 

shall immediately refer to the 

Commission any citation arising from a 

dispute between the Secretary and an 

operator with respect to the content of 

the operator’s emergency response plan, 

or any refusal by the Secretary to 

approve such a plan. Any referral made 

pursuant to this paragraph (a) shall be 

made within two business days of the 

issuance of any such citation. 

(b) Contents of referral. A referral 

shall consist of a notice of plan dispute 

describing the nature of the dispute; a 

copy of the citation issued by the 

Secretary; a short and plain statement of 

the Secretary’s position with respect to 

any disputed plan provision; and a copy 

of the disputed provision of the 

emergency response plan. 

(c) Short and plain statement by the 

operator. Within five calendar days 

following the filing of the referral, the 

operator shall file with the Commission 

a short and plain statement of its 

position with respect to the disputed 

plan provision. 

(d) Filing and service of 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, by third party commercial 

carrier, or by facsimile transmission, 

resulting in same-day delivery. 

(e) Proceedings before the Judge—(1) 

Submission of materials. Within 15 

calendar days of the referral, the parties 

shall submit to the Judge assigned to the 

matter all relevant materials regarding 

the dispute. Such submissions shall 

include a request for any relief sought 

and may include proposed findings of 

fact and conclusions of law. Such 

materials may be supported by affidavits 

or other verified documents, and shall 

specify the grounds upon which the 

party seeks relief. Supporting affidavits 

shall be made on personal knowledge 

and shall show affirmatively that the 

affiant is competent to testify to the 

matters stated. 

(2) Hearing. (i) Within 5 calendar days 

following the filing of the Secretary’s 

referral, any party may request a hearing 

and shall so advise the Commission’s 

Chief Administrative Law Judge or 

designee, and simultaneously notify the 

other parties. 

(ii) Within 10 calendar days following 

the filing of the Secretary’s referral, the 

Commission’s Chief Administrative Law 

Judge or designee may issue an order 

scheduling a hearing on the Judge’s own 

motion, and must immediately so notify 

the parties. 

(iii) If a hearing is ordered under 

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

the hearing shall be held within 15 

calendar days of the filing of the 

referral. The scope of such a hearing is 

limited to the disputed plan provision 

or provisions. If no hearing is held, the 

Judge assigned to the matter shall 

review the materials submitted by the 

parties pursuant to paragraph (e)(1) of 

this section, and shall issue a decision 

pursuant to paragraph (f) of this section. 

(f) Disposition—(1) Decision of the 

Judge. Within 15 calendar days 

following receipt by the Judge of all 

submissions and testimony made 

pursuant to paragraph (e) of this section, 

the Judge shall issue a decision that 

constitutes the Judge’s final disposition 

of the proceedings. The decision shall 

be in writing and shall include all 

findings of fact and conclusions of law, 

and the reasons or bases for them, on all 

the material issues of fact, law or 

discretion presented by the record, and 

an order. The parties shall be notified of 

the Judge’s decision by the most 

expeditious means reasonably available. 

(2) Stay of plan provision. 

Notwithstanding § 2700.69(b), a Judge 

shall retain jurisdiction over a request 

for a stay in an emergency response plan 

dispute proceeding. Within two 

business days following service of the 

decision, the operator may file with the 

Judge a request to stay the inclusion of 

the disputed provision in the plan 

during the pendency of an appeal to the 

Commission pursuant to paragraph (g) 

of this section. The Secretary shall 

respond to the operator’s motion within 

two business days following service of 

the motion. The Judge shall issue an 

order granting or denying the relief 

sought within two business days after 

the filing of the Secretary’s response. 

(g) Review of decision. Any party may 

seek review of a Judge’s decision, 

including the Judge’s order granting or 

denying a stay, by filing with the 

Commission a petition for discretionary 

review pursuant to § 2700.70. Neither an 

operator’s request for a stay nor the 

issuance of an order addressing the stay 

request affects the time limits for filing 

a petition for discretionary review of a 

Judge’s decision with the Commission 

under this paragraph (g). The 

Commission shall act upon a petition on 

an expedited basis. If review is granted, 

the Commission shall issue a briefing 

order. Except as otherwise ordered or 

provided for herein, the provisions of 

§ 2700.75 apply. The Commission will 

not grant motions for extension of time 

for filing briefs, except under 

extraordinary circumstances. 

■ 16. Revise § 2700.25 to read as 

follows: 

§ 2700.25 Proposed penalty assessment. 

The Secretary of Labor (‘‘Secretary’’), 

by certified mail, shall notify the 

operator or any other person against 

whom a penalty is proposed of the 

violation alleged, the amount of the 

proposed penalty assessment, and that 

such person shall have 30 days to notify 

the Secretary of the intent to contest the 

proposed penalty assessment. 

■ 17. Revise § 2700.26 to read as 

follows: 

§ 2700.26 Notice of contest of proposed 

penalty assessment. 

A person has 30 days after receipt of 

the proposed penalty assessment within 

which to notify the Secretary of Labor 

(‘‘Secretary’’) of the contest of the 

proposed penalty assessment. A person 

who wishes to contest a proposed 

penalty assessment must provide such 

notification regardless of whether the 

person has previously contested the 

underlying citation or order pursuant to 

§ 2700.20. The Secretary shall 

immediately transmit to the 


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Commission any notice of contest of a 

proposed penalty assessment. 

■ 18. Revise § 2700.27 to read as 

follows: 

§ 2700.27 Effect of failure to contest 

proposed penalty assessment. 

If, within 30 days from the receipt of 

the proposed penalty assessment, the 

operator or other person fails to notify 

the Secretary of Labor (‘‘Secretary’’) of 

the contest of the proposed penalty, the 

Secretary’s proposed penalty assessment 

shall be deemed to be a final order of 

the Commission not subject to review by 

any court or agency. 

■ 19. In § 2700.28, revise paragraphs (a), 

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

§ 2700.28 Filing of petition for assessment 

of penalty with the Commission. 

(a) Time to file. Within 45 days of 

receipt of a timely contest of a proposed 

penalty assessment, the Secretary of 

Labor shall file with the Commission a 

petition for assessment of penalty. 

(b) * * * 

(1) List the alleged violations and the 

proposed penalties. Each violation shall 

be identified by the number and date of 

the citation or order and the section of 

the Act or regulations alleged to be 

violated. The list shall include no more 

than 20 citations or orders which are the 

subject of the petition for assessment of 

penalty. 

(2) Include a short and plain 

statement of supporting reasons based 

on the criteria for penalty assessment set 

forth in section 110(i) of the Act, 30 

U.S.C. 820(i). 

* * * * * 

■ 20. In § 2700.30, revise paragraph (b) 

to read as follows: 

§ 2700.30 Assessment of penalty. 

* * * * * 

(b) In determining the amount of 

penalty, neither the Judge nor the 

Commission shall be bound by a penalty 

proposed by the Secretary of Labor or by 

any offer of settlement made by a party. 

■ 21. Revise § 2700.31 to read as 

follows: 

§ 2700.31 Penalty settlement. 

(a) General. A proposed penalty that 

has been contested before the 

Commission may be settled only with 

the approval of the Commission upon 

motion. In all penalty proceedings, 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 of Labor 

(‘‘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—(1) 

Factual support. 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. 

(2) Appearance by CLR. If a motion 

has been filed by a Conference and 

Litigation Representative (‘‘CLR’’) on 

behalf of the Secretary, the proposed 

order approving settlement 

accompanying the motion shall include 

a provision in which the Judge accepts 

the CLR to represent the Secretary in 

accordance with the notice of either 

limited or unlimited appearance 

previously filed with the Commission. 

A CLR does not need to obtain 

authorization from the Commission to 

represent the Secretary before the CLR 

files a motion to approve settlement and 

proposed order. 

(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 

Judge 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. A Judge may 

correct clerical errors in an order 

approving settlement in accordance 

with the provisions of 29 CFR 

2700.69(c). 

■ 22. Add § 2700.32 to read as follows: 

§ 2700.32 Motions to reopen. 

(a) General. This section applies to 

situations: 

(1) Where an operator has failed to file 

a timely notice of contest of a proposed 

penalty assessment issued by the 

Department of Labor’s Mine Safety and 

Health Administration (‘‘MSHA’’), 

resulting in the proposed penalty 

assessment being deemed a final order 

of the Commission pursuant to section 

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

§ 2700.27; and 

(2) Where an operator has failed to file 

a timely answer to a petition for 

assessment of a penalty and the Judge 

has issued a default order. Either 

situation is termed a ‘‘default.’’ 

(b) Definition. For purposes of this 

section only, ‘‘operator’’ also includes a 

person subject to the provisions of 

section 110(c) of the Act, 30 U.S.C. 

820(c), as well as an entity considered 

an operator under section 3(d) of the 

Act, 30 U.S.C. 802(d). 

(c) Grounds for relief. In reviewing 

motions to reopen cases where a default 

has occurred, the Commission is guided 

by Rule 60(b) of the Federal Rules of 

Civil Procedure, under which, for 

example, a party could be entitled to 

relief from a final order of the 

Commission on the basis of 

inadvertence, surprise, mistake, 

misrepresentation, misconduct by an 

opposing party, or other reason that 

justifies relief. The operator bears the 

burden of establishing entitlement to 

such extraordinary relief. 

(d) Time limits for filing the motion. 

(1) A party seeking relief from a default 

must promptly file a motion with the 

Commission requesting that the final 

order be reopened with a full 

explanation of why reopening is 

warranted, accompanied by appropriate 

documentation, as required by 

paragraph (e) of this section. A party’s 

diligence in promptly filing the motion 

will be taken into account in the 

decision whether to grant relief. If a 

party fails to file its motion to reopen 

within 30 days of notice or discovery of 

its delinquency, it must provide a 

reasonable explanation for the delay. 

(2) Motions for relief based on 

mistake, inadvertence, surprise, 

excusable neglect, newly discovered 

evidence, fraud, misrepresentation, or 

misconduct by an opposing party must 

be filed within one year after a proposed 

penalty assessment has become a final 

order of the Commission. Failure to do 

so will result in denial of the motion. 

(e) Contents of the motion. (1) In 

submitting a motion, the operator 

should seek guidance from the 

Commission’s website (https://

www.fmshrc.gov/content/requestsreopen and https://www.fmshrc.gov/ 

guides/faq#problems). 

(2) The motion must include the 

operator’s name and mine ID number, 

the name of the operator’s 


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representative, the representative’s 

relationship to the mine operator, and 

the representative’s contact information. 

(3) The motion shall include a 

detailed explanation of facts related to 

the grounds for relief, including: 

(i) The nature of the event, error, or 

omission leading to the default, 

including, if applicable, the movant’s 

control of the filing of a notice of 

contest, the circumstances causing the 

lateness, and any factor bearing upon 

the good faith of the movant; 

(ii) The steps taken in attempting to 

contest the proposed penalty or to 

answer the penalty petition; 

(iii) The reason for the untimeliness; 

and 

(iv) Any other relevant factor. 

(4) The reasons for the default must be 

substantiated by documentation 

containing, as appropriate, affidavits 

and documents, including written and 

electronic communications, which are 

relevant to the issues raised in the 

motion to reopen and are within the 

party’s custody or control. 

(5) Motions seeking to reopen a 

proposed penalty that has been deemed 

a final order must also include: 

(i) The assessment case number(s) that 

the operator seeks to reopen and the 

individual penalties within the 

assessment case which the operator 

seeks to contest upon reopening. 

(ii) The operator’s internal procedures 

for timely contesting proposed penalty 

assessments or answer penalty petitions, 

including the existence of the tracking 

and backup systems, and 

(iii) Any available documentation of 

the mailing and/or delivery of the 

operator’s contest if the movant claims 

that it timely contested a proposed 

penalty assessment. 

(f) Secretary of Labor’s response to 

motion. (1) The Secretary of Labor 

(‘‘Secretary’’) may submit a response to 

the Commission within 30 days after 

receipt of the operator’s motion to 

reopen a default. In the response, the 

Secretary shall state whether the 

Secretary opposes the motion and, if so, 

the reasons for such opposition, 

including any prejudice resulting from 

the delay. 

(2) The Secretary shall also submit a 

copy of all relevant documents to which 

the Secretary has access that were not 

submitted by the operator in its motion. 

(3) In response to a motion to reopen 

a penalty assessment, the Secretary shall 

include a summary, from the MSHA 

Mine Data Retrieval System or other 

sources, of the operator’s status 

regarding penalty delinquencies during 

the preceding 24-month period. Such 

information shall be presumed to be 

correct unless rebutted by the operator. 

(g) Operator’s reply. The operator may 

file a reply within 20 days after service 

of the Secretary’s response. 

(h) Refiling of motion. (1) If a motion 

is denied ‘‘without prejudice,’’ a new 

motion may be refiled within 30 days of 

the issuance of the Commission’s 

decision. If no new motion is filed 

within 30 days, the initial motion is 

denied permanently, ‘‘with prejudice.’’ 

(2) If a motion is denied ‘‘with 

prejudice,’’ in cases involving a failure 

to timely contest a proposed penalty 

assessment, the underlying assessment 

shall be deemed to have been a final 

order of the Commission. In cases 

involving a Judge’s default order, the 

order shall be a final order. 

(3) When a motion is refiled, for 

purposes of § 2700.32(d)(2), the time 

during which the initial motion that was 

denied without prejudice was pending 

before the Commission shall not be 

counted toward the one-year period 

within which some motions to reopen a 

default must be filed. 

■ 23. In § 2700.40, revise paragraph (a) 

to read as follows: 

§ 2700.40 Who may file. 

(a) The Secretary of Labor. A 

discrimination complaint under section 

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

shall be filed by the Secretary of Labor 

(‘‘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. 

* * * * * 

■ 24. In § 2700.41, revise paragraph (a) 

and add paragraph (c) to read as follows: 

§ 2700.41 Time to file. 

(a) The Secretary of Labor. A 

discrimination complaint shall be filed 

by the Secretary of Labor (‘‘Secretary’’) 

within 30 days after the Secretary’s 

written determination that a violation 

has occurred. 

* * * * * 

(c) Expedition. Proceedings held 

under this subpart E are to be expedited. 

30 U.S.C. 815(c)(3). 

■ 25. Revise § 2700.44 to read as 

follows: 

§ 2700.44 Petition for assessment of 

penalty in discrimination cases. 

(a) Petition for assessment of penalty 

in Secretary of Labor’s complaint. A 

discrimination complaint filed by the 

Secretary of Labor (‘‘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 a Judge 

sustaining a discrimination complaint 

brought pursuant to section 105(c)(3), 30 

U.S.C. 815(c)(3), the Judge shall notify 

the Secretary in writing of such 

determination. The Secretary shall enter 

an appearance in the case within 10 

days and file with the Commission a 

petition for assessment of civil penalty 

within 30 days of receipt of such notice. 

When necessary to expedite the 

issuance of a final decision in the 

proceeding, the Judge is authorized to 

shorten the Secretary’s 30-day filing 

period and the period in which the 

operator has to respond to the petition. 

In the event the Judge does not receive 

a petition for assessment of a civil 

penalty within 30 days of the 

Secretary’s receipt of the notice, or a 

shorter period specified in the notice, 

the Judge shall issue an order to show 

cause as to why the Secretary has not 

filed a petition. If after 7 days of 

issuance of such order the Secretary has 

not filed with the Commission a petition 

for civil penalty and the Judge has not 

granted an extension of time for filing, 

the Judge shall presume the Secretary 

has proposed no penalty and assess a 

penalty in accordance with 29 CFR 

2700.30. 

■ 26. Revise § 2700.45 to read as 

follows: 

§ 2700.45 Temporary reinstatement 

proceedings. 

(a) Service of documents. A copy of 

each document filed with the 

Commission in a temporary 

reinstatement proceeding shall be 

served on all parties 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, by third party commercial 

carrier, or by facsimile transmission, 

resulting in same-day delivery. 

(b) Contents of application. An 

application for temporary reinstatement 

shall state the finding by the Secretary 

of Labor (‘‘Secretary’’) that the miner’s 

discrimination 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 


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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 Administrative Law 

Judge or designee, and simultaneously 

notify the Secretary, whether a hearing 

on the application is requested. If no 

hearing is requested, the Judge assigned 

to the matter shall immediately review 

the Secretary’s application and, if based 

on the contents thereof the Judge 

determines that the miner’s complaint 

was not frivolously brought, the Judge 

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 

Administrative Law Judge 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 Judge shall issue a 

written order granting or denying the 

application. However, in extraordinary 

circumstances, the Judge’s time for 

issuing an order may be extended as 

deemed necessary by the Judge. 

(2) The Judge’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 

Judge’s determination by the most 

expeditious means reasonably available. 

(4) A Judge’s order temporarily 

reinstating a miner is not a final 

decision within the meaning of 

§ 2700.69, and except during appellate 

review of such order by the Commission 

or courts, the Judge shall retain 

jurisdiction over the temporary 

reinstatement proceeding. 

(f) Review of order. Review by the 

Commission of a Judge’s written order 

granting or denying an application for 

temporary reinstatement may be sought 

by filing with the Commission a 

petition, which shall be captioned 

‘‘Petition for Review of Temporary 

Reinstatement Order,’’ with supporting 

arguments, within 5 business days 

following receipt of the Judge’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 

Judge’s order unless the Commission so 

directs; a motion for such a stay will be 

granted only under extraordinary 

circumstances. Any response shall be 

filed within 5 business days following 

service of a petition. Pleadings 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, by third party commercial 

carrier, or by facsimile transmission, 

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 Judge shall 

be so notified. An order dissolving the 

order of reinstatement shall not bar the 

filing of an action by the miner on the 

miner’s own behalf under section 

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

and § 2700.40(b) of these rules. 

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

to read as follows: 

§ 2700.46 Procedure. 

* * * * * 

(d) Service of documents. A copy of 

each document filed with the 

Commission under subpart F of this part 

must be served on all parties by a means 

of delivery no less expeditious than that 

used for filing, except that if service by 

email or other electronic transmission is 

impossible, the filing party must serve 

in person, by third party commercial 

carrier, or by facsimile transmission, 

resulting in same-day delivery. 

■ 28. In § 2700.53, revise the 

introductory text of paragraph (a) to 

read as follows: 

§ 2700.53 Prehearing conferences and 

statements. 

(a) The Judge may require the parties 

to participate in a prehearing 

conference, either in person or by 

telephone or other video/audio 

teleconferencing. Notwithstanding the 

mandatory recording of motions on the 

record in accordance with § 2700.10(a), 

the Judge has the discretion to record 

any in-person or telephonic conference, 

a transcript of which shall be provided 

to the parties upon reasonable request. 

The participants at any such conference 

may consider and take action with 

respect to: 

* * * * * 

■ 29. Revise § 2700.54 to read as 

follows: 

§ 2700.54 Notice of hearing. 

Except in expedited proceedings, 

written notice of the time, place, and 

nature of the hearing, the legal authority 

under which the hearing is to be held, 

and the matters of fact and law asserted 

shall be given to all parties at least 20 

days before the date set for hearing. 

■ 30. In § 2700.55, revise paragraph (h) 

to read as follows: 

§ 2700.55 Powers of Judges. 

* * * * * 

(h) Make decisions in the 

proceedings, provided that the Judge 

shall not be assigned to make a 

recommended decision; and 

* * * * * 

■ 31. In § 2700.56, revise paragraph (c) 

to read as follows: 

§ 2700.56 Discovery; general. 

* * * * * 

(c) Limitation of discovery. Upon 

motion by a party or by the person from 

whom discovery is sought or upon the 

Judge’s own motion, a Judge 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. 

* * * * * 

■ 32. In § 2700.58, revise paragraph (c) 

to read as follows: 

§ 2700.58 Interrogatories, requests for 

admissions and requests for production of 

documents. 

* * * * * 

(c) Request for production, entry or 

inspection. Any party, without leave of 

the Judge, 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 


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within 25 days of service unless the 

party making the request agrees to a 

longer time. The Judge 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. 

■ 33. Revise § 2700.61 to read as 

follows: 

§ 2700.61 Name of miner informant. 

A Judge 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. 

■ 34. Revise § 2700.62 to read as 

follows: 

§ 2700.62 Name of miner witness. 

A Judge 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 

Judge to testify or whom a party expects 

to summon or call as a witness. 

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

to read as follows: 

§ 2700.63 Evidence; presentation of case. 

* * * * * 

(b) The proponent of an order has the 

burden of proof. A party shall have the 

right to present a case or defense by oral 

or documentary evidence, to submit 

rebuttal evidence, and to conduct such 

cross-examination as may be required 

for a full and true disclosure of the facts. 

■ 36. Revise § 2700.64 to read as 

follows: 

§ 2700.64 Exhibits. 

All exhibits received in evidence in a 

hearing or submitted for the record in 

any proceeding before the Commission 

shall be deemed part of the official 

record of the proceeding. The 

withdrawal of original exhibits may be 

permitted by the Commission or the 

Judge, upon request and after notice to 

the other parties, if true copies are 

substituted, where practical, for the 

originals. 

■ 37. In § 2700.66, revise paragraph (a) 

to read as follows: 

§ 2700.66 Summary disposition of 

proceedings. 

(a) Generally. When a party fails to 

comply with an order of a Judge 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. 

* * * * * 

■ 38. In § 2700.67, revise paragraph (e) 

to read as follows: 

§ 2700.67 Summary decision of the Judge. 

* * * * * 

(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 

Judge shall permit affidavits to be 

supplemented or opposed by 

depositions, answers to interrogatories, 

admissions, or further affidavits. 

* * * * * 

■ 39. Revise § 2700.68 to read as 

follows: 

§ 2700.68 Substitution of the Judge. 

(a) Generally. Should a Judge become 

unavailable to the Commission, the 

proceedings assigned to that Judge shall 

be reassigned to a substitute Judge. 

(b) Substitution following a hearing. 

The substitute Judge may render a 

decision based upon the existing record, 

provided the parties are notified of the 

Judge’s intent and they are given an 

opportunity to object. An objection to 

the Judge rendering a decision based 

upon the existing record shall be filed 

within 10 days following receipt of the 

Judge’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 Judge may order a further 

hearing on the merits, which shall be 

limited, so far as practicable, to the 

testimony in dispute. 

■ 40. In § 2700.69, revise paragraphs (a) 

through (c) to read as follows: 

§ 2700.69 Decision of the Judge. 

(a) Form and content of the Judge’s 

decision. The Judge shall make a 

decision that constitutes a final 

disposition of the proceedings. A 

decision that is not final shall be titled 

‘‘Interim Decision.’’ Any 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 a Judge 

approving a settlement proposal is a 

decision of the Judge. 

(b) Termination of the Judge’s 

jurisdiction. Except to the extent 

otherwise provided herein, the 

jurisdiction of the Judge terminates 

when the Judge’s decision has been 

issued. 

(c) Correction of clerical errors. At any 

time before the Commission has 

directed that a Judge’s decision be 

reviewed, and on the Judge’s own 

motion or the motion of a party, the 

Judge may correct clerical errors in 

decisions, orders, or other parts of the 

record. After the Commission has 

directed that a Judge’s decision be 

reviewed, the Judge may correct such 

errors with the leave of the Commission. 

If a Judge’s decision has become the 

final order of the Commission, the Judge 

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 Judge’s 

decision on the merits. 

* * * * * 

■ 41. In § 2700.70, revise paragraph (f) 

to read as follows: 

§ 2700.70 Petitions for discretionary 

review. 

* * * * * 

(f) Motion for leave to exceed page 

limit. A motion requesting leave to 

exceed the page limit shall be received 

not less than 3 days prior to the date the 

petition for discretionary review is due 

to be filed, shall state the total number 

of pages proposed, and shall comply 

with § 2700.10. Filing of a motion 

requesting an extension of page limit is 

effective upon receipt. The motion and 

any statement in opposition shall 

include proof of service on all parties by 

a means of delivery no less expeditious 

than that used for filing the motion, 

except that if service by email or other 

electronic transmission is impossible, 

the filing party must serve in person, by 

third party commercial carrier, or by 

facsimile transmission, resulting in 

same-day delivery. 

* * * * * 

■ 42. Add § 2700.72 to read as follows: 

§ 2700.72 Commission panels. 

The Commission may, at its 

discretion, impanel a group of three or 

more members to hear any pending 

matter. Assignment to such panels shall 

be made by a random method agreed 

upon by a majority of the 

Commissioners. 

■ 43. In § 2700.73, revise paragraph (b) 

to read as follows: 


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§ 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; 

* * * * * 

■ 44. In § 2700.75, revise paragraphs 

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

§ 2700.75 Briefs. 

(a) Time to file—(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. 

* * * * * 

(e) Consequences of petitioner’s 

failure to file brief. If a petitioner fails 

to timely file a brief or to designate the 

petition as the opening brief, the 

direction for review may be vacated. 

(f) Motion for leave to exceed page 

limit. A motion requesting leave to 

exceed the page limit for a brief shall be 

received not less than 3 days prior to the 

date the brief is due to be filed, shall 

state the total number of pages 

proposed, and shall comply with 

§ 2700.10. Filing of a motion requesting 

an extension of page limit is effective 

upon receipt. The motion and any 

statement in opposition shall include 

proof of service on all parties by a 

means of delivery no less expeditious 

than that used for filing the motion, 

except that if service by email or other 

electronic transmission is impossible, 

the filing party must serve in person, by 

third party commercial carrier, or by 

facsimile transmission, resulting in 

same-day delivery. 

* * * * * 

■ 45. In § 2700.76, revise paragraph 

(a)(1)(i) to read as follows: 

§ 2700.76 Interlocutory review. 

(a) * * * 

(1) * * * 

(i) The Judge has certified, upon the 

Judge’s own motion or the motion of a 

party, that an interlocutory ruling 

involves a controlling question of law 

and that in the Judge’s opinion 

immediate review will materially 

advance the final disposition of the 

proceeding; or 

* * * * * 

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

to read as follows: 

§ 2700.78 Reconsideration. 

(a) A petition for reconsideration must 

be filed with the Commission within 10 

days after the issuance of a decision or 

order of the Commission. Any response 

must be filed with the Commission 

within 10 days of service of the petition. 

* * * * * 

■ 47. In § 2700.80, revise paragraphs (a) 

through (c) to read as follows: 

§ 2700.80 Standards of conduct; 

disciplinary proceedings. 

(a) Standards of conduct. 

Representatives practicing before the 

Commission or before Commission 

Judges pursuant to 29 CFR 2700.3(b) 

shall conform to the standards of ethical 

conduct required of practitioners under 

the American Bar Association’s 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 

practicing or has practiced 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 Judges; has been 

disbarred or suspended by a court or 

administrative agency; or has been 

disciplined by a Judge 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, a Judge or other person having 

knowledge of circumstances that may 

warrant disciplinary proceedings 

against an individual who is practicing 

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 Administrative Law 

Judge to assign the matter to an 

Administrative Law Judge, from within 

or outside of the Commission, other 

than the referring Judge, for hearing and 

decision. The Commission may 

designate counsel from within or 

outside of the Commission to prosecute 

the matter before the Judge. 

(3) Hearing before an Administrative 

Law Judge—(i) Assignment. Upon the 

Commission’s order determining that 

further proceedings are warranted, the 

Commission’s Chief Administrative Law 

Judge shall select a Commission 

Administrative Law Judge, or select a 

non-Commission Administrative Law 

Judge, 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 

the Commission’s procedural rules 

governing Commission hearings before 

Administrative Law Judges shall apply 

as appropriate to all Commission 

disciplinary proceedings. 

(iv) Judge’s decision. The Judge’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 practice before the 

Commission. 

* * * * * 

■ 48. In § 2700.81, revise paragraphs (a) 

and (c) to read as follows: 

§ 2700.81 Recusal and disqualification. 

(a) Recusal. Whenever a 

Commissioner or a Judge deems 


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63062 Federal Register / Vol. 85, No. 194 / Tuesday, October 6, 2020 / Proposed Rules 

appropriate, the Commissioner or Judge 

may choose to be recused from a 

proceeding. 

* * * * * 

(c) Procedure if Commissioner or 

Judge does not withdraw. If, upon being 

requested to withdraw pursuant to 

paragraph (b) of this section, the 

Commissioner or the Judge does not 

withdraw from the proceeding, the 

Commissioner or Judge shall so rule 

upon the record, stating the grounds for 

such ruling. If the Judge does not 

withdraw, the Judge shall proceed with 

the hearing, or, if the hearing has been 

completed, the Judge 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 

Judge’s decision not to withdraw. 

■ 49. In § 2700.82, revise paragraph (d) 

to read as follows: 

§ 2700.82 Ex parte communications. 

* * * * * 

(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 

Avenue NW, Suite 520N, Washington, 

DC 20004–1710; 202–434–9950. 

■ 50. Revise § 2700.83 to read as 

follows: 

§ 2700.83 Authority to sign orders. 

The Chair or other designated 

Commissioner is authorized to sign on 

behalf of the Commissioners, 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, Acting Chair or 

quorum, the remaining Commissioner or 

Commissioners continue to be 

authorized to sign orders disposing of 

procedural motions as identified above. 

Dated: August 31, 2020. 

Marco M. Rajkovich, Jr., 

Chair, Federal Mine Safety and Health Review 

Commission. 

[FR Doc. 2020–19492 Filed 10–5–20; 8:45 am] 

BILLING CODE 6735–01–P 

DEPARTMENT OF THE INTERIOR 

National Park Service 

36 CFR Part 7 

[NPS–COLO–29180; GPO Deposit Account 

4311H2] 

RIN 1024–AE39 

Colonial National Historical Park; 

Vessels and Commercial PassengerCarrying Motor Vehicles 

AGENCY: National Park Service, Interior. 

ACTION: Proposed rule. 

SUMMARY: The National Park Service 

proposes to amend the special 

regulations for Colonial National 

Historical Park. This proposed rule 

would remove a regulation that prevents 

the Superintendent from designating 

sites within the park for launching and 

landing private vessels. The proposed 

rule also would remove outdated permit 

and fee requirements for commercial 

passenger-carrying vehicles. 

DATES: Comments on the proposed rule 

must be received by December 7, 2020. 

ADDRESSES: You may submit comments, 

identified by Regulation Identifier 

Number (RIN) 1024–AE39, by either of 

the following methods: 

(1) Electronically: Go to the Federal 

eRulemaking Portal: http://

www.regulations.gov. Follow the 

instructions for submitting comments. 

(2) By hard copy: Mail or hand deliver 

to: Superintendent, Colonial National 

Historical Park, P.O. Box 210, 

Yorktown, VA 23690. 

Instructions: Comments will not be 

accepted by fax, email, or in any way 

other than those specified above. All 

submissions received must include the 

words ‘‘National Park Service’’ or 

‘‘NPS’’ and must include the docket 

number or RIN 1024–AE39 for this 

rulemaking. Comments received may be 

posted without change to 

www.regulations.gov, including any 

personal information provided. 

Docket: For access to the docket to 

read background documents or 

comments received, go to 

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: Kym 

Hall, Superintendent, Colonial National 

Historical Park. Phone: (757) 898–2401; 

Email: kym_hall@nps.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

Colonial National Historical Park is 

located along the James and York Rivers 

and encompasses the historic 

Jamestown Island, Colonial Parkway, 

and the Yorktown Battlefield. There are 

also small, inland parcels of the park 

located at Greenspring, Gloucester 

Point, and Fort Story. The park tells the 

story of the Colonial era from the origins 

of the occupancy of Jamestown Island in 

1607 to the last major battle of the 

Revolutionary War at Yorktown in 1781. 

These two sites are connected by the 

Colonial Parkway which winds 23 miles 

through scenic forests, over waterways, 

along river banks, and under Colonial 

Williamsburg. Much of the park is 

surrounded by water and includes an 

extensive amount of shoreline. All of 

the waterways in the area are a part of 

the Captain John Smith Chesapeake 

National Historic Trail that overlays the 

entire Chesapeake Bay and a large 

portion of its navigable tributaries. The 

park and the national historic trail are 

both a part of the National Park System 

and go hand-in-hand in this area of 

Virginia. 

Secretarial Priorities 

On February 24, 2017, President 

Trump issued Executive Order 13777, 

‘‘Enforcing the Regulatory Reform 

Agenda.’’ This Executive Order 

established a regulatory reform initiative 

to alleviate unnecessary regulatory 

burdens placed on the American people. 

As part of the Department of the 

Interior’s approach for implementing 

this initiative, the NPS is reviewing its 

regulations in order to identify those 

that should be repealed, replaced, or 

modified. These include regulations that 

are outdated or unnecessary. The NPS 

has identified special regulations for the 

park addressing vessels and commercial 

passenger-carrying vehicles as 

candidates for repeal, consistent with 

the direction given under Executive 

Order 13771. 

The proposed change in this 

document for launching and landing 

vessels is consistent with Secretary of 

the Interior Order 3366, ‘‘Increasing 

Recreational Opportunities on Lands 

and Waters Managed by the U.S. 

Department of the Interior.’’ This Order 

directs the NPS to expand recreational 

opportunities on NPS-managed lands 

and waters. 

Proposed Rule 

Launching and Landing Vessels 

Since the park was established in the 

1930s, the NPS has prohibited the 

launching or landing of watercraft, 

except in emergency situations. The 

current prohibition is codified at 36 CFR 

7.1(a) which states that, except in 

emergencies, no privately owned vessel 

shall be launched from land within the 

park and no privately owned vessel 


khammond on DSKJM1Z7X2PROD with PROPOSALS