[BILLING CODE 7600-01-M]
____________________________________________________________
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
29 CFR Parts 2200, 2204
REVISIONS TO PROCEDURAL RULES GOVERNING PRACTICE BEFORE THE
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
AGENCY: Occupational Safety and Health Review Commission
ACTION: Final Rule
___________________________________________________________
SUMMARY: This document makes
several revisions to the procedural rules governing practice before the
Occupational Safety and Health Review Commission.
DATES: These revised rules will
take effect on August 1, 2005. They apply to all cases docketed on or after
that date. They also apply to further proceedings in cases then pending, except
to the extent that their application would be infeasible or would work an
injustice, in which event the present rules apply.
FOR FURTHER INFORMATION CONTACT:
Patrick Moran, Deputy General Counsel
Occupational Safety and Health Review Commission
1120 20th St. NW., Ninth Floor
Washington, DC 20036-3457
Phone Number: (202) 606-5410
SUPPLEMENTARY INFORMATION:
On March 4, 2005, the
Commission published in the Federal Register several proposed changes to its
rules of procedure. 70 FR 10574 (March 4, 2005). The Commission found the
comments it received in response to that proposal to be very helpful. As a
result, several proposed changes have been modified and one proposed change has
been deleted. The Commission thanks those who responded for their time and
interest, and the quality of their comments.
1. Service, filing and notice
The Commission proposed
revising section 2200.5 to give its Judges the discretion to require a party to
respond more quickly to a motion or order filed shortly before the hearing
where the normal response time would not expire until after the hearing has
commenced. The Commission has modified its original proposal to make it clear
that the Judge may enlarge or shorten any time period contained in the rules
upon motion of a party with good cause shown or upon the Judge’s own motion.
One commentator suggested that the rule be further amended to give a Judge the
discretion to dispense with written follow-ups to oral motions for extensions
of time. The Commission declines to follow this suggestion. The Commission
believes that it is important for the record to thoroughly document the motions
and the Judge’s disposition of the motions. The small burden imposed on the
parties by requiring such follow-up written motions is outweighed by the
interest in maintaining a complete record of the proceedings.
The Commission also proposed
amending section 2200.7 to allow for the electronic service of documents when
all parties consent in writing and the certificate of service of the electronic
transmission states such consent and the method of transmission. It proposed
amending section 2200.8 to allow for the electronic filing of documents. These
proposals were well received by the commentators, although one commentator
suggested that electronic filing not be made mandatory since access to
computers and the Internet is not yet universal. The Commission agrees and, while encouraging the use of
electronic filing, will continue to leave it optional for the foreseeable
future.
In response to a
commentator’s request, the Commission would clarify that, even where the
parties have not consented to the electronic filing of all documents, they may
still consent to the electronic filing of individual documents.
Another commentator noted
that section 2200.8 did not specifically contemplate that electronically filed
documents would be made available on-line and that, if such documents are not
electronically available, there was no purpose for the redaction of certain
information set forth in section 2200.8(g)(5). The Commission has decided
against making electronically filed documents available on-line at this time,
as the Commission does not have the equipment or resources to make such
documents available on-line. Moreover, because electronic filing remains
optional, and only certain documents may be electronically filed, the limited
on-line availability of documents could confuse and even mislead interested
parties. Regarding the need to redact certain information, the Commission
recognizes that despite the resources it has devoted to closing all known
security gaps within its own systems, the security of documents filed through
the Internet remains a concern. Therefore, it believes that good practice
dictates that potentially sensitive information be redacted from electronically
filed documents.
That same commentator also
opined that section 2200.8(g)(6) had a typographical error in that the rule
should list those items that the Commission wanted to receive with electronic
filings, rather than suggesting, as the proposed rule did, that it specifically
did not want those items. The Commission stresses that this was not a
typographical error and that, indeed, the Commission wants to underscore that
those items listed in the rule should not be sent with any electronic filing.
The commentator also
suggested that section 2200.8(g)(7) be revised to eliminate the requirement for
an /s/ if a graphical duplicate of a signature is included. The Commission
fails to see how the requirement imposes any sort of burden on the parties and
will adopt the rule as proposed.
The
Commission also proposed to amend section 2200.8(f) by eliminating the 3-day
grace period for mailing documents after they have been faxed. The Commission
has reconsidered the rule and now is of the view that a faxed document can
serve as an original and that a follow-up mailing is unnecessary. Technology
has advanced to the point where faxed documents are generally much clearer than
they were just a few years ago. Where there is a problem with the clarity of a
fax, the Commission will contact the sending party and request that the
document be re-faxed, mailed, or electronically filed.
2. Practice before the
Commission
The Commission received a
number of comments regarding its proposal to amend section 2200.22 to
restrict practice before the Commission to attorneys. Based on the responses received from those
commenting, the Commission has decided to withdraw the proposal.
Nevertheless, the Commission remains concerned about the quality of
representation provided by non-legal representatives. It will continue to monitor the situation and explore different
methods to help small businesses and other parties receive the quality of
representation they deserve when appearing before the Review Commission.
3. Prehearing conferences and orders
The
Commission proposed amending section 2200.51 to give the Judge the discretion,
rather than require the Judge, to consult with all attorneys and any
unrepresented parties and enter a scheduling order that limits the time (i) to
join other parties and to amend the pleadings; (ii) to file and hear motions;
and (iii) to complete discovery. We received two comments, both in opposition
to the proposal. Both commentators argued that mandatory consultation promotes
the orderly scheduling of pretrial matters, and promotes the efficient use of
time and resources. The Commission appreciates these concerns, but believes
that, while in most instances, Judges will consult with the parties, leaving
these matters to the Judge’s discretion gives the Judge the flexibility needed
to exercise better control over the docket.
4. General provisions concerning discovery
The
Commission’s proposed changes to its discovery rule at section 2200.52 received
several comments. The proposal to amend section 2200.52(a) by explicitly making
Federal Rule of Civil Procedure 26(a), which sets forth a lengthy list of
required disclosures, inapplicable to Commission proceedings, was favorably
received by the commentators.
The Commission’s proposal to
incorporate the contents of section 2200.11 in the discovery rule was also
favorably received. Two commentators, however, were concerned that section
2200.52(d)(1), as proposed, would impose an undue burden on the parties,
insofar as it could be read to require a party to produce a lengthy list of
supporting documents when first claiming that requested information is
privileged. The commentators noted that these matters are often resolved
amicably among the parties and suggested that supporting documentation be
required only in response to either an order from the Judge or a motion to
compel. We agree with these comments and have amended the rule accordingly. The
Commission notes that, as adopted, the rule continues to eliminate the current
15-day response period for claims of privilege. The Commission remains of the
view that the Judge should have the discretion and flexibility to determine on
a case-by-case basis how long the parties need to respond to claims of
privilege.
The Commission has also amended the
proposed rule by deleting the specific reference to the “deliberative process
privilege.” Upon reconsideration the Commission finds no reason to single out
any specific privilege. The Commission recognizes the “deliberative process
privilege” and believes that it should be treated as would any other privilege.
A commentator also pointed out an
apparent inconsistency between the proposed rule at section 2200.52(j) and
current section 2200.54(a) and (b), insofar as the former states that requests
for admission not be filed with the judge while the latter requires such a
filing. We thank the commentator for the observation and we have amended
sections 2200.54(a) and (b) to be consistent with the new rule at section
2200.52(j).
5. Oral Argument
The Commission proposed amending its
rules on oral argument, set forth in section 2200.95, to allow for the written
transcription of oral arguments and to require that any party who files a
motion for oral argument must demonstrate why oral argument would facilitate
resolution of issues before the Commission. No comments were received on this
proposal, and we have adopted the rule as proposed.
6. Settlement Part
The Commission proposed several
changes to section 2200.120, the Settlement Part. The commentators responded
favorably to the Commission’s proposal to lower the threshold for cases
eligible for the Mandatory Settlement Part, from penalties of $200,000 to those
of $100,000. One commentator objected
to assigning a case to mandatory settlement negotiations only after the
completion of discovery. The commentator observed that the longer a case
proceeds, the more the parties have invested in the case, and the less likely
settlement becomes. While the Commission sees merit in these views, it remains
of the opinion that, generally, settlement negotiations in complex cases are
not fruitful until the parties complete discovery and can more fully assess the
strengths and weaknesses of their case. The Commission observes, however, that
there is nothing in the rule to prevent the parties from asking the Judge to
begin the settlement procedure at an earlier stage of the proceedings.
Several commentators also objected
to explicitly granting the Settlement Judge the authority to hold a mini-trial.
The commentators observed that in some cases, the expense of such a proceeding
would negate the primary reason for seeking settlement. It was also pointed out
that, as proposed, the rule left unanswered many questions regarding the
conduct of the mini-trial. Upon reconsideration, the Commission finds
substantial merit in these comments and has omitted any reference to a
“mini-trial” in the rule as adopted; it has instead substituted a provision
that allows the judge, with the consent of the parties, to conduct such other
settlement proceedings as may aid in the settlement of the case.
The Commission has also redrafted
the confidentiality provisions of the Settlement Part at section
2200.120(d)(3). First, the Commission
stresses that the confidentiality provisions apply only to matters
divulged as a result of participation in the Settlement Part, and do not apply
to matters properly obtained during discovery. For that matter, the Commission
does not believe that the protective orders allowed by section 2200.52(e) are
particularly relevant to the Settlement Part and the reference to that rule has
been eliminated. Instead, the Judge is authorized to issue appropriate orders
to protect confidentiality, which may or may not include matters set forth in
section 2200.52(e).
The Commission has also decided to
make several changes to its original proposal. For example, the Commission
determined that the proposed period a case can remain in mandatory settlement
proceedings was unduly long, especially given that discovery would have been
completed prior to the initiation of settlement proceedings. Therefore, the
initial period a case can be in mandatory settlement proceedings has been
reduced from 120 days to 60 days. Also,
the Commission clarified section 2200.120(a) to make it clear that a party can
only prevent a case from entering voluntary settlement proceedings. As
previously written, section 2200.120 could have been interpreted as giving a
party a veto over cases entering both voluntary and mandatory settlement
proceedings. While the scope of these changes has resulted in the rule being
largely redrafted, we have here noted the significant substantive changes from
the original proposal.
7. Simplified
Proceedings
The commentators were supportive of
the Commission’s proposal to raise the penalty limit for cases eligible for
Simplified Proceedings from a maximum of $10,000 to $20,000, and commensurately
raising the penalty limit for cases that the Chief Administrative Law Judge has
discretion to assign to Simplified Proceedings from a maximum of $20,000 to $30,000.
8. Equal Access to Justice Act
The Commission proposed amending its
rules implementing the Equal Access to Justice Act (EAJA) by (1) eliminating
section 2204.105(f), which mandated that the net worth of an applicant be
aggregated with its affiliates, and (2) revising section 2204.302, which sets
out the time from which a final order is calculated for purposes of determining
when an EAJA application must be filed. These amendments were proposed to bring
the Commission’s rules in closer conformity to the developing case law. No
comments were received on these proposals and, except for a minor technical
revision to section 2204.302, the proposed amendments are adopted.
9. Other Changes
Because of the revisions, certain
non-substantive technical changes to existing rules have been made. For
example, sections 2200.32 and 105(a) have revised cross-references, while
section 2200.106 has a corrected zip code for the Commission.
List of Subjects
29 CFR Part 2200 Hearing and appeal procedures, Administrative practice and procedure.29 CFR Part 2204 Administrative practice and procedure. Equal access to justiceText of Amendment
For the reasons set forth in the preamble, the Occupational Safety and Health Review Commission amends Title 29, Chapter XX, Parts 2200 and 2204 of the Code of Federal Regulations as follows:PART 2200-[AMENDED]1. The authority citation for part 2200 continues to read as
follows: Authority: 29 U.S.C. 661(g).
2.
Section 2200.5 is revised to read as follows:
§2200.5 Extension of time.
The Commission or Judge on their own initiative or, upon motion of
a party, for good cause shown, may enlarge or shorten any time prescribed by
these rules or prescribed by an order. All such motions shall be in writing
but, in exigent circumstances in a case pending before a Judge, an oral request
may be made and thereafter shall be followed by a written motion filed with the
Judge within 3 working days. A request for an extension of time should be
received in advance of the date on which the pleading or document is due to be
filed. However, in exigent circumstances, an extension of time may be granted
even though the request was filed after the designated time for filing has
expired. In such circumstances, the party requesting the extension must show,
in writing, the reasons for the party’s failure to make the request before the
time prescribed for the filing had expired. The motion may be acted upon before
the time for response has expired.
3. In Section 2200.7, paragraphs (c) and (g)
are revised to read as follows:
§2200.7 Service and notice.
* * * * *
(c)
How accomplished. Unless
otherwise ordered, service may be accomplished by postage pre-paid first class
mail at the last known address, by electronic transmission, or by personal
delivery. Service is deemed effected at the time of mailing (if by mail), at
the time of receipt (if by electronic transmission), or at the time of personal
delivery (if by personal delivery). Facsimile transmission of documents and
documents sent by an overnight delivery service shall be considered personal delivery.
Legibility of documents served by facsimile transmission is the responsibility
of the serving party. Documents may be served by electronic transmission only when all
parties consent in writing and the certificate of service of the electronic
transmission states such consent and the method of transmission. All parties
must be electronically served. Electronic service must be accomplished by
following the requirements set forth on the Commission’s web site
(www.OSHRC.gov.).
* *
* * *
(g)
Service on unrepresented employees. In the event that
there are any affected employees who are not represented by an authorized
employee representative, the employer shall, immediately upon receipt of notice
of the docketing of the notice of contest or petition for modification of the
abatement period, post, where the citation is required to be posted, a copy of
the notice of contest and a notice informing such affected employees of their
right to party status and of the availability of all pleadings for inspection
and copying at reasonable times. A notice in the following form shall be deemed
to comply with this paragraph:
(Name of employer)
Your employer has been cited
by the Secretary of Labor for violation of the Occupational Safety and Health
Act of 1970. The citation has been contested and will be the subject of a
hearing before the OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION. Affected
employees are entitled to participate in this hearing as parties under terms
and conditions established by the OCCUPATIONAL SAFETY AND HEALTH REVIEW
COMMISSION in its Rules of Procedure. Notice of intent to participate must be
filed no later than 10 days before the hearing. Any notice of intent to participate
should be sent to:
Occupational Safety and
Health
Review Commission
Office of the Executive Secretary
One Lafayette Centre
1120 20th Street, N.W., Suite 980
Washington, DC 20036-3457
All pleadings relevant
to this matter may be inspected at: (Place reasonably convenient to employees,
preferably at or near workplace.)
Where appropriate, the
second sentence of the above notice will be deleted and the following sentence
will be substituted:
The reasonableness of the
period prescribed by the Secretary of Labor for abatement of the violation has
been contested and will be the subject of a hearing before the OCCUPATIONAL
SAFETY AND HEALTH REVIEW COMMISSION.
* * * * *
4. Section 2200.8 is revised
to read as follows: §2200.8 Filing.
(a) What to
file. All papers required to be
served on a party or intervenor, except for those papers associated with part
of a discovery request under Rules 52 through 56, shall be filed either before
service or within a reasonable time thereafter.
(b) Where to
file. Prior to assignment of a
case to a Judge, all papers shall be filed with the Executive Secretary at One
Lafayette Centre, 1120 20th Street, N.W., Suite 980, Washington, DC 20036-3457.
Subsequent to the assignment of the case to a Judge, all papers shall be filed
with the Judge at the address given in the notice informing of such assignment.
Subsequent to the docketing of the Judge’s report, all papers shall be filed
with the Executive Secretary, except as provided in §2200.90(b)(3).
(c) How to
file.
Unless otherwise ordered, filings may be accomplished by postage-prepaid first
class mail, personal delivery, or electronic transmission or facsimile
transmission.
(d) Number of copies. Unless
otherwise ordered or stated in this part:
(1) If a case is before a
Judge or if it has not yet been assigned to a Judge, only the original of a
document shall be filed.
(2) If a case is before the
Commission for review, the original and eight copies of a document shall be
filed.
(e) Filing date. (1) Except for the documents listed in paragraph (e)(2)
of this section, filing is effective upon mailing, if by mail, upon receipt by
the Commission, if filing is by personal delivery, overnight delivery service,
facsimile transmission or electronic transmission.
(2) Filing is effective upon
receipt for petitions for interlocutory review (§2200.73(b)), petitions for
discretionary review (§2200.91), and EAJA applications (§2204.301).
(3) Counsel and the parties
shall have sole responsibility for ensuring that the document is timely
received by the Commission.
(f) Facsimile
transmissions.
(1) Any document may be filed with the Commission or its Judges by facsimile
transmission. Filing shall be deemed completed at the time that the facsimile
transmission is received by the Commission or the Judge. The filed facsimile
shall have the same force and effect as an original.
(2) All facsimile
transmissions shall include a facsimile of the appropriate certificate of
service.
(3) It is the responsibility
of parties desiring to file documents by the use of facsimile transmission
equipment to utilize equipment that is compatible with facsimile transmission
equipment operated by the Commission. Legibility of the transmitted documents
is the responsibility of the serving party.
(g) Electronic filing. (1) Where all parties consent to electronic
service and electronic filing, a document may be filed by electronic
transmission with the Commission and its judges. The certificate of service
accompanying the document must state that the other parties consent to filing
by electronic transmission. The electronic transmission shall be in the manner
specified by the Commission’s web site (www.OSHRC.gov).
(2) A document filed in
conformance with these rules constitutes a written document for the purpose of
applying these rules, and a copy printed by the Commission and placed in the
case file shall have the same force and effect as the original.
(3) A certificate of service
shall accompany each document electronically filed. The certificate shall set forth the dates and manner of filing
and service. It is the responsibility
of the transmitting party to retain records showing the date of transmission,
including receipts.
(4) A party that files a document by an electronic transmission shall utilize equipment and software that is compatible with equipment operated by the Commission and shall be responsible for the legibility of the document.
(5) Information that is sensitive but not privileged shall be filed as follows:
(i) If Social Security numbers must be included in a document, only the last four digits of that number shall be used;
(ii) If names of minor children must be mentioned, only the initials of that child shall be used;
(iii) If dates of birth must be included, only the year shall be used;
(iv) If financial account numbers must be filed, only the last four digits of these numbers shall be used;
(v) If a personal identifying number, such as a driver’s license number must be filed, only the last four digits shall be used. Parties shall exercise caution when filing medical records, medical treatment records, medical diagnosis records, employment history, and individual financial information, and shall redact or exclude certain materials unnecessary to a disposition of the case.
(6) A transmittal letter shall not be filed electronically or by other means when a document is transmitted noting:
(i) The transmittal of a document;
(ii) The inclusion of an attachment;
(iii) A request for a return receipt; or
(iv) A request for additional information concerning the filing.
(7) The signature line of any document shall include the notation “/s/” followed by the typewritten name or graphical duplicate of the hand-written signature of the party representative filing the document. Such representation of the signature shall be deemed to be the original signature of the representative for all purposes unless the party representative shows that such representation of the signature was unauthorized.
(8) Privileged information shall not be filed
electronically. Privileged information
or information that is asserted by any party to be privileged shall not be
filed electronically.
5. Section 2200.11
is removed and reserved.
6. Section 2200.32 is revised to read as
follows:
§2200.32 Signing of pleadings and motions.
Pleadings and motions shall be signed by the filing party or by
the party’s representative. The signature of a representative constitutes a
representation by him that he is authorized to represent the party or parties
on whose behalf the pleading is filed. The signature of a representative or
party also constitutes a certificate by him that he has read the pleading, motion,
or other paper, that to the best of his knowledge, information, and belief,
formed after reasonable inquiry, it is well grounded in fact and is warranted
by existing law or a good faith argument for the extension, modification, or
reversal of existing law, and that it is not interposed for any improper
purpose, such as to harass or to cause unnecessary delay or needless increase
in the cost of litigation. If a pleading, motion or other paper is signed in
violation of this rule, such signing party or its representative shall be
subject to the sanctions set forth in §2200.101 or §2200.104. A signature by a
party representative constitutes a representation by him that he understands
that the rules and orders of the Commission and its Judges apply equally to attorney
and non-attorney representatives.
7. Section 2200.41 is removed and
reserved.
8. In Section 2200.51,
paragraph (a)(1) is revised to read as follows:
§2200.51 Prehearing conferences and orders.
(a)
Scheduling conference.
(1) The Judge may, upon his or her discretion, consult
with all attorneys and any unrepresented parties, by a scheduling conference,
telephone, mail, or other suitable means, and within 30 days after the filing
of the answer, enter a scheduling order that limits the time:
(i) To join other
parties and to amend the pleadings;
(ii) To file and hear
motions; and
(iii) To complete
discovery.
* *
* * *
9.
In Section 2200.52, paragraph (a)(1) and paragraphs (d)
through (l) are revised and a new paragraph (m) is added to read as
follows:
§2200.52 General provisions
governing discovery.
(a)
General. (1) Methods and limitations.
In conformity with these rules, any party may, without leave of the Commission
or Judge, obtain discovery by one or more of the following methods: (i)
Production of documents or things or permission to enter upon land or other
property for inspection and other purposes (§2200.53); (ii) Requests for
admission to the extent provided in §2200.54; and (iii) Interrogatories to the extent provided in
§2200.55. Discovery is not available under these rules through depositions
except to the extent provided in §2200.56. In the absence of a specific
provision, procedure shall be in accordance with the Federal Rules of Civil
Procedure, except that the provisions of Rule 26(a) of the Federal Rules
of Civil Procedure do not apply to Commission proceedings.
* *
* * *
(d)
Privilege. (1) Claims of privilege. The initial claim of
privilege shall specify the privilege claimed and the general nature of the
material for which the privilege is claimed. In response to an order from Judge
or the Commission, or in response to a motion to compel, the claim shall: identify the information that would be
disclosed; set forth the privilege that is claimed; and allege the facts
showing that the information is privileged. The claim shall be supported by
affidavits, depositions, or testimony and shall specify the relief sought. The
claim may be accompanied by a motion for a protective order or by a motion that
the allegedly privileged information be received and the claim ruled upon in
camera, that is, with the record and hearing room closed to the public, or ex
parte, that is, without the participation of parties and their
representatives. The judge may enter an order and impose terms and conditions
on his or her examination of the claim as justice may require, including an
order designed to ensure that the allegedly privileged information not be
disclosed until after the examination is completed.
(2) Upholding or
rejecting claims of privilege. If the Judge upholds the claim of
privilege, the Judge may order and impose terms and conditions as justice may
require, including a protective order. If the Judge overrules the claim, the
person claiming the privilege may obtain as of right an order sealing from the
public those portions of the record containing the allegedly privileged
information pending interlocutory or final review of the ruling, or final
disposition of the case, by the Commission. Interlocutory review of such an
order shall be given priority consideration by the Commission.
(e) Protective
orders. In connection with any
discovery procedures and where a showing of good cause has been made, the
Commission or Judge may make any order including, but not limited to, one or
more of the following:
(1) That the discovery not
be had;
(2) That the discovery may
be had only on specified terms and conditions, including a designation of the
time or place;
(3) That the discovery may
be had only by a method of discovery other than that selected by the party
seeking discovery;
(4) That certain matters not
be inquired into, or that the scope of the discovery be limited to certain
matters;
(5) That discovery be
conducted with no one present except persons designated by the Commission or
Judge;
(6) That a deposition after
being sealed be opened only by order of the Commission or Judge;
(7) That a trade secret or
other confidential research, development, or commercial information not be
disclosed or be disclosed only in a designated way;
(8) That the parties
simultaneously file specified documents or information enclosed in sealed
envelopes to be opened as directed by the Commission or Judge.
(f) Failure to
cooperate; Sanctions. A party may apply for an order compelling discovery
when another party refuses or obstructs discovery. For purposes of this
paragraph, an evasive or incomplete answer is to be treated as a failure to
answer. If a Judge enters an order compelling discovery and there is a failure
to comply with that order, the Judge may make such orders with regard to the
failure as are just. The orders may issue upon the initiative of a Judge, after
affording an opportunity to show cause why the order should not be entered, or
upon the motion of a party. The orders may include any sanction stated in
Federal Rule of Civil Procedure 37, including the following:
(1) An order that designated
facts shall be taken to be established for purposes of the case in accordance
with the claim of the party obtaining that order;
(2) An order refusing to
permit the disobedient party to support or to oppose designated claims or
defenses, or prohibiting it from introducing designated matters in evidence;
(3) An order striking out
pleadings or parts thereof, or staying further proceedings until the order is
obeyed; and
(4) An order dismissing the
action or proceeding or any part thereof, or rendering a judgment by default
against the disobedient party.
(g) Unreasonable
delays. None of the discovery procedures
set forth in these rules shall be used in a manner or at a time which shall
delay or impede the progress of the case toward hearing status or the hearing
of the case on the date for which it is scheduled, unless, in the interests of
justice, the Judge shall order otherwise. Unreasonable delays in utilizing
discovery procedures may result in termination of the party’s right to conduct
discovery.
(h) Show cause orders. All show
cause orders issued by the Commission or Judge under paragraph (f) of this section
shall be served upon the affected party by certified mail, return receipt
requested.
(i) Supplementation
of responses. A
party who has responded to a request for discovery with a response that was
complete when made is under no duty to supplement the response to include
information thereafter acquired, except as follows:
(1) A party is under a duty
seasonably to supplement the response with respect to any question directly
addressed to:
(i) The identity and location of persons having knowledge of
discoverable matters; and
(ii) The identity of each
person expected to be called as an expert witness at the hearing, the subject
matter on which the person is expected to testify, and the substance of the
person’s testimony.
(2) A party is under a duty
seasonably to amend a prior response if the party obtains information upon the
basis of which:
(i) The party knows that the
response was incorrect when made; or
(ii) The party knows that
the response though correct when made is no longer true and the circumstances
are such that a failure to amend the response is in substance a knowing
concealment.
(3) A duty to supplement
responses may be imposed by order of the court, agreement of the parties, or at
any time prior to the hearing through new requests for supplementation of prior
responses.
(j) Filing of discovery. Requests
for production or inspection under §2200.53, requests for admission under
§2200.54 and responses thereto, interrogatories under §2200.55 and the answers
thereto, and depositions under §2200.56 shall be served upon other counsel or
parties, but shall not be filed with the Commission or the Judge. The party
responsible for service of the discovery material shall retain the original and
become the custodian.
(k) Relief from discovery requests.
If relief is sought under §§2200.101 or 2200.52(e), (f), or (g) concerning any
interrogatories, requests for production or inspection, requests for
admissions, answers to interrogatories, or responses to requests for
admissions, copies of the portions of the interrogatories, requests, answers,
or responses in dispute shall be filed with the Judge or Commission
contemporaneously with any motion filed under §§2200.101 or 2200.52(e), (f), or
(g).
(l) Use at hearing. If
interrogatories, requests, answers, responses, or depositions are to be used at
the hearing or are necessary to a prehearing motion which might result in a
final order on any claim, the portions to be used shall be filed with the Judge
or the Commission at the outset of the hearing or at the filing of the motion
insofar as their use can be reasonably anticipated.
(m) Use on review or appeal. When
documentation of discovery not previously in the record is needed for review or
appeal purposes, upon an application and order of the Judge or Commission the
necessary discovery papers shall be filed with the Executive Secretary of the
Commission.
10. In Section
2200.54, paragraphs (a) and (b) are revised to read as follows:
§2200.54 Requests for
admissions.
(a) Scope. At any
time after the filing of the first responsive pleading or motion that delays
the filing of an answer, such as a motion to dismiss, any party may serve upon
any other party written requests for admissions, for purposes of the pending
action only, of the genuineness and authenticity of any document described in
or attached to the requests, or of the truth of any specified matter of fact.
Each matter of which an admission is requested shall be separately set forth.
The number of requested admissions shall not exceed 25, including subparts,
without an order of the Commission or Judge. The party seeking to serve more
than 25 requested admissions, including subparts, shall have the burden of
persuasion to establish that the complexity of the case or the number of
citation items necessitates a greater number of requested admissions.
(b) Response to requests. Each matter is deemed
admitted unless, within 30 days after service of the requests or within such
shorter or longer time as the Commission or Judge may allow, the party to whom
the requests are directed serves upon the requesting party a written answer
specifically admitting or denying the matter involved in whole or in part, or
asserting that it cannot be truthfully admitted or denied and setting forth in
detail the reasons why this is so, or an objection, stating in detail the
reasons therefor. The response shall be made under oath or affirmation and
signed by the party or his representative.
* *
* * *
11. In Section 2200.90,
paragraph (b)(3) is revised to read as follows: §
2200.90 Decisions of judges.
* * *
* *
(b) The judge’s report. * * *
(3) Correction of errors; Relief from default.
Until the Judge’s report has been directed for review or, in the absence of a
direction for review, until the decision has become a final order, the Judge
may correct clerical errors and errors arising through oversight or
inadvertence in decisions, orders or other parts of the record. If a Judge’s
report has been directed for review, the decision may be corrected during the
pendency of review with leave of the Commission. Until the Judge’s report has
been docketed by the Executive Secretary, the Judge may relieve a party of
default or grant reinstatement under §§2200.101(b), 2200.52(f) or 2200.64(b).
* * * * *
12. In Section 2200.95, paragraphs (a) and (i)
are revised to read as follows:
§2200.95 Oral argument
before the Commission.
(a) When
ordered. Upon motion of any party, or upon its own
motion, the Commission may order oral argument. Parties requesting oral
argument must demonstrate why oral argument would facilitate resolution of the
issues before the Commission. Normally, motions for oral argument shall not be
considered until after all briefs have been filed.
* * * * *
(i) Recording oral argument.
(1) Unless the Commission
directs otherwise, oral arguments shall be electronically recorded and made
part of the record. Any other sound recording in the hearing room is
prohibited. Oral arguments shall also be transcribed verbatim. A
copy of the transcript of the oral argument taken by a qualified court
reporter, shall be filed with the Commission. The Commission shall bear all
expenses for court reporters’ fees and for copies of the hearing transcript
received by it.
(2) Persons desiring to
listen to the recordings shall make appropriate arrangements with the Executive
Secretary. Any party desiring a written copy of the transcript is responsible
for securing and paying for its copy.
(3) Error in the transcript
of the oral argument may be corrected by the Commission on its own motion, on
joint motion by the parties, or on motion by any party. The motion shall state
the error in the transcript and the correction to be made. Corrections will be
made by hand with pen and ink and by the appending of an errata sheet.
* * * *
*
13. Section 2200.101 is revised to read as
follows:
§2200.101 Failure to obey rules.
(a) Sanctions. When any party has failed to plead or
otherwise proceed as provided by these rules or as required by the Commission
or Judge, he may be declared to be in default either on the initiative of the
Commission or Judge, after having been afforded an opportunity to show cause
why he should not be declared to be in default, or on the motion of a party.
Thereafter, the Commission or Judge, in their discretion, may enter a decision
against the defaulting party or strike any pleading or document not filed in
accordance with these rules.
(b) Motion to set aside
sanctions. For reasons deemed sufficient by the
Commission or Judge and upon motion expeditiously made, the Commission or Judge
may set aside a sanction imposed under paragraph (a) of this Section. See
§2200.90(b)(3).
(c) Discovery sanctions.
This section does not apply to sanctions for failure to comply with orders
compelling discovery, which are governed by §2200.52(f).
(d) Show cause orders.
All show cause orders issued by the Commission or Judge under paragraph (a) of
this section shall be served upon the affected party by certified mail, return
receipt requested.
14. In Section 2200.105, paragraph (a) is
revised to read as follows:
§2200.105 Ex parte
communication.
(a)
General.
Except as permitted by §2200.120 or as otherwise authorized by law, there shall
be no ex parte communication with respect to the merits of any case not
concluded, between any Commissioner, Judge, employee, or agent of the
Commission who is employed in the decisional process and any of the parties or
intervenors, representatives or other interested persons.
* *
* * *
15. Section 2200.106
is revised to read as follows:
§2200.106 Amendment
to rules.
The
Commission may at any time upon its own motion or initiative, or upon written
suggestion of any interested person setting forth reasonable grounds therefor,
amend or revoke any of the rules contained herein. The Commission invites
suggestions from interested parties to amend or revoke rules of procedure. Such
suggestions should be addressed to the Executive Secretary of the Commission at
One Lafayette Centre, 1120 20th Street, N.W., Suite 980, Washington, DC
20036-3457.
16.
Section 2200.120 is revised to read as follows:
§2200.120 Settlement
Procedure
(a) Voluntary Settlement. (1) Applicability and
duration.
(i) This section applies only to notices of contests by
employers, and to applications for fees under the Equal Access to Justice Act
and 29 CFR Part 2204.
(ii) Upon motion of any party after the docketing of the
notice of contest, or otherwise with the consent of the parties at any time in
the proceedings, the Chief Administrative Law Judge may assign a case to a
Settlement Judge for proceedings under this section. In the event either the Secretary or the employer objects to the
use of a Settlement Judge procedure, such procedure shall not be imposed.
(2) Length of voluntary
settlement procedures. The
settlement procedures under this section shall be for a period not to exceed 45
days.
(b) Mandatory settlement.
(1) Applicability.
This section applies only to notices of contest by employers in which the
aggregate amount of the penalties sought by the Secretary is $100,000 or
greater.
(2) Proceedings
under this Part.
(i) Assignment of Case
and Appointment of Settlement Judge. Notwithstanding any other provisions
of these rules, upon the docketing of the notice of contest the Chief Administrative
Law Judge shall assign to the Settlement Part any case which satisfies the
criteria set forth in paragraph (1) of this subsection. The Chief
Administrative Law Judge shall appoint a Settlement Judge, who shall be a Judge
other than the one assigned to hear and decide the case, except as provided in
paragraph (f)(2) of this section.
(ii) Discovery
proceedings to be followed by Settlement Proceedings.
The Settlement Judge shall issue a discovery
scheduling order and supervise all discovery proceedings. At the conclusion of discovery the
settlement judge will conduct settlement proceedings during a period not to
exceed 60 days. If, at the conclusion
of the settlement proceedings the case has not been settled the settlement
judge shall promptly notify the Chief Administrative Law Judge in accordance
with paragraph (f) of this section.
(c) Powers
and duties of Settlement Judges. (1) The Judge shall confer
with the parties on subjects and issues of whole or partial settlement of the
case and seek resolution of as many of the issues as is feasible.
(2) The Judge may require
the parties to provide statements of the issues in controversy and the factual
predicate for each party's position on each issue and may enter other orders as
appropriate to facilitate the proceedings.
(3) In voluntary settlement
proceedings the Judge may allow or suspend discovery during the settlement
proceedings.
(4) The Judge may suggest
privately to each attorney or other representative of a party what concessions
his or her client should consider and assess privately with each attorney or
other representative the reasonableness of the party's case or settlement
position.
(5) The Judge may, with the consent of the parties, conduct such other settlement proceedings as may aid in the settlement of the case.
(d) Settlement
conference. (1) General. The Settlement Judge shall
convene and preside over conferences between the parties. Settlement
conferences may be conducted telephonically or in person. The Judge shall
designate a place and time of conference.
(2) Participation in conference. The Settlement Judge may
require that any attorney or other representative who is expected to try the
case for each party be present. The Settlement Judge may also require that the
party's representative be accompanied by an official of the party having full
settlement authority on behalf of the party. The parties and their
representatives or attorneys are expected to be completely candid with the
Settlement Judge so that he may properly guide settlement discussions. The
failure to be present at a settlement conference or otherwise to comply with
the orders of the Settlement Judge or the refusal to cooperate fully within the
spirit of this rule may result in the imposition of sanctions under§ 2200.101.
(3) Confidentiality of settlement proceedings. All statements made and all
information presented during the course of settlement proceedings under this
section shall be regarded as confidential and shall not be divulged outside of
these proceedings except with the consent of the parties. The Settlement Judge
shall issue appropriate orders to protect confidentiality of settlement
proceedings. The Settlement Judge shall not divulge any statements or
information presented during private negotiations with a party or his
representative during settlement proceedings except with the consent of that
party. No evidence of statements or
conduct in settlement proceedings under this section within the scope of Federal
Rule of Evidence 408, no notes or other material prepared by or maintained by
the Settlement Judge in connection with settlement proceedings, and no
communications between the Settlement Judge and the Chief Administrative Law
Judge in connection with settlement proceedings including the report of the
Settlement Judge under paragraph (f) of this section, will be admissible in any
subsequent hearing except by stipulation of the parties. Documents disclosed in the settlement
proceeding may not be used in litigation unless obtained through appropriate
discovery or subpoena. With respect to the Settlement Judge’s participation in
settlement proceedings, the Settlement Judge shall not discuss the merits of
the case with any other person, nor appear as a witness in any hearing of the
case.
(e)
Record of settlement proceedings.
No material of any form required to be held confidential under paragraph (d)(3)
of this section shall be considered part of the official case record required
to be maintained under 29 U.S.C. 661(g), nor shall any such material be open to
public inspection as required by section 661(g), unless the parties otherwise
stipulate. With the exception of an order approving the terms of any partial
settlement agreed to between the parties as set forth in paragraph (f)(1) of
this section, the Settlement Judge shall not file or cause to be filed in the
official case record any material in his possession relating to these
settlement proceedings, including but not limited to communications with the
Chief Administrative Law Judge and his report under paragraph (f) of this
section, unless the parties otherwise stipulate.
(f) Report of Settlement Judge.
(1) The Settlement Judge shall promptly notify the Chief
Administrative Law Judge in writing of the status of the case at the conclusion
of the settlement period or such time that he determines further negotiations
would be fruitless. If the Settlement Judge has made such a determination and a
settlement agreement is not achieved within 45 days for voluntary settlement
proceedings or 60 days for mandatory settlement proceedings, the Settlement
Judge shall then advise the Chief Administrative Law Judge in writing. The Chief Administrative Law Judge may then
in his discretion allow an additional period of time, not to exceed 30 days,
for further proceedings under this section. If at the expiration of the period
allotted under this paragraph the Settlement Judge has not approved a full
settlement, he shall furnish to the Chief Administrative Law Judge copies of
any written stipulations and orders embodying the terms of any partial
settlement the parties have reached.
(2) At the termination of
the settlement period without a full settlement, the Chief Administrative Law
Judge shall promptly assign the case to an Administrative Law Judge other than
the Settlement Judge or Chief Administrative Law Judge for appropriate action
on the remaining issues. If all the
parties, the Settlement Judge and the Chief Administrative Law Judge agree, the
Settlement Judge may be retained as the Hearing Judge.
(g)
Non-reviewability.
Notwithstanding the provisions of
§2200.73 regarding interlocutory review, any decision concerning the
assignment of any Judge and any decision by the Settlement Judge to terminate
settlement proceedings under this section is not subject to review, appeal, or
rehearing.
Subpart M- - Amended
17. In Subpart M all references to “E-Z Trial”
are revised to read “Simplified Proceedings”
18. In Section 2200.202,
paragraphs (a)(2) and (b) are revised to read as follows: §2200.202
Eligibility for Simplified Proceedings.
(a) *
* *
(2) an aggregate proposed
penalty of not more than $20,000, *
* * * *
(b) Those cases with an
aggregate proposed penalty of more than $20,000, but not more than $30,000, if
otherwise appropriate, may be selected for Simplified Proceedings at the
discretion of the Chief Administrative Law Judge.
PART 2204-[AMENDED]
1. The authority citation
for Part 2204 continues to read as follows:
Authority: 29 U.S.C. 661(g);
5 U.S.C 504(c)(1)
2. In Section 2204.105, paragraph (f) is removed.
3. In Section 2204.302 is amended by revising paragraph (a) and
removing paragraph (d): §2204.302 When
an application may be filed.
(a) An application may be
filed whenever an applicant has prevailed in a proceeding or in a discrete
substantive portion of the proceeding, but in no case later than thirty days
after the period for seeking appellate review expires.
* * * * *
_________________________
_____________
W. Scott
Railton Date
Chairman
_________________________
_____________
Thomasina V. Rogers Date
Commissioner
_________________________
_____________
James M. Stephens Date
Commissioner