[Federal Register: May 3, 2005 (Volume 70, Number 84)]
[Rules and Regulations]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
29 CFR Parts 2200 and 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
DATES: These revised rules will 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
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 outweighted 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
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 tax, 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 entered 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
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
Judged 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 recognizes the ``deliberative process
privilege'' and believes that it should be treated as would any other
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
5. Oral Argument
The Commisssion 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
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 minimum of $10,000 to $20,000, and commensurately raising the
limit for cases that the Chief Administrative Law Judge has discretion
to assign to Simplified Proceedings from a maximum of $20,000 to
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
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
29 CFR Part 2204
Administrative practice and procedure. Equal access to justice.
Text 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:
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:
Sec. 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
Sec. 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
* * * * *
(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,
NW., 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
* * * * *
4. Section 2200.8 is revised to read as follows:
Sec. 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, NW., 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 Sec. 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
(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
(2) Filing is effective upon receipt for petitions for
interlocutory review (Sec. 2200.73(b)), petitions for discretionary
review (Sec. 2200.91), and EAJA applications (Sec. 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
(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,
(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
(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
(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
handwritten 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
(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.
Sec. 2200.11 [Removed]
5. Section 2200.11 is removed and reserved.
6. Section 2200.32 is revised to read as follows:
Sec. 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 Sec. 2200.101 or Sec.
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-
Sec. 2200.41 [Removed]
7. Section 2200.41 is removed and reserved.
8. In Section 2200.51, paragraph (a)(1) is revised to read as follows:
Sec. 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:
Sec. 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 (Sec.
(ii) Requests for admission to the extent provided in Sec.
(iii) Interrogatories to the extent provided in Sec. 2200.55.
Discovery is not available under these rules through depositions except
to the extent provided in Sec. 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
* * * * *
(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
(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
(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
(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
Sec. 2200.53, requests for admission under Sec. 2200.54 and responses
thereto, interrogatories under Sec. 2200.55 and the answers thereto,
and depositions under Sec. 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
Sec. Sec. 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 Sec. Sec. 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
10. In Section 2200.54, paragraphs (a) and (b) are revised to read as
Sec. 2200.54 Request 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
* * * * *
11. In Section 2200.90, paragraph (b)(3) is revised to read as follows:
Sec. 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
Sec. Sec. 2200.101(b), 2200.52(f) or 2200.64(b).
* * * * *
12. In Section 2200.95, paragraphs (a) and (i) are revised to read as
Sec. 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
* * * * *
(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:
Sec. 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 Sec. 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 Sec. 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:
Sec. 2200.105 Ex parte communication.
(a) General. Except as permitted by Sec. 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:
Sec. 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
1120 20th Street, NW., Suite 980, Washington, DC 20036-3457.
16. Section 2200.120 is revised to read as follows:
Sec. 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
(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
(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 (b)(1) of this
section. 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
(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
(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
(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 Sec. 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
(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 Sec.
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.
17. In Subpart M all references to ``E-Z Trail'' are revised to read
18. In Section 2200.202, paragraphs (a)(2) and (b) are revised to read
Sec. 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.
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)
Sec. 2204.105 [Amended]
2. In Section 2204.105, paragraph (f) is removed.
3. In Section 2204.302 is amended by revising paragraph (a) and
removing paragraph (d) to read as follows:
Sec. 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.
* * * * *
Dated: April 27, 2005.
W. Scott Railton,
Dated: April 27, 2005.
Thomasina V. Rogers,
Dated: April 27, 2005.
James M. Stephens,
[FR Doc. 05-8744 Filed 5-2-05; 8:45 am]
BILLING CODE 7600-01-M