Leslie C. Bayless of Star Tannery, Virginia was sworn in Tuesday, November 2^nd as the new Chief Operating Officer of the Federal Mine Safety and Health Review Commission. Immediately prior to this position, Leslie served as an Assistant Director in the Office of Enforcement Analysis at the Department of Commerce, Bureau of Industry and Security.

 The Federal Mine Safety and Health Review Commission is an independent adjudicative agency that provides administrative trial and appellate review of legal disputes arising under the Federal Mine Safety and Health Act of 1977.

On September 22, 2021, the President nominated Mary Lu Jordan to serve as Commissioner of the Federal Mine Safety and Health Review Commission. 

Mary Jordan was appointed as a Commissioner on the Federal Mine Safety and Health Review Commission in 1994 and has served in that capacity almost continuously since then.  She has served as Chair of the Commission from 1994 to 2001, from 2009 to 2014, and from 2015 to 2017.  Her most recent term as Commissioner ended on August 30, 2020 and since then she has served as Senior Attorney-Advisor at the Commission.

Ms. Jordan was employed as Senior Staff Attorney at the United Mine Workers of America from 1977 to 1994.  She is a graduate of Saint Bonaventure University and Antioch Law School and is a member of the New York and D.C. Bar.

Chair Arthur R. Traynor, III applauds the announcement of the nomination, stating “Mary Lu Jordan has been a role model for me ever since I handled my first safety case for the United Mine Workers of America.  And she has been my friend since I arrived at the Commission.  I am delighted by the news President Biden has asked her to come back for another term in service to our nation’s miners.”

The Commission is proposing revisions to its rules implementing the Freedom of Information Act (FOIA) in light of the FOIA Improvement Act of 2016, its experience under the rules, the need to update its fee schedule, and the need to update and clarify a number of its FOIA procedures. These proposed changes ensure rapid and effective procedures for requesting information and processing requests under the FOIA.

Proposed FOIA Rules

     Until January 3, 2022, most case issuances of the Federal Mine Safety and Health Review Commission (FMSHRC), including inter alia notices, decisions, and orders, will be sent only through electronic mail. Further, FMSHRC will not be monitoring incoming physical mail or facsimile described in 29 CFR 2700.5(c)(2).  If possible, all filings should be e-filed as described in 29 CFR 2700.5(c)(1).

Glynn F. Voisin, Chief Administrative Law Judge:

NOTICE:  Due to changing circumstances regarding the novel coronavirus COVID-19 and the new delta variant, the following order is issued. This order supplements the July 30, 2021 order resuming in-person hearings.                 

In view of recently updated guidance from the CDC highlighting the risks presented by the novel coronavirus COVID-19 and especially its rapidly spreading delta variant, the Federal Mine Safety and Health Review Commission, Office of the Chief Administrative Law Judge (OCALJ) is, effective immediately, strongly discouraging the scheduling of in-person hearings, settlement judge conferences and mediations until December 31, 2021. At the discretion of the presiding Administrative Law Judge and in coordination with the parties, such proceedings may be held by videoconference or by telephone.

In the event a Judge determines in-person proceedings are necessary for all or part of a hearing, settlement conference or mediation, he or she will seek authorization of the undersigned Chief Administrative Law Judge prior to scheduling any such proceeding. Such authorization should only be sought where absolutely necessary and is unlikely to be granted absent an extraordinarily compelling need and strict protocols ensuring the safety of all in attendance. No party, representative or witness shall be compelled to attend an in-person hearing or conference during the pendency of this order.

If you have any questions with regard to the notice, please contact the presiding Administrative Law Judge.

SO ORDERED.

     Federal Mine Safety and Health Review Commission Administrative Law Judges are committed to a high standard to protect the health and safety of all attorneys, representatives, parties, and witnesses who may appear before them, during the Coronavirus 2019 (COVID-19) pandemic, while continuing the agency’s mission. As of September 1, 2021, the Commission will resume the pre-pandemic norm of in-person hearings, but for the duration of this order all hearings are subject to its terms.

     Upon motion of a party or if necessary for safety, Commission Judges may, at their sole discretion, hold remote hearings or require specific procedures to provide for safety. Commission Judges shall exercise this discretion within uniform parameters as set forth herein. Each Judge shall determine (1) when to use remote hearings (e.g., via Zoom) in lieu of in-person hearings or (2) specific safety procedures to be used at an in-person hearing.

     In determining use of a remote hearing, Judges will consider safety factors on a case-by-case basis. Judges also have the discretion to hold a hybrid hearing, that includes both in-person and video hearing. Judges will ensure all parties appearing pro se who are required to participate in a remote hearing have access to necessary equipment.
Prior to setting in-person hearings Judges will have a conference call with the attorneys and representatives of each of the parties, to discuss the considerations of the parties for the in-person hearing and to seek a commitment to all requirements ultimately set forth by the Judge. Judges may discuss the agency’s travel guidelines, protocols, and safety measures but will not ask if participants are vaccinated. All fully vaccinated persons may attend the hearing in person. Persons who are not fully vaccinated, or who are not comfortable with travel or appearing in person, may make a request to attend the hearing virtually.

     The Judge will set a hearing location after considering the safety and health rules currently in place by the state and local public health entities. In choosing a courtroom, the Judge will take into consideration the rules and requirements of that courthouse or hearing facility, as well as all applicable federal, state, and local regulations and guidelines. If the hearing is to be a hybrid hearing, the Judge will also consider the availability of internet and video needs in the courtroom.

     During the prehearing conference, the Judge will inform the parties of the state, local and courtroom requirements and seek a commitment to adhere to those requirements. The requirements apply to all attorneys, assistants, parties, and witnesses. The discussion will also address who may enter the courtroom, when, and what safety measures, such as masks and social distancing, must be implemented. No person may enter the courtroom, or the witness room without the permission of the Judge. The Judge may consider allowing persons who are not fully vaccinated to enter the courtroom, but they must wear masks and practice social distancing.

     All court reporters will be notified that they must be vaccinated. 

     The Judge may consider all factors, in totality, in determining if a remote hearing will be held and who may be present for the hearing. No single factor is dispositive. 

     These procedures shall be in place until December 31, 2021 unless extended or modified by order.

     SO ORDERED.

The Federal Mine Safety and Health Review Commission (FMSHRC) is committed to a high standard for protecting the health and safety of its workforce during the Coronavirus 2019 (COVID-19) pandemic while continuing the agency’s mission. The guidance and information in this work safety plan supersedes the information in previously published FMSHRC guidance on COVID-19, specifically Opening Up America Again, OMB memo M-20-23, Aligning Federal Agency Operations with the National Guidelines for Opening Up America Again and the July 28, 2020 Covid-19 Return to the Federal Workplace Agency Plan. Additional and supplemental implementation guidance will be provided and considered as necessary. This plan reflects new information and guidance about social or physical distancing, handwashing, face coverings, cleaning, disinfecting, and several other ways to maintain a safe and healthy work environment in all federal workplaces. It will remain in effect throughout the agency’s transition to a return to post-pandemic operations. It will be periodically reviewed and may be updated as necessary to remain current with changing public health conditions and additional guidance from the President’s Safer Federal Workforce Task Force Office, including the Office of Management and Budget (OMB) and the Centers for Disease Control (CDC).

On April 23, 2021, the Commission issued a decision in Secretary of Labor on behalf of Roger Cook v. Rockwell Mining, LLC, Docket No. WEVA 2021-0203.

Glynn F. Voisin, Chief Administrative Law Judge:

In view of the risks presented by the novel coronavirus COVID-19, the Federal Mine Safety and Health Review Commission, Office of the Chief Administrative Law Judge (OCALJ) is, effective immediately, suspending all in-person hearings, settlement judge conferences and mediations until August 31, 2021.

At the discretion of the presiding administrative law judge and in coordination with the parties, hearings may proceed by videoconference or by telephone. Similarly, settlement judge conferences and mediations may be held by videoconference or by telephone. If the parties agree that an evidentiary hearing is not needed, cases may also be presented for a decision on the record.

The parties will be notified if the hearing needs to be rescheduled. OCALJ will reassess the risks presented by in-person hearings prior to August 31, 2021, and issue a subsequent order informing the public as to whether the suspension of in-person hearings will continue.

If you have any questions with regard to the notice, please contact the presiding administrative law judge.

SO ORDERED.

On April 19, 2021 the Commission issued a decision in Consol Pennsylvania Coal Company, LLC, Docket No. PENN 2018-0169.