[Federal Register Volume 64, Number 173 (Wednesday, September 8, 1999)]
[Rules and Regulations]
[Pages 48707-48714]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-23244]
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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
29 CFR Part 2700
Procedural Rules
AGENCY: Federal Mine Safety and Health Review Commission.
ACTION: Final rule.
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[[Page 48708]]
SUMMARY: This rule makes final various revisions to the procedural
rules of the Federal Mine Safety and Health Review Commission (the
``Commission''). In these final rules, the Commission has addressed
various problems that were unforeseen when the procedural rules were
last revised in 1993 (see 58 FR 12158 (March 3, 1993)), in a continued
effort to ensure ``the just, speedy, and inexpensive determination of
all proceedings'' before the Commission (29 CFR 2700.1(c)).
DATES: These revised rules will take effect on November 8, 1999.
The final rules will apply to cases initiated after the rules take
effect. The final rules also will apply to further proceedings in cases
then pending, except to the extent that such application would be
infeasible or unfair, in which event the present procedural rules would
apply.
ADDRESSES: Questions may be mailed to Norman Gleichman, General
Counsel, Office of the General Counsel, Federal Mine Safety and Health
Review Commission, 1730 K Street, NW, 6th Floor, Washington, DC 20006.
FOR FURTHER INFORMATION CONTACT: Norman Gleichman, General Counsel,
Office of the General Counsel, Federal Mine Safety and Health Review
Commission, 1730 K Street, NW, 6th Floor, Washington, DC 20006,
telephone 202-653-5610 (202-566-2673 for TDD Relay). These are not
toll-free numbers.
SUPPLEMENTARY INFORMATION:
I. Background
The Commission is an independent adjudicative agency that provides
administrative trial and appellate review of cases arising under the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801 et seq.
(1994) (``Mine Act''). The Commission's rules of procedure govern
practice and procedure in proceedings at both the trial and appellate
levels.
The Commission initially adopted its procedural rules in June 1979.
See 44 FR 38226 (June 29, 1979). In March 1993, the Commission
published significant revisions to its procedural rules, reflecting
more than 10 years' experience with the rules and evolving Commission
case law. See 58 FR 12158 (March 3, 1993). In May 1998, the Commission
published proposed revisions to various rules in an attempt to address
problems that were unforeseen in 1993. See 63 FR 25183 (May 7, 1998).
Those proposed rules included revisions relating to motion practice
before the Commission, expansions of the requirements for certain
pleadings, and revisions and clarifications for filing pleadings in
temporary reinstatement proceedings. See 63 FR 25183-87. For instance,
the Commission proposed requiring moving parties to state in motions
whether there is opposition to the motion (see proposed Sec. 2700.10(c)
(63 FR 25186)); instituting a page limit for petitions for
discretionary review (see proposed Sec. 2700.70(d) (63 FR 25187));
changing requirements for filing and serving requests for extensions of
time and extensions of page limits (see proposed Secs. 2700.9,
2700.70(d), 2700.75(f)) (63 FR 25186, 25187)); revising procedures for
filing pleadings in temporary reinstatement proceedings (see proposed
Sec. 2700.45 (63 FR 25186-87)); and expanding the opportunities for
filing and serving by facsimile transmission (see proposed
Secs. 2700.9, 2700.45(f) (63 FR 25186-87)).
Although notice-and-comment rulemaking under the Administrative
Procedure Act does not apply to rules of agency procedure (see 5 U.S.C.
553(b)(3)(A)), the Commission permitted written comments on the
proposed rules to be submitted on or before August 5, 1998. The only
written comments received by the Commission were submitted by the
Department of Labor's Office of the Solicitor on behalf of the Mine
Safety and Health Administration (``MSHA''). MSHA commented on the
following proposed revisions: (1) the proposed requirement that when
filing is by facsimile transmission, service must be by facsimile or an
equally expeditious means (proposed Sec. 2700.7 (63 FR 25186)); (2) the
proposed insertion that would permit the Commission to rule upon a
motion prior to the expiration of the time for response (proposed
Sec. 2700.10(d) (63 FR 25186)); and (3) the proposed deadline for
filing a motion requesting an extension of page limit (proposed
Secs. 2700.70, 2700.75 (63 FR 25187)). In addition, MSHA proposed that
the procedural rules be revised in three ways not proposed in the
Federal Register notice: (1) that subpart H be revised to include a
requirement that all documents filed in review proceedings before the
Commission in which MSHA is a party, be served on the Counsel for
Appellate Litigation in the Mine Safety and Health Division of the
Office of Solicitor; (2) that 29 CFR 2700.75(e) be revised to permit
both opening briefs and response briefs to be up to 35 pages in length;
and (3) that Sec. 2700.75(e) be revised to specify that all briefs be
typed double-spaced and using a typeface designated by the Commission.
MSHA did not state any objections to the remainder of the proposed
revisions.
Based upon those comments and other developments in Commission
proceedings, the Commission published supplemental proposed rules,
which clarified when service on an attorney or other authorized
attorney is required (see proposed Secs. 2700.3(c), 2700.7(d) (64 FR
24549)), added requirements for the format of pleadings (see proposed
Sec. 2700.5(f) (64 FR 24549)), and increased the page limit for
response briefs (see proposed Sec. 2700.75(c) (64 FR 24549-50)). See 64
FR 24547-50 (May 7, 1999).
The Commission permitted written comments on those supplemental
proposed rules to be submitted on or before May 28, 1999. The
Commission received comments from MSHA and from the Peabody Group. The
majority of comments expressed support for the supplemental proposed
revisions. The Commission received an objection to only the proposed
requirements for the format of pleadings (see proposed Sec. 2700.5(f)
(64 FR 24549)).
The final rules retain much of the same text set forth in the
proposed rules and in the supplemental proposed rules. As discussed in
the section-by-section analysis, some changes have been made in
response to the comments received, such as the service requirements
when documents are filed by facsimile transmission (see
Secs. 2700.7(c), 2700.9(a), 2700.45(f), 2700.70(f), 2700.75(f)); and
the deadline for filing requests for extension of page limit (see
Secs. 2700.70(f), 2700.75(f)). In addition, although not included in
the proposed rules or supplemental proposed rules, the Commission made
a revision clarifying when a motion for participation as amicus curiae
and an amicus curiae brief must be filed (see Sec. 2700.74). The
Commission was unable to invite comments on the revisions to
Sec. 2700.74 because the proceedings that brought to light the need for
such clarification arose after the supplemental proposed rules had been
published in the Federal Register. Finally, certain rules have been
changed to accord with related changes in others.
II. Section-by-Section Analysis
Set forth below is an analysis of the comments received on the
Commission's proposed and supplemental proposed rules and the final
actions taken. Minor editorial modifications to present or proposed
rules are not discussed.
Subpart A--General Provisions
Section 2700.3 Who May Practice
Paragraph (c) retains the proposed language clarifying the manner
of and
[[Page 48709]]
time that an attorney or other authorized representative may enter an
appearance in Commission proceedings. The Commission received no
objections to the proposed rule and adopts the proposed rule without
change.
Currently, Sec. 2700.3(c) provides that an entry of appearance by a
representative of a party is made by, among other things, ``signing the
first document filed on behalf of the party.'' See 29 CFR 2700.3(c).
The rule is somewhat ambiguous regarding the agency with whom the
document must be filed, and whether the document refers only to
pleadings.
In an effort to dispel this ambiguity, the Commission has revised
Sec. 2700.3(c) to provide that an entry of appearance shall be made
when the first document filed on behalf of a party is filed with the
Commission or Commission judge. Revised Sec. 2700.3(c) also clarifies
that the documents that may serve as an entry of appearance shall be
only those filed with the Commission or Commission judge in a
proceeding under the Mine Act or the Commission's procedural rules,
rather than documents filed with MSHA.
The revisions to Sec. 2700.3(c) are intended to be consistent with
the definition of ``party'' set forth in Sec. 2700.4(a). Section
2700.4(a) currently provides in part that ``[a] person, including the
Secretary or an operator, who is named as a party or who is permitted
to intervene, is a party.'' 29 CFR 2700.4(a). Section 2700.3(c) refers
to actions that may be taken by a representative of a ``party'' in
order to enter an appearance. Thus, reading current Sec. 2700.4(a) with
revised Sec. 2700.3(c), an entry of appearance by an attorney or other
authorized representative cannot be made before the represented
operator or individual achieves party status as defined in
Sec. 2700.4(a). In some circumstances, however, an entry of appearance
may be made at the same time that an operator or individual achieves
party status. For instance, upon the filing of a notice of contest of a
citation or order with the Commission by an authorized representative
on behalf of an operator (see 29 CFR 2700.20), the operator is named as
a party, thereby achieving party status under current Sec. 2700.4(a),
and the attorney filing the contest enters an appearance under revised
Sec. 2700.3(c) by filing the document with the Commission.
Section 2700.5 General Requirements for Pleadings and Other Documents;
Status or Informational Requests.
Paragraph (c) of the proposed rule added the requirement that all
documents include page numbers. The Commission received no comments
concerning that revision and adopts it as proposed.
In addition, consistent with proposed revisions to Secs. 2700.9(a)
and 2700.45(f), paragraph (d) of proposed Sec. 2700.5 added the
provision that the filing of a motion for an extension of time and a
petition for temporary reinstatement order is effective upon receipt,
rather than upon mailing. The Commission received no comments
concerning that revision.
The Commission adopts Sec. 2700.5(d) as proposed with minor
changes. For consistency and clarity in motion practice, the Commission
has conformed the requirements for filing requests for extensions of
page limit with the requirements for filing requests for extensions of
time. Therefore, the Commission has added the provision that the filing
of a motion to exceed page limit is effective upon receipt. In
addition, the Commission has revised Sec. 2700.5(d) to specify that
express mail includes delivery by third-party commercial carrier.
Therefore, when a document is filed by third party commercial carrier,
filing is effective upon delivery to the third party carrier, except
for documents specified in paragraph (d) for which filing is effective
upon receipt.
The Commission received a comment requesting that Sec. 2700.75(e)
be revised to require that all briefs shall be double-spaced using a
typeface designated by the Commission in order to ensure adherence with
page limitations. Because the Commission believed that formatting
requirements should apply to all pleadings filed with the Commission
and its judges, the Commission proposed a supplemental rule setting
forth formatting requirements in proposed Sec. 2700.5(f), which applies
to all pleadings, rather than in Sec. 2700.75, which applies only to
briefs before the Commission. The proposed formatting requirements
included standards for margins, font size and spacing, and a general
prohibition against excessive footnotes. In addition, the Commission
proposed adding a provision permitting the Commission to reject a brief
based on the failure to comply with the requirements of the subsection
or on the use of compacted or otherwise compressed printing features.
To avoid affecting basic appeal rights, the Commission limited the
provision by allowing only the rejection of briefs, rather than
petitions for discretionary review.
The Commission received a comment regarding proposed
Sec. 2700.5(f), in which the commenter stated that the requirement that
footnotes appear in the same type size as text may prove difficult for
drafters because most word processing systems automatically size
footnote print smaller that the print of a document's body. The
commenter suggested that the rule should be further revised to
institute a word limit for parties who have word processing systems
with automatic word counting capabilities, retaining page limitations
for only those parties who do not have such systems. In addition, the
commenter expressed the hope that the Commission would provide ample
warning before striking briefs for excessive footnotes.
The Commission declines further modification of the formatting
requirements which were proposed in Sec. 2700.5(f). Although a word
processing system may automatically size footnote print smaller than
the text of the body, most systems may be adjusted to conform the
footnote size with the text of the body. If a party's word processing
system is incapable of using the same size type for footnotes and the
body of a document, that information may be provided to the Commission
if the Commission were to reject a brief on that basis. The Commission
believes that the proposed rule is clearer and more easily enforced
than a rule which sets forth two standards of formatting requirements.
Finally, the Commission anticipates that it will provide ample notice
before rejecting a brief for noncompliance with formatting
requirements.
Section 2700.7 Service
Proposed revisions to Sec. 2700.7(c) referred to the circumstances
in which requests for extensions of time (Sec. 2700.9) and pleadings in
temporary reinstatement proceedings (Sec. 2700.45(f)) may be served by
facsimile transmission. In addition, proposed paragraph (c) clarified
that service by mail is effective upon mailing for all types of mail,
including first class, express, registered or certified mail, return
receipt requested. Proposed paragraph (c) also added the requirement
that when filing is by facsimile transmission, the filing party must
also serve by facsimile transmission or by a means as expeditious as
facsimile.
The Commission received no comments to the proposed rule's
reference to the circumstances under which requests for extensions of
time and petitions for review of temporary reinstatement orders may be
served by facsimile transmission, or to the clarification that service
by mail is effective upon mailing for all types of
[[Page 48710]]
mail service. Consistent with revisions to Sec. 2700.5(d), the
Commission has conformed the requirements for serving requests for
extensions of page limit with the requirements for serving requests for
extensions of time. Therefore, the Commission has referred to the
circumstances in which requests for extensions of page limits may be
served by facsimile transmission. In addition, the Commission has
revised Sec. 2700.7(c) to specify that express mail includes delivery
by third-party commercial carrier. Therefore, when a document is served
by third-party commercial carrier, service is effective upon delivery
to the third-party carrier.
The Commission received opposition to the requirement that when a
document is filed by facsimile transmission, service must be by
facsimile or an equally expeditious means. The commenter submitted that
a significant percentage of parties participating in Commission
proceedings do not have fax machines, and that the only means of
providing equally expeditious service would be by hand delivery, which
can only be accomplished in a small number of cases.
After further consideration, the Commission has revised proposed
Sec. 2700.7(c) to provide that when filing is by facsimile
transmission, the filing party must also serve by facsimile
transmission or, if serving by facsimile transmission is impossible,
the filing party must serve by third-party commercial overnight
delivery service or by personal delivery. Although a party receiving
service by overnight delivery will receive a document after the
document has been filed by facsimile, the Commission believes that such
a delay is not prejudicial. Under current Sec. 2700.8, which has not
been revised, when service of a document is by mail, 5 days are added
to the time allowed for filing a response. See 29 CFR 2700.8. Because
delivery by third-party commercial carrier is a form of express mail,
the party who is served a document by third-party commercial carrier
receives an additional 5 days to respond. Moreover, the time for filing
a response to documents that may be filed by facsimile begins to run
upon service, rather than upon filing. See proposed Secs. 2700.10(d),
2700.45(f).
Proposed paragraph (d) provided that service is required on an
attorney or other authorized representative only after that attorney or
representative has formally entered an appearance on behalf of the
party in the manner prescribed in proposed Sec. 2700.3(c). The
Commission received no objections to the revision and adopts paragraph
(d) as proposed.
The Commission published proposed paragraph (d) in the supplemental
notice of proposed rulemaking based on proceedings before the
Commission which revealed that its current procedural rules should be
revised to clarify when service on an attorney or other authorized
representative is required, particularly in circumstances in which a
person or operator has retained counsel prior to issuance of the
initial document in a proceeding. See Roger Richardson, 20 FMSHRC 1259
(Nov. 1998) (involving proceeding under 30 U.S.C. 820(c), in which
proposed penalty assessment was mailed to individual's former residence
rather than to counsel who was retained prior to issuance of proposed
penalty assessment).
Currently, Sec. 2700.7(d) provides that ``[w]henever a party is
represented by an attorney or other authorized representative,
subsequent service shall be made upon the attorney or other authorized
representative.'' 29 CFR 2700.7(d). The current rule is somewhat
ambiguous regarding whether service is required after a representative
has entered an appearance on behalf of the party, or whether service is
required after a party has retained that representative. Under revised
Sec. 2700.7(d), it is clear that, even if an operator or individual
retains counsel prior to the initiation of a proceeding under the Mine
Act, that counsel need not be served until after he or she makes a
formal entry of appearance pursuant to Sec. 2700.3(c).
Section 2700.9 Extensions of Time
Paragraph (a) of the proposed rule instituted the requirements that
a motion for extension of time shall be filed no later than 3 days
prior to the expiration of the time allowed for the filing or serving
of the document, and that the motion for an extension of time must
conform with proposed Sec. 2700.10. Proposed Sec. 2700.9(a) also
provided that the motion and any opposition to the motion may be filed
and served by facsimile transmission, and that service must be by an
equally expeditious means as filing. Paragraph (b) of proposed
Sec. 2700.9 added a provision allowing the Commission to grant a motion
for an extension of time in exigent circumstances, even though the
request was filed late. The proposed rule was designed to alleviate the
situation that arises under current Sec. 2700.9, in which the
Commission receives a request for an extension of time on or shortly
before the expiration of the due date for filing or serving of the
document, requiring disposal of the motion prior to the expiration of
the time for a response. See 29 CFR 2700.9 (``A request for an
extension of time shall be filed before the expiration of the time
allowed for the filing or serving of the document.'').
The Commission received no comments to proposed Sec. 2700.9(a) and
adopts it as proposed with a minor modification. Consistent with
revisions to proposed Sec. 2700.7(c), the Commission inserted the
qualification in paragraph (a) that, if service by facsimile
transmission is impossible, the filing party shall serve by a third-
party commercial overnight delivery service or by personal delivery.
Section 2700.10 Motions
The proposed rule added the requirement that, prior to filing a
procedural motion, a moving party must confer or make reasonable
efforts to confer with the other parties and to state in the motion if
any party opposes or does not oppose the motion. In addition, proposed
Sec. 2700.10 added the provision that, where circumstances warrant, a
motion may be ruled upon prior to the expiration of the time for
response, and that a party adversely affected by the ruling may seek
reconsideration.
Under current practice, before the Commission disposes of a
procedural motion, it must wait for the expiration for the period of
the time for filing a statement in opposition. See 29 CFR 2700.10(c).
For some motions requiring prompt or immediate disposition, the
Commission must contact other parties or, if such parties are
unavailable, dispose of the motion without a response. The proposed
revisions were designed to more efficiently and fairly dispose of such
motions.
The Commission received opposition to the revision which would
permit a motion to be ruled upon prior to the expiration of the time
for response. The commenter suggested that if it is necessary to rule
on a motion before the response time has expired, the Commission or
judge should give adequate warning of the shortened time so that any
opposition may be filed prior to disposition of the motion.
The Commission has determined that no further modification is
warranted and adopts the proposed rule. In motion practice before the
Commission, there is usually insufficient time to give advance warning
that the Commission must rule upon a motion prior to the expiration of
the time for a response, particularly with requests for extensions of
time or extensions of page limits. Even if the Commission were to
dispose of a motion before expiration of the time for a
[[Page 48711]]
response, under revised Sec. 2700.10(c), in most circumstances, the
Commission will be informed by the motion whether opposition exists.
Moreover, under these final rules, an opposing party has more
opportunities for filing an opposition by facsimile transmission. See
Secs. 2700.9(a) (statements in opposition to requests for extension of
time); 2700.45(f) (responses to petitions for review of temporary
reinstatement orders); 2700.70(f) and 2700.75(f) (statements in
opposition to motions for extension of page limit). In any event, the
Commission has provided an avenue of relief to a party deprived of the
opportunity to file an opposition by providing in paragraph (d) that
any party adversely affected by the ruling may seek reconsideration.
Subpart E--Complaints of Discharge, Discrimination, or Interference
Section 2700.45 Temporary Reinstatement Proceedings
Paragraph (f) retains the proposed language to: (1) allow any
pleadings in a temporary reinstatement proceeding to be filed and
served by facsimile transmission (see also paragraph (a)); (2) provide
that the filing of a petition for review of a temporary reinstatement
order is effective upon receipt; (3) require that any response to a
petition must be filed within 5 days following service of the petition,
rather than 5 days following receipt of the petition, as the rule
currently provides (see 29 CFR 2700.45(f)); and (4) clarify that the
Commission's ruling on a petition shall be based on the petition and
any response, and that any further briefing will be entertained only at
the express direction of the Commission. The Commission also adopts the
language proposed in paragraph (f), which codifies the holding in
Secretary of Labor on behalf of Bowling v. Perry Transport, Inc., 15
FMSHRC 196 (Feb. 1993), by explicitly providing that the Commission
will grant a motion to stay the effect of a temporary reinstatement
order only under extraordinary circumstances.
Although the Commission received no comments to the proposed rule,
the comment received regarding facsimile transmission in proposed
Sec. 2700.7(c) is indirectly applicable to proposed Sec. 2700.45(f),
and prompted the Commission to revise the final rule. As with proposed
Sec. 2700.9(a), the Commission qualified the requirement that a
pleading under the rule must include proof of service on all parties by
a means of delivery no less expeditious than that used for filing with
the proviso that if service by facsimile transmission is impossible,
the filing party shall serve by a third-party commercial overnight
delivery service or by personal delivery. In addition, consistent with
this revision, the Commission specified in paragraph (a) that a
document filed with the Commission in a temporary reinstatement
proceeding may be served by express mail, as well as by personal
delivery, including courier service, by certified or registered mail,
return receipt requested, or, as specified in paragraph (f), by
facsimile transmission.
Subpart H--Review by the Commission
Section 2700.70 Petitions for Discretionary Review
Proposed Sec. 2700.70(a) added the clarification that procedures
governing petitions for review of temporary reinstatement orders may be
found in Sec. 2700.45(f). The Commission received no comments to the
proposed revision and adopts it as proposed.
Proposed Sec. 2700.70(d) added a 35-page limit for petitions for
discretionary review to promote concision. In addition, consistent with
proposed changes to Sec. 2700.75, proposed Sec. 2700.70(d) instituted a
10-day deadline for filing a motion requesting an extension of page
limit.
The Commission received no objection to the 35-page limit and
adopts it as proposed. However, the Commission received an objection to
the proposed requirement that a motion for an extension of page limit
for a petition for discretionary review be filed no less than 10 days
prior to the date the petition is due to be filed. The commenter stated
that in many cases, a party does not know 10 days before its petition
is due whether the petition will exceed the page limit. The commenter
suggested that the proposed revision may result in an increase in the
filing of protective motions.
The Commission reconsidered the proposed paragraph, deleted the
reference to the 10-day deadline in paragraph (d) and added a new
paragraph (f), setting forth the requirements for motions to exceed
page limit. In new paragraph (f), the Commission revised the deadline
for filing requests for extensions of page limits to not less than 3
days prior to the date the petition is due to be filed. In order to
permit the Commission to dispose of the motion within sufficient time
to afford the petitioner time to submit a conforming petition, the
Commission has added a receipt requirement, so that the motion must be
received by the Commission by the deadline. Therefore, as with requests
for extensions of time (see proposed Sec. 2700.9(a)), the filing of
requests for extensions of page limit are effective upon receipt, and
the filing and serving of the motion and any opposition to the motion
may be accomplished by facsimile transmission. Although a 3-day time
limit may not allow sufficient time for the filing of an opposition,
the Commission likely will be informed in the request for extension of
page limit, in accordance with Sec. 2700.10(c), whether the opposing
party opposes or does not oppose the request. In addition, under
Sec. 2700.10(d), the Commission may rule upon the motion prior to the
expiration of the time for a response, and any party adversely affected
by the Commission's ruling may seek reconsideration. Consistent with
revisions to other procedural rules (see Secs. 2700.7(c), 2700.9(a),
2700.45(f), 2700.75(f)), the Commission added the provision that the
motion to exceed page limit 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 facsimile transmission is impossible, the filing party must
serve by third-party commercial overnight delivery, or by personal
delivery.
Section 2700.74 Procedure for Participation as Amicus Curiae
Under current Sec. 2700.74, a motion to participate as amicus
curiae may be filed after the Commission has directed a case for review
(see 29 CFR 2700.74(a)), and the brief of an amicus curiae ``should
normally be filed within the briefing period allotted to the party
whose position the amicus curiae supports.'' 29 CFR 2700.74(b). In
recent proceedings before the Commission, the Commission received a
motion to participate as amicus curiae in support of the petitioner's
position during the period allotted to the petitioner for filing a
reply brief. It is somewhat unclear under the present rule whether a
motion for participation as amicus curiae may be filed during the
period allotted for the filing of a reply brief.
The Commission revised paragraph (b) of existing Sec. 2700.74 to
clarify that the brief of an amicus curiae must be filed during the
initial briefing period allotted to the party whose position the amicus
curiae supports. In addition, the Commission set off a portion of
paragraph (b) as a new paragraph (c) and clarified in new paragraph (c)
that the Commission may permit the filing of an amicus curiae brief
within 20 days after the close of the briefing period set forth in
Sec. 2700.75(a)(1), as long as the amicus curiae's motion for
participation is filed within the initial briefing period
[[Page 48712]]
allotted to the party whose position the amicus curiae supports. The
Commission has retained the provisions of paragraph (a) so that a
motion for participation as amicus curiae may be filed after the
Commission has directed a case for review. Reading all paragraphs of
revised Sec. 2700.74 together, therefore, a motion to participate as an
amicus curiae must be filed after the Commission has directed a case
for review and before expiration of the initial briefing period
allotted to the party whose position the amicus curiae supports. The
Commission was unable to invite comments on the revisions to
Sec. 2700.74 because the proceedings that brought to light the need for
such clarification arose after the supplemental proposed rules had been
published in the Federal Register. See also 5 U.S.C. 553(b)(3)(A)
(providing that notice-and-comment publication is not required under
the Administrative Procedure Act for rules of agency procedure).
Section 2700.75 Briefs
Proposed paragraph (c) was revised in response to a comment that
the page limit for response briefs should be increased from 25 to 35
pages. The Commission agrees that revising the page limit for response
briefs to correspond with the page limit for opening briefs is
appropriate given the similar substantive requirements for opening and
response briefs. In addition, it agrees that such a revision is
particularly appropriate in view of the opportunity for a petitioner to
file an additional 15 pages in the form of a reply brief. Therefore,
the Commission adopts paragraph (c) as proposed.
Proposed Sec. 2700.75(d) added the requirement that a motion for
extension of time must comply with the requirements of proposed
Sec. 2700.9. The Commission received no comments to paragraph (d) and
adopts it as proposed.
Proposed Sec. 2700.75(f) added requirements for filing a motion to
exceed page limit that conformed to the requirements for filing a
motion to exceed page limit for a petition for discretionary review
(see proposed Sec. 2700.70(d) (63 FR 25187)). Consistent with comments
received to proposed Sec. 2700.70, the Commission received an objection
to the 10-day deadline. The Commission deleted the reference to a 10-
day deadline in proposed Sec. 2700.75(f), and added the same
requirements for a motion to exceed page limits as that set forth in
Sec. 2700.70(f).
Section 2700.76 Interlocutory Review
Proposed Sec. 2700.76(a) added the clarification that procedures
governing petitions for review of temporary reinstatement orders may be
found in proposed Sec. 2700.45(f). The Commission received no comments
to the addition and adopts the rule as proposed.
Miscellaneous
The Commission declines to adopt the suggestion that subpart H be
revised to include a requirement that all documents filed in review
proceedings before the Commission in which MSHA is a party, be served
on Counsel for Appellate Litigation in the Mine Safety and Health
Division of the Office of the Solicitor. The Commission believes that
less formal means exist to address any misdirection of pleadings to
MSHA's counsel, and intends to explore such means.
III. Matters of Regulatory Procedure
The Commission has determined that these rules are not subject to
Office of Management and Budget review under Executive Order 12866.
The Commission has determined under the Regulatory Flexibility Act
(5 U.S.C. 601-612) that these rules, if adopted, would not have a
significant economic impact on a substantial number of small entities.
Therefore, a Regulatory Flexibility Statement and Analysis has not been
prepared.
The Commission has determined that the Paperwork Reduction Act (44
U.S.C. 3501 et seq.) does not apply because these rules do not contain
any information collection requirements that require the approval of
the Office of Management and Budget.
List of Subjects in 29 CFR Part 2700
Administrative practice and procedure, Ex parte communications,
Lawyers, Penalties.
For the reasons stated in the preamble, the Commission amends 29
CFR Part 2700 as follows:
PART 2700--PROCEDURAL RULES
1. The authority citation for Part 2700 continues to read as
follows:
Authority: 30 U.S.C. 815, 820 and 823.
2. Section 2700.3 is amended by revising paragraph (c) to read as
follows:
Sec. 2700.3 Who may practice
* * * * *
(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; 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.
* * * * *
3. Section 2700.5 is amended by revising paragraphs (c), (d) and
(f) to read as follows:
Sec. 2700.5 General requirements for pleadings and other documents;
status or informational requests.
* * * * *
(c) Necessary information. All documents shall be legible and shall
clearly identify on the cover page the filing party by name. All
documents shall be dated and shall include the assigned docket number,
page numbers, and the filing person's address and telephone number.
Written notice of any change in address or telephone number shall be
given promptly to the Commission or the Judge and all other parties.
(d) Manner and date of filing. A notice of contest of a citation or
order, a petition for assessment of penalty, a complaint for
compensation, a complaint of discharge, discrimination or interference,
an application for temporary reinstatement, and an application for
temporary relief shall be filed by personal delivery, including courier
service, or by registered or certified mail, return receipt requested.
All subsequent documents that are filed with a Judge or the Commission
may be filed by first class mail, express mail, or personal delivery.
Express mail includes delivery by a third-party commercial carrier.
When filing is by personal delivery, filing is effective upon receipt.
When filing is by mail, filing is effective upon mailing, except that
the filing of a petition for discretionary review, a petition for
review of a temporary reinstatement order, a motion for extension of
time, and a motion to exceed page limit is effective upon receipt. See
Secs. 2700.9, 2700.45(f), 2700.70(a), (f), and 2700.75(f). Filing by
facsimile transmission is permissible only when specifically permitted
by these rules (see Secs. 2700.9, 2700.45(f), 2700.52, 2700.70(a), (f),
and 2700.75(f)), or when otherwise allowed by a Judge or the
Commission. Filing by facsimile transmission is effective upon receipt.
* * * * *
(f) Form of pleadings. All printed material shall appear in at
least 12 point type on paper 8\1/2\ by 11 inches in size, with margins
of at least one 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.
[[Page 48713]]
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 or the use of compacted or
otherwise compressed printing features will be grounds for rejection of
a brief.
* * * * *
4. Section 2700.7 is amended by revising paragraphs (c) and (d) to
read as follows:
Sec. 2700.7 Service.
* * * * *
(c) Methods of service. A notice of contest of a citation or order,
a proposed penalty assessment, a petition for assessment of penalty, a
complaint for compensation, a complaint of discharge, discrimination or
interference, an application for temporary reinstatement, and an
application for temporary relief shall be served by personal delivery,
including courier service, or by registered or certified mail, return
receipt requested. All subsequent papers may be served by first class
mail, express mail, or personal delivery, except as specified in
Secs. 2700.9, 2700.45, 2700.70(f), and 2700.75(f) (extensions of time,
temporary reinstatement proceedings, and extensions of page limit).
Express mail includes delivery by a third-party commercial carrier.
Service by mail, including first class, express, or registered or
certified mail, return receipt requested, is effective upon mailing.
Service by personal delivery is effective upon receipt. When filing by
facsimile transmission (see Sec. 2700.5(d)), the filing party must also
serve by facsimile transmission or, if serving by facsimile
transmission is impossible, the filing party must serve by a third-
party commercial overnight delivery service or by personal delivery.
Service by facsimile transmission is effective upon receipt.
(d) Service upon representative. Whenever a party is represented by
an attorney or other authorized representative who has entered an
appearance on behalf of such party pursuant to Sec. 2700.3(c), service
thereafter shall be made upon the attorney or other authorized
representative.
* * * * *
5. Section 2700.9 is revised to read as follows:
Sec. 2700.9 Extensions of time.
(a) The time for filing or serving any document may be extended for
good cause shown. Filing of a motion requesting an extension of time,
including a facsimile transmission, is effective upon receipt. A motion
requesting an extension of time shall be received no later than 3 days
prior to the expiration of the time allowed for the filing or serving
of the document, and shall comply with Sec. 2700.10. A motion
requesting an extension of time and a statement in opposition to such a
motion may be filed and served by facsimile. 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 facsimile transmission is
impossible, the filing party shall serve by a third-party commercial
overnight delivery service or by personal delivery.
(b) In exigent circumstances, an extension of time may be granted
even though the request was filed after the designated time for filing
has expired. In such circumstances, the party requesting the extension
must show, in writing, the reasons for the party's failure to make the
request before the time prescribed for the filing had expired.
6. Section 2700.10 is amended by redesignating paragraph (c) as
(d), revising newly redesignated paragraph (d) and by adding a new
paragraph (c) to read as follows:
Sec. 2700.10 Motions.
* * * * *
(c) Prior to filing a procedural motion, the moving party shall
confer or make reasonable efforts to confer with the other parties and
shall state in the motion if any other party opposes or does not oppose
the motion.
(d) A statement in opposition to a written motion may be filed by
any party within 10 days after service upon the party. Unless otherwise
ordered, oral argument on motions will not be heard. Where
circumstances warrant, a motion may be ruled upon prior to the
expiration of the time for response; a party adversely affected by the
ruling may seek reconsideration.
7. Section 2700.45 is amended by revising paragraphs (a) and (f) to
read as follows:
Sec. 2700.45 Temporary reinstatement proceedings.
(a) Service of pleadings. A copy of each document filed with the
Commission in a temporary reinstatement proceeding shall be served on
all parties by personal delivery, including courier service, by
certified or registered mail, return receipt requested, express mail
or, as specified in paragraph (f) of this section, by facsimile
transmission.
* * * * *
(f) Review of order. Review by the Commission of a Judge's written
order granting or denying an application for temporary reinstatement
may be sought by filing with the Commission a petition, which shall be
captioned ``Petition for Review of Temporary Reinstatement Order,''
with supporting arguments, within 5 days following receipt of the
Judge's written order. The filing of any such petition is effective
upon receipt. The filing and service of any pleadings under this rule
may be made by facsimile transmission. The filing of a petition shall
not stay the effect of the Judge's order unless the Commission so
directs; a motion for such a stay will be granted only under
extraordinary circumstances. Any response shall be filed within 5 days
following service of a petition. 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
facsimile transmission is impossible, the filing party shall serve by a
third-party commercial overnight delivery service or by personal
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 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.
* * * * *
8. Section 2700.70 is amended by revising paragraphs (a), (d) and
(e), by redesignating paragraphs (f) as (g) and (g) as (h), and by
adding a new paragraph (f) to read as follows:
Sec. 2700.70 Petitions for discretionary review.
(a) Procedure. Any person adversely affected or aggrieved by a
Judge's decision or order may file with the Commission a petition for
discretionary review within 30 days after issuance of the decision or
order. Filing of a petition for discretionary review, including a
facsimile transmission, is effective upon receipt. Two or more parties
may join in the same petition; the Commission may consolidate related
petitions. Procedures governing petitions for review of temporary
reinstatement orders are found at Sec. 2700.45(f).
* * * * *
[[Page 48714]]
(d) Requirements. Each issue shall be separately numbered and
plainly and concisely stated, and shall be supported by detailed
citations to the record, when assignments of error are based on the
record, and by statutes, regulations, or other principal authorities
relied upon. Except by permission of the Commission and for good cause
shown, petitions for discretionary review shall not exceed 35 pages.
Except for good cause shown, no assignment of error by any party shall
rely on any question of fact or law upon which the Judge had not been
afforded an opportunity to pass.
(e) Statement in opposition to petition. A statement in opposition
to a petition for discretionary review may be filed, but the
opportunity for such filing shall not require the Commission to delay
its action on the petition.
(f) Motion for leave to exceed page limit. A motion requesting
leave to exceed the page limit shall be received not less than 3 days
prior to the date the petition for discretionary review is due to be
filed, shall state the total number of pages proposed, and shall comply
with Sec. 2700.10. A motion requesting an extension of page limit and a
statement in opposition to such a motion may be filed and served by
facsimile. Filing of a motion requesting an extension of page limit,
including a facsimile transmission, 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 facsimile
transmission is impossible, the filing party shall serve by a third-
party commercial overnight delivery service or by personal delivery.
* * * * *
9. Section 2700.74 is amended by revising paragraph (b), and by
adding a new paragraph (c) to read as follows:
Sec. 2700.74 Procedure for participation as amicus curiae.
* * * * *
(b) The brief of an amicus curiae shall be filed within the initial
briefing period (see Sec. 2700.75(a)(1)) allotted to the party whose
position the amicus curiae supports.
(c) In the interest of avoiding duplication of argument, however,
the Commission may permit the filing of an amicus curiae brief within
20 days after the close of the briefing period set forth in
Sec. 2700.75(a)(1), provided that the amicus curiae's motion for
participation as an amicus curiae is filed within the initial briefing
period (see Sec. 2700.75(a)(1)) allotted to the party whose position
the amicus curiae supports. If the Commission grants any such motion,
the Commission's order shall specify the time within which a response
or reply may be made to the amicus curiae brief.
10. Section 2700.75 is amended by revising paragraphs (c) and (d),
by redesignating paragraph (f) as (g), and by adding a new paragraph
(f) to read as follows:
Sec. 2700.75 Briefs.
* * * * *
(c) Length of brief. Except by permission of the Commission and for
good cause shown, opening and response briefs shall not exceed 35
pages, and reply briefs shall not exceed 15 pages. A brief of an amicus
curiae shall not exceed 25 pages. A brief of an intervenor shall not
exceed the page limitation applicable to the party whose position it
supports in affirming or reversing the Judge, or if a different
position is taken, such brief shall not exceed 25 pages. Tables of
contents or authorities shall not be counted against the length of a
brief.
(d) Motion for extension of time. A motion for an extension of time
to file a brief shall comply with Sec. 2700.9. The Commission may
decline to accept a brief that is not timely filed.
* * * * *
(f) Motion for leave to exceed page limit. A motion requesting
leave to exceed the page limit for a brief shall be received not less
than 3 days prior to the date the brief is due to be filed, shall state
the total number of pages proposed, and shall comply with Sec. 2700.10.
A motion requesting an extension of page limit and a statement in
opposition to such a motion may be filed and served by facsimile.
Filing of a motion requesting an extension of page limit, including a
facsimile transmission, 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 facsimile transmission is
impossible, the filing party shall serve by a third-party commercial
overnight delivery service or by personal delivery.
* * * * *
11. Section 2700.76 is amended by revising paragraph (a) to read as
follows:
Sec. 2700.76 Interlocutory review.
(a) Procedure. Interlocutory review by the Commission shall not be
a matter of right but of the sound discretion of the Commission.
Procedures governing petitions for review of temporary reinstatement
orders are found at Sec. 2700.45(f).
* * * * *
Mary Lu Jordan,
Chairman, Federal Mine Safety and Health Review Commission.
[FR Doc. 99-23244 Filed 9-7-99; 8:45 am]
BILLING CODE 6735-01-P
