[Federal Register Volume 63, Number 88 (Thursday, May 7, 1998)]
[Proposed Rules]
[Pages 25183-25187]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-12157]
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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
29 CFR Part 2700
Rules of Procedure
AGENCY: Federal Mine Safety and Health Review Commission.
ACTION: Proposed rule.
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SUMMARY: The Federal Mine Safety and Health Review Commission (the
``Commission'') is an independent adjudicatory agency that provides
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) (the ``Mine
Act''). The Commission's rules of procedure govern practice and
procedure in Commission proceedings at both trial and review levels.
The Commission is proposing to revise several of its present rules of
procedure.
The Commission's present rules of procedure were adopted in June
1979
[[Page 25184]]
(see 44 FR 38227 (June 29, 1979)), and last amended in May 1993 (see 58
FR 12158 (March 3, 1993)). The Commission has determined that certain
procedural rules require further revision to address various problems
that were unforeseen in 1993, in a further effort to ensure ``the just,
speedy, and inexpensive determination of all proceedings'' before the
Commission (29 CFR 2700.1(c)).
DATES: Written comments must be submitted on or before August 5, 1998.
ADDRESSES: Comments 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. Persons
submitting comments shall provide an original and three copies of their
comments.
FOR FURTHER INFORMATION CONTACT: Norman M. Gleichman, General Counsel,
Office of the General Counsel, 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 initially adopted rules of procedure to practice
before it in June 1979. See 44 FR 38227 (June 29, 1979). The rules were
revised only minimally until March 1993. In March 1993, the Commission
published the revised procedural rules, which became effective on May
3, 1993. See 58 FR 12158 (March 3, 1993). Those rules embodied
significant changes brought about by a reexamination of the rules in
light of more than ten years' practical experience with their operation
and evolving Commission case law.
Since March 1993, the Commission has become aware of several rules
that require further revision, clarification, or expansion. These
revisions were the subject of consideration by the Commission's
administrative law judges, who preside at hearings at the trial level,
and Commissioners at the review level.
In the proposed rules, the Commission has revised requirements
related to motion practice before the Commission. See proposed
Secs. 2700.9, 2700.10, 2700.70(d), 2700.75(d) and (f). For example, in
order to increase efficiency in the Commission's disposition of
procedural motions, the Commission proposes requiring a moving party to
confer or make reasonable efforts to confer with other parties in a
proceeding and to state in the motion whether any party does or does
not oppose the motion. See proposed Sec. 2700.10. In addition, the
Commission proposes changing the deadline for filing requests for
extensions of time and allowing such motions and oppositions to those
motions to be filed and served by facsimile transmission. See proposed
Secs. 2700.5(d), 2700.7, 2700.9, 2700.75(d). The Commission also
proposes instituting a deadline for filing motions requesting
extensions of page limits. See proposed Secs. 2700.70(d), 2700.75(f).
Furthermore, the Commission proposes expanding the requirements for
certain pleadings. For instance, under the proposed rules, the
Commission would require page numbering for all pleadings. See proposed
Sec. 2700.5(c). The Commission would also institute a page limit for
petitions for discretionary review. See proposed Sec. 2700.70(d).
In addition, the Commission proposes to revise and clarify
procedures for filing pleadings in temporary reinstatement proceedings.
The proposed revisions include the addition of a captioning requirement
for petitions for review of temporary reinstatement orders and
modifications to the requirements regarding the manner and date of
filing pleadings. See proposed Secs. 2700.5(d), 2700.7, 2700.45(a) and
(f). The Commission proposes to clarify the pleadings on which it will
base its ruling and the standard for granting a motion to stay the
effect of a temporary reinstatement order. See proposed
Sec. 2700.45(f).
Because the proposed changes do not constitute a major revision to
the Commission's procedural rules, the Commission has not proposed
revising Sec. 2700.84, which provides in pertinent part that the
procedural rules in part 2700 are effective on May 3, 1993. Notice of
the effective date of the amended rules will be published in the
Federal Register when the rules are published as final rules.
Although these rules are procedural in nature and do not require
notice and comment publication under the Administrative Procedure Act
(see 5 U.S.C. 553(b)(3)(A)), the Commission is inviting and will
consider public comment before adopting in final form any revisions to
the existing rules. Comments may be mailed to the Commission's General
Counsel at the address previously stated. It is requested that comments
be filed no later than August 5, 1998. A section-by-section explanation
of the proposed changes is set forth below.
II. Section-by-Section Analysis
General Provisions
Section 2700.5 General requirements for pleadings and other documents;
status or informational requests.
In order to eliminate unnecessary confusion, paragraph (c) adds the
requirement that all documents include page numbers. In addition,
consistent with proposed revisions to Secs. 2700.9 and 2700.45(f),
paragraph (d) adds the provision that the filing of a motion for an
extension of time and a petition for review of a temporary
reinstatement order is effective upon receipt rather than upon mailing.
Section 2700.7 Service.
Consistent with the proposed changes to Secs. 2700.9 and
2700.45(f), paragraph (c) has been revised to specify the circumstances
under which requests for extensions of time and petitions for review of
temporary reinstatement orders may be served by facsimile transmission.
In addition, paragraph (c) has been revised to clarify that service by
mail is effective upon mailing for all types of mail, including first
class, express, or registered or certified mail, return receipt
requested.
Section 2700.9 Extensions of time.
As currently written, Sec. 2700.9 requires that a request for an
extension of time be filed before the expiration of the time allowed
for filing or serving of the document. The Commission occasionally
receives a request for an extension of time on or shortly before the
due date for filing or serving of the document. In such instances, the
Commission must dispose of the motion prior to the expiration of the
time for a response to the motion. The Commission proposes to amend the
rule to require that a motion for an extension of time be filed no
later than three days prior to the expiration of the time allowed for
the filing or serving of the document, and to allow the motion and any
opposition of the motion to be filed and served by facsimile
transmission. In addition, in accordance with the proposed revisions to
Sec. 2700.10, the moving party must confer or make reasonable efforts
to confer with other parties and shall state in the motion for a time
extension, whether any other party opposes or does not oppose the
motion. Finally, in accordance with the proposed revisions to
Sec. 2700.10, the Commission may decide that circumstances warrant
ruling on the motion prior to the expiration of the time for a
response.
Paragraph (b) adds a provision allowing the Commission to grant a
[[Page 25185]]
motion for an extension of time in exigent circumstances, even though
the request was filed late. In such circumstances, the moving party
must show, in writing, the reasons for the party's failure to timely
file the request.
Section 2700.10 Motions.
Currently, Sec. 2700.10 does not require that a moving party confer
with parties to ascertain whether there is opposition to the motion, or
to inform the Commission of any opposition or lack of opposition. As a
result, before the Commission disposes of a procedural motion, it must
wait for the expiration of the time period for filing a statement in
opposition. 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. In order to more
efficiently and fairly dispose of such motions, the Commission proposes
to amend the rule to require a moving party, prior to filing a
procedural motion, to confer or make reasonable efforts to confer with
the other parties and to state in the motion if any other party opposes
or does not oppose the motion. In addition, the Commission would add
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.
Complaints of Discharge, Discrimination or Interference
Section 2700.45 Temporary reinstatement proceedings.
As currently written, Sec. 2700.45(f) does not differentiate
between petitions for review filed pursuant to Sec. 2700.70 and
petitions for review of judges' temporary reinstatement decisions. The
two types of appeals are, however, procedurally distinct. To highlight
this distinction, the Commission proposes to amend the rule to require
that petitions filed under Sec. 2700.45(f) be captioned ``Petition for
Review of Temporary Reinstatement Order.''
Under section 105(c)(2) of the Mine Act, the Commission is directed
to expedite temporary reinstatement proceedings. 30 U.S.C. 815(c)(2).
In furtherance of this directive, the Commission proposes to amend
Sec. 2700.45(f) as follows: (1) To allow any pleadings in a temporary
reinstatement proceeding to be filed and served by facsimile
transmission; (2) to provide that the filing of a petition for review
of a temporary reinstatement order is effective upon receipt; (3) to
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; and (4) to 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. Proposed
Sec. 2700.45(f) also clarifies that the petition shall include proof of
service on all parties by a means of delivery no less expeditious than
that used for filing the petition. The proposed revision allowing
pleadings filed under Sec. 2700.45(f) to be served by facsimile
transmission is also reflected in proposed Sec. 2700.45(a).
Current Sec. 2700.8, which the Commission does not propose to
revise, applies to proposed Sec. 2700.45(f), as well as other sections.
Accordingly, if a petition for review of a temporary reinstatement
order is served by mail, under current Sec. 2700.8, 5 days would be
added to the time allowed by proposed Sec. 2700.45(f) for the filing of
any response to the petition.
Presently, a petition for review under Sec. 2700.45(f) does not
stay the effect of a judge's temporary reinstatement order. Although
operators have moved to stay the effect of the order when filing a
petition, in Secretary of Labor on behalf of Bowling v. Perry
Transport, Inc., 15 FMSHRC 196 (February 1993), the Commission, in
denying such a motion, stated that ``[a]bsent some extraordinary
circumstance, yet to be advanced, the granting of such a motion would
eviscerate the temporary reinstatement provision of the Mine Act.'' Id.
at 198. The Commission proposes to codify this holding of Perry
Transport by explicitly providing in Sec. 2700.45(f) that the
Commission will grant a motion to stay the effect of a temporary
reinstatement order only under extraordinary circumstances.
Review by the Commission
Section 2700.70 Petitions for discretionary review.
Paragraph (a) has been revised to clarify that procedures governing
petitions for review of temporary reinstatement orders may be found in
proposed Sec. 2700.45(f). In addition, paragraph (d) adds a 35-page
limit for petitions for discretionary review. Under the present rule,
there is no page number limitation for petitions for discretionary
review. In order to promote brevity and concision in pleading, the
Commission would set a page limit for petitions for discretionary
review identical to the page limit for a petitioner's opening brief.
Consistent with proposed changes to Sec. 2700.75, the Commission also
proposes revising Sec. 2700.70(d) to institute a deadline for filing a
motion requesting an extension of the 35-page limit, and to provide
that an extension in page limit will be permitted by the Commission for
good cause shown.
Section 2700.75 Briefs.
Under the present rule, a motion for an extension of time to file a
brief must be filed within the time limit prescribed for filing the
brief. The Commission would revise Sec. 2700.75 to require that such
motions comply with the proposed revisions to Sec. 2700.9. See proposed
Sec. 2700.75(d).
In addition, the Commission would revise Sec. 2700.75 to institute
a deadline for filing a motion requesting an extension of page limit
for a brief. See proposed Sec. 2700.75(f). The Commission often
receives a motion requesting an extension of page limit and an attached
brief that exceeds the page limit on, or shortly before, the date that
the brief is due to be filed. In such instances, the Commission must
contact other parties to determine whether the motion is opposed or, if
such parties are unavailable, dispose of the motion without a response.
If the Commission were to deny the motion, the filing party would have
little time, if any, to file another brief that conforms to the page
limit. In order to avoid this harsh result, the Commission on occasion
has been effectively denied an opportunity to give full consideration
to whether a page extension is necessary and, if so, the amount that
the limit should be exceeded. Therefore, the Commission proposes to
amend the rule by requiring that a motion requesting an extension of
page limit: (1) Be filed not less than 10 days prior to the date that
the brief is due to be filed; (2) state the approximate length of the
extension required; and (3) comply with the requirements of proposed
section 2700.10, including the requirement that a motion state whether
any other party opposes or does not oppose the motion. Finally, the
Commission would revise Sec. 2700.75(c) to specify that an extension in
page limit will be permitted by the Commission for good cause shown.
Section 2700.76 Interlocutory review.
Paragraph (a) has been revised to clarify that procedures governing
petitions for review of temporary reinstatement orders may be found in
proposed Sec. 2700.45(f).
Matters of Regulatory Procedure
The Commission has determined that these rules are not subject to
Office of
[[Page 25186]]
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 set out in the preamble, it is proposed to amend 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 and 823.
2. Section 2700.5 is amended by revising paragraphs (c) and (d) 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, including express mail, or by
personal delivery. 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, and a
motion for extension of time is effective upon receipt. See
Secs. 2700.9, 2700.45(f), and 2700.70. Filing by facsimile transmission
is permissible only when specifically permitted by these rules (see
Secs. 2700.9, 2700.45(f), 2700.52 and 2700.70), or when otherwise
allowed by a Judge or the Commission. Filing by facsimile transmission
is effective upon receipt.
* * * * *
3. Section 2700.7 is amended by revising paragraph (c) 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 personal
delivery or by first class mail, including express mail service, except
as specified in Secs. 2700.9 and 2700.45 (extensions of time and
temporary reinstatement proceedings). 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 by a means as expeditious as facsimile. Service by
facsimile transmission is effective upon receipt.
* * * * *
4. 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. The motion shall
include proof of service on all parties by a means of delivery no less
expeditious than that used for filing the motion. A motion requesting
an extension of time and a statement in opposition to such a motion may
be filed and served by facsimile.
(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.
5. 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.
6. 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 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 petition shall include proof of service on all
parties by a means of delivery no less expeditious than that used for
filing the petition.
[[Page 25187]]
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. 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.
* * * * *
7. Section 2700.70 is amended by revising paragraphs (a) and (d) 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).
* * * * *
(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. A
motion requesting an extension of the page limit shall be filed not
less than 10 days prior to the date the petition for discretionary
review is due to be filed, shall state the approximate length of the
extension required, and shall comply with Sec. 2700.10. 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.
* * * * *
8. 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 briefs shall not exceed 35 pages, response
briefs shall not exceed 25 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 extension of page limit. A motion requesting an
extension of the page limit for a brief shall be filed not less than 10
days prior to the date the brief is due to be filed, shall state the
approximate length of the extension required, and shall comply with
Sec. 2700.10.
* * * * *
9. 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. 98-12157 Filed 5-6-98; 8:45 am]
BILLING CODE 6735-01-P
