(a) Standards of conduct. Representatives appearing before the Commission or before Commission ALJs pursuant to § 2700.3(b) shall conform to the standards of ethical conduct required of practitioners under the American Bar Association's Model Rules of Professional Conduct (“ABA's Model Rules”). The Commission shall apply the ABA's Model rules as far as practicable.

(b) Grounds. Disciplinary proceedings may be instituted against anyone who is appearing or has appeared before the Commission on grounds that such person has engaged in unethical or unprofessional conduct; has failed to comply with these rules or an order of the Commission or its ALJs; has been disbarred or suspended by a court or administrative agency; or has been disciplined by an ALJ under paragraph (e) of this section.

(c) Procedure. Disciplinary proceedings shall be subject to the following procedure:

(1) Disciplinary referral. Except as provided in paragraph (e) of this section, an ALJ or other person having knowledge of circumstances that may warrant disciplinary proceedings against a representative who is appearing or has appeared before the Commission shall forward to the Commission for action such information in the form of a written disciplinary referral. Whenever the Commission receives a disciplinary referral, the matter shall be assigned a docket number and a notice will be issued to the individual named in the referral of the initiation of an investigation.

(2) Inquiry and preliminary determination by the Commission. The Commission shall conduct an inquiry concerning a disciplinary referral and shall determine whether disciplinary proceedings are warranted. The Commission may require persons to submit affidavits setting forth their knowledge of relevant circumstances.

(i) Termination of referral. If the Commission determines that disciplinary proceedings are not warranted, it shall issue an order terminating the referral.

(ii) Further disciplinary proceedings. Whenever, as a result of its inquiry, the Commission, by a majority vote of the full Commission or a majority vote of a duly constituted panel of the Commission, determines that the circumstances warrant a hearing, the Commission shall issue an order specifying the disciplinary issues to be resolved through hearing and order the Commission's Chief ALJ to assign the matter to an ALJ, from within or outside of the Commission, other than the referring ALJ, for hearing and decision. The Commission may designate counsel from within or outside of the Commission to prosecute the matter before the ALJ.

(3) Hearing before an ALJ—(i) Assignment. Upon the Commission's order determining that further proceedings are warranted, the Commission's Chief ALJ shall select a Commission ALJ, or select a non-Commission ALJ, and issue an order of assignment for hearing. The order of assignment shall advise the respondent that the respondent may file a statement in accordance with paragraph (c)(3)(ii) of this section.

(ii) Response. The respondent named in the disciplinary proceeding may file a statement responding to the Commission's decision within 30 days after service of the order of assignment.

(iii) Evidence and applicability of hearing rules. The parties shall have the opportunity to present evidence and cross-examine witnesses. Subpart G of this part, governing Commission hearings before ALJs shall apply as appropriate to all Commission disciplinary proceedings.

(iv) ALJ's decision. The ALJ's decision shall include findings of fact and conclusions of law and either an order dismissing the proceedings or an appropriate disciplinary order, which may include reprimand, suspension, or prohibition from appearing before the Commission.

(d) Appeal from ALJ's decision. Any person adversely affected or aggrieved by the ALJ's decision is entitled to review by the Commission. A person seeking such review shall file a notice of appeal with the Commission within 30 days after the issuance of the ALJ's decision.

(e) Misconduct before an ALJ. An ALJ may order the removal of any person, including a representative of a party, who engages in disruptive conduct in the ALJ's presence. If a representative is ordered removed, the ALJ shall allow the party represented by the person a reasonable time to engage another representative. In all instances of removal of a person for disruptive conduct, the ALJ shall place in the record a written statement on the matter. A party aggrieved by an ALJ's order of removal may appeal by requesting interlocutory review pursuant to § 2700.76 or, alternatively, may assign the ALJ's ruling as error in a petition for discretionary review.

(a) Recusal. Whenever a Commissioner or an ALJ deems appropriate, the Commissioner or ALJ may choose to be recused from a proceeding.

(b) Request to withdraw. A party may request a Commissioner or an ALJ to withdraw on grounds of personal bias or other disqualification. A party shall make such a request by promptly filing an affidavit setting forth in detail the matters alleged to constitute personal bias or other grounds for disqualification.

(c) Procedure if Commissioner or ALJ does not withdraw. If, upon being requested to withdraw pursuant to paragraph (b) of this section, the Commissioner or the ALJ does not withdraw from the proceeding, the Commissioner or ALJ shall so rule upon the record, stating the grounds for such ruling. If the ALJ does not withdraw, the ALJ shall proceed with the hearing, or, if the hearing has been completed, the ALJ shall proceed with the issuance of a decision, unless the Commission stays the hearing or further proceedings upon the granting of a petition for interlocutory review of the ALJ's decision not to withdraw.

(a) For purposes of this section, the following definitions shall apply:

(1) Ex parte communication means an oral or written communication not on the public record concerning any matter or proceeding with respect to which reasonable prior notice to all parties has not been given. A status or informational request does not constitute an ex parte communication.

(2) Status or informational request means a request for a status report on any matter or proceeding or a request concerning filing requirements or other docket information.

(3) Merits of a case, which shall be broadly construed by the Commission, includes discussion of the factual or legal issues in a case or resolution of those issues.

(b) Prohibited ex parte communication. There shall be no ex parte communication with respect to the merits of a case not concluded, between the Commission, including any member, ALJ, officer, or agent of the Commission who is employed in the decisional process, and any of the parties, intervenors, representatives, amici, or other interested persons.

(c) Procedure in case of violation. (1) In the event a prohibited ex parte communication occurs, the Commission or the ALJ may make such orders or take such action to remedy the effect of the ex parte communication as circumstances require. Upon notice and hearing, the Commission may take disciplinary action against any person who knowingly and willfully makes or causes to be made a prohibited ex parte communication.

(2) A memorandum setting forth all ex parte communications, whether prohibited or not, shall be placed on the public record of the proceeding.

(d) Status or informational requests. Information concerning filing requirements, the status of cases, or docket information may be accessed through the Commission's website (http://www.fmshrc.gov). In the event such information is unavailable through the Commission's website, such status or informational requests must be directed to the Docket Office of the Federal Mine Safety and Health Review Commission, 1331 Pennsylvania Avenue NW, Suite 520N, Washington, DC 20004-1710; 202-434-9950.

The Chair or other designated Commissioner is authorized to sign on behalf of a quorum of the Commission, orders disposing of the following procedural motions: motions for extensions of time, motions for permission to file briefs in excess of page limits, motions to accept late filed briefs, motions to consolidate, motions to expedite proceedings, motions for oral argument, and similar procedural motions. In the absence of a designated Chair or Acting Chair, Commissioners continue to be authorized to sign orders disposing of procedural motions as identified above.