[Federal Register Volume 64, Number 88 (Friday, May 7, 1999)]
[Proposed Rules]
[Pages 24547-24550]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-11459]
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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: Supplemental notice of proposed rulemaking.
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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''). On May 7, 1998, the Commission published a proposed rule,
proposing revisions to several of its rules of procedure. See 63 FR
25183-87 (May 7, 1998). The Commission is supplementing that proposed
rule with additional proposed procedural rule revisions which were not
included in the May 7 publication.
DATES: Written comments must be submitted on or before May 28, 1999.
ADDRESSES: Comments may be mailed to Norman Gleichman, 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:
[[Page 24548]]
I. Background
The Commission initially adopted its rules of procedure in June
1979. See 44 FR 38227 (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, 1998). In May 1998, the Commission
published proposed revisions to several of the 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.
The Commission permitted written comments on those 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''). In addition to commenting on the published
proposed revisions, MSHA suggested additional revisions which were not
included in the May 7 publication. The Commission believes that some of
those additional revisions are appropriate. In addition, recent
developments in proceedings before the Commission have brought to light
other rules requiring revision and clarification. The Commission is
providing this opportunity for comment on these proposals from members
of the mining community and the public.
In these supplemental proposed rules, the Commission has clarified
requirements concerning when service on an attorney or other authorized
representative is required. See proposed Secs. 2700.3(c) and 2700.7(d).
For example, under proposed Sec. 2700.7(d), the Commission proposes
that service on an attorney or other authorized representative is
required only after that attorney or representative has formally
entered an appearance on behalf of a party pursuant to proposed
Sec. 2700.3(c). Proposed Sec. 2700.3(c) clarifies the manner of and
time for making such an entry of appearance.
In addition, the Commission proposes expanding the requirements for
the format of pleadings. See proposed Sec. 2700.5(f). The proposed
revisions, which include additional requirements concerning spacing and
typeface size, are designed to insure adherence to page limits imposed
by the rules.
Finally, the Commission proposes to increase the page limit for
response briefs. See proposed Sec. 2700.75(c). The proposed revision
subjects response briefs to the same 35-page limit currently imposed on
opening briefs.
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 on these proposed revisions. A section-by-
section explanation of the proposed changes is set forth below.
II. Section-by-Section Analysis
General Provisions
Section 2700.3 Who May Practice
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 where the document must
be filed, and whether the document refers only to pleadings.
The Commission proposes revising Sec. 2700.3(c) to clarify that the
first document filed on behalf of the party in making an entry of
appearance shall be the first document filed with the Commission or
Commission judge. This revision is intended to delineate when an entry
of appearance occurs. The proposed revision 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, and not documents filed
with MSHA. All documents filed with the Commission or its judges are
processed in its three central offices in Denver, Colorado; Falls
Church, Virginia; and Washington, DC. In contrast, MSHA processes
documents in numerous regional offices, some of which, because of their
specific and distinct functions, forward documents they receive to
other MSHA offices. The Commission anticipates that an entry of
appearance will be less likely to be misdirected if it is sent to the
Commission or its judges.
The proposed 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).
Proposed Sec. 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 proposed 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, 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 proposed 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
In its comments to the Commission, MSHA requests that
Sec. 2700.75(e) be revised to specify that all briefs be double-spaced
using a typeface designated by the Commission, to avoid any evasion of
the requirements for page limits. Currently, the Commission's
procedural rules contain no formatting requirements, with the exception
of Sec. 2700.5(f), which requires that pleadings and documents be 8\1/
2\ by 11 inches in size. See 29 CFR 2700.5(f).
The Commission agrees that its current procedural rules should be
revised to set forth standard requirements for pleading format in order
to enhance compliance with page limitations. Because it believes that
such requirements should apply to all pleadings filed with the
Commission and its judges, the Commission has included such
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.
In the proposed revisions, the Commission has set forth
requirements for margins, font size and spacing and included a general
prohibition against excessive footnotes. In addition, the Commission
has proposed a revision 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 has limited the
provision by allowing only the rejection of briefs,
[[Page 24549]]
rather than petitions for discretionary review.
Section 2700.7 Service
Based on recent proceedings before the Commission, the Commission
believes 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).
Accordingly, the Commission has proposed an amendment to Sec. 2700.7(d)
which clarifies that service on an attorney or other authorized
representative is required after that representative has formally
entered an appearance pursuant to proposed revisions to Sec. 2700.3(c).
Currently, Sec. 2700.7(d) provides that whenever a party is
represented by an attorney or other authorized representative,
subsequent service shall be made upon the attorney or other authorized
representative. See 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.
The Commission proposes to revise Sec. 2700.7(d) to provide 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). Thus, even if an operator or individual retains counsel
prior to the initiation of a proceeding under the Mine Act, the counsel
need not be served until after he or she makes a formal entry of
appearance pursuant to proposed Sec. 2700.3(c).
Review by the Commission
Section 2700.75 Briefs
In the comments filed with the Commission, MSHA requests that
Sec. 2700.75 be revised to increase the page limit for response briefs
from 25 pages to 35 pages. The Commission agrees that such a revision
is appropriate. Section 2700.75(c) currently provides that opening
briefs shall not exceed 35 pages, response briefs shall not exceed 25
pages, and reply briefs shall not exceed 15 pages. See 29 CFR
2700.75(c). The Commission believes 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.
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.
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, 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 as proposed to be revised in 63 FR at 25186 is
further amended by revising paragraph (f) to read as follows:
Sec. 2700.5 General requirements for pleadings and other documents;
status or informational requests.
* * * * *
(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. 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
subsection or the use of compacted or otherwise compressed printing
features will be grounds for rejection of a brief.
* * * * *
4. Section 2700.7 as proposed to be revised in 63 FR at 25186 is
further amended by revising paragraph (d) to read as follows:
Sec. 2700.7 Service.
* * * * *
(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 2700.75 as proposed to be revised at 63 FR at 25187 is
further amended by revising paragraph (c) 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
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authorities shall not be counted against the length of a brief.
* * * * *
Mary Lu Jordan,
Chairman, Federal Mine Safety and Health Review Commission.
[FR Doc. 99-11459 Filed 5-6-99; 8:45 am]
BILLING CODE 6735-01-P
