§2200.5 Extension of time.
Upon motion of a party, for good cause shown, the Commission or Judge 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
(a) When service is required. At the time of filing pleadings or other documents, a copy thereof shall be served by the filing party or intervenor on every other party or intervenor. Every paper relating to discovery required to be served on a party shall be served on all parties and intervenors. Every order required by its terms to be served shall be served upon each of the parties and intervenors.
(b) Service on represented parties or intervenors. Service upon a party or intervenor who has appeared through a representative shall be made only upon such representative.
(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 (http://www.OSHRC.gov.).
(d) Proof of service. Proof of service shall be accomplished by a written statement of the same which sets forth the date and manner of service. Such statement shall be filed with the pleading or document.
(e) Proof of posting. Where service is accomplished by posting, proof of such posting shall be filed not later than the first working day following the posting.
(f) Service on represented employees. Service and notice to employees represented by an authorized employee representative shall be deemed accomplished by serving the representative in the manner prescribed in paragraph (c) of this section.
(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 20036-34193457
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.
(h) Special service requirements; Authorized employee representatives. The authorized employee representative, if any, shall be served with the notice set forth in paragraph (g) of this section and with a copy of the notice of contest.
(i) Notice of hearing to unrepresented employees. Immediately upon receipt, a copy of the notice of the hearing to be held before the Judge shall be served by the employer on affected employees who are not represented by an authorized employee representative by posting a copy of the notice of such hearing at or near the place where the citation is required to be posted.
(j) Notice of hearing to represented employees. Immediately upon receipt, a copy of the notice of the hearing to be held before the Judge shall be served by the employer on the authorized employee representative of affected employees in the manner prescribed in paragraph (c) of this section, if the employer has not been informed that the authorized employee representative has entered an appearance as of the date such notice is received by the employer.
(k) Employee contest; Service on other employees. Where a notice of contest is filed by an affected employee who is not represented by an authorized employee representative and there are other affected employees who are represented by an authorized employee representative, the unrepresented employee shall, upon receipt of the statement filed in conformance with §2200.38, serve a copy thereof on such authorized employee representative in the manner prescribed in paragraph (c) of this section and shall file proof of such service.
(l) Employee contest; Service on employer. Where a notice of contest is filed by an affected employee or an authorized employee representative, a copy of the notice of contest and response filed in support thereof shall be provided to the employer for posting in the manner prescribed in paragraph (g) of this section.
(m) Employee contest; Service on other authorized employee representatives. An authorized employee representative who files a notice of contest shall be responsible for serving any other authorized employee representative whose members are affected employees.
(n) Duration of posting. Where posting is required by this section, such posting shall be maintained until the commencement of the hearing or until earlier disposition.
(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 20036-34193457. 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, all filing may be accomplished by postage-prepaid first class mail or by personal delivery.
(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) Filing date. Except for
the documents listed in paragraph (e)(2) of this section, Ffiling
is effective upon mailing (if by mail),
or
upon receipt by the Commission, (if filing is by
personal delivery, overnight delivery service, or facsimile
transmission or electronic transmission), except that
the filing of petitions for discretionary review is effective only upon receipt
by the Commission. See §2200.91
(2) Filing is effective upon receipt for requests for
interlocutory reviews (§2200.73(b)), petitions for discretionary reviews
(§2200.91), and EAJA applications (§2204.301).
(3) Counsel and the parties shall have sole
responsibility for insuring 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 the original.
(2) All facsimile transmissions shall include a facsimile of the appropriate certificate of service.
(3) Within 3
days after the Commission or the Judge has received the facsimile, the party
filing the document shall forward to the Commission or the Judge a signed,
original document and, where appropriate, the proper number of multiple copies.
(43) 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 (http://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 both 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.
§2200.11
Protection of Claims of Privilege [Removed and Reserved][Relocated, in
part, to rule 52]
§2200.22 Representation of parties and intervenors.
(a) Representation. Any party
or intervenor may appear in person, through an attorney, or through another
representative who is not an attorney. A representative must file an appearance
in accordance with §2200.23. In the absence of an appearance by a
representative, a party or intervenor will be deemed to appear for himself. A
corporation or unincorporated association may be represented by an authorized
officer or agent.
(a) (1) Representation. Any party or
intervenor may appear in person, through an attorney or, when a case is heard
in simplified proceedings, through another representative who is not an
attorney.
(2) Attorneys. Attorneys admitted to practice before the
highest court of any State, Territory, District, Commonwealth, or possession of
the United States, and in good standing, are permitted to practice before the
Commission.
(3) Other
persons. A person who is not authorized to practice before the Commission
as an attorney under paragraph (a)(1) of this section may practice before the
Commission as a representative of a party if he is:
(i) A party;
(ii) An
affected employee;
(iii) An
owner, partner, officer, or employee of a party when the party is a labor
organization, a partnership, a corporation, or other business entity.
(4) A
representative must file an appearance in accordance with §2200.23. In the
absence of an appearance by a representative, a party or intervenor will be
deemed to appear for him or herself.
* *
* * *
§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 §2200.41101
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.
§2200.41 Failure To Obey Rules (Removed and
Reserved][Contents Relocated to Rule 101]
§2200.51 Prehearing conferences and orders.
(a) Scheduling
conference. (1) The Judge shall 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.
(2) The scheduling order also may include:
(i) The date or dates for conferences before hearing, a
final prehearing conference, and hearing; and
(ii) Any other matters appropriate to the circumstances of the case.
§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.
(2) Time for discovery. A party may initiate all forms of discovery in
conformity with these Rules 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. Discovery shall be initiated early enough to permit
completion of discovery no later than seven days prior to the date set for
hearing, unless the Judge orders otherwise.
(3) Service of discovery papers. Every paper relating to discovery
required to be served on a party shall be served on all parties.
(b) Scope of discovery. The information or response sought through discovery may concern any matter that is not privileged and that is relevant to the subject matter involved in the pending case. It is not ground for objection that the information or response sought will be inadmissible at the hearing, if the information or response appears reasonably calculated to lead to discovery of admissible evidence, regardless of which party has the burden of proof.
(c) Limitations. The frequency or extent of the discovery methods provided by these rules may be limited by the Commission or Judge if it is determined that: (1) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (2) the party seeking discovery has had ample opportunity to obtain the information sought by discovery in the action; or (3) the discovery is unduly burdensome or expensive, taking into account the needs of the case, limitations on the parties' resources, and the importance of the issues in litigation.
(d) 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.
(d) Privilege.
(1) Claims of privilege. A person claiming that information is
privileged shall claim the privilege in writing or, if during a hearing, on the
record. 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
alleged privileged information not be disclosed until after the examination is
completed.
(2) Deliberative process privilege. A claim that the information sought is
privileged because it is part of the “deliberative process” is subject to the
same conditions as other claims of privilege as set out in paragraph (d)(1) of
this section.
(3) 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.
(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.
(ef)
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 Fed.R.Civ.P.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.
(fg)
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.
(gh)
Show cause orders. All show cause orders issued by the Commission or
Judge under paragraph (e) of this section shall be served upon the affected
party by certified mail, return receipt requested.
(hi)
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.
(ij)
Filing of discovery. Requests for production or inspection under Rule
53, requests for admission under Rule 54 and responses thereto, interrogatories
under Rule 55 and the answers thereto, and depositions under Rule 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.
(j)k
Relief from discovery requests. If relief is sought under Rules 41101
or 52(de),
(ef),
or (fg)
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 Rules 41101
or 52(de),
(ef),
or (fg).
(kl)
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.
(lm)
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.
§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. 41101(b),
2200.52(ef)
or 2200.64(b).
§2200.95 Oral argument before the Commission.
(a) When ordered.
(1) Upon motion of any party, or upon its own motion, the Commission may order
oral argument. 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. Upon leave of the Commission,
any party, at its own expense, may arrange for a qualified court reporter to be
present and to report and transcribe oral arguments. A copy of the transcript
shall be provided to the Commission by the ordering party and shall be filed
with the Executive Secretary. 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.
§2200.101
Settlement Judge procedure
[Current Rule is revoked in its
entirety, and replaced with the following]
§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.
§2200.120 Settlement part.
(a) Applicability.
(1)This
section applies only to:
(i)Nnotices
of contest by employers in which the aggregate amount of the penalties sought
by the Secretary is $200,000 100,000or greater
and notices of contest by employers which are determined to be suitable for assignment
under this section for reasons deemed appropriate by the Chief Administrative
Law Judge.
(ii) Upon motion of any party
following 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 processing under this section
whenever it is determined that there is a reasonable prospect of substantial
settlement with the assistance of mediation by a Settlement Judge.
(2) In the event either the
Secretary or the employer objects to the use of a Settlement Judge procedure,
such procedure shall not be imposed. This clause applies only to
notices of contest by employers and to applications for fees under the Equal
Access to Justice Act and 29 CFR Part 2204.
(b) Proceedings under
this Part. Notwithstanding any other provisions of these rules, upon the docketing
of the notice of contest or at such other time as he deems appropriate completion of
discoverythe Chief Administrative Law Judge shall assign to the
Settlement Part any case which satisfies the criteria set forth in paragraph
(a)(i)(i)
of this section. The Chief Administrative Law Judge shall either act as or
appoint a Settlement Part 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), to conduct proceedings under the Settlement Part as set
forth in this section.
* * *
(c) Powers and duties
of Settlement Part Judges.
* * *
(6) Mini-Hearing.
Where the Settlement Judge finds that it may help narrow the issues, he or
she may order the parties to participate in a mini-hearing. The confidentiality
rules of paragraph (d)(3) of this Section shall apply to the mini-hearing.
(d) Settlement conference.
* * *
(2) Participation in conference. The Settlement
Part Judge may require that any attorney or other representative who is
expected to try the case for each party be present. The Settlement Part 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 Part 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 Part Judge or the refusal to
cooperate fully within the spirit of this rule may result in the imposition of
sanctions under Sec. 2200.41101.
(3) Confidentiality. All statements made, and all information
presented, during the course of 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 Part Judge shall if
necessary issue appropriate orders in accordance with Sec. 2200.1152(e)
to protect confidentiality. The Settlement Part Judge shall not divulge any
statements or information presented during private negotiations with a party or
his representative except with the consent of that party. No evidence of
statements or conduct in 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 Part Judge, and no communications between the Settlement Part
Judge and the Chief Administrative Law Judge including the report of the
Settlement Part 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 process may not be used in litigation unless
obtained through appropriate discovery of subpoena. The Settlement Part Judge
shall not discuss the merits of the case with any other person, nor appear as a
witness in any hearing of the case.
* * *
(f) Report of Settlement Part Judge. (1) The Settlement Part Judge shall promptly notify the Chief Administrative Law Judge in writing of the status of the case at such time that he determines further negotiations would be fruitless. If the Settlement Part Judge has not made such a determination and a settlement agreement is not achieved within 120 days following assignment of the case to the Settlement Part Judge, the Settlement Part Judge shall then advise the Chief Administrative Law Judge in writing of his assessment of the likelihood that the parties could come to a settlement agreement if they were afforded additional time for settlement discussions and negotiations. 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 Part Judge has not approved a full settlement pursuant to Sec. 2200.100, 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 Part 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 Part Judge may be retained as the hearing judge.
Subpart M Simplified Proceedings
[All references in this Subpart
to “E-Z Trial” are changed
to “Simplified Proceedings”.
§2200.202
Eligibility for E-Z Trial Simplified Proceedings..
(a) Those cases selected
for E-Z Trial will be those that do not involve complex issues of law or fact.
Cases appropriate for E-Z Trial would generally include those with one or more
of the following characteristics:
* * *
(2)
an aggregate proposed penalty of not more than $10,000 20,000,
* * *
b) Those cases with an
aggregate proposed penalty of more than $10,000 20,000,
but not more than $20,000 30,000, if
otherwise appropriate, may be selected for E-Z Trial at the discretion of the
Chief Administrative Law Judge.
Part 22204 Equal Access to Justice Act
§2204.105
Eligibility of applicants
* * *
(f) The net worth and number of
employees of the applicant and all of its affiliates shall be aggregated to
determine eligibility. Any individual, corporation, or other entity that
directly or indirectly controls or owns a majority of the voting shares or
other interest of the applicant, or any corporation or other entity of which the
applicant directly or indirectly owns or controls a majority of the voting
shares or other interest, will be considered an affiliate for the purposes of
this part, unless such treatment would be unjust and contrary to the purposes
of the EAJA in light of the actual relationship between the affiliated
entities. In addition, financial relationships of the applicant other than
those described in this paragraph may constitute special circumstances that
would make an award unjust.
§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 Commission's final disposition of the proceeding. period for
seeking review in a court of appeals expires.
* * *
(d) For purposes of this
section, the date of final disposition is:
(1) The date on which the order of the Judge
disposing of the case becomes final under section 12(j) of the OCCUPATIONAL
SAFETY AND HEALTH ACT Act, 29 U.S.C. 661(I); or
(2) The date on which the order of the Commission affirming, modifying or
vacating the Secretary's citation or proposed penalty or directing other
appropriate relief becomes final under section 10(c) of the OCCUPATIONAL SAFETY
AND HEALTH ACT Act, 29 U.S.C. 659(c).