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, 201 12th Street South, Arlington, VA 22202-5452. 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; 80 FR 52985, Sept. 2, 2015]

(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.

(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]

(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]

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]

Upon receipt of a request for hearing as provided in § 44.14 of this part, the Administrator shall, within 5 days, refer to the Chief Administrative Law Judge the original petition, the proposed decision and order, all information upon which the proposed decision was based, any written request for a hearing on the petition filed, any other written comments or information received and considered in making the proposed decision. The MSHA investigation report shall be made part of the record on the petition.

[55 FR 53441, Dec. 28, 1990]

(a) Time for filing. An application for temporary relief from enforcement of a mandatory standard may be filed at any time before a proposed decision and order is issued on a petition for modification and shall be served upon all parties to the proceeding.

(b) With whom filed. The application shall be filed with and decided by the appropriate Administrator.

(c) Investigation and decision. Upon receipt of an application for temporary relief, the Administrator shall cause an investigation to be made as to the merits of the application. As soon thereafter as practicable, but in no event greater than 60 days from filing of the application, the Administrator shall issue a decision. If the Administrator does not issue a decision within 60 days of filing of the application, the application shall be deemed to be denied.

(d) Contents of application. An application for temporary relief shall comply with applicable general requirements of this part, state the specific relief requested, and include specific evidence showing how the applicant meets the criteria set forth in paragraph (e) of this section.

(e) Criteria. Before temporary relief is granted, the applicant must clearly show that—

(1) The application was filed in good faith;

(2) The requested relief will not adversely affect the health or safety of miners in the affected mine;

(3) An identifiable hazard to miners exists in the mine which is caused by application of the standard at the mine;

(4) Other means will be used to reasonably address the hazard against which the original standard was designed to protect; and

(5) Compliance with the standard while the petition for modification is pending will expose miners to the identifiable hazard upon which the application is based.

(f) Response. All parties to the proceeding in which an application for temporary relief has been filed shall have 15 days from receipt of the application to file a written response with the Administrator.

(g) Evidence. An application for temporary relief or a response to such an application may be supported by affidavits or other evidentiary matter.

(h) Findings. Temporary relief may be granted by the Administrator upon a finding that application of the standard at the mine will result in a diminution of safety to the miners at such mine.

(i) Appeal to the Office of the Administrative Law Judges. If the application for temporary relief is granted by the Administrator, any other party may request a hearing within 15 days of the Administrator's decision. The request shall be addressed to the Administrator and shall be referred by the Administrator, along with the petition for modification, to the Chief Administrative Law Judge in accordance with § 44.15. The hearing and decision of the presiding administrative law judge shall be in accordance with subparts C through E of this part. After referral of the petition for modification and application for temporary relief, no further decision shall be rendered by the Administrator.

(j) Duration of relief. An order granting temporary relief shall be effective until superseded by the Administrator's proposed decision and order, unless a hearing is requested in accordance with paragraph (i) of this section. If such hearing is requested, the temporary relief shall remain in effect until modified, affirmed or set aside by the presiding administrative law judge. In no case, however, shall the Administrator's order remain in effect for more than one year, unless renewed or affirmed by the presiding administrative law judge.

(k) Application for relief to give effect to the proposed decision and order. At any time following the proposed decision and order of the Administrator on the accompanying petition for modification, any party may request relief to give effect to the proposed decision and order until it becomes final.

(l) An application for relief under paragraph (k) shall be filed with the Administrator and shall include a good faith representation that no party is expected to contest the granting of the petition for modification.

(m) A decision to grant relief requested under paragraph (k) will take effect on the seventh day following the decision. If a request for hearing on the proposed decision and order is filed in accordance with § 44.14 prior to the seventh day following the granting of such relief, the relief will not become effective. If such request for hearing on the proposed decision and order is filed after relief becomes effective, the relief will expire immediately.

[55 FR 53441, Dec. 28, 1990]