---
kind: "section"
citation: "30 U.S.C. § 823"
title: "30"
title_heading: "Mineral Lands and Mining"
number: "823"
heading: "Federal Mine Safety and Health Review Commission"
release: "119-102"
date: "2026-07-12"
url: "https://uscodex.org/usc/30/823"
units:
  - "Chapter 22 — Mine Safety and Health"
  - "Subchapter I — General"
---

# §823. Federal Mine Safety and Health Review Commission

- (a) **Establishment; membership; chairman—** The Federal Mine Safety and Health Review [Commission](/usc/30/802.md?p=o) is hereby established. The [Commission](/usc/30/802.md?p=o) shall consist of five members, appointed by the President by and with the advice and consent of the Senate, from among [persons](/usc/30/802.md?p=f) who by reason of training, education, or experience are qualified to carry out the functions of the [Commission](/usc/30/802.md?p=o) under this chapter. The President shall designate one of the members of the [Commission](/usc/30/802.md?p=o) to serve as Chairman.
- (b) **Terms; personnel; administrative law judges—**
  - (1) The terms of the members of the [Commission](/usc/30/802.md?p=o) shall be six years, except that—
    - (A) members of the [Commission](/usc/30/802.md?p=o) 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](/usc/30/802.md?p=o) 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](/usc/30/802.md?p=o) for the administrative operations of the [Commission](/usc/30/802.md?p=o). The [Commission](/usc/30/802.md?p=o) shall appoint such employees as it deems necessary to assist in the performance of the [Commission](/usc/30/802.md?p=o)’s functions and to fix their compensation in accordance with the provisions of chapter 51 and subchapter III of [chapter 53](/usc/5/chptIII/sptD/ch53.md) 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](/usc/30/802.md?p=o). Notwithstanding the provisions of [section 559 of title 5](/usc/5/559.md), 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](/usc/30/802.md?p=o) 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](/usc/30/802.md?p=o) shall appoint such additional administrative law judges as it deems necessary to carry out the functions of the [Commission](/usc/30/802.md?p=o). 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](/usc/30/802.md?p=o) is authorized to delegate to any group of three or more members any or all of the powers of the [Commission](/usc/30/802.md?p=o), 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](/usc/30/802.md?p=o) to hear matters under this chapter shall hear, and make a determination upon, any proceeding instituted before the [Commission](/usc/30/802.md?p=o) and any motion in connection therewith, assigned to such administrative law judge by the chief administrative law judge of the [Commission](/usc/30/802.md?p=o) or by the [Commission](/usc/30/802.md?p=o), and shall make a decision which constitutes his final disposition of the proceedings. The decision of the administrative law judge of the [Commission](/usc/30/802.md?p=o) shall become the final decision of the [Commission](/usc/30/802.md?p=o) 40 days after its issuance unless within such period the [Commission](/usc/30/802.md?p=o) has directed that such decision shall be reviewed by the [Commission](/usc/30/802.md?p=o) in accordance with [paragraph (2)](#d-2). An administrative law judge shall not be assigned to prepare a recommended decision under this chapter.
  - (2) The [Commission](/usc/30/802.md?p=o) 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](/usc/30/802.md?p=f) adversely affected or aggrieved by a decision of an administrative law judge, may file and serve a petition for discretionary review by the [Commission](/usc/30/802.md?p=o) of such decision within 30 days after the issuance of such decision. Review by the [Commission](/usc/30/802.md?p=o) shall not be a matter of right but of the sound discretion of the [Commission](/usc/30/802.md?p=o).
      - (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](/usc/30/802.md?p=o).
        - (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](/usc/30/802.md?p=o) 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](/usc/30/802.md?p=o) 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](/usc/30/802.md?p=o) policy, or that a novel question of policy has been presented. The [Commission](/usc/30/802.md?p=o) shall [state](/usc/30/802.md?p=c) in such order the specific issue of law, [Commission](/usc/30/802.md?p=o) policy, or novel question of policy involved. If a party’s petition for discretionary review has been granted, the [Commission](/usc/30/802.md?p=o) 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](/usc/30/802.md?p=o) 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](/usc/30/802.md?p=o)’s order for review; and (v) briefs filed on review. No other material shall be considered by the [Commission](/usc/30/802.md?p=o) upon review. The [Commission](/usc/30/802.md?p=o) 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](/usc/30/802.md?p=o) 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](/usc/5/557.md?p=b) with regard to the review authority of the [Commission](/usc/30/802.md?p=o) 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](/usc/30/802.md?p=o) or its administrative law judges under this chapter, the [Commission](/usc/30/802.md?p=o) 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](/usc/30/802.md?p=f) 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](/usc/30/802.md?p=o) 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](/usc/30/802.md?p=f) to obey a subpoena or order of the [Commission](/usc/30/802.md?p=o) 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](/usc/30/802.md?p=f) is found, or resides, or transacts business, shall, upon the application of the [Commission](/usc/30/802.md?p=o), or the administrative law judge, respectively, have jurisdiction to issue to such [person](/usc/30/802.md?p=f) an order requiring such [person](/usc/30/802.md?p=f) to appear, to testify, or to produce evidence as ordered by the [Commission](/usc/30/802.md?p=o) 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.

## Source credit

(Pub. L. 91–173, title I, § 113, as added Pub. L. 95–164, title II, § 201, Nov. 9, 1977, 91 Stat. 1313; 1978 Reorg. Plan No. 2, § 102, eff. Jan. 1, 1979, 43 F.R. 36037, 92 Stat. 3783.)

## Notes

### Editorial Notes

### References in Text

This chapter, referred to in subsecs. (a), (d), and (e), was in the original “this Act”, meaning Pub. L. 91–173, Dec. 30, 1969, 83 Stat. 742, known as the Federal Mine Safety and Health Act of 1977, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 801 of this title and Tables.

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.

### Statutory Notes and Related Subsidiaries

### 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.

### Executive Documents

### 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, § 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.