§ 823. — Federal Mine Safety and Health Review Commission.
[Laws in effect as of January 7, 2003]
[Document not affected by Public Laws enacted between
January 7, 2003 and December 19, 2003]
[CITE: 30USC823]
TITLE 30--MINERAL LANDS AND MINING
CHAPTER 22--MINE SAFETY AND HEALTH
SUBCHAPTER I--GENERAL
Sec. 823. Federal Mine Safety and Health Review Commission
(a) Establishment; membership; chairman
The Federal Mine Safety and Health Review Commission is hereby
established. The Commission shall consist of five members, appointed by
the President by and with the advice and consent of the Senate, from
among persons who by reason of training, education, or experience are
qualified to carry out the functions of the Commission under this
chapter. The President shall designate one of the members of the
Commission to serve as Chairman.
(b) Terms; personnel; administrative law judges
(1) The terms of the members of the Commission shall be six years,
except that--
(A) members of the Commission first taking office after November
9, 1977, shall serve, as designated by the President at the time of
appointment, one for a term of two years, two for a term of four
years and two for a term of six years; and
(B) a vacancy caused by the death, resignation, or removal of
any member prior to the expiration of the term for which he was
appointed shall be filled only for the remainder of such unexpired
term.
Any member of the Commission may be removed by the President for
inefficiency, neglect of duty, or malfeasance in office.
(2) The Chairman shall be responsible on behalf of the Commission
for the administrative operations of the Commission. The Commission
shall appoint such employees as it deems necessary to assist in the
performance of the Commission's functions and to fix their compensation
in accordance with the provisions of chapter 51 and subchapter III of
chapter 53 of title 5, relating to classification and general pay rates.
Upon the effective date of the Federal Mine Safety and Health Amendments
Act of 1977, the administrative law judges assigned to the Arlington,
Virginia, facility of the Office of Hearings and Appeals, United States
Department of the Interior, shall be automatically transferred in grade
and position to the Federal Mine Safety and Health Review Commission.
Notwithstanding the provisions of section 559 of title 5, the incumbent
Chief Administrative Law Judge of the Office of Hearings and Appeals of
the Department of the Interior assigned to the Arlington, Virginia
facility shall have the option, on the effective date of the Federal
Mine Safety and Health Amendments Act of 1977, of transferring to the
Commission as an administrative law judge, in the same grade and
position as the other administrative law judges. The administrative law
judges (except those presiding over Indian Probate Matters) assigned to
the Western facilities of the Office of Hearings and Appeals of the
Department of the Interior shall remain with that Department at their
present grade and position or they shall have the right to transfer on
an equivalent basis to that extended in this paragraph to the Arlington,
Virginia administrative law judges in accordance with procedures
established by the Director of the Office of Personnel Management. The
Commission shall appoint such additional administrative law judges as it
deems necessary to carry out the functions of the Commission.
Assignment, removal, and compensation of administrative law judges shall
be in accordance with sections 3105, 3344, 5362 and 7521 of title 5.
(c) Delegation of powers
The Commission is authorized to delegate to any group of three or
more members any or all of the powers of the Commission, except that two
members shall constitute a quorum of any group designated pursuant to
this paragraph.
(d) Proceedings before administrative law judge; administrative review
(1) An administrative law judge appointed by the Commission to hear
matters under this chapter shall hear, and make a determination upon,
any proceeding instituted before the Commission and any motion in
connection therewith, assigned to such administrative law judge by the
chief administrative law judge of the Commission or by the Commission,
and shall make a decision which constitutes his final disposition of the
proceedings. The decision of the administrative law judge of the
Commission shall become the final decision of the Commission 40 days
after its issuance unless within such period the Commission has directed
that such decision shall be reviewed by the Commission in accordance
with paragraph (2). An administrative law judge shall not be assigned to
prepare a recommended decision under this chapter.
(2) The Commission shall prescribe rules of procedure for its review
of the decisions of administrative law judges in cases under this
chapter which shall meet the following standards for review:
(A)(i) Any person adversely affected or aggrieved by a decision of
an administrative law judge, may file and serve a petition for
discretionary review by the Commission of such decision within 30 days
after the issuance of such decision. Review by the Commission shall not
be a matter of right but of the sound discretion of the Commission.
(ii) Petitions for discretionary review shall be filed only upon one
or more of the following grounds:
(I) A finding or conclusion of material fact is not supported by
substantial evidence.
(II) A necessary legal conclusion is erroneous.
(III) The decision is contrary to law or to the duly promulgated
rules or decisions of the Commission.
(IV) A substantial question of law, policy or discretion is
involved.
(V) A prejudicial error of procedure was committed.
(iii) Each issue shall be separately numbered and plainly and
concisely stated, and shall be supported by detailed citations to the
record when assignments of error are based on the record, and by
statutes, regulations, or principal authorities relied upon. Except for
good cause shown, no assignment of error by any party shall rely on any
question of fact or law upon which the administrative law judge had not
been afforded an opportunity to pass. Review by the Commission shall be
granted only by affirmative vote of two of the Commissioners present and
voting. If granted, review shall be limited to the questions raised by
the petition.
(B) At any time within 30 days after the issuance of a decision of
an administrative law judge, the Commission may in its discretion (by
affirmative vote of two of the Commissioners present and voting) order
the case before it for review but 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 order the
specific issue of law, Commission policy, or novel question of policy
involved. If a party's petition for discretionary review has been
granted, the Commission shall not raise or consider additional issues in
such review proceedings except in compliance with the requirements of
this paragraph.
(C) For the purpose of review by the Commission under paragraph (A)
or (B) of this subsection, the record shall include: (i) all matters
constituting the record upon which the decision of the administrative
law judge was based; (ii) the rulings upon proposed findings and
conclusions; (iii) the decision of the administrative law judge; (iv)
the petition or petitions for discretionary review, responses thereto,
and the Commission's order for review; and (v) briefs filed on review.
No other material shall be considered by the Commission upon review. The
Commission either may remand the case to the administrative law judge
for further proceedings as it may direct or it may affirm, set aside, or
modify the decision or order of the administrative law judge in
conformity with the record. If the Commission determines that further
evidence is necessary on an issue of fact it shall remand the case for
further proceedings before the administrative law judge.
(The provisions of section 557(b) of title 5 with regard to the
review authority of the Commission are expressly superseded to the
extent that they are inconsistent with the provisions of subparagraphs
(A), (B), and (C) of this paragraph.)
(e) Witnesses and evidence; subpoenas; contempt
In connection with hearings before the Commission or its
administrative law judges under this chapter, the Commission and its
administrative law judges may compel the attendance and testimony of
witnesses and the production of books, papers, or documents, or objects,
and order testimony to be taken by deposition at any stage of the
proceedings before them. Any person may be compelled to appear and
depose and produce similar documentary or physical evidence, in the same
manner as witnesses may be compelled to appear and produce evidence
before the Commission and its administrative law judges. Witnesses shall
be paid the same fees and mileage that are paid witnesses in the courts
of the United States and at depositions ordered by such courts. In case
of contumacy, failure, or refusal of any person to obey a subpoena or
order of the Commission or an administrative law judge, respectively, to
appear, to testify, or to produce documentary or physical evidence, any
district court of the United States or the United States courts of any
territory or possession, within the jurisdiction of which such person is
found, or resides, or transacts business, shall, upon the application of
the Commission, or the administrative law judge, respectively, have
jurisdiction to issue to such person an order requiring such person to
appear, to testify, or to produce evidence as ordered by the Commission
or the administrative law judge, respectively, and any failure to obey
such order of the court may be punished by the court as a contempt
thereof.
(Pub. L. 91-173, title I, Sec. 113, as added Pub. L. 95-164, title II,
Sec. 201, Nov. 9, 1977, 91 Stat. 1313; 1978 Reorg. Plan No. 2, Sec. 102,
eff. Jan. 1, 1979, 43 F.R. 36037, 92 Stat. 3783.)
References in Text
For the effective date of the Federal Mine Safety and Health
Amendments Act of 1977, referred to in subsec. (b)(2), see section 307
of Pub. L. 95-164, set out as an Effective Date of 1977 Amendment note
under section 801 of this title.
Prior Provisions
Provisions similar to this section were contained in section 729 of
this title prior to its repeal by Pub. L. 95-164.
Effective Date
Section effective 120 days after Nov. 9, 1977, see section 307 of
Pub. L. 95-164, set out as an Effective Date of 1977 Amendment note
under section 801 of this title.
Transfer of Functions
``Director of the Office of Personnel Management'' substituted for
``Civil Service Commission'' in subsec. (b)(2) pursuant to Reorg. Plan
No. 2 of 1978, Sec. 102, 43 F.R. 36037, 92 Stat. 3783, set out under
section 1101 of Title 5, Government Organization and Employees, which
transferred all functions vested by statute in United States Civil
Service Commission to Director of Office of Personnel Management (except
as otherwise specified), effective Jan. 1, 1979, as provided by section
1-102 of Ex. Ord. No. 12107, Dec. 28, 1978, 44 F.R. 1055, set out under
section 1101 of Title 5.
