TABLE OF CONTENTS
V. PROBLEMS IN CONTESTING PENALTIES
VIII. PROCEEDINGS BEFORE A JUDGE
DISCLAIMER
The answers to these questions are provided for informational purposes only and are not binding legal authority. Please refer to the Commission’s Procedural Rules (29 CFR Part 2700) for a more comprehensive explanation of all procedural matters. If there are any conflicts or discrepancies between the answers provided here and either the Federal Mine Safety and Health Act of 1977 (30 USC § 801 et seq.) or published regulations, the Act and regulations are controlling.
I. GENERAL INFORMATION
1. What is the Federal Mine Safety and Health Review Commission (FMSHRC or “the Commission”)?
The Commission is a federal agency that decides cases under the Mine Act (the Federal Mine Safety and Health Act of 1977). These cases may involve, among other questions, challenges by operators to citations, orders, and penalties they have received from the Department of Labor’s Mine Safety and Health Administration (“MSHA”), or complaints of discrimination by miners. Administrative Law Judges conduct hearings and issue the initial decisions. If a case is appealed, it is heard by a 5-member Review Commission. Commissioners are appointed by the President and confirmed by the Senate.
2. Who represents the government in Mine Act proceedings?
The Secretary of Labor (“the Secretary”), on behalf of MSHA, represents the government in these proceedings. The Secretary of Labor and MSHA are terms sometimes used interchangeably.
3. Is the Commission different from “MSHA”?
Yes. The Commission is completely separate from MSHA. The Commission was established as an independent agency to ensure fair and impartial adjudication under the Mine Act. Under the Mine Act, the Department of Labor issues regulations covering health and safety in the nation’s mines. Federal mine inspectors employed by MSHA enforce the Mine Act and the regulations by issuing citations and orders to mine operators. The Commission, on the other hand, issues rulings in disputes under the Mine Act.
4. How can I contact the Commission?
The Commission’s headquarters is in Washington, DC.
Headquarters Address
Federal Mine Safety and Health Review Commission
1331 Pennsylvania Ave., NW, Suite 520N
Washington, DC 20004-1710
ph: (202) 434-9900
fx: (202) 434-9954
Headquarters Hours of Operation:
Monday through Friday
8:30 am – 5:00 pm
Eastern Time
The Commission also has satellite offices in Denver, CO and Pittsburgh, PA.
5. Whom may I call if I have a question about my case?
If your case has been assigned to an Administrative Law Judge, call the Judge’s office (the number will be on the assignment order). If your case has not yet been assigned to a Judge, call the Commission’s Docket Office at (202) 434-9950. When you call the Commission regarding your case, please have the docket number ready. To make any inquiry concerning filing requirements, the status of cases before the Commission, or docket information, you may also send an email to docket@fmshrc.gov.
6. Where can I find a copy of the Commission’s procedural rules?
The rules for the Commission’s procedures may be found on its website (www.fmshrc.gov). The Commission’s rules may also be found in Volume 29, Part 2700 of the Code of Federal Regulations (published annually), available in law libraries and some public libraries.
7. How can I get copies of the Commission’s documents?
Copies of the Administrative Law Judges’ decisions and Review Commission decisions are available on the Commission’s website (www.fmshrc.gov). If you would like copies of other documents from a case in which you are a party, you may request such documents by emailing the assigned Judge's office or the Commission's Docket Office at docket@fmshrc.gov. If you would like copies of other documents from a case in which you are not a party, you may request such documents by submitting a FOIA Request Form (available on the Commission's website at www.fmshrc.gov/foia/foia-request) by email to foia@fmshrc.gov or by fax to (202)434-9944.
8. Where can I find the text of the Mine Act?
The Mine Act is in title 30 of the U.S. Code, beginning at section 801, found in law libraries and some public libraries. It is also available on the Commission’s website (www.fmshrc.gov).
9. Where can I find MSHA’s regulations?
MSHA’s regulations can be found in Volume 30, Chapter 1, of the Code of Federal Regulations (published annually), available in law libraries and some public libraries. The regulations are also available on MSHA’s website (www.msha.gov/30cfr/0.0.HTM).
10. Is there a fee to file a case or a particular document with the Commission?
No.
11. Can I get more time to file a document with the Commission?
Generally, yes. To request an extension, you must file a motion with an Administrative Law Judge or with the Review Commission if your case is on appeal. (See Commission Procedural Rule 9 for filing requirements.) However, the time for filing cannot be extended for some filings such as notices of contests of citations or orders, contests of proposed civil penalty assessments, and petitions for discretionary review.
12. When I file a document with the Commission, do I need to send a copy to anyone else?
Each time you file any document with the Commission, you must send a copy to the attorneys or authorized representatives representing each of the other parties in your case. In most cases, this will be a lawyer from the Office of the Solicitor, U.S. Department of Labor, who represents MSHA and the Secretary of Labor. In other cases, such as discrimination cases, it will be the lawyer or representative for the operator. If the other side is not represented by a lawyer, you should send a copy directly to that party.
The Commission also requires that certain documents be served on the representative of miners, if known. These documents include: a copy of a notice of contest of a citation or order, a petition for assessment of penalty, a discrimination complaint, a complaint for compensation, an application for temporary relief, and a referral in an emergency response plan dispute proceeding.
When you file documents, you must certify the date and manner of service, and provide the names of the individuals to whom copies were sent. (See Commission Procedural Rule 7)
13. What is a docket number?
A docket number is a number the Commission has assigned to your case for tracking purposes. Once your case has been identified with a docket number, you should use that number in all future communications with the Commission.
14. Do I need an attorney?
No. Parties may be represented by an attorney or another representative, and individuals may appear on their own behalf. However, all persons appearing before the Commission must follow its standards of conduct and procedural rules.
15. Under what circumstances may I electronically file documents with the Commission?
You may file any document with an Adminstrative Law Judge or the Review Comission through the Commission's electronic Case Managmeent System ("e-CMS"). (See Commission Procedural Rule 5). In order to use e-CMS, you must first register at https://fmshrc-ecms.entellitrak.com or use the link to e-CMS on the Commission's website (www.fmshrc.gov). Instructions for electronic filing may be found on the Commission's website (www.fmshrc.gov/guides). If you need assistance filing electronically, you may email e-CMS.Support@fmshrc.gov.
16. When I tried to file a document through e-CMS, my account became locked. What do I do?
Use the "forgot password" button and follow the prompts to unlock your account.
17. If I filed a document with the Commission electronically, how do I provide a copy of the document to other parties?
You may provide a copy of a document you filed through e-CMS to other parties by a variety of methods such as mail, fax, delivery service, or email. For some documents (see Commission Procedural Rule 7(c)(1)), you must provide copies to other parties using a method that is generally as speedy as the method you used to file the document with the Commission.
II. CONTEST CASES
18. If I disagree with a citation or order issued by MSHA for a mandatory health or safety violation, how do I contest it?
You have the option of contesting the validity of a citation or order by filing a “notice of contest” with MSHA within 30 days of your receipt of the citation or order. (See Commission Procedural Rules 8, 20 and 21). If you choose to file a notice of contest, the original notice of contest should be sent to the Office of the Solicitor, United States Department of Labor, 201 12th Street South, Suite 401, Arlington, VA 22202-5450. (Alternatively, you may send the notice of contest to the Regional Solicitor for the region in which your mine is situated. Regional Solicitors’ Office addresses are available at http://www.dol.gov/sol/organizations/regions/main.htm.) A copy of the notice of contest should also be sent to the Commission at its Washington, D.C. office. (See Question 4). The notice of contest must contain a short and plain statement of your disagreement with the citation or order and the result you are seeking, such as vacating or modifying the citation or order. A copy of each citation or order you choose to contest must be attached to the Notice of Contest.
If you do not chose the option of contesting the citation or order within 30 days of receipt, you can still contest it at the time you contest the penalty proposal. (See Question 20).
III. PAYMENT OF PENALTIES
19. Where do I send the payment if I need to pay a penalty?
All penalty payments should be mailed to:
U.S. Department of Labor/MSHA
P.O. Box 790390
St. Louis, MO 63179-0390
IV. PENALTY CASES
20. What do I do when I get a “proposed civil penalty assessment” (or proposed penalty assessment)?
If you want to contest the proposed penalty assessment, or the validity of the corresponding citation or order, you must notify the Secretary of Labor by checking the citations or orders listed on the assessment form that you wish to contest. You must also send the form back to Mine Safety and Health Administration, Office of Assessments, Accountability, Special Enforcement and Investigations, 201 12th Street South, Suite 401, Arlington, VA 22202-5450, within 30 days of your receipt of the penalty assessment. (See Commission Procedural Rules 8, 25, 26 and 27). If you do not contest a proposed penalty assessment, the penalty will become final, even if you previously filed a “notice of contest” of the citation or order and/or, are negotiating with MSHA over the violation.
If you do not wish to contest the proposed penalty assessment, you must submit payment to MSHA. (See Question 19).
If you want to contest some proposed penalties and pay some proposed penalties listed on the same assessment form, you must:
1. Check the citations or orders you wish to contest and return the form to MSHA’s office in Arlington, Virginia, AND
2. Send payment for the remaining penalties to MSHA’s payment office in St. Louis, Missouri (see Question 19).
21. If I already contested a citation or order, do I still need to contest the proposed penalty assessment for that citation?
Yes. If you do not contest a proposed penalty assessment, the penalty will become final, even if you previously filed a “notice of contest” and/or, are negotiating with MSHA over the violation.
22. If I am in conference with MSHA about any citations or orders included in the proposed penalty assessment, must I still contest the proposed assessment within 30 days?
Yes. If you do not contest a proposed penalty assessment, the penalty will become final, even if you previously filed a “notice of contest” and/or, are negotiating with MSHA over the violation.
23. What happens after I contest the proposed penalty assessment?
After you contest the proposed penalty assessment, the Secretary of Labor will have 45 days to file a “petition for assessment of penalty” (or penalty petition) with the Commission. The Secretary will send all parties a copy as well. This petition lists the alleged violations and the proposed penalties you have contested.
You have 30 days from the date the petition was mailed to you to file a response, or “answer,” to the petition. (See Commission Procedural Rules 5, 8 and 29 for filing requirements). Your answer must include a short and plain statement responding to each allegation in the petition.
24. What is the difference between a proposed penalty assessment and a penalty petition?
MSHA sends the proposed penalty assessment form to the operator after the operator has received a citation or order for alleged violations. This form contains a list of alleged violations along with the dollar amounts.
The penalty petition is a separate document. The Secretary of Labor files a penalty petition with the Commission only after the operator has contested the alleged violations on the proposed penalty assessment form and returned it to MSHA. (See Commission Procedural Rule 28).
V. PROBLEMS IN CONTESTING PENALTIES
25. What happens if I don’t contest MSHA’s proposed penalty assessment on time?
The proposed penalty assessment becomes a final order if you fail to contest it within 30 days of receiving it. You may receive a letter from MSHA demanding that you pay the penalty. If the proposed penalty assessment has become a final order, but you still want to contest the proposed penalty, you must file with the Review Commission a request to reopen. (See Question 26).
26. What do I do if the 30 day time limit has passed and I still want to contest the proposed penalty?
You must file with the Review Commission a request to reopen the proposed penalty assessment that has now become a final order. You must file a motion or write a letter to the Executive Director of the Commission at the Commission’s headquarters office and explain in detail why you did not send a contest of the proposed penalty assessment on time (See Question 4). Attach to your request a copy of the proposed penalty assessment you seek to reopen and challenge. You must also send a copy of that motion or letter to Office of the Solicitor, United States Department of Labor, 12th Street South, Suite 401, Arlington, VA 22202-5450. Supporting documents, if helpful, should be included with your request. (See Guidance)
The Review Commission will review your request and issue a written order either granting or denying your request or sending the case to the Chief Administrative Law Judge to determine whether your request should be granted.
27. Is there a time limit for sending my request to reopen a final proposed penalty assessment?
You must file your request to reopen within a reasonable time after your proposed penalty assessment becomes a final order (which occurs 30 days after you receive it if you fail to contest it). Generally, the Commission has denied requests to reopen based on mistake or excusable neglect that are filed more than one year after the proposed penalty assessment has become final. There may be very limited exceptions to this one year bar. If the motion to reopen is filed more than 30 days after you first learned that the penalty was not timely contested, you must provide a reasonable explanation for the delay or your motion may be DENIED. (See Guidance).
28. How does the Commission determine whether to grant my request to reopen?
Generally, the Commission will rely on its prior decisions and where necessary will look to the Federal Rules of Civil Procedure Rule 60(b) to determine whether an operator’s request to reopen a final penalty assessment should be granted. (See Guidance)
29. I contested MSHA’s proposed penalty assessment within 30 days of receipt, but after hearing nothing further, I am concerned that MSHA didn’t receive my contest of the proposed penalty. What do I do?
Call MSHA’s Office of Assessments, Accountability, Special Enforcement and Investigations in Arlington, Virginia immediately at (202) 693-9700 and explain the circumstances. If you have proof that you had contested the proposed assessment within 30 days of your receipt, such as a return receipt or mail tracking showing receipt, you should provide it to MSHA, and your hearing request will be processed normally. If in fact you did not send in the contest within 30 days, then see Question 26 for your options.
30. I meant to send my contest of the proposed penalty assessment to MSHA's Office of Assessments, Accountability, Special Enforcement and Investigations, but I sent it to the wrong address. What do I do?
Call MSHA’s Office of Assessments, Accountability, Special Enforcement and Investigations in Arlington, Virginia immediately at (202) 693-9700 and explain the circumstances.
If the 30-day period from your receipt of the proposed penalty assessment has not expired, you may still file your contest with MSHA. Send a copy of your contest to MSHA’s Office of Assessments, Accountability, Special Enforcement and Investigations (See Question 20).
If the 30-day period has passed, then the proposed penalty assessment has become final. To contest the proposed penalty assessment, you must file a request to reopen, as explained in the answer to Question 26.
31. I paid the penalty by mistake. What do I do?
Call MSHA’s Office of Assessments, Accountability, Special Enforcement and Investigations in Arlington, Virginia immediately at (202) 693-9700 and explain the circumstances.
If the 30-day period from your receipt of the proposed penalty assessment has not expired, you may still be able to file a timely contest. Contact MSHA’s Office of Assessments, Accountability, Special Enforcement and Investigations.
If the 30-day period has passed, then the proposed penalty assessment has become final. To contest the proposed penalty assessment, you must file a request to reopen, as explained in the answer to Question 26.
32. What happens if I don’t file an answer to the penalty petition on time?
The Commission’s Chief Administrative Law Judge will issue an Order to Show Cause. This order will state that you need to file an answer within a specified time or explain why you failed to answer the penalty petition. You must answer the Judge’s order as directed or you will be held in default, your case will be dismissed, and the Judge will order you to pay the proposed penalty.
An answer is a short and plain statement responding to each allegation made in the Secretary of Labor’s petition. You must file your answer or response to the show cause order with the Commission through e-CMS (See Question 15) or by mailing it to the following address:
Federal Mine Safety and Health Review Commission
1331 Pennsylvania Avenue, NW, Suite 520N
Washington, D.C. 20004-1710
Fax: (202) 434-9954
You must also send a copy of your answer or response to all parties or their representatives.
33. I contested MSHA’s proposed penalty assessment, but received an Order of Default. What is this? What do I do?
This is an order from an Administrative Law Judge dismissing your contest and directing you to pay the proposed penalty assessment because the Commission did not receive your answer to the Secretary of Labor’s penalty petition or your response to the Judge’s show cause order. If you still wish to contest the proposed penalty assessment, you must file a petition for discretionary review with the Review Commission within 30 days of the date of the Judge’s default order, explaining why you failed to respond to the Secretary’s proposed penalty assessment or the Judge’s show cause order (See Questions 45 and 46). After that time has passed, you must file a request to reopen, as explained in the answer to Question 26 of this section.
34. I contested the proposed penalty assessment, but now MSHA and I are negotiating a settlement of the penalty. Do I still need to answer the Secretary of Labor’s penalty petition?
Yes. If you don’t answer, a Show Cause Order will be issued.
VI. DISCRIMINATION CASES
35. What is discrimination under the Mine Act?
The Mine Act provides a miner with the right to make a safety or health-related complaint and to testify or participate in a proceeding under the Act. A miner may not be fired, transferred to a position which is lower in rank or pay, threatened, or otherwise lose job benefits for exercising his or her rights under the Mine Act. This protection also applies to applicants.
36. If I think I have been discriminated against because I exercised rights under the Mine Act and I want to file a complaint, what should I do?
You should contact an MSHA inspector, or contact your local or District MSHA office. The inspector or MSHA office personnel will provide the forms you need and take your complaint. In order for you to be timely with your complaint, you must file your complaint within 60 days of the discriminatory act. (See Commission Procedural Rule 8). The address and telephone number of each local MSHA office for coal mines can be found from the web page at http://www.msha.gov/CONTACTS/COALNOS.HTM and for metal and nonmetal mines at http://www.msha.gov/PROGRAMS/METAL.HTM
After your complaint is filed, MSHA will investigate your claim to determine whether you were discriminated against for exercising rights under the Mine Act, and notify you in writing of the results of its investigation. If MSHA finds that you were discriminated against, MSHA will file a complaint of discrimination seeking to remedy the discriminatory action and you will be a party to the proceeding. If MSHA’s investigation determines that you were not subject to discrimination because of protected activities under the Mine Act, you will be so notified and have the opportunity to file a case on your own behalf. If you have lost your position, you may be eligible for temporary reinstatement in some circumstances, pending the outcome of MSHA’s investigation and any hearing.
37. If MSHA says no discrimination occurred, what can I do?
You can file a complaint with the Commission on your own, or your attorney or representative can file a complaint on your behalf. You must file a complaint within 30 days after receipt of MSHA’s written determination that no discrimination occurred. (See Commission Procedural Rules 5, 8, 41 and 42).
38. Do I need an attorney to file a discrimination complaint on my behalf with the Commission?
No. Parties may be represented by an attorney or another representative, and individuals may appear on their own behalf. However, all persons appearing before the Commission must follow its standards of conduct and procedural rules.
VII. EXPEDITED PROCEEDINGS
39. What is an “expedited case”?
An expedited case is one that is heard and decided on a faster than usual schedule by the Administrative Law Judge presiding over the case or by the Review Commission if the case is on appeal.
40. How do I request an expedited proceeding?
You may request an expedited proceeding at any time. You must file a motion with the Administrative Law Judge, or, if your case is on appeal, with the Review Commission. In the motion, you should include reasons for your request. You may also make an oral request if you notify all parties and submit your request in writing within 24 hours.
VIII. PROCEEDINGS BEFORE A JUDGE
41. What happens after a case is assigned to an Administrative Law Judge?
The Judge will contact you either by telephone or by a written order to schedule a hearing.
42. What is a prehearing order?
A prehearing order explains the responsibilities of the parties before a hearing is held.
43. May I speak to an Administrative Law Judge privately about the merits of my case?
No. You cannot speak to a Judge about your case unless all parties or the attorneys for the parties are present or participating in the conversation. If you have general questions that do not involve the merits of your case, you can contact the Judge’s legal assistant at the telephone number provided on the order of assignment.
44. Where and when will my hearing be held?
The Administrative Law Judge will attempt to schedule your hearing in a location convenient to you and the other parties in the case. The Judge may ask all parties to confer and agree to a convenient schedule or he or she may unilaterally set the date. If the date or location is not convenient for you, you may ask the Judge to change the date or location of the hearing before the hearing begins.
IX. APPEALS
45. If an Administrative Law Judge issues a decision that is not in my favor, what are my options?
You may appeal the Judge’s decision to the Review Commission. To do so, you must file a petition for discretionary review (“PDR”) with the Review Commission within 30 days after issuance of the Judge’s decision. You must also send a copy to all other parties including a copy to the lawyer for the Secretary of Labor. The PDR should state why you disagree with the Judge’s decision or why you think the Judge was wrong, and must be based on one of the following grounds for review:
(1) the Judge’s finding or conclusion is not supported by the evidence;
(2) the Judge made a necessary legal conclusion in error;
(3) the Judge’s decision is contrary to law or the Commission’s rules or decisions;
(4) the case involves a significant question of law, policy, or discretion; or
(5) a procedural error which harmed or prejudiced you was committed.
Issues raised in the PDR "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." (See Commission Procedural Rule 70(d)). If the Review Commission decides to grant your petition, parties may present their arguments to the Review Commission by submitting briefs according to the Commission’s rules (see Commission Procedural Rule 75), unless the Review Commission instructs the parties otherwise.
46. How much time do I have to file an appeal of an Administrative Law Judge’s decision?
The Commission must receive a PDR within 30 calendar days of the date of the Judge’s decision. No extensions will be granted.
47. If the Review Commission does not accept my appeal, or accepts it and rules against me, what are my options?
You may appeal the Review Commission’s denial of your appeal or its decision against you to the U.S. Court of Appeals either for the area where the alleged violation occurred or for the District of Columbia within 30 calendar days following the issuance of the Review Commission’s denial or decision.
