and the names of any individual miners referred to therein shall not appear in the copy of the written notice or in a notification provided to the operator.

§ 43.5 Action by the Secretary.

(a) As soon as possible after the receipt of a notice of alleged violation or imminent danger under this subpart, the Secretary or his authorized representative shall make a special inspection to determine if a citation or withdrawal order should be issued, unless on the face of the notice, the condition complained of, even if it were found to exist, would clearly not constitute a violation or imminent danger.

(b) Where the Secretary or his authorized representative makes a special inspection under this subpart and finds a violation or imminent danger, a citation or withdrawal order, as appropriate, shall be issued.

§ 43.6 Notice of negative finding.

(a) If it is determined that a special inspection is not warranted, a written notice of negative finding shall be issued as soon as possible following such determination.

(b) If it is determined that an inspection is warranted and upon such inspection it is determined that neither a citation nor a withdrawal order should be issued for the alleged violation or imminent danger, a written notice of negative finding shall be issued by the authorized representative of the Secretary prior to leaving the mine premises.

(c) Any notice of negative finding issued under this part shall be issued to the representative of miners or miner seeking the special inspection and a copy shall be served upon the operator.

Subpart C-Informal Review

§ 43.7 Informal review upon written notice given to an inspector on the mine premises.

(a) A representative of miners or, where there is no such representative, a miner, who has reason to believe that a violation of the Act or a mandatory health or safety standard exists, or an imminent danger exists, may notify an

authorized representative of the Secretary in writing prior to or during an inspection conducted by such representative of any violation of the Act or mandatory health or safety standard or of any imminent danger which he or she has reason to believe exists in the mine being inspected. Where the authorized representative or the Secretary refuses to issue a citation or order with respect to such alleged violation or imminent danger, the representative of miners or miner may obtain review of such refusal in accordance with paragraphs (b) through (d) of this section.

(b) A request for informal review shall be sent in writing to the appropriate district manager within 10 days of the date of the refusal to issue a citation or order and shall be accompanied by any supporting information the person requesting review wishes to submit.

(c) After receipt of the request for informal review, the district manager or his agent may hold, at his or her discretion, an informal conference where the person requesting review can present his views.

(d) After review of all written and oral statements submitted, the district manager may either affirm the refusal to issue a citation or order or may direct that a new inspection be conducted with respect to the alleged violation or imminent danger. The district manager shall furnish the person requesting review with a written statement of the reasons for his or her final disposition of the request as soon thereafter as possible. A copy of such statement shall be furnished the operator. The district manager's determination in the matter shall be final.

§ 43.8 Informal review upon issuance of a notice of negative finding.

A person to whom a notice of negative finding has been issued pursuant to § 43.6 of this part may request informal review of such finding in accordance with the provisions of §43.7(b)–(d) of this subpart.

44.52 Revocation of modification. 44.53 Amended modification.

AUTHORITY: 30 U.S.C. 957.

SOURCE: 43 FR 29518, July 7, 1978, unless otherwise noted.

Subpart A-General

§ 44.1 Scope and construction.

(a) The procedures and rules of practice set forth in this part shall govern petitions for modification of mandatory safety standards filed under section 101(c) of the Act.

(b) These rules shall be liberally construed to carry out the purpose of the Act by assuring adequate protection of miners and to secure just and prompt determination of all proceedings consistent with adequate consideration of the issues involved.

[43 FR 29518, July 7, 1978, as amended at 55 FR 53440, Dec. 28, 1990]

As used in this part, unless the context clearly requires otherwise, the term

(a) Act means the Federal Mine Safety and Health Act of 1977, Pub. L. 91173, as amended by Pub. L. 95-164.

(b) Secretary, operator, agent, person, miner, and coal or other mine, have the meanings set forth in section 3 of the act.

(c) Assistant Secretary means the Assistant Secretary of Labor for Mine Safety and Health.

(d) Administrative law judge means an administrative law judge of the Department of Labor appointed under section 3105 of title 5 of the United States Code.

(e) Representative of miners means a person or organization designated by two or more miners to act as their representative for purposes of the act and who is in compliance with 30 CFR part 40.

[43 FR 29518, July 7, 1978, as amended at 55 FR 53440, Dec. 28, 1990]

§ 44.3 Parties.

Parties to proceedings under this part shall include the Mine Safety and Health Administration, the operator of the mine, and any representative of the miners in the affected mine. Any other

person claiming a right of participation as an interested party in a proceeding may become a party upon application to the Assistant Secretary and the granting of such application. After referral of a petition to the Chief Administrative Law Judge, all applications for status as a party shall be made to the Chief Administrative Law Judge for his disposition.

§ 44.4 Standard of evaluation of petitions; effect of petitions granted.

(a) A petition for modification of application of a mandatory safety standard may be granted upon a determination that

(1) An alternative method of achieving the result of the standard exists that will at all times guarantee no less than the same measure of protection afforded by the standard, or

(2) Application of the standard will result in a diminution of safety to the miners.

(b) Except as may be provided in § 44.16 for relief to give effect to a proposed decision and order, a decision of an Administrator or an administrative law judge granting or denying a petition for modification shall not be effective until time for appeal has expired under § 44.14 or § 44.33, as appropriate.

(c) All petitions for modification granted pursuant to this part shall have only future effect: Provided, That the granting of the modification under this part shall be considered as a factor in the resolution of any enforcement action previously initiated for claimed violation of the subsequently modified mandatory safety standard. Orders granting petitions for modification may contain special terms and conditions to assure adequate protection to miners. The modification, together with any conditions, shall have the same effect as a mandatory safety standard.

[43 FR 29518, July 7, 1978, as amended at 55 FR 53440, Dec. 28, 1990]

§ 44.5 Notice of a granted petition for modification.

(a) Every final action granting a petition for modification under this part shall be published in the FEDERAL REGISTER. Every such final action published shall specify the statutory

grounds upon which the modification is based and a summary of the facts which warranted the modification.

(b) Every final action or a summary thereof granting a petition for modification under this part shall be posted by the operator on the mine bulletin board at the affected mine and shall remain posted as long as the modification is effective. If a summary of the final action is posted on the mine bulletin board, a copy of the full decision shall be kept at the affected mine office and made available to the miners. § 44.6 Service.

(a) Copies of all documents filed in any proceeding described in this part and copies of all notices pertinent to such proceeding shall be served by the filing party on all other persons made parties to the proceeding under § 44.3. If a request for hearing has been filed by any party, a copy of all subsequent documents filed shall be served upon the Mine Safety and Health Administration through its representative, the Office of the Solicitor, Department of Labor.

(b) All documents filed subsequent to a petition for modification may be served personally or by first class mail to the last known address of the party. Service may also be completed by telecopier or other electronic means.

(c) Whenever a party is represented by an attorney who has signed any document filed on behalf of such party or otherwise entered an appearance on behalf of such party, service thereafter shall be made upon the attorney.

(d) Any party filing a petition for modification under these rules shall file proof of service in the form of a return receipt where service is by registered or certified mail or an acknowledgment by the party served or a verified return where service is made personally. A certificate of service shall accompany all other documents filed by a party under these rules.

(e) Service by mail shall be complete upon mailing. Service by telecopier or other electronic means shall be complete upon receipt.

(f) Whenever a party has the right to do some act within a prescribed period after the service of a document or other material upon the party and the

document or other material is served upon the party by mail, 5 days shall be added to the prescribed period: Provided, that specific provisions may, for good cause, be made otherwise by an order of an administrative law judge or the Assistant Secretary in a particular proceeding pending before that person.

[43 FR 29518, July 7, 1978, as amended at 55 FR 53440, Dec. 28, 1990]

$44.7 Filing.

For purposes of this part, a petition, request for hearing, notice of appeal, or other document shall be considered to be filed when received, or when mailed by certified mail, return receipt requested. Such documents may be filed by telecopier or other electronic

means.

[55 FR 53440, Dec. 28, 1990]

§ 44.8 Ex parte communication.

There shall be no ex parte communication with respect to the merits of any case not concluded between the Assistant Secretary or the administrative law judge, including any employee or agent of the Assistant Secretary or of the administrative law judge, and any of the parties, intervenors, representatives, or other interested parties.

[55 FR 53440, Dec. 28, 1990]

$44.9 Posting of petition.

An operator of a mine for which there is no representative of miners shall post a copy of each petition concerning the mine on the mine bulletin board and shall maintain the posting until a ruling on the petition becomes final.

Subpart B-Initial Procedure for Petitions for Modification

§ 44.10 Filing of petition; service.

A petition for modification of the application of a mandatory safety standard under section 101(c) of the Act may be filed only by the operator of the affected mine or any representative of the miners at such mine. All petitions must be in writing and must be filed with the Director, Office of Standards, Regulations, and Variances, Mine Safety and Health Administration, 1100

Wilson Blvd., Room 2352, Arlington, Virginia 22209-3939. If the petition is filed by a mine operator, a copy of the petition shall be served by the mine operator upon a representative of miners at the affected mine. If the petition is filed by a representative of the miners, a copy of the petition shall be served by the representative of miners upon the mine operator. Service shall be accomplished personally or by registered or certified mail, return receipt requested.

[55 FR 53440, Dec. 28, 1990, as amended at 67 FR 38384, June 4, 2002]

§ 44.11 Contents of petition.

(a) A petition for modification filed pursuant to §44.10 shall contain:

(1) The name and address of the petitioner.

(2) The mailing address and mine identification number of the mine or

mines affected.

(3) The mandatory safety standard to which the petition is directed.

(4) A concise statement of the modification requested, and whether the petitioner proposes to establish an alternate method in lieu of the mandatory safety standard or alleges that application of the standard will result in diminution of safety to the miners affected

or

requests relief based on both grounds.

(5) A detailed statement of the facts the petitioner would show to establish the grounds upon which it is claimed a modification is warranted.

(6) Identification of any representative of the miners at the affected mine, if the petitioner is a mine operator.

(b) A petition for modification shall not include a request for modification of the application of more than one mandatory safety standard. A petition for modification shall not request relief for more than one operator. However, an operator may file a petition for modification pertaining to more than one mine where it can be shown that identical issues of law and fact exist as to the petition for each mine. § 44.12 Procedure for public notice of petition received.

(a) Within 15 days from the filing of a petition for modification, the Mine Safety and Health Administration will

give notice of the petition to each known representative of miners or the operator of the affected mine, as appropriate, and shall publish notice of the petition in the FEDERAL REGISTER.

(b) The FEDERAL REGISTER notice shall contain a statement that the petition has been filed, identify the petitioner and the mine or mines to which the petition relates, cite the mandatory safety standard for which modification is sought, and describe the requested relief.

(c) All such notices shall advise interested parties that they may, within 30 days from the date of publication in the FEDERAL REGISTER, in writing, comment upon or provide information relative to the proposed modification.

[43 FR 29518, July 7, 1978, as amended at 55 FR 53440, Dec. 28, 1990]

$44.13 Proposed decision.

(a) Upon receipt of a petition for modification, the Mine Safety and Health Administration shall cause an investigation to be made as to the merits of the petition. Any party may request that the investigation of the petition for modification be expedited, or that the time period for investigating the petition be extended. Such requests shall be granted in the discretion of the Administrator upon good cause shown.

(b) As soon as is practicable after the investigation is completed, the appropriate Administrator shall make a proposed decision and order, which shall be served upon all parties to the proceeding. The proposed decision shall become final upon the 30th day after service thereof, unless a request for hearing has been filed with the appropriate Administrator, as provided in § 44.14 of this part.

(c) Service of the proposed decision is complete upon mailing.

[55 FR 53440, Dec. 28, 1990]

$ 44.14 Request for hearing

A request for hearing filed in accordance with § 44.13 of this part must be filed within 30 days after service of the proposed decision and shall include:

(a) A concise summary of position on the issues of fact or law desired to be raised by the party requesting the hearing, including specific objections

to the proposed decision. A party other than petitioner who has requested a hearing shall also comment upon all issues of fact or law presented in the petition, and

(b) An indication of a desired hearing site.

(c) Partial appeal. (1) If the Administrator has issued a proposed decision and order granting the requested modification, a request for hearing on the proposed decision and order may be made by any party based upon objection to one or more of the terms and conditions of the Administrator's proposed decision and order. If such a request for hearing is made, the request should specify which of the terms and conditions should be the subject of the hearing.

(2) During the pendency of the partial appeal, the proposed decision and order of the Administrator will become final on the 30th day after service thereof, unless a request for hearing on the proposed decision and order is filed in accordance with paragraph (a) of this section by any other party. The decision and order will remain in effect as proposed by the Administrator until the terms and conditions for which the hearing was requested are modified, affirmed, or set aside by a final order of the presiding administrative law judge or the Assistant Secretary. The presiding administrative law judge shall take such action upon a determination of whether

(i) The terms and conditions for which the hearing was requested are necessary to ensure that the alternative method of achieving the result of the standard will at all times guarantee to the miners at the mine at least the same measure of protection afforded to the miners at the mine by such standard; or

(ii) In the case of a petition involving a finding by the Administrator of a diminution of safety to the miners caused by application of the standard at the mine, whether the terms and conditions for which the hearing was requested are necessary to provide equivalent protection to the miners at the mine from the hazard against which the standard is directed.

[43 FR 29518, July 7, 1978, as amended at 55 FR 53441, Dec. 28, 1990]