PART 2700—PROCEDURAL RULES Authority: 30 U.S.C. 815, 820, and 823. Source: 58 FR 12164, Mar. 3, 1993, unless otherwise noted. Subpart A—General Provisions § 2700.1 Scope; applicability of other rules; construction. (a) Scope. et seq. http://www.fmshrc.gov (2) Unless the Commission provides otherwise, amendments to these rules are effective 60 days following publication in the Federal Register (b) Applicability of other rules. (c) Construction. [90 FR 5617, Jan. 17, 2025] § 2700.2 Definitions. For purposes of this part, the definitions contained in section 3 of the Act, 30 U.S.C. 802, apply. For ease of reference throughout this part, the “Secretary of Labor” or “Acting Secretary of Labor” shall be referred to as the “Secretary.” Similarly, a Commission Administrative Law Judge shall be referred to as an “ALJ.” [90 FR 5617, Jan. 17, 2025] § 2700.3 Who may appear before the Commission as a representative of a party. (a) Notice of appearance. (b) Who may appear. (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 ALJ 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, a governmental agency, other business entity, or a political subdivision; or (5) Any other person with the permission of the presiding ALJ or the Commission. (c) Entry of appearance. (d) Duties. (e) Withdrawal of appearance. [90 FR 5617, Jan. 17, 2025] § 2700.4 Parties, intervenors, and amici curiae. (a) Party status. (b) Intervention Intervention by affected miners and their representatives. (2) Intervention by other persons. (A) The interest of the movant relating to the property or events that are the subject of the proceeding; (B) The reasons why such interest is not otherwise adequately represented by the parties already involved in the proceeding; and (C) A showing that intervention will not unduly delay or prejudice the adjudication of the issues. (ii) Such intervention is not a matter of right but of the sound discretion of the ALJ. In denying a motion to intervene, the ALJ may alternatively permit the movant to participate in the proceeding as amicus curiae. (c) Procedure for participation as amicus curiae. [90 FR 5617, Jan. 17, 2025] § 2700.5 General requirements for pleadings and other documents; filing requirements; status or informational requests. (a) Jurisdiction. (b) How to file. http://www.fmshrc.gov (c) Where to file. (1) Filing by electronic transmission. http://www.fmshrc.gov (2) Filing in person, by U.S. Postal Service, or by third-party commercial carrier Before an ALJ has been assigned. (ii) After an ALJ has been assigned. (iii) After an ALJ has issued a final decision. (d) Necessary information. (e) Privacy considerations. (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 ALJ 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 ALJ, 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 submitted for in-camera review or 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 unsealing 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. (1) Filing by electronic transmission. http://www.fmshrc.gov (2) Filing in person, by U.S. Postal Service, or by third-party commercial carrier. See (g) Number of copies. (h) Form of filings. 1/2 (i) Citation to a decision of an ALJ. (j) Status or informational requests. http://www.fmshrc.gov [90 FR 5618, Jan. 17, 2025] § 2700.6 Signing of documents. (a) Signature. (1) Documents not filed by electronic transmission. (2) Documents filed by electronic transmission. (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. (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. [90 FR 5619, Jan. 17, 2025] § 2700.7 Service. (a) Generally. (b) Posting. (c) Manner of service. (1) Methods of service. (2) Effective date of service. (d) Proof of service. [78 FR 77357, Dec. 23, 2013, as amended at 90 FR 5619, Jan. 17, 2025] § 2700.8 Computation of time. Unless otherwise provided for in the Act, these rules, or by order, the due date for a filing or other deadline for party or Commission action (hereinafter “due date”) is determined sequentially as follows: (a) Except to the extent otherwise provided herein (see, e.g., §§ 2700.24 and 2700.45), when the period of time prescribed for action is less than 11 days, Saturdays, Sundays, and federal holidays shall be excluded in determining the due date. (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.) (c) The day from which the designated period begins to run shall not be included in determining the due date. The last day of the prescribed period for action, after consideration of paragraphs (a) and (b) of this section where applicable, shall be included and be the due date, unless it is a Saturday, Sunday, federal holiday, or other day on which the Commission's offices are not open or the Commission is open but unable to accept filings, in which event the due date shall be the next day which is not one of the aforementioned days. (d) The time of filing with the Commission shall be determined using Washington, DC, local time. For filing by electronic means, the due date ends at midnight Washington, DC, local time. For filing by other means, the due date ends at 5:00 p.m. Washington, DC, local time. (e)(1) Example 1. (2) Example 2. (3) Example 3. [78 FR 77358, Dec. 23, 2013, as amended at 90 FR 5619, Jan. 17, 2025; 91 FR 8072, Feb. 20, 2026] § 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, or by third-party commercial carrier, resulting in same-day 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. (c) This rule does not apply to petitions for discretionary review filed pursuant to section 113(d)(2)(A)(i) of the Act, 30 U.S.C. 823(d)(2)(A)(i), and § 2700.70(a). [64 FR 48713, Sept. 8, 1999, as amended at 71 FR 44207, Aug. 4, 2006; 78 FR 77358, Dec. 23, 2013; 90 FR 5620, Jan. 17, 2025] § 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 recorded. (b) Written motions shall be set forth in a document separate from other filings. (c) Prior to filing any motion other than a dispositive 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 8 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. [58 FR 12164, Mar. 3, 1993, as amended at 64 FR 48713, Sept. 8, 1999; 71 FR 44207, Aug. 4, 2006; 90 FR 5620, Jan. 17, 2025] § 2700.11 Withdrawal of filing. A party may withdraw a filing at any stage of a proceeding with the approval of the ALJ or the Commission. [90 FR 5620, Jan. 17, 2025] § 2700.12 Consolidation of proceedings. The Commission and its ALJs may at any time, upon their own motion or a party's motion, order the consolidation of proceedings that involve similar issues. [90 FR 5620, Jan. 17, 2025] Subpart B—Contests of Citations and Orders § 2700.20 Notice of contest of a citation or order issued under section 104 of the Act. (a) Who may contest. (i) A citation or an order issued under section 104 of the Act, 30 U.S.C. 814; (ii) A modification of a citation or an order issued under section 104 of the Act; and (iii) The reasonableness of the length of time fixed for abatement in a citation or modification thereof issued under section 104 of the Act. (2) A miner or representative of miners may contest: (i) The issuance, modification or termination of any order issued under section 104 of the Act; and (ii) The reasonableness of the length of time fixed for abatement in a citation or modification thereof issued under section 104 of the Act. (b) Time to contest. (c) Notification by the Secretary. (d) Copy to Commission. (e) Contents of notice of contest. (i) The party's position with respect to each issue of law and fact that the party contends is pertinent; and (ii) The relief requested by the party. (2) A legible copy of the contested citation or order shall be attached to the notice of contest. If a legible copy is not available, the notice of contest shall set forth the text of the contested citation or order. (f) Answer. [58 FR 12164, Mar. 3, 1993, as amended at 90 FR 5620, Jan. 17, 2025] § 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 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 (b) An operator's failure to file a notice of contest of a citation or order issued under section 104 of the Act, 30 U.S.C. 814, shall not preclude the operator from challenging, in a penalty proceeding, the fact of violation or any special findings contained in a citation or order including the assertion in the citation or order that the violation was of a significant and substantial nature or was caused by the operator's unwarrantable failure to comply with the standard. [58 FR 12164, Mar. 3, 1993, as amended at 71 FR 44207, Aug. 4, 2006] § 2700.22 Notice of contest of imminent danger withdrawal orders under section 107 of the Act. (a) Time to file. (b) Contents of notice of contest. (i) The contesting party's position on each issue of law and fact that the contesting party contends is pertinent; and (ii) The relief requested by the contesting party. (2) A legible copy of the contested order shall be attached to the notice of contest. If a legible copy is not available, the notice of contest shall set forth the text of the contested order. (c) Answer. § 2700.23 Review of a subsequent citation or order. (a) The contesting party shall file any subsequent citation or order that modifies or terminates the citation or order under review within 30 days of its receipt. The notice of contest under section 105 or section 107 of the Act, 30 U.S.C. 815 and 817, unless withdrawn, shall be deemed to challenge any such subsequent citation or order. (b) A person who is not a party in a pending proceeding for review of a citation or order may obtain review of a modification or termination of the citation or order by filing a notice of contest under section 105 or section 107 of the Act. The notice of contest shall be filed within 30 days of receipt of the citation or order that modifies or terminates the citation or order being reviewed. § 2700.24 Emergency response plan dispute proceedings. (a) Referral by the Secretary. (b) Contents of referral. (c) Short and plain statement by the operator. (d) Filing and service of documents. (e) Proceedings before the ALJ Submission of materials. (2) Hearing. (ii) Within 10 calendar days following the filing of the Secretary's referral, the Commission's Chief ALJ or designee may issue an order scheduling a hearing on the ALJ's own motion, and must immediately so notify the parties. (iii) If a hearing is ordered under paragraph (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 ALJ 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 Decision of the ALJ. (2) Stay of plan provision. (g) Review of decision. [72 FR 2191, Jan. 18, 2007, as amended at 78 FR 77358, Dec. 23, 2013; 90 FR 5620, Jan. 17, 2025] Subpart C—Contests of Proposed Penalties § 2700.25 Proposed penalty assessment. The 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. [90 FR 5621, Jan. 17, 2025] § 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 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 Commission any notice of contest of a proposed penalty assessment. [90 FR 5621, Jan. 17, 2025] § 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 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. [90 FR 5621, Jan. 17, 2025] § 2700.28 Filing of petition for assessment of penalty with the Commission. (a) Time to file. (b) Contents. (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). (3) State whether the citation or order has been contested pursuant to § 2700.20 and the docket number of any contest proceeding. (4) Advise the party against whom the petition is filed that an answer to the petition must be filed within 30 days pursuant to § 2700.29 and that the answer must be filed regardless of whether the party has already filed a notice of contest of the citation, order, or proposed penalty assessment involved. (c) Attachments. [58 FR 12164, Mar. 3, 1993, as amended at 71 FR 44207, Aug. 4, 2006; 90 FR 5621, Jan. 17, 2025] § 2700.29 Answer. A party against whom a petition for assessment of penalty is filed shall file an answer within 30 days after service of the petition for assessment of penalty. An answer shall include a short and plain statement responding to each allegation of the petition. § 2700.30 Assessment of penalty. (a) In assessing a penalty the ALJ shall determine the amount of penalty in accordance with the six statutory criteria contained in section 110(i) of the Act, 30 U.S.C. 820(i), and incorporate such determination in a written decision. The decision shall contain findings of fact and conclusions of law on each of the statutory criteria and an order requiring that the penalty be paid. (b) In determining the amount of penalty, neither the ALJ nor the Commission shall be bound by a penalty proposed by the Secretary or by any offer of settlement made by a party. [90 FR 5621, Jan. 17, 2025] § 2700.31 Penalty settlement. (a) General. (b) Content of motion Factual support. (2) Certification. (c) Content of proposed order. (d) Filing of motion and proposed order prior to filing of petition. (e) Final order. [90 FR 5621, Jan. 17, 2025] Subpart D—Complaints for Compensation § 2700.35 Time to file. A complaint for compensation under section 111 of the Act, 30 U.S.C. 821, shall be filed within 90 days after the beginning of the period during which the complainants are idled or would have been idled by the order that gives rise to the claim. § 2700.36 Contents of complaint. A complaint for compensation shall include: (a) A short and plain statement of the facts giving rise to the claim, including the period for which compensation is claimed; (b) The total amount of the compensation claimed, if known; and (c) A legible copy of any pertinent order of withdrawal or, if a legible copy is not available, the text of the order. § 2700.37 Answer. Within 30 days after service of a complaint for compensation, the operator shall file an answer responding to each allegation of the complaint. Subpart E—Complaints of Discharge, Discrimination or Interference § 2700.40 Who may file. (a) The Secretary. (b) Miner, representative of miners, or applicant for employment. [90 FR 5621, Jan. 17, 2025] § 2700.41 Time to file. (a) The Secretary. (b) Miner, representative of miners, or applicant for employment. [90 FR 5622, Jan. 17, 2025] § 2700.42 Contents of complaint. A discrimination or interference complaint shall include a short and plain statement of the facts, setting forth the alleged discharge, discrimination or interference, and a statement of the relief requested. [90 FR 5622, Jan. 17, 2025] § 2700.43 Answer. Within 30 days after service of a discrimination or interference complaint, the respondent shall file an answer responding to each allegation of the complaint. [90 FR 5622, Jan. 17, 2025] § 2700.44 Petition for assessment of penalty in discrimination or interference cases. (a) Petition for assessment of penalty in Secretary's complaint. (b) Petition for assessment of penalty after sustaining of complaint by miner, representative of miners, or applicant for employment. [90 FR 5622, Jan. 17, 2025] § 2700.45 Temporary reinstatement proceedings. (a) Service of documents. (b) Contents of application. (c) Request for hearing. (d) Hearing. (e) Order on application. (2) The ALJ'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 ALJ's determination by the most expeditious means reasonably available. (4) An ALJ'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 ALJ shall retain jurisdiction over the temporary reinstatement proceeding. (f) Review of order. (g) Dissolution of order. [90 FR 5622, Jan. 17, 2025] Subpart F—Applications for Temporary Relief § 2700.46 Procedure. (a) When to file. (b) Statements in opposition. (c) Prior hearing required. (d) Service of documents. [58 FR 12164, Mar. 3, 1993, as amended at 78 FR 77359, Dec. 23, 2013; 90 FR 5623, Jan. 17, 2025] § 2700.47 Contents of application. (a) An application for temporary relief shall contain: (1) A showing of substantial likelihood that the findings and decision of the ALJ or the Commission will be favorable to the applicant; (2) A statement of the specific relief requested; and (3) A showing that such relief will not adversely affect the health and safety of miners in the affected mine. (b) An application for temporary relief may be supported by affidavits or other evidence. [58 FR 12164, Mar. 3, 1993, as amended at 90 FR 5623, Jan. 17, 2025] Subpart G—Hearings § 2700.50 Assignment of ALJs. ALJs shall be assigned cases in rotation as far as practicable. [90 FR 5623, Jan. 17, 2025] § 2700.51 Hearing dates and sites. All cases will be assigned a hearing date and site by order of the ALJ. In fixing the time and place of the hearing, the ALJ shall give due regard to the convenience and necessity of the parties or their representatives and witnesses, the availability of suitable hearing facilities, and other relevant factors. [90 FR 5623, Jan. 17, 2025] § 2700.52 Expedition of proceedings. (a) Motions. (b) Timing of hearing. [58 FR 12164, Mar. 3, 1993, as amended at 71 FR 44208, Aug. 4, 2006] § 2700.53 Prehearing conferences and statements. (a) The ALJ may require the parties to participate in a prehearing conference, either in person or by telephone or other video/audio teleconferencing. Notwithstanding the mandatory recordings of motions on the record in accordance with § 2700.10(a), any in-person or telephonic conference shall be recorded at a party's request or within the ALJ's discretion. The participants at any such conference may consider and take action with respect to: (1) The formulation and simplification of the issues; (2) The possibility of obtaining stipulations, admissions of fact and of documents that will avoid unnecessary proof and advance rulings from the ALJ on the admissibility of evidence; (3) The exchange of exhibits and the names of witnesses and a synopsis of the testimony expected from each witness; (4) The necessity or desirability of amendments to the filings and the joinder of parties; (5) The possibility of agreement disposing of any or all of the issues in dispute; (6) Such other matters as may aid in the expedition of the hearing or the disposition of the case. (b) The ALJ may also require the parties to submit prehearing statements addressing one or more of the matters set forth in paragraph (a) of this section. [90 FR 5623, Jan. 17, 2025] § 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. [90 FR 5623, Jan. 17, 2025] § 2700.55 Powers of ALJs. Subject to these rules, an ALJ is empowered to: (a) Administer oaths and affirmations; (b) Issue subpoenas authorized by law; (c) Rule on offers of proof and receive relevant evidence; (d) Order depositions to be taken; (e) Regulate the course of the hearing; (f) Hold conferences for the settlement or simplification of the issues; (g) Dispose of procedural requests or similar matters; (h) Make decisions in the proceedings, provided that the ALJ shall not be assigned to make a recommended decision; and (i) Take other action authorized by these rules, by 5 U.S.C. 556, or by the Act. [90 FR 5623, Jan. 17, 2025] § 2700.56 Discovery; general. (a) Discovery methods. (b) Scope of discovery. (c) Limitation of discovery. (d) Initiation of discovery. (e) Completion of discovery. [58 FR 12164, Mar. 3, 1993, as amended at 71 FR 44208, Aug. 4, 2006; 90 FR 5623, Jan. 17, 2025] § 2700.57 Depositions. (a) Generally. (b) Orders for deposition. ALJ. [90 FR 5623, Jan. 17, 2025] § 2700.58 Interrogatories, requests for admissions and requests for production of documents. (a) Interrogatories. (b) Requests for admissions. (c) Request for production, entry or inspection. [90 FR 5623, Jan. 17, 2025] § 2700.59 Failure to cooperate in discovery; sanctions. Upon the failure of any person, including a party, to respond to a discovery request or upon an objection to such a request, the party seeking discovery may file a motion with the ALJ requesting an order compelling discovery. If any person, including a party, fails to comply with an order compelling discovery, the ALJ may make such orders with regard to the failure as are just and appropriate, including deeming as established the matters sought to be discovered or dismissing the proceeding in favor of the party seeking discovery. For good cause shown the ALJ may excuse an objecting party from complying with the request. [90 FR 5624, Jan. 17, 2025] § 2700.60 Subpoenas. (a) Compulsory attendance of witnesses and production of documents. (b) Fees payable to witnesses. (c) Motions to revoke or modify subpoenas. (d) Availability of transcript. (e) Failure to comply. [90 FR 5624, Jan. 17, 2025] § 2700.61 Name of miner informant. An ALJ 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. [90 FR 5624, Jan. 17, 2025] § 2700.62 Name of miner witness. An ALJ 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 ALJ to testify or whom a party expects to summon or call as a witness. [90 FR 5624, Jan. 17, 2025] § 2700.63 Evidence; presentation of case. (a) Relevant evidence, including hearsay evidence, that is not unduly repetitious or cumulative is admissible. (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. [58 FR 12164, Mar. 3, 1993, as amended at 90 FR 5624, Jan. 17, 2025] § 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 ALJ, upon request and after notice to the other parties, if true copies are substituted, where practical, for the originals. [90 FR 5624, Jan. 17, 2025] § 2700.65 Proposed findings, conclusions and orders. The ALJ may require the submission of proposed findings of fact, conclusions of law, and orders, together with supporting briefs. The proposals shall be served upon all parties, and shall contain adequate references to the record and authorities. [90 FR 5624, Jan. 17, 2025] § 2700.66 Summary disposition of proceedings. (a) Generally. (b) Failure to attend hearing. (c) Penalty proceedings. [90 FR 5624, Jan. 17, 2025] § 2700.67 Summary decision of the Judge. (a) Filing of motion for summary decision. (b) Grounds. (1) That there is no genuine issue as to any material fact; and (2) That the moving party is entitled to summary decision as a matter of law. (c) Form of motion. (d) Form of opposition. (e) Affidavits. (f) Case not fully adjudicated on motion. [58 FR 12164, Mar. 3, 1993, as amended at 71 FR 44208, Aug. 4, 2006; 90 FR 5625, Jan. 17, 2025] § 2700.68 Substitution of the ALJ. (a) Generally. (b) Substitution following a hearing. [90 FR 5624, Jan. 17, 2025] § 2700.69 Decision of the ALJ. (a) Form and content of the ALJ's decision. (b) Termination of the ALJ's jurisdiction. (c) Correction of clerical errors. (d) Effect of decision of the ALJ. [90 FR 5625, Jan. 17, 2025] Subpart H—Review by the Commission § 2700.70 Petitions for discretionary review. (a) Procedure. (b) Review discretionary. (c) Grounds. (1) A finding or conclusion of material fact is not supported by substantial evidence; (2) A necessary legal conclusion is erroneous; (3) The decision is contrary to law or to the duly promulgated rules or decisions of the Commission; (4) A substantial question of law, policy, or discretion is involved; or (5) A prejudicial error of procedure was committed. (d) Requirements. (e) Statement in opposition to petition. (f) Motion for leave to exceed page limit. (g) Scope of review. (h) Denial of petition. [90 FR 5625, Jan. 17, 2025] § 2700.71 Review by the Commission on its own motion. At any time within 30 days after the issuance of an ALJ's decision, the Commission may, by the affirmative vote of at least two of the Commissioners present and voting, direct the case for review on its own motion. Review shall be directed only upon the ground that the decision may be contrary to law or Commission policy or that a novel question of policy has been presented. The Commission shall state in such direction for review the specific issue of law, Commission policy, or novel question of policy to be reviewed. Review shall be limited to the issues specified in such direction for review. [90 FR 5625, Jan. 17, 2025] § 2700.72 [Reserved] § 2700.73 Procedure for intervention. After the Commission has directed a case for review, a person may move to intervene. A motion to intervene shall be filed within 30 days after the Commission's direction for review unless the Commission, for good cause shown, allows a later filing. Intervention before the Commission shall not be a matter of right but of the sound discretion of the Commission. The movant shall set forth: (a) A legally protectible interest directly relating to the property or events that are the subject of the case on review; (b) A showing that the disposition of the proceeding may impair or impede the movant's ability to protect that interest; (c) The reasons why the movant's interest is not adequately represented by parties already involved in the proceeding; and (d) The reasons why the movant should be excused for failing to file for intervention before the ALJ. A motion for intervention shall also show that the granting of the motion will not unduly delay the proceeding or prejudice any party and shall explain why the movant's participation as an amicus curiae would be inadequate. If the Commission permits intervention, the Commission's order shall specify the time within which the intervenor's brief and any response or reply may be filed. In denying a motion to intervene, the Commission may alternatively permit the movant to participate in the proceeding as amicus curiae. [58 FR 12164, Mar. 3, 1993, as amended at 90 FR 5626, Jan. 17, 2025] § 2700.74 Procedure for participation as amicus curiae. (a) After the Commission has directed a case for review, any person may move to participate as amicus curiae. Such participation before the Commission shall not be a matter of right but of the sound discretion of the Commission. A motion for participation as amicus curiae shall set forth the interest of the movant; indicate which party's position, if any, the movant supports; the reason why an amicus brief is desirable and why the matters asserted are relevant to the disposition of the case; and show that the granting of the motion will not unduly delay the proceeding or prejudice any party. The movant may conditionally attach its brief to its motion for participation as amicus curiae. (b) The brief of an amicus curiae shall be filed within the initial briefing period ( see (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 § 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 (d) Any person who does not support a party in the proceeding must file its motion for participation as amicus curiae and brief no later than 20 days after initial briefs are filed ( see [58 FR 12164, Mar. 3, 1993, as amended at 64 FR 48714, Sept. 8, 1999; 71 FR 44209, Aug. 4, 2006; 71 FR 52211, Sept. 1, 2006] § 2700.75 Briefs. (a) Time to file Opening and response briefs. (2) Reply briefs. (b) Additional briefs. (c) Length of brief. (d) Motion for extension of time. (e) Consequences of petitioner's failure to file brief. (f) Motion for leave to exceed page limit. (g) Number of copies. (h) Table of contents. [58 FR 12164, Mar. 3, 1993, as amended at 64 FR 48714, Sept. 8, 1999; 71 FR 44209, Aug. 4, 2006; 78 FR 77359, Dec. 23, 2013; 79 FR 3105, Jan. 17, 2014; 90 FR 5626, Jan. 17, 2025] § 2700.76 Interlocutory review. (a) Procedure. (1) Review cannot be granted unless: (i) The ALJ has certified, upon the ALJ's own motion or the motion of a party, that an interlocutory ruling involves a controlling question of law and that in the ALJ's opinion immediate review will materially advance the final disposition of the proceeding; or (ii) The ALJ has denied a party's motion for certification of the interlocutory ruling to the Commission, and the party files with the Commission a petition for interlocutory review within 30 days of the ALJ's denial of such motion for certification. (2) In the case of either paragraph (a)(1)(i) or (ii) of this section, the Commission, by a majority vote of the full Commission or a majority vote of a duly constituted panel of the Commission, may grant interlocutory review upon a determination that the ALJ's interlocutory ruling involves a controlling question of law and that immediate review may materially advance the final disposition of the proceeding. Interlocutory review by the Commission shall not operate to suspend the hearing unless otherwise ordered by the Commission. Any grant or denial of interlocutory review shall be by written order of the Commission. (b) Petitions for interlocutory review. (c) Briefs. (d) Scope of review. [90 FR 5626, Jan. 17, 2025] § 2700.77 Oral argument. Oral argument may be ordered by the Commission on its own motion or on the motion of a party. A party requesting oral argument shall do so by separate motion no later than the time that it files its opening or response brief. § 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. (b) Unless the Commission orders otherwise, the filing of a petition for reconsideration shall not stay the effect of a decision or order of the Commission. [58 FR 12164, Mar. 3, 1993, as amended at 71 FR 44209, Aug. 4, 2006; 90 FR 5626, Jan. 17, 2025] § 2700.79 Correction of clerical errors. The Commission may correct clerical errors in its decisions at any time. Subpart I—Miscellaneous § 2700.80 Standards of conduct; disciplinary proceedings. (a) Standards of conduct. (b) Grounds. (c) Procedure. (1) Disciplinary referral. (2) Inquiry and preliminary determination by the Commission. (i) Termination of referral. (ii) Further disciplinary proceedings. (3) Hearing before an ALJ Assignment. (ii) Response. (iii) Evidence and applicability of hearing rules. (iv) ALJ's decision. (d) Appeal from ALJ's decision. (e) Misconduct before an ALJ. [90 FR 5626, Jan. 17, 2025] § 2700.81 Recusal and disqualification. (a) Recusal. (b) Request to withdraw. (c) Procedure if Commissioner or ALJ does not withdraw. [90 FR 5627, Jan. 17, 2025] § 2700.82 Ex parte communications. (a) For purposes of this section, the following definitions shall apply: (1) Ex parte communication (2) Status or informational request (3) Merits of a case, (b) Prohibited ex parte communication. (c) Procedure in case of violation. (2) A memorandum setting forth all ex parte communications, whether prohibited or not, shall be placed on the public record of the proceeding. (d) Status or informational requests. http://www.fmshrc.gov [58 FR 12164, Mar. 3, 1993, as amended at 67 FR 60862, Sept. 27, 2002; 77 FR 48430, Aug. 14, 2012; 90 FR 5627, Jan. 17, 2025] § 2700.83 Authority to sign orders. The Chair or other designated Commissioner is authorized to sign on behalf of a quorum of the Commission, 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 or Acting Chair, Commissioners continue to be authorized to sign orders disposing of procedural motions as identified above. [90 FR 5628, Jan. 17, 2025] Subpart J [Reserved]