29 C.F.R. PART 2200—RULES OF PROCEDURE
Title 29 - Labor
Authority: 29 U.S.C. 661(g), unless otherwise noted.
Section 2200.96 is also issued under 28 U.S.C. 2112(a). Source: 51 FR 32015, Sept. 8, 1986, unless otherwise noted.
As used herein: (a) Act means the Occupational Safety and Health Act of 1970, 29 U.S.C. 651–678. (b) Commission, person, employer, and employee have the meanings set forth in section 3 of the Act. (c) Secretary means the Secretary of Labor or his duly authorized representative. (d) Executive Secretary means the Executive Secretary of the Commission. (e) Affected employee means an employee of a cited employer who is exposed to or has access to the hazard arising out of the allegedly violative circumstances, conditions, practices or operations. (f) Judge means an Administrative Law Judge appointed by the Chairman of the Commission pursuant to section 12(j) of the Act, 29 U.S.C. 661(j), as amended by Pub. L. 95–251, 92 Stat. 183, 184 (1978). (g) Authorized employee representative means a labor organization that has a collective bargaining relationship with the cited employer and that represents affected employees. (h) Representative means any person, including an authorized employee representative, authorized by a party or intervenor to represent him in a proceeding. (i) Citation means a written communication issued by the Secretary to an employer pursuant to 9(a) of the Act. (j) Notification of proposed penalty means a written communication issued by the Secretary to an employer pursuant to 10 (a) or (b) of the Act. (k) Day means a calendar day. (l) Working day means all days except Saturdays, Sundays, or Federal holidays. (m) Proceeding means any proceeding before the Commission or before a Judge. (n) Pleadings are complaints and answers filed under §2200.34, statements of reasons and contestants' responses filed under §2200.38, and petitions for modification of abatement and objecting parties' responses filed under §2200.37. A motion is not a pleading within the meaning of these rules. (a) Scope. These rules shall govern all proceedings before the Commission and its Judges. (b) Applicability of Federal Rules of Civil Procedure. In the absence of a specific provision, procedure shall be in accordance with the Federal Rules of Civil Procedure. (c) Construction. These rules shall be construed to secure an expeditious, just and inexpensive determination of every case. (a) Number. Words importing the singular number may extend and be applied to the plural and vice versa. (b) Gender. Words importing the masculine gender may be applied to the feminine gender. (a) Computation. In computing any period of time prescribed or allowed in these rules, the day from which the designated period begins to run shall not be included. The last day of the period so computed shall be included unless it is a Saturday, Sunday or Federal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday, or Federal holiday. When the period of time prescribed or allowed is less than 11 days, the period shall commence on the first day which is not a Saturday, Sunday, or Federal holiday, and intermediate Saturdays, Sundays, and Federal holidays shall likewise be excluded from the computation. (b) Service by mail. Where service of a document, including documents issued by the Commission or Judge, is made by mail pursuant to §2200.7, a separate period of 3 days shall be allowed, in addition to the prescribed period, for the filing of a response. This additional 3-day period shall commence on the calendar day following the day on which service has been made and shall include all calendar days; that is, paragraph (a) of this section shall not apply to the extent it requires the exclusion of Saturdays, Sundays, or Federal holidays. The prescribed period for the responsive filing shall commence on the first day following the expiration of the 3-day period, except when the prescribed period is less than 11 days. Where the period is less than 11 days, it shall commence on the first day following the expiration of the 3-day period that is not a Saturday, Sunday, or Federal holiday. (c) Exclusion. Paragraph (b) of this section does not apply to petitions for discretionary review. The period of time for filing a petition for discretionary review is governed by §2200.91(b). [57 FR 41683, Sept. 11, 1992] 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. [70 FR 22787, May 3, 2005] Every pleading or document filed by any party or intervenor shall contain the name, current address and telephone number of his representative or, if he has no representative, his own name, current address and telephone number. Any change in such information shall be communicated promptly in writing to the Judge, or the Executive Secretary if no Judge has been assigned, and to all other parties and intervenors. A party or intervenor who fails to furnish such information shall be deemed to have waived his right to notice and service under these rules. [51 FR 32015, Sept. 8, 1986; 52 FR 13831, Apr. 27, 1987] (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) 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. [51 FR 32015, Sept. 8, 1986; 52 FR 13831, Apr. 27, 1987, as amended at 57 FR 41684, Sept. 11, 1992; 58 FR 26065, Apr. 30, 1993; 62 FR 35963, July 3, 1997; 70 FR 22787, May 3, 2005; 70 FR 25652, May 13, 2005] (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 §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 (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 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 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 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. [70 FR 22787, May 3, 2005; 70 FR 25652, May 13, 2005] Cases may be consolidated on the motion of any party, on the Judge's own motion, or on the Commission's own motion, where there exist common parties, common questions of law or fact or in such other circumstances as justice or the administration of the Act require. [51 FR 32015, Sept. 8, 1986; 52 FR 13831, Apr. 27, 1987; 52 FR 19631, May 26, 1987] Upon its own motion, or upon motion of any party or intervenor, where a showing of good cause has been made by the party or intervenor, the Commission or the Judge may order any proceeding severed with respect to some or all claims or parties. [57 FR 41684, Sept. 11, 1992] (a) Citing decisions by Commission and Judges—(1) Generally. Parties citing decisions by the Commission should include in the citation the name of the employer, a citation to either the Bureau of National Affairs' Occupational Safety and Health Cases (“BNA OSHC”) or Commerce Clearing House's Occupational Safety and Health Decisions (“CCH OSHD”), the OSHRC docket number and the year of the decision. For example, Clement Food Co., 11 BNA OSHC 2120 (No. 80–607, 1984). (2) Parenthetical statements. When citing the decision of a Judge, the digest of an opinion, or the opinion of a single Commissioner, a parenthetical statement to that effect should be included. For example, Rust Engineering Co., 1984 CCH OSHD ¶27,023 (No. 79–2090, 1984) (view of Chairman ___), vacating direction for review of 1980 CCH OSHD ¶24,269 (1980) (ALJ) (digest). (3) Additional reference to OSAHRC Reports optional. A parallel reference to the Commission's official reporter, OSAHRC Reports, which prints the full text of all Commission and Judges' decisions in microfiche form, may also be included. For example, Texaco, Inc., 80 OSAHRC 74/B1, 8 BNA OSHC 1758 (No. 77–3040, 1980). See generally 29 CFR 2201.4(c) (on OSAHRC Reports). (b) References to court decisions—(1) Parallel references to BNA and CCH reporters. When citing a court decision, a parallel reference to either the Bureau of National Affairs' Occupational Safety and Health Cases (“BNA OSHC”) or Commerce Clearing House's Occupational Safety and Health Decisions (“CCH OSHD”) is desirable. For example, Simplex Time Recorder Co. v. Secretary of Labor, 766 F.2d 575, 12 BNA OSHC 1401 (D.C. Cir. 1985); Deering Milliken, Inc. v. OSHRC, 630 F.2d 1094, 1980 CCH OSHD ¶24,991 (5th Cir. 1980). (2) Name of employer to be indicated. When a court decision is cited in which the first-listed party on each side is either the Secretary of Labor (or the name of a particular Secretary of Labor), the Commission, or a labor union, the citation should include in parenthesis the name of the employer in the Commission proceeding. For example, Donovan v. Allied Industrial Workers (Archer Daniels Midland Co.), 760 F.2d 783, 12 BNA OSHC 1310 (7th Cir. 1985); Donovan v. OSHRC (Mobil Oil Corp.), 713 F.2d 918, 1983 CCH OSHD ¶26,627 (2d Cir. 1983). [51 FR 32015, Sept. 8, 1986; 52 FR 13831, Apr. 27, 1987] (a) Affected employees. Affected employees and authorized employee representatives may elect party status concerning any matter in which the Act confers a right to participate. The election shall be accomplished by filing a written notice of election at least 10 days before the hearing. A notice of election filed less than ten days prior to the hearing is ineffective unless good cause is shown for not timely filing the notice. A notice of election shall be served on all other parties in accordance with §2200.7. (b) Employee contest. Where a notice of contest is filed by an employee or by an authorized employee representative with respect to the reasonableness of the period for abatement of a violation, the employer charged with the responsibility of abating the violation may elect party status by a notice filed at least ten days before the hearing. A notice filed less than ten days prior to the hearing is ineffective unless good cause is shown for not timely filing the notice. [51 FR 32015, Sept. 8, 1986, as amended at 57 FR 41684, Sept. 11, 1992] (a) When allowed. A petition for leave to intervene may be filed at any time prior to ten days before commencement of the hearing. A petition filed less than ten days prior to the commencement of the hearing will be denied unless good cause is shown for not timely filing the petition. A petition shall be served on all parties in accordance with §2200.7. (b) Requirements of petition. The petition shall set forth the interest of the petitioner in the proceeding and show that the participation of the petitioner will assist in the determination of the issues in question, and that the intervention will not unduly delay the proceeding. (c) Granting of petition. The Commission or Judge may grant a petition for intervention to such an extent and upon such terms as the Commission or the Judge shall determine. (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. (b) Affected employees in collective bargaining unit. Where an authorized employee representative (see §2200.1(g)) elects to participate as a party, affected employees who are members of the collective bargaining unit may not separately elect party status. If the authorized employee representative does not elect party status, affected employees who are members of the collective bargaining unit may elect party status in the same manner as affected employees who are not members of the collective bargaining unit. See paragraph (c) of this section. (c) Affected employees not in collective bargaining unit. Affected employees who are not members of a collective bargaining unit may elect party status under §2200.20(a). If more than one employee so elects, the Judge shall provide for them to be treated as one party. (d) Control of proceeding. A representative of a party or intervenor shall be deemed to control all matters respecting the interest of such party or intervenor in the proceeding. [51 FR 32015, Sept. 8, 1986; 52 FR 13831, Apr. 27, 1987] (a) Entry of appearance—(1) General. A representative of a party or intervenor shall enter an appearance by signing the first document filed on behalf of the party or intervenor in accordance with paragraph (a)(2) of this section, or thereafter by filing an entry of appearance in accordance with paragraph (a)(3) of this section. (2) Appearance in first document or pleading. If the first document filed on behalf of a party or intervenor is signed by a representative, he shall be recognized as representing that party. No separate entry of appearance by him is necessary, provided the document contains the information required by §2200.6. (3) Subsequent appearance. Where a representative has not previously appeared on behalf of a party or intervenor, he shall file an entry of appearance with the Executive Secretary, or Judge if the case has been assigned. The entry of appearance shall be signed by the representative and contain the information required by §2200.6. (b) Withdrawal of counsel. Any counsel or representative of record desiring to withdraw his appearance, or any party desiring to withdraw the appearance of counsel or representative of record for him, must file a motion with the Commission or Judge requesting leave therefor, and showing that prior notice of the motion has been given by him to his client or counsel or representative, as the case may be. The motion of counsel to withdraw may, in the discretion of the Commission or Judge, be denied where it is necessary to avoid undue delay or prejudice to the rights of a party or intervenor. The brief of an amicus curiae may be filed only by leave of the Judge or Commission. The brief may be conditionally filed with the motion for leave. A motion for leave shall identify the interest of the applicant and shall state the reasons why a brief of an amicus curiae is desirable. Any amicus curiae shall file its brief within the time allowed the party whose position the amicus will support unless the Judge or Commission, for good cause shown, grants leave for later filing. In that event, the Judge or Commission shall specify within what period an opposing party may answer. [57 FR 41684, Sept. 11, 1992] (a) Format. Pleadings and other documents (other than exhibits) shall be typewritten, double spaced, on letter size opaque paper (approximately 8 (b) Clarity. Each allegation or response of a pleading or motion shall be simple, concise and direct. (c) Separation of claims. Each allegation or response shall be made in separate numbered paragraphs. Each paragraph shall be limited as far as practicable to a statement of a single set of circumstances. (d) Adoption by reference. Statements in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in any motion. A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes. (e) Alternative pleading. A party may set forth two or more statements of a claim or defense alternatively or hypothetically. When two or more statements are made in the alternative and one of them would be sufficient if made independently, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. A party may state as many separate claims or defenses as he has regardless of their consistency or the grounds on which based. All statements shall be made subject to the signature requirements of §2200.32. (f) Content of motions and miscellaneous pleadings. A motion shall contain a caption complying with §2200.31, a signature complying with §2200.32, and a clear and plain statement of the relief that is sought together with the grounds therefor. These requirements also apply to any pleading not governed by more specific requirements in this subpart. (g) Burden of persuasion. The rules of pleading established by this subpart are not determinative in deciding which party bears the burden of persuasion on an issue. By pleading a matter affirmatively, a party does not waive its right to argue that the burden of persuasion on the matter is on another party. (h) Enforcement of pleading rules. The Commission or the Judge may refuse for filing any pleading or motion that does not comply with the requirements of this subpart. [51 FR 32015, Sept. 8, 1986, as amended at 57 FR 41685, Sept. 11, 1992] (a) Notice of contest cases. Cases initiated by a notice of contest shall be titled:
Secretary of Labor, v. (Name of Contestant), (b) Petitions for modification of abatement period. Cases initiated by a petition for modification of the abatement period shall be titled:
(Name of employer), v. Secretary of Labor, (c) Location of title. The titles listed in paragraphs (a) and (b) of this section shall appear at the left upper portion of the initial page of any pleading or document (other than exhibits) filed. (d) Docket number. The initial page of any pleading or document (other than exhibits) shall show, at the upper right of the page, opposite the title, the docket number, if known, assigned by the Commission. 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. [70 FR 22788, May 3, 2005; 70 FR 25652, May 13, 2005] Within 15 working days after receipt of— (a) Notification that the employer intends to contest a citation or proposed penalty under section 10(a) of the Act, 29 U.S.C. 659(a); or (b) Notification that the employer wishes to contest a notice of a failure to abate or a proposed penalty under section 10(b) of the Act, 29 U.S.C. 659(b); or (c) A notice of contest filed by an employee or representative of employees under section 10(c) of the Act, 29 U.S.C. 659(c), the Secretary shall notify the Commission of the receipt in writing and shall promptly furnish to the Executive Secretary of the Commission the original of any documents or records filed by the contesting party and copies of all other documents or records relevant to the contest. [51 FR 32015, Sept. 8, 1986; 52 FR 13831, Apr. 27, 1987] (a) Complaint. (1) The Secretary shall file a complaint with the Commission no later than 20 days after receipt of the notice of contest. (2) The complaint shall set forth all alleged violations and proposed penalties which are contested, stating with particularity: (i) The basis for jurisdiction; (ii) The time, location, place, and circumstances of each such alleged violation; and (iii) The considerations upon which the period for abatement and the proposed penalty of each such alleged violation are based. (3) Where the Secretary seeks in his complaint to amend his citation or proposed penalty, he shall set forth the reasons for amendment and shall state with particularity the change sought. (b) Answer. (1) Within 20 days after service of the complaint, the party against whom the complaint was issued shall file an answer with the Commission. (2) The answer shall contain a short and plain statement denying those allegations in the complaint which the party intends to contest. Any allegation not denied shall be deemed admitted. (3) The answer shall include all affirmative defenses being asserted. Such affirmative defenses include, but are not limited to, “infeasibility,” “unpreventable employee misconduct,” and “greater hazard.” (4) The failure to raise an affirmative defense in the answer may result in the party being prohibited from raising the defense at a later stage in the proceeding, unless the Judge finds that the party has asserted the defense as soon as practicable. [57 FR 41685, Sept. 11, 1992] (a) General. All answers, petitions for modification of abatement period, or other initial pleadings filed under these rules by a corporation shall be accompanied by a separate declaration listing all parents, subsidiaries, and affiliates of that corporation or stating that the corporation has no parents, subsidiaries, or affiliates, whichever is applicable. (b) Failure to disclose. The Commission or Judge in its discretion may refuse to accept for filing an answer or other initial pleading that lacks the disclosure declaration required by this paragraph. A party that fails to file an adequate declaration may be held in default after being given an opportunity to show cause why it should not be held in default. (c) Continuing duty to disclose. A party subject to the disclosure requirement of this paragraph has a continuing duty to notify the Commission or the Judge of any change in the information on the disclosure declaration until the Commission issues a final order disposing of the proceeding. (d) Show cause orders. All show cause orders issued by the Commission or Judge under paragraph (b) of this section shall be served upon the affected party by certified mail, return receipt requested. [57 FR 41685, Sept. 11, 1992] (a) Grounds for modifying abatement date. An employer may file a petition for modification of abatement date when such employer has made a good faith effort to comply with the abatement requirements of a citation, but such abatement has not been completed because of factors beyond the employer's reasonable control. (b) Contents of petition. A petition for modification of abatement date shall be in writing and shall include the following information: (1) All steps taken by the employer, and the dates of such action, in an effort to achieve compliance during the prescribed abatement period. (2) The specific additional abatement time necessary in order to achieve compliance. (3) The reasons such additional time is necessary, including the unavailability of professional or technical personnel or of materials and equipment, or because necessary construction or alteration of facilities cannot be completed by the original abatement date. (4) All available interim steps being taken to safeguard the employees against the cited hazard during the abatement period. (c) When and where filed; Posting requirement; Responses to petition. A petition for modification of abatement date shall be filed with the Area Director of the United States Department of Labor who issued the citation no later than the close of the next working day following the date on which abatement was originally required. A later-filed petition shall be accompanied by the employer's statement of exceptional circumstances explaining the delay. (1) A copy of such petition shall be posted in a conspicuous place where all affected employees will have notice thereof or near each location where the violation occurred. The petition shall remain posted for a period of 10 days. (2) Affected employees or their representatives may file an objection in writing to such petition with the aforesaid Area Director. Failure to file such objection within 10 working days of the date of posting of such petition shall constitute a waiver of any further right to object to said petition. (3) The Secretary or his duly authorized agent shall have the authority to approve any uncontested petition for modification of abatement date filed pursuant to paragraphs (b) and (c) of this section. Such uncontested petitions shall become final orders pursuant to sections 10 (a) and (c) of the Act. (4) The Secretary or his authorized representative shall not exercise his approval power until the expiration of 15 working days from the date the petition was posted pursuant to paragraphs (c)(1) and (2) of this section by the employer. (d) Contested petitions. Where any petition is objected to by the Secretary or affected employees, such petition shall be processed as follows: (1) The Secretary shall forward the petition, citation and any objections to the Commission within 10 working days after the expiration of the 15 working day period set out in paragraph (c)(4) of this section. (2) The Commission shall docket and process such petitions as expedited proceedings as provided for in §2200.103 of this part. (3) An employer petitioning for a modification of the abatement period shall have the burden of proving in accordance with the requirements of section 10(c) of the Act, 29 U.S.C. 659(c), that such employer has made a good faith effort to comply with the abatement requirements of the citation and that abatement has not been completed because of factors beyond the employer's control. (4) Where the petitioner is a corporation, it shall file a separate declaration listing all parents, subsidiaries, and affiliates of that corporation or stating that the corporation has no parents, subsidiaries, or affiliates, whichever is applicable, within 10 working days after the receipt of notice of the docketing by the Commission of the petition for modification of the abatement date. The requirements set forth in §2200.36(c)(2)–(c)(4) shall apply. (5) Each objecting party shall file a response setting forth the reasons for opposing the abatement date requested in the petition, within 10 working days after the receipt of notice of the docketing by the Commission of the petition for modification of the abatement date. [51 FR 32015, Sept. 8, 1986; 52 FR 13832, Apr. 27, 1987, as amended at 55 FR 22782, June 4, 1990] (a) Secretary's statement of reasons. Where an affected employee or authorized employee representative files a notice of contest with respect to the abatement period, the Secretary shall, within 10 days from his receipt of the notice of contest, file a clear and concise statement of the reasons the abatement period prescribed by him is not unreasonable. (b) Response to Secretary's statement. Not later than 10 days after receipt of the statement referred to in paragraph (a) of this section, the contestant shall file a response. (c) Expedited proceedings. All contests under this section shall be handled as expedited proceedings as provided for in §2200.103 of this part. At any time prior to the commencement of the hearing before the Judge, any person entitled to appear as a party, or any person who has been granted leave to intervene, may file a statement of position with respect to any or all issues to be heard. The Judge may order the filing of a statement of position. (a) How to make. A request for an order shall be made by motion. Motions shall be in writing or, unless the Judge directs otherwise, may be made orally during a hearing on the record and shall be included in the transcript. In exigent circumstances in cases pending before Judges, a motion may be made telephonically if it is reduced to writing and filed as soon as possible but no later than 3 working days following the time the motion was made. A motion shall state with particularity the grounds on which it is based and shall set forth the relief or order sought. A motion shall not be included in another document, such as a brief or a petition for discretionary review, but shall be made in a separate document. Prior to filing a motion, the moving party shall confer or make reasonable efforts to confer with the other parties and shall state in the motion if any other party opposes or does not oppose the motion. (b) When to make. A motion filed in lieu of an answer pursuant to §2200.34(b) shall be filed no later than twenty days after the service of the complaint. Any other motion shall be made as soon as the grounds therefor are known. (c) Responses. Any party or intervenor upon whom a motion is served shall have ten days from service of the motion to file a response. A procedural motion may be ruled upon prior to the expiration of the time for response; a party adversely affected by the ruling may within five days of service of the ruling seek reconsideration. (d) Postponement not automatic upon filing of motion. The filing of a motion, including a motion for a postponement, does not automatically postpone a hearing. See §2200.62 with respect to motions for postponement. [51 FR 32015, Sept. 8, 1986; 52 FR 13832, Apr. 27, 1987, as amended at 57 FR 41685, Sept. 11, 1992; 62 FR 35963, July 3, 1997] (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. (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. (b) Prehearing conference. In addition to the prehearing procedures set forth in Rule 16 of the Federal Rules of Civil Procedure, the Judge may upon his own initiative or on the motion of a party direct the parties to confer among themselves to consider settlement, stipulation of facts, or any other matter that may expedite the hearing. [57 FR 41685, Sept. 11, 1992, as amended at 70 FR 22788, May 3, 2005] (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) 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. [51 FR 32015, Sept. 8, 1986; 52 FR 13832, Apr. 27, 1987, as amended at 55 FR 22782, June 4, 1990; 57 FR 41686, Sept. 11, 1992; 70 FR 22788, May 3, 2005; 70 FR 25652, May 13, 2005] (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 on any other party a request to: (1) Produce and permit the party making the request, or a person acting on his or her behalf, to inspect and copy any designated documents, or to inspect and copy, test, or sample any tangible things which are in the possession, custody, or control of the party upon whom the request is served; (2) Permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing or sampling the property or any designated object or operation thereon. (b) Procedure. The request shall set forth the items to be inspected, either by individual item or by category and describe each item and category with reasonable particularity. It shall specify a reasonable time, place and manner of making the inspection and performing related acts. The party upon whom the request is served shall serve a written response within 30 days after service of the request, unless the requesting party allows a longer time. The Commission or Judge may allow a shorter time or a longer time, should the requesting party deny an extension. The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to in whole or in part, in which event the reasons for objection shall be stated. If objection is made to part of an item or category, that part shall be specified. To obtain a ruling on an objection by the responding party, the requesting party shall file a motion with the Judge and shall annex thereto his request, together with the response and objections, if any. [51 FR 32015, Sept. 8, 1986, as amended at 57 FR 41686, Sept. 11, 1992] (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. (c) Effect of admission. Any matter admitted under this section is conclusively established unless the Judge or Commission on motion permits withdrawal or modification of the admission. Withdrawal or modification may be permitted when the presentation of the merits of the case will be subserved thereby, and the party who obtained the admission fails to satisfy the Commission or Judge that the withdrawal or modification will prejudice him in presenting his case or defense on the merits. [51 FR 32015, Sept. 8, 1986, as amended at 70 FR 22790, May 3, 2005; 70 FR 25652, May 13, 2005] (a) General. 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 interrogatories upon any other party. The number of interrogatories shall not exceed 25 questions, including subparts, without an order of the Commission or Judge. The party seeking to serve more than 25 questions, 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 interrogatories. (b) Answers. All answers shall be made in good faith and as completely as the answering party's information will permit. The answering party is required to make reasonable inquiry and ascertain readily obtainable information. An answering party may not give lack of information or knowledge as an answer or as a reason for failure to answer, unless he states that he has made reasonable inquiry and that information known or readily obtainable by him is insufficient to enable him to answer the substance of the interrogatory. (c) Procedure. Each interrogatory shall be answered separately and fully under oath or affirmation. If the interrogatory is objected to, the objection shall be stated in lieu of the answer. The answers are to be signed by the person making them and the objections shall be signed by the party or his counsel. The party on whom the interrogatories have been served shall serve a copy of his answers or objections upon the propounding party within 30 days after the service of the interrogatories. The Judge may allow a shorter or longer time. The burden shall be on the party submitting the interrogatories to move for an order with respect to any objection or other failure to answer an interrogatory. (a) General. Depositions of parties, intervenors, or witnesses shall be allowed only by agreement of all the parties, or on order of the Commission or Judge following the filing of a motion of a party stating good and just reasons. All depositions shall be before an officer authorized to administer oaths and affirmations at the place of examination. The deposition shall be taken in accordance with the Federal Rules of Civil Procedure, particularly Fed.R.Civ.P. 30. (b) When to file. A motion to take depositions may be filed after the filing of the first responsive pleading or motion that delays the filing of an answer, such as a motion to dismiss. (c) Notice of taking. Any depositions allowed by the Commission or Judge may be taken after ten days' written notice to the other party or parties. The ten-day notice requirement may be waived by the parties. (d) Expenses. Expenses for a court reporter and the preparing and serving of depositions shall be borne by the party at whose instance the deposition is taken. (e) Use of depositions. Depositions taken under this rule may be used for discovery, to contradict or impeach the testimony of a deponent as a witness, or for any other purpose permitted by the Federal Rules of Evidence and the Federal Rules of Civil Procedure, particularly Fed.R.Civ.P. 32. (f) Excerpts from depositions to be offered at hearing. Except when used for purposes of impeachment, at least 5 working days prior to the hearing, the parties or counsel shall furnish to the Judge and all opposing parties or counsel the excerpts from depositions (by page and line number) which they expect to introduce at the hearing. Four working days thereafter, the adverse party or counsel for the adverse party shall furnish to the Judge and all opposing parties or counsel additional excerpts from the depositions (by page and line number) which they expect to be read pursuant to Rule 32(a)(4) of the Federal Rules of Civil Procedure, as well as any objections (by page and line number) to opposing party's or counsel's depositions. With reasonable notice to the Judge and all parties or counsel, other excerpts may be read. (g) Telephone depositions. (1) Telephone depositions may be conducted pursuant to Rule 30(b)(7) of the Federal Rules of Civil Procedure. (2) If a party objects to a telephone deposition, he shall make known his objections at least 5 days prior to the taking of the deposition. If the objection is not resolved by the parties or the Judge before the scheduled deposition date, the deposition shall be stayed pending resolution of the dispute. (h) Video depositions. By indicating in its notice of a deposition that it wishes to record the deposition by videotape (and identifying the proposed videotape operator), a party shall be deemed to have moved for such an order under Rule 30(b)(4) of the Federal Rules of Civil Procedure. Unless an objection is filed and served within 10 days after such notice is received, the Judge shall be deemed to have granted the motion pursuant to the following terms and conditions: (1) Stenographic recording. The videotaped deposition shall be simultaneously recorded stenographically by a qualified court reporter. The court reporter shall administer the oath or affirmation to the deponents on camera. The written transcript by the court reporter shall constitute the official record of the deposition for purposes of Rule 30(e) (submission to witness) of the Federal Rules of Civil Procedure. (2) Cost. The noticing party shall bear the expense of both the videotaping and the stenographic recording. Any party may at its own expense obtain a copy of the videotape and the stenographic transcript. (3) Video operator. The operator(s) of the videotape recording equipment shall be subject to the provisions of Rule 28(c) of the Federal Rules of Civil Procedure. At the commencement of the deposition the operator(s) shall swear or affirm to record the proceedings fairly and accurately. (4) Attendance. Each witness, attorney, and other person attending the deposition shall be identified on camera at the commencement of the deposition. Thereafter, only the deponent (and demonstrative materials used during the deposition) will be videotaped. Identification on camera of each witness, attorney, and other person attending the deposition may be waived by the attorneys for the parties. (5) Standards. The deposition will be conducted in a manner to replicate, to the extent feasible, the presentation of evidence at a hearing. Unless physically incapacitated, the deponent shall be seated at a table or in a witness box except when reviewing or presenting demonstrative materials for which a change in position is needed. To the extent practicable, the deposition will be conducted in a neutral setting, against a solid background, with only such lighting as is required for accurate video recording. Lighting, camera angle, lens setting, and field of view will be changed only as necessary to record accurately the natural body movements of the deponent or to portray exhibits and materials used during the deposition. Sound levels will be altered only as necessary to record satisfactorily the voices of counsel and the deponent. Eating and smoking by deponents or counsel during the deposition will not be permitted. (6) Interruptions. Videotape recording will be suspended during all “off the record” discussions. (7) Index. The videotape operator shall use a counter on the recording equipment and after completion of the deposition shall prepare a log, cross-referenced to counter numbers, that identifies the positions on the tape at which examination by different counsel begins and ends; at which objections are made and examination resumes; at which exhibits are identified; and at which any interruption of continuous tape recording occurs, whether for recesses, “off the record” discussions, mechanical failure, or otherwise. (8) Filing. If a videotaped deposition is used at the hearing, the original of the videotape recording, together with the transcript, the operator's log index, and a certificate of the operator attesting to the accuracy of the tape, shall be filed with the Judge. No part of a videotaped deposition shall be released or made available to any member of the public unless authorized by the Commission or the Judge. (9) Objections. Requests for prehearing rulings on the admissibility of evidence obtained during a videotaped deposition shall be accompanied by appropriate pages of the written transcript. If the objection involves matters peculiar to the videotaping, a copy of the videotape and equipment for viewing the tape shall also be provided to the Commission or Judge. (10) Use at hearing; purged tapes. A party desiring to offer a videotape deposition at the hearing shall be responsible for having available appropriate playback equipment and a trained operator. After the designation by all parties of the portions of a videotape to be used at the hearing, an edited copy of the tape, purged of unnecessary portions (and any portions to which objections have been sustained), must be prepared by the offering party to facilitate continuous playback; but a copy of the edited tape shall be made available to other parties at least 10 days before it is used, and the unedited original of the tape shall also be available at the hearing. [51 FR 32015, Sept. 8, 1986; 52 FR 13832, Apr. 27, 1987, as amended at 57 FR 41686, Sept. 11, 1992] (a) Issuance of subpoenas. On behalf of the Commission or any member thereof, the Judge shall, on the application of any party, issue to the applying party subpoenas requiring the attendance and testimony of witnesses and the production of any evidence, including relevant books, records, correspondence, or documents, in his possession or under his control. The party to whom the subpoena is issued shall be responsible for its service. Applications for subpoenas, if filed prior to the assignment of the case to a Judge, shall be filed with the Executive Secretary at One Lafayette Centre, 1120–20th Street NW., 9th Floor, Washington, DC 20036–3419. After the case has been assigned to a Judge, applications shall be filed with the Judge. Applications for subpoena(s) may be made ex parte. The subpoena shall show on its face the name and address of the party at whose request the subpoena was issued. (b) Service of subpoenas. A subpoena may be served by any person who is not a party and is not less than 18 years of age. Service of a subpoena upon a person named therein may be made by service on the person named, by certified mail return receipt requested, or by leaving a copy at the person's principal place of business or at the person's residence with some person of suitable age and discretion residing therein. (c) Revocation or modification of subpoenas. Any person served with a subpoena, whether ad testificandum or duces tecum, shall, within 5 days after the date of service of the subpoena upon him, move in writing to revoke or modify the subpoena if he does not intend to comply. All motions to revoke or modify shall be served on the party at whose request the subpoena was issued. The Judge or the Commission shall revoke or modify the subpoena if in its opinion the evidence whose production is required does not relate to any matter under investigation or in question in the proceedings or the subpoena does not describe with sufficient particularity the evidence whose production is required, or if for any other reason sufficient in law the subpoena is otherwise invalid. The Judge or the Commission, as the case may be, shall make a simple statement of procedural or other grounds for the ruling on the motion to revoke or modify. The motion to revoke or modify, any answer filed thereto, and any ruling thereon shall become a part of the record. (d) Rights of persons compelled to submit data. Persons compelled to submit data or evidence at a public proceeding are entitled to retain or, on payment of lawfully prescribed costs, to procure copies of transcripts of the data or evidence submitted by them. (e) Failure to comply with subpoena. Upon the failure of any person to comply with a subpoena issued upon the request of a party, the Commission by its counsel shall initiate proceedings in the appropriate district court for the enforcement thereof, if in its judgment the enforcement of such subpoena would be consistent with law and with policies of the Act. Neither the Commission nor its counsel shall be deemed thereby to have assumed responsibility for the effective prosecution of the same before the court. [51 FR 32015, Sept. 8, 1986; 52 FR 13832, Apr. 27, 1987, as amended at 57 FR 41687, Sept. 11, 1992; 58 FR 26065, Apr. 30, 1993; 62 FR 35963, July 3, 1997] Except by agreement of the parties, or in an expedited proceeding under §2200.103, notice of the time, place, and nature of the first setting of a hearing shall be given to the parties and intervenors at least thirty days in advance of the hearing. If a hearing is being rescheduled, or if exigent circumstances are present, at least ten days' notice shall be given. The Judge will designate a place and time of hearing that involves as little inconvenience and expense to the parties as is practicable. [51 FR 32015, Sept. 8, 1986; 52 FR 13832, Apr. 27, 1987, as amended at 62 FR 35963, July 3, 1997] A case may be fully stipulated by the parties and submitted to the Commission or Judge for a decision at any time. The stipulation of facts shall be in writing and signed by the parties or their representatives. The submission of a case under this rule does not alter the burden of proof, the requirements otherwise applicable with respect to adducing proof, or the effect of failure of proof. Motions for summary judgment are covered by Fed.R.Civ.P. 56. (a) Motion to postpone. A hearing may be postponed by the Judge on his own initiative or for good cause shown upon the motion of a party. A motion for postponement shall state the position of the other parties, either by a joint motion or by a representation of the moving party. The filing of a motion for postponement does not automatically postpone a hearing. (b) Grounds for postponement. A motion for postponement grounded on conflicting engagements of counsel or employment of new counsel shall be filed promptly after notice is given of the hearing, or as soon as the conflict is learned of or the engagement occurs. (c) When motion must be received. A motion to postpone a hearing must be received at least seven days prior to the hearing. A motion for postponement received less than seven days prior to the hearing will generally be denied unless good cause is shown for late filing. (d) Postponement in excess of 60 days. No postponement in excess of 60 days shall be granted without the concurrence of the Chief Administrative Law Judge. The original of any motion seeking a postponement in excess of 60 days shall be filed with the Judge and a copy sent to the Chief Administrative Law Judge. [51 FR 32015, Sept. 8, 1986; 52 FR 13832, Apr. 27, 1987] (a) Motion for stay. Stays are not favored. A party seeking a stay of a case assigned to a Judge shall file a motion for stay with the Judge and send a copy to the Chief Administrative Law Judge. A motion for a stay shall state the position of the other parties, either by a joint motion or by the representation of the moving party. The motion shall set forth the reasons a stay is sought and the length of the stay requested. (b) Ruling on motion to stay. The Judge, with the concurrence of the Chief Administrative Law Judge, may grant any motion for stay for the period zequesten¢ or for such period as is deemed appropriate. (c) Periodic reports required. The parties in a stayed proceeding shall be required to submit periodic reports on such terms and conditions as the Judge may direct. The length of time between the reports shall be no longer than 90 days unless the Commission or the Judge otherwise orders. [51 FR 32015, Sept. 8, 1986, as amended at 57 FR 41687, Sept. 11, 1992] (a) Attendance at hearing. The failure of a party to appear at a hearing may result in a decision against that party. (b) Requests for reinstatement. Requests for reinstatement mustebe made, in the absence of extraordinary circumstances, within five days after the scheduled hearing date. See §2200.90(b)(3). (c) Rescheduling hearing. The Commission or the Judge, upon a showing of good cause, may excuse such failure to appear. In such event, the hearing will be rescheduled as expeditiously as possible from the issuance of the Judge's order. [51 FR 32015, Sept. 8, 1986; 52 FR 13832, Apr. 27, 1987, as amended at 57 FR 41687, Sept. 11, 1992] Witnesses summoned before the Commission or the Judge shall be paid the same fees and mileage that are paid witnesses in the courts of the United States, and witnesses whose depositions are taken and the persons taking the same shall severally be entitled to the same fees as are paid for like services in the courts of the United States. Witness fees and mileage shall be paid by the party at whose instance the witness appears, and the person taking a deposition shall be paid by the party at whose instance the deposition is taken. (a) Hearings. Hearings shall be transcribed verbatim. A copy of the transcript of testimony taken at the hearing, duly certified by the reporter, shall be filed with the Judge before whom the matter was heard. (b) Payment for transcript. The Commission shall bear all expenses for court reporters' fees and for copies of the hearing transcript received by it. Each party is responsible for securing and paying for its copy of the transcript. (c) Correction of errors. Error in the transcript of the hearing may be corrected by the Judge on his 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. It shall be the duty of the Judge to conduct a fair and impartial hearing, to assure that the facts are fully elicited, to adjudicate all issues and avoid delay. The Judge shall have authority with respect to cases assigned to him, between the time he is designated and the time he issues his decision, subject to the rules and regulations of the Commission, to: (a) Administer oaths and affirmations; (b) Issue authorized subpoenas; (c) Rule upon petitions to revoke subpoenas; (d) Rule upon offers of proof and receive relevant evidence; (e) Take or cause depositions to be taken whenever the needs of justice would be served; (f) Regulate the course of the hearing and, if appropriate or necessary, exclude persons or counsel from the hearing for contemptuous conduct and strike all related testimony of witnesses refusing to answer any proper questions; (g) Hold conferences for the settlement or simplification of the issues; (h) Dispose of procedural requests or similar matters, including motions referred to the Judge by the Commission and motions to amend pleadings; also to dismiss complaints or portions thereof, and to order hearings reopened or, upon motion, consolidated prior to issuance of his decision; (i) Make decisions in conformity with section 557 of title 5, United States Code; (j) Call and examine witnesses and to introduce into the record documentary or other evidence; (k) Request the parties to state their respective positions concerning any issue in the case or theory in support thereof; (l) Adjourn the hearing as the needs of justice and good administration require; (m) Take any other action necessary under the foregoing and authorized by the published rules and regulations of the Commission. [51 FR 32015, Sept. 8, 1986, as amended at 62 FR 35963, July 3, 1997] (a) Discretionary withdrawal. A Judge may withdraw from a proceeding whenever he deems himself disqualified. (b) Request for withdrawal. Any party may request the Judge, at any time following his designation and before the filing of his decision, to withdraw on ground of personal bias or disqualification, by filing with him promptly upon the discovery of the alleged facts an affidavit setting forth in detail the matters alleged to constitute grounds for disqualification. (c) Granting request. If, in the opinion of the Judge, the affidavit referred to in paragraph (b) of this section is filed with due diligence and is sufficient on its face, the Judge shall forthwith disqualify himself and withdraw from the proceeding. (d) Denial of request. If the Judge does not disqualify himself and withdraw from the proceedings, he shall so rule upon the record, stating the grounds for his ruling and shall proceed with the hearing, or, if the hearing has closed, he shall proceed with the issuance of his decision, and the provisions of §2200.90 shall thereupon apply. Witnesses shall be examined orally under oath or affirmation. Opposing parties have the right to cross-examine any witness whose testimony is introduced by an adverse party. All parties shall have the right to cross-examine any witness called by the Judge pursuant to §2200.67(j). (a) Marking exhibits. All exhibits offered in evidence by a party shall be marked for identification before or during the hearing. Exhibits shall be marked with the case docket number, with a designation identifying the party or intervenor offering the exhibit, and numbered consecutively. (b) Removal or substitution of exhibits in evidence. Unless the Judge finds it impractical, a copy of each exhibit shall be given to the other parties and intervenors. A party may remove an exhibit from the official record during the hearing or at the conclusion of the hearing only upon permission of the Judge. The Judge, in his discretion, may permit the substitution of a duplicate for any original document offered into evidence. (c) Reasons for denial of admitting exhibit. A Judge may, in his discretion, deny the admission of any exhibit because of its excessive size, weight, or other characteristic that prohibits its convenient transportation and storage. A party may offer into evidence photographs, models or other representations of any such exhibit. (d) Rejected exhibits. All exhibits offered but denied admission into evidence, except exhibits referred to in paragraph (c) of this section, shall be placed in a separate file designated for rejected exhibits. (e) Return of physical exhibits. A party may on motion request the return of a physical exhibit within 30 days after expiration of the time for filing a petition for review of a Commission final order in a United States Court of Appeals under section 11 of the Act, 29 U.S.C. 660, or within 30 days after completion of any proceedings initiated thereunder. The motion shall be addressed to the Executive Secretary and provide supporting reasons. The exhibit shall be returned if the Executive Secretary determines that it is no longer necessary for use in any Commission proceeding. (f) Request for custody of physical exhibit. Any person may on motion to the Executive Secretary request custody of a physical exhibit for use in any court or tribunal. The motion shall state the reasons for the request and the duration of custody requested. If the exhibit has been admitted in a pending Commission case, the motion shall be served on all parties to the proceeding. Any person granted custody of an exhibit shall inform the Executive Secretary of the status every six months of his continuing need for the exhibit and return the exhibit after completion of the proceeding. (g) Disposal of physical exhibit. Any physical exhibit may be disposed of by the Commission's Executive Secretary at any time more than 30 days after expiration of the time for filing a petition for review of a Commission final order in a United States Court of Appeals under section 11 of the Act, 29 U.S.C. 660, or 30 days after completion of any proceedings initiated thereunder. [51 FR 32015, Sept. 8, 1986; 52 FR 13832, Apr. 27, 1987] The Federal Rules of Evidence are applicable. (a) Statement of objection. Any objection with respect to the conduct of the hearing, including any objection to the introduction of evidence or a ruling by the Judge, may be stated orally or in writing, accompanied by a short statement of the grounds for the objection, and shall be included in the record. No such objection shall be deemed waived by further participation in the hearing. (b) Offer of proof. Whenever evidence is excluded from the record, the party offering such evidence may make an offer of proof, which shall be included in the record of the proceeding. (a) General. Interlocutory review of a Judge's ruling is discretionary with the Commission. A petition for interlocutory review may be granted only where the petition asserts and the Commission finds: (1) That the review involves an important question of law or policy about which there is substantial ground for difference of opinion and that immediate review of the ruling may materially expedite the final disposition of the proceedings; or (2) That the ruling will result in a disclosure, before the Commission may review the Judge's report, of information that is alleged to be privileged. (b) Petition for interlocutory review. Within five days following the receipt of a Judge's ruling from which review is sought, a party may file a petition for interlocutory review with the Commission. Responses to the petition, if any, shall be filed within five days following service of the petition. A copy of the petition and responses shall be filed with the Judge. The petition is denied unless granted within 30 days of the date of receipt by the Commission's Executive Secretary. A corporate party that files a petition for interlocutory review or a response to such a petition under this section shall file with the Commission a copy of its declaration of corporate parents, subsidiaries, and affiliates previously filed with the Judge under the requirements of §2200.36(c) or §2200.37(d)(4). In its discretion the Commission may refuse to accept for filing a petition or response that fails to comply with this disclosure requirement. A corporate party filing the declaration required by this paragraph shall have a continuing duty to advise the Executive Secretary of any changes to its declaration until the Commission either denies the petition for interlocutory appeal or issues its decision on the merits of the appeal. (c) Denial without prejudice. The Commission's action in denying a petition for interlocutory review shall not preclude a party from raising an objection to the Judge's interlocutory ruling in a petition for discretionary review. (d) Stay—(1) Trade secret matters. The filing of a petition for interlocutory review of a Judge's ruling concerning an alleged trade secret shall stay the effect of the ruling until the Commission denies the petition or rules on the merits. (2) Other cases. In all other cases, the filing or granting of a petition for interlocutory review shall not stay a proceeding or the effect of a ruling unless otherwise ordered. (e) Judge's comments. The Judge may be requested to provide the Commission with his written views on whether the petition is meritorious. The Judge shall serve copies of these comments on all parties when he files them with the Commission. (f) Briefs. Should the Commission desire briefs on the issues raised by an interlocutory review, it shall give notice to the parties. See §2200.93—Briefs before the Commission. [51 FR 32015, Sept. 8, 1986, as amended at 54 FR 18491, May 1, 1989; 55 FR 22782, June 4, 1990] (a) General. A party is entitled to a reasonable period at the close of the hearing for oral argument, which shall be included in the stenographic report of the hearing. Any party shall be entitled, upon request made before the close of hearing, to file a brief, proposed findings of fact and conclusions of law, or both, with the Judge. In lieu of briefs, the Judge may permit or direct the parties to file memoranda or statements of authority. (b) Time. Briefs shall be filed simultaneously on a date established by the Judge. A motion for extension of time for filing any brief shall be made at least three days prior to the due date and shall recite that the moving party has advised the other parties of the motion. Reply briefs shall not be allowed except by order of the Judge. (c) Untimely briefs. Untimely briefs will not be accepted unless accompanied by a motion setting forth good cause for the delay. (a) Contents. The Judge shall prepare a decision that constitutes his final disposition of the proceedings. The decision shall be in writing and shall include findings of fact, conclusions of law, and the reasons or bases for them, on all the material issues of fact, law or discretion presented on the record. The decision shall include an order affirming, modifying or vacating each contested citation item and each proposed penalty, or directing other appropriate relief. A decision finally disposing of a petition for modification of the abatement period shall contain an order affirming or modifying the abatement period. (b) The Judge's report—(1) Mailing to parties. The Judge shall mail or otherwise transmit a copy of his decision to each party. (2) Docketing of Judge's report by Executive Secretary. On the eleventh day after the transmittal of his decision to the parties, the Judge shall file his report with the Executive Secretary for docketing. The report shall consist of the record, including the Judge's decision, any petitions for discretionary review and statements in opposition to such petitions. Promptly upon receipt of the Judge's report, the Executive Secretary shall docket the report and notify all parties of the docketing date. The date of docketing of the Judge's report is the date that the Judge's report is made for purposes of section 12(j) of the Act, 29 U.S.C. 661(j). (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). (c) Filing documents after the docketing date. Except for papers filed under paragraph (b)(3) of this section, which shall be filed with the Judge, on or after the date of the docketing of the Judge's report all documents shall be filed with the Executive Secretary. (d) Judge's decision final unless review directed. If no Commissioner directs review of a report on or before the thirtieth day following the date of docketing of the Judge's report, the decision of the Judge shall become a final order of the Commission. [51 FR 32015, Sept. 8, 1986; 52 FR 13832, Apr. 27, 1987, as amended at 62 FR 35963, July 3, 1997; 70 FR 22790, May 3, 2005] (a) Review discretionary. Review by the Commission is not a right. A Commissioner may, as a matter of discretion, direct review on his own motion or on the petition of a party. (b) Petitions for discretionary review. A party adversely affected or aggrieved by the decision of the Judge may seek review by the Commission by filing a petition for discretionary review. Discretionary review by the Commission may be sought by filing with the Judge a petition for discretionary review within the 10-day period provided by §2200.90(b)(2). Review by the Commission may also be sought by filing directly with the Executive Secretary a petition for discretionary review. A petition filed directly with the Executive Secretary shall be filed within 20 days after the date of docketing of the Judge's report. The earlier a petition is filed, the more consideration it can be given. A petition for discretionary review may be conditional, and may state that review is sought only if a Commissioner were to direct review on the petition of an opposing party. (c) Cross-petitions for discretionary review. Where a petition for discretionary review has been filed by one party, any other party adversely affected or aggrieved by the decision of the Judge may seek review by the Commission by filing a cross-petition for discretionary review. The cross-petition may be conditional. See paragraph (b) of this section. A cross-petition shall be filed with the Judge during the 20 days provided by §2200.90(b) or directly with the Executive Secretary within 27 days after the date of docketing of the Judge's report. The earlier a cross-petition is filed, the more consideration it can be given. (d) Contents of the petition. No particular form is required for a petition for discretionary review. A petition should state why review should be directed, including: Whether the Judge's decision raises an important question of law, policy or discretion; whether review by the Commission will resolve a question about which the Commission's Judges have rendered differing opinions; whether the Judge's decision is contrary to law or Commission precedent; whether a finding of material fact is not supported by a preponderance of the evidence; whether a prejudical error of procedure or an abuse of discretion was committed. A petition should concisely state the portions of the decision for which review is sought and should refer to the citations and citation items (for example, citation 3, item 4a) for which review is sought. A petition shall not incorporate by reference a brief or legal memorandum. Brevity and the inclusion of precise references to the record and legal authorities will facilitate prompt review of the petition. (e) When filing effective. A petition for discretionary review is filed when received. If a petition has been filed with the Judge, another petition need not be filed with the Commission. (f) Failure to file. The failure of a party adversely affected or aggrieved by the Judge's decision to file a petition for discretionary review may foreclose court review of the objections to the Judge's decision. See Keystone Roofing Co. v. Dunlop, 539 F.2d 960 (3d Cir. 1976). (g) Statements in opposition to petition. Statements in opposition to petitions for discretionary review may be filed in the manner specified in this section for the filing of petitions for discretionary review. Statements in opposition shall concisely state why the Judge's decision should not be reviewed with respect to each portion of the petition to which it is addressed. (h) Number of copies. An original and eight copies of a petition or a statement in opposition to a petition shall be filed. [51 FR 32015, Sept. 8, 1986; 52 FR 13832, Apr. 27, 1987, as amended at 55 FR 22783, June 4, 1990; 62 FR 35963, July 3, 1997] (a) Jurisdiction of the Commission; issues on review. Unless the Commission orders otherwise, a direction for review establishes jurisdiction in the Commission to review the entire case. The issues to be decided on review are within the discretion of the Commission but ordinarily will be those stated in the direction for review, those raised in the petitions for discretionary review, or those stated in any later order. (b) Review on a Commissioner's motion; issues on review. At any time within 30 days after the docketing date of the Judge's report, a Commissioner may, on his own motion, direct that a Judge's decision be reviewed. In the absence of a petition for discretionary review, a Commissioner will normally not direct review unless the case raises novel questions of law or policy or questions involving conflict in Administrative Law Judges' decisions. When a Commissioner directs review on his own motion, the issues ordinarily will be those specified in the direction for review or any later order. (c) Issues not raised before Judge. The Commission will ordinarily not review issues that the Judge did not have the opportunity to pass upon. In exercising discretion to review issues that the Judge did not have the opportunity to pass upon, the Commission may consider such factors as whether there was good cause for not raising the issue before the Judge, the degree to which the issue is factual, the degree to which proceedings will be disrupted or delayed by raising the issue on review, whether the ability of an adverse party to press a claim or defense would be impaired, and whether considering the new issue would avoid injustice or ensure that judgment will be rendered in accordance with the law and facts. (a) Requests for briefs. The Commission ordinarily will request the parties to file briefs on issues before the Commission. After briefs are requested, a party may, instead of filing a brief, file a letter setting forth its arguments, a letter stating that it will rely on its petition for discretionary review or previous brief, or a letter stating that it wishes the case decided without its brief. The provisions of this section apply to the filing of briefs and letters filed in lieu of briefs. (b) Filing briefs. Unless the briefing notice states otherwise: (1) Time for filing briefs. The party required to file the first brief shall do so within 40 days after the date of the briefing notice. All other parties shall file their briefs within 30 days after the first brief is served. Any reply brief permitted by these rules or by order shall be filed within 15 days after the second brief is served. (2) Sequence of filing. (i) If one petition for discretionary or interlocutory review has been filed, the petitioning party shall file the first brief. (ii) If more than one petition has been filed but only one was granted, the party whose petition was granted shall file the first brief. (iii) If more than one petition has been filed, and more than one has been granted or none has been granted, the Secretary shall file the first brief. (iv) If no petition has been filed, the Secretary shall file the first brief. (3) Reply briefs. The party who filed the first brief may file a reply brief. Additional briefs are otherwise not allowed except by leave of the Commission. (c) Motion for extension of time for filing brief. An extension of time to file a brief will ordinarily not be granted except for good cause shown. A motion for extension of time to file a brief shall be filed at the Commission no later than 3 days prior to the expiration of the time limit prescribed in paragraph (b) of this section, shall comply with §2200.40 and shall include the following information: When the brief is due, the number and duration of extensions of time that have been granted to each party, the length of extension being requested, the specific reason for the extension being requested, and an assurance that the brief will be filed within the time extension requested. (d) Consequences of failure to timely file brief. The Commission may decline to accept a brief that is not timely filed. If a petitioning party fails to respond to a briefing notice or expresses no interest in review, the Commission may vacate the direction for review, or it may decide the case without that party's brief. If the non-petitioning party fails to respond to a briefing notice or expresses no interest in review, the Commission may decide the case without that party's brief. If a case was directed for review upon a Commissioner's own motion, and any party fails to respond to the briefing notice, the Commission may either vacate the direction for review or decide the case without briefs. (e) Length of brief. Except by permission of the Commission, a main brief, including briefs and legal memorandums it incorporates by reference, shall contain no more than 35 pages of text. A reply brief, including briefs and legal memorandums it incorporates by reference, shall contain no more than 20 pages of text. (f) Table of contents. A brief in excess of 15 pages shall include a table of contents. (g) Failure to meet requirements. The Commission may return briefs that do not meet the requirements of paragraphs (e) and (f) of this section. (h) Number of copies. The original and eight copies of a brief shall be filed. See §2200.8(d)(2). (i) Brief of an amicus curiae. The Commission may allow a brief of an amicus curiae pursuant to the criteria of §2200.24. Any brief of an amicus curiae must meet the requirements of paragraphs (b) through (h) of this section. No reply brief of an amicus curiae will be received. [51 FR 32015, Sept. 8, 1986, as amended at 57 FR 41687, Sept. 11, 1992; 62 FR 35963, July 3, 1997] (a) Who may file. Any party aggrieved by a final order of the Commission may, while the matter is within the jurisdiction of the Commission, file a motion for a stay. (b) Contents of motion. Such motion shall set forth the reasons a stay is sought and the length of the stay requested. (c) Ruling on motion. The Commission may order such stay for the period requested or for such longer or shorter period as it deems appropriate. (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. (b) Notice of argument. The Executive Secretary shall advise all parties whether oral argument is to be heard. Within a reasonable time before the oral argument is scheduled, the Executive Secretary shall inform the parties of the time and place therefor, the issues to be heard, and the time allotted to the parties. (c) Postponement. (1) Except under extraordinary circumstances, a request for postponement must be filed at least seven days before oral argument is scheduled. (2) The Executive Secretary shall notify the parties of a postponement in a manner best calculated to avoid unnecessary travel or inconvenience to the parties. The Executive Secretary shall inform all parties of the new time and place for the oral argument. (d) Order and content of argument. (1) Counsel shall be afforded such time for oral argument as the Commission may provide by order. Requests for enlargement of time may be made by motion filed reasonably in advance of the date fixed for the argument. (2) The petitioning party shall argue first. If the case is before the Commission on cross-petitions, the Commission will inform the parties in advance of the order of appearance. (3) Counsel are expected to cover all anticipated issues in their arguments in chief. Therefore, rebuttal will normally not be allowed. Should unexpected matters arise, the Commission,in its discretion, may give counsel additional time. (4) Oral argument should undertake to emphasize and clarify the written arguments appearing in the briefs. The Commission will look with disfavor on any oral argument that is read from a previously filed document. (5) At any time, the Commission may terminate a party's argument or interrupt the party's presentation for questioning by the Commissioners. (e) Failure to appear. Should either party fail to appear for oral argument, the party present may be allowed to proceed with its argument. (f) Consolidated cases. Where two or more consolidated cases are scheduled for oral argument, the consolidated cases shall be considered as one case for the purpose of allotting time to the parties unless the Commission otherwise directs. (g) Multiple counsel. Where more than one counsel argues for a party to the case or for multiple parties on the same side in the case, it is counsels' responsibility to agree upon a fair division of the total time allotted. In the event of a failure to agree, the Commission will allocate the time. The Commission may, in its discretion, limit the number of counsel heard for each party or side in the argument. No later than 3 days prior to the date of scheduled argument, the Commission must be notified of the names of the counsel who will argue. (h) Exhibits/visual aids. (1) The parties may use models, specimens, samples, charts or exhibits introduced into evidence at the hearing. If a party wishes to use a visual aid not part of the record, written notice of the proposed use shall be given to opposing counsel 15 days prior to the argument. Objections, if any, shall be in writing, served on all adverse parties, and filed not fewer than five days before the argument. (2) No visual aid shall introduce or rely upon facts or evidence not already part of the record. (3) If visual aids or exhibits other than documents are to be used at the argument, counsel shall arrange with the Executive Secretary to have them placed in the hearing room on the date of the argument before the Commission convenes. (4) Parties using visual aids not introduced into evidence shall have them removed from the hearing room unless the Commission directs otherwise. If such visual aids are not reclaimed by the party within a reasonable time after notice is given by the Executive Secretary, such visual aids shall be disposed of at the discretion of the Executive Secretary. (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. (j) Failure to file brief. A party who fails to file a brief shall not be heard at the time of oral argument except by permission of the Commission. (k) Participation in oral argument by amicus curiae. (1) An amicus curiae will not be permitted to participate in oral argument without leave of the Commission upon proper motion. (2) A motion by amicus curiae seeking leave to participate in oral argument shall be filed no later than 14 days prior to the date oral argument is scheduled. (3) The motion of an amicus curiae for leave to participate at oral argument shall identify the interest of the applicant and shall state the reason(s) why its participation at oral argument is desirable. (4) Motions in opposition to the motion of an amicus curiae for leave to participate in the oral argument must be filed within 7 days of the date of the motion. [55 FR 22783, June 4, 1990, as amended at 57 FR 41688, Sept. 11, 1992; 70 FR 22790, May 3, 2005] The Commission officer and office designated to receive, pursuant to 28 U.S.C. 2112(a)(1), copies of petitions for review of Commission orders, from the persons instituting the review proceedings in a court of appeals, are the Executive Secretary and the Office of the Executive Secretary at the Commission's office, One Lafayette Centre, 1120–20th Street NW., 9th Floor, Washington, DC 20036–3419. Five copies of the petition shall be submitted pursuant to this section. Each copy shall state that it is being submitted to the Commission pursuant to 28 U.S.C. 2112 by the persons or person who filed the petition in the court of appeals and shall be stamped by the court with the date of filing. Note: 28 U.S.C. 2112(a) contains certain applicable requirements. [54 FR 18491, May 1, 1989, as amended at 58 FR 26065, Apr. 30, 1993] (a) Policy. Settlement is permitted and encouraged by the Commission at any stage of the proceedings. (b) Requirements. The Commission does not require that the parties include any particular language in a settlement agreement, but does require that the agreement specify the terms of settlement for each contested item, specify any contested item or issue that remains to be decided (if any remain), and state whether any affected employees who have elected party status have raised an objection to the reasonableness of any abatement time. Unless the settlement agreement states otherwise, the withdrawal of a notice of contest, citation, notification of proposed penalty, or petition for modification of abatement period will be with prejudice. (c) Filing; service and notice. A settlement submitted for approval after the Judge's report has been directed for review shall be filed with the Executive Secretary. When a settlement agreement is filed with the Judge or the Executive Secretary, proof of service shall be filed with the settlement agreement, showing service upon all parties and authorized employee representatives in the manner prescribed by §2200.7(c) and the posting of notice to non-party affected employees in the manner prescribed by §2200.7(g). The parties shall also file a final consent order for adoption by the Judge. If the time has not expired under these rules for electing party status, or if party status has been elected, an order terminating the litigation before the Commission because of the settlement shall not be issued until at least 10 days after service or posting to consider any affected employee's or authorized employee representative's objection to the reasonableness of any abatement time. The affected employee or authorized employee representative shall file any such objection within this time. If such objection is filed or stated in the settlement agreement, the Commission or the Judge shall provide an opportunity for the affected employees or authorized employee representative to be heard and present evidence on the objection, which shall be limited to the reasonableness of the abatement time. (d) Form of settlement document. It is preferred that settlement documents be typewritten in conformance with §2200.30(a). However, a settlement document that is hand-written or printed in ink and is legible shall be acceptable for filing. [51 FR 32015, Sept. 8, 1986, as amended at 57 FR 41688, Sept. 11, 1992] (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. [70 FR 22790, May 3, 2005] A party may withdraw its notice of contest, citation, notification of proposed penalty, or petition for modification of abatement period at any stage of a proceeding. The notice of withdrawal shall be served in accordance with §2200.7(c) upon all parties and authorized employee representatives that are eligible to elect, but have not elected, party status. It shall also be posted in the manner prescribed in §2200.7(g) for the benefit of any affected employees not represented by an authorized employee representative who are eligible to elect, but have not elected, party status. Proof of service shall accompany the notice of withdrawal. [51 FR 32015, Sept. 8, 1986; 52 FR 13832, Apr. 27, 1987] (a) When ordered. Upon application of any party or intervenor or upon its own motion, the Commission may order an expedited proceeding. When an expedited proceeding is ordered by the Commission, the Executive Secretary shall notify all parties and intervenors. (b) Automatic expedition. Cases initiated by employee contests and petitions for modification of abatement period shall be expedited. (c) Effect of ordering expedited proceeding. When an expedited proceeding is required by these rules or ordered by the Commission, it shall take precedence on the docket of the Judge to whom it is assigned, or on the Commission's review docket, as applicable, over all other classes of cases, and shall be set for hearing or for the submission of briefs at the earliest practicable date. (d) Time sequence set by Judge. The assigned Judge shall make rulings with respect to time for filing of pleadings and with respect to all other matters, without reference to times set forth in these rules, may order daily transcripts of the hearing, and shall do all other things appropriate to complete the proceeding in the minimum time consistent with fairness. (a) General. All representatives appearing before the Commission and its Judges shall comply with the letter and spirit of the Model Rules of Professional Conduct of the American Bar Association. (b) Misbehavior before a Judge—(1) Exclusion from a proceeding. A Judge may exclude from participation in a proceeding any person, including a party or its representative, who engages in disruptive behavior, refuses to comply with orders or rules of procedure, continuously uses dilatory tactics, refuses to adhere to standards of orderly or ethical conduct, or fails to act in good faith. The cause for the exclusion shall be stated in writing, or may be stated in the record if the exclusion occurs during the course of the hearing. Where the person removed is a party's attorney or other representative, the Judge shall suspend the proceeding for a reasonable time for the purpose of enabling the party to obtain another attorney or other representative. (2) Appeal rights if excluded. Any attorney or other representative excluded from a proceeding by a Judge may, within five days of the exclusion, appeal to the Commission for reinstatement. No proceeding shall be delayed or suspended pending disposition of the appeal. (c) Disciplinary action by the Commission. If an attorney or other representative practicing before the Commission engages in unethical or unprofessional conduct or fails to comply with any rule or order of the Commission or its Judges, the Commission may, after reasonable notice and an opportunity to show cause to the contrary, and after hearing, if requested, take any appropriate disciplinary action, including suspension or disbarment from practice before the Commission. (d) Show cause orders. All show cause orders issued by the Commission or Judge under paragraph (c) of this section shall be served upon the affected party by certified mail, return receipt requested. [51 FR 32015, Sept. 8, 1986, as amended at 55 FR 22783, June 4, 1990] (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. (b) Disciplinary action. In the event an ex parte communication occurs, the Commission or the Judge may make such orders or take such actions as fairness requires. The exclusion of a person by a Judge from a proceeding shall be governed by §2200.104(b). Any disciplinary action by the Commission, including suspension or disbarment, shall be governed by §2200.104(c). (c) Placement on public record. All ex parte communications in violation of this section shall be placed on the public record of the proceeding. [51 FR 32015, Sept. 8, 1986, as amended at 70 FR 22790, May 3, 2005] 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, NW., Suite 980, Washington, DC 20036–3457. [70 FR 22790, May 3, 2005] In special circumstances not contemplated by the provisions of these rules and for good cause shown, the Commission or Judge may, upon application by any party or intervenor or on their own motion, after 3 working days notice to all parties and intervenors, waive any rule or make such orders as justice or the administration of the Act requires. [57 FR 41688, Sept. 11, 1992] The seal of the Commission shall consist of: A gold eagle outspread, head facing dexter, a shield with 13 vertical stripes superimposed on its breast, holding an olive branch in its claws, the whole superimposed over a plain solid white Greek cross with a green background, encircled by a white band edged in black and inscribed “Occupational Safety and Health Review Commission” in black letters. [51 FR 32015, Sept. 8, 1986; 52 FR 13832, Apr. 27, 1987] Source: 64 FR 8246, Feb. 19, 1999, unless otherwise noted.
(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 (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 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. [70 FR 22791, May 3, 2005; 70 FR 25652, May 13, 2005] Source: 60 FR 41809, Aug. 14, 1995, unless otherwise noted.
(a) The purpose of the Simplified Proceedings subpart is to provide simplified procedures for resolving contests under the Occupational Safety and Health Act of 1970, so that parties before the Commission may reduce the time and expense of litigation while being assured due process and a hearing that meets the requirements of the Administrative Procedure Act, 5 U.S.C. 554. These procedural rules will be applied to accomplish this purpose. (b) Procedures under this subpart are simplified in a number of ways. The major differences between these procedures and those provided in subparts A through G of the Commission's rules of procedure are as follows. (1) Complaints and answers are not required. (2) Pleadings generally are not required. Early discussions among the parties and the Administrative Law Judge are required to narrow and define the disputes between the parties. (3) The Secretary is required to provide the employer with certain informational documents early in the proceeding. (4) Discovery is not permitted except as ordered by the Administrative Law Judge. (5) Interlocutory appeals are not permitted. (6) Hearings are less formal. The Federal Rules of Evidence do not apply. Instead of briefs, the parties will argue their case orally before the Judge at the conclusion of the hearing. In many instances, the Judge will render his or her decision from the bench. [60 FR 41809, Aug. 14, 1995, as amended at 70 FR 22792, May 3, 2005] The rules in this subpart will govern proceedings before a Judge in a case chosen for Simplified Proceedings under §2200.203. [60 FR 41809, Aug. 14, 1995, as amended at 62 FR 14822, Mar. 28, 1997; 62 FR 40934, July 31, 1997; 70 FR 22792, May 3, 2005] (a) Those cases selected for Simplified Proceedings will be those that do not involve complex issues of law or fact. Cases appropriate for Simplified Proceedings would generally include those with one or more of the following characteristics: (1) Relatively few citation items, (2) An aggregate proposed penalty of not more than $20,000, (3) No allegation of willfulness or a repeat violation, (4) Not involving a fatality, (5) A hearing that is expected to take less than two days, or (6) A small employer whether appearing pro se or represented by counsel. (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. [62 FR 40934, July 31, 1997, as amended at 70 FR 22792, May 3, 2005] (a) Selection. Upon receipt of a Notice of Contest, the Chief Administrative Law Judge may, at his or her discretion, assign an appropriate case for Simplified Proceedings. (b) Party request. Within twenty days of the notice of docketing, any party may request that the case be assigned for Simplified Proceedings. The request must be in writing. For example, “I request Simplified Proceedings” will suffice. The request must be sent to the Executive Secretary. Copies must be sent to each of the other parties. (c) Judge's ruling on request. The Chief Judge or the Judge assigned to the case may grant a party's request and assign a case for Simplified Proceedings at his or her discretion. Such request shall be acted upon within fifteen days of its receipt by the Judge. (d) Time for filing complaint or answer under §2200.34. If a party has requested Simplified Proceedings or the Judge has assigned the case for Simplified Proceedings, the times for filing a complaint or answer will not run. If a request for Simplified Proceedings is denied, the period for filing a complaint or answer will begin to run upon issuance of the notice denying Simplified Proceedings. [60 FR 41809, Aug. 14, 1995, as amended at 62 FR 61012, Nov. 14, 1997; 70 FR 22792, May 3, 2005] (a) Procedure. If it becomes apparent at any time that a case is not appropriate for Simplified Proceedings, the Judge assigned to the case may, upon motion by any party or upon the Judge's own motion, discontinue Simplified Proceedings and order the case to continue under conventional rules. Before discontinuing Simplified Proceedings, the Judge will consult with the Chief Judge. (b) Party motion. At any time during the proceedings any party may request that Simplified Proceedings be discontinued and that the matter continue under conventional procedures. A motion to discontinue must be in writing and explain why the case is inappropriate for Simplified Proceedings. All other parties will have seven days from the filing of the motion to state their agreement or disagreement and their reasons. Joint motions to return a case to conventional proceedings shall be granted by the Judge and do not require a showing of good cause. (c) Ruling. If Simplified Proceedings are discontinued, the Judge may issue such orders as are necessary for an orderly continuation under conventional rules. [60 FR 41809, Aug. 14, 1995, as amended at 70 FR 22792, May 3, 2005] (a) Complaint and answer. Once a case is designated for Simplified Proceedings, the complaint and answer requirements are suspended. If the Secretary has filed a complaint under §2200.34(a), a response to a petition under §2200.37(d)(5), or a response to an employee contest under §2200.38(a), and if Simplified Proceedings have been ordered, no response to these documents will be required. (b) Motions. A primary purpose of Simplified Proceedings is to eliminate, as much as possible, motions and similar documents. A motion will not be viewed favorably if the subject of the motion has not been first discussed among the parties. [60 FR 41809, Aug. 14, 1995, as amended at 70 FR 22792, May 3, 2005] (a) Disclosure to employer. (1) Within 12 working days after a case is designated for Simplified Proceedings, the Secretary shall provide the employer, free of charge, copies of the narrative (Form OSHA 1–A) and the worksheet (Form OSHA 1–B), or their equivalents. (2) Within 30 calendar days after a case is designated for Simplified Proceedings, the Secretary shall provide the employer with reproductions of any photographs or videotapes that the Secretary anticipates using at the hearing. (3) Within 30 calendar days after a case is designated for Simplified Proceedings, the Secretary shall provide to the employer any exculpatory evidence in the Secretary's possession. (4) The Judge shall act expeditiously on any claim by the employer that the Secretary improperly withheld or redacted any portion of the documents, photographs, or videotapes on the grounds of confidentiality or privilege. (b) Disclosure to the Secretary. Where the employer raises an affirmative defense, the presiding Judge shall order the employer to disclose to the Secretary such documents relevant to the affirmative defense as the Judge deems appropriate. [60 FR 41809, Aug. 14, 1995, as amended at 62 FR 40934, July 31, 1997; 70 FR 22792, May 3, 2005] (a) When held. As early as practicable after the employer has received the documents set forth in §2200.206(a)(1), the presiding Judge will order and conduct a pre-hearing conference. At the discretion of the Judge, the pre-hearing conference may be held in person, or by telephone or electronic means. (b) Content. At the pre-hearing conference, the parties will discuss the following: settlement of the case; the narrowing of issues; an agreed statement of issues and facts; defenses; witnesses and exhibits; motions; and any other pertinent matter. Except under extraordinary circumstances, any affirmative defenses not raised at the pre-hearing conference may not be raised later. At the conclusion of the conference, the Judge will issue an order setting forth any agreements reached by the parties and will specify in the order the issues to be addressed by the parties at the hearing. [60 FR 41809, Aug. 14, 1995, as amended at 62 FR 40934, July 31, 1997] Discovery, including requests for admissions, will only be allowed under the conditions and time limits set by the Judge. (a) Procedures. As soon as practicable after the conclusion of the pre-hearing conference, the Judge will hold a hearing on any issue that remains in dispute. The hearing will be in accordance with subpart E of these rules, except for §2200.60, 2200.73, and 2200.74 which will not apply. (b) Agreements. At the beginning of the hearing, the Judge will enter into the record all agreements reached by the parties as well as defenses raised during the pre-hearing conference. The parties and the Judge then will attempt to resolve or narrow the remaining issues. The Judge will enter into the record any further agreements reached by the parties. (c) Evidence. The Judge will receive oral, physical, or documentary evidence that is not irrelevant, unduly repetitious or unreliable. Testimony will be given under oath or affirmation. The Federal Rules of Evidence do not apply. (d) Reporter. A reporter will be present at the hearing. An official verbatim transcript of the hearing will be prepared and filed with the Judge. Parties may purchase copies of the transcript from the reporter. (e) Oral and written argument. Each party may present oral argument at the close of the hearing. Post-hearing briefs will not be allowed except by order of the Judge. (f) Judge's decision. Where practicable, the Judge will render his or her decision from the bench. In rendering his or her decision from the bench, the Judge shall state the issues in the case and make clear both his or her findings of fact and conclusions of law on the record. The Judge shall reduce his or her order in the matter to writing and transmit it to the parties as soon as practicable, but no later than 45 days after the hearing. All relevant transcript paragraphs and pages shall be excerpted and included in the decision. Alternatively, within 45 days of the hearing, the Judge will issue a written decision. The decision will be in accordance with §2200.90. If additional time is needed, approval of the Chief is required. (g) Filing of Judge's decision with the Executive Secretary. When the Judge issues a written decision, it shall be filed simultaneously with the Commission and the parties. Once the Judge's order is transmitted to the Executive Secretary, §2200.90(b) applies, with the exception of the 21 day period provided for in rule §2200.90(b)(2). [60 FR 41809, Aug. 14, 1995, as amended at 62 FR 40934, July 31, 1997] Any party may petition for Commission review of the Judge's decision as provided in §2200.91. After the issuance of the Judge's written decision or order, the parties may pursue the case following the rules in subpart F. The provisions of subpart D (except for §2200.57) and §§2200.34, 2200.37(d)(5), 2200.38, 2200.71, 2200.73 and 2200.74 will not apply to Simplified Proceedings. All other rules contained in Subparts A through G of the Commission's rules of procedure will apply when consistent with the rules in this subpart governing Simplified Proceedings. [60 FR 41809, Aug. 14, 1995, as amended at 70 FR 22792, May 3, 2005]
Title 29: Labor
PART 2200—RULES OF PROCEDURE
Section Contents
§ 2200.1 Definitions.
§ 2200.2 Scope of rules; applicability of Federal Rules of Civil Procedure; construction.
§ 2200.3 Use of gender and number.
§ 2200.4 Computation of time.
§ 2200.5 Extension of time.
§ 2200.6 Record address.
§ 2200.7 Service and notice.
§ 2200.8 Filing.
§ 2200.9 Consolidation.
§ 2200.10 Severance.
§ 2200.11 [Reserved]
§ 2200.12 References to cases.
§ 2200.20 Party status.
§ 2200.21 Intervention; appearance by non-parties.
§ 2200.22 Representation of partiesand intervenors.
§ 2200.23 Appearances and withdrawals.
§ 2200.24 Brief of an amicus curiae.
§ 2200.30 General rules.
§ 2200.31 Caption; titles of cases.
§ 2200.32 Signing of pleadings and motions.
§ 2200.33 Notices of contest.
§ 2200.34 Employer contests.
§ 2200.35 Disclosure of corporate parents, subsidiaries, and affiliates.
§ 2200.36 [Reserved]
§ 2200.37 Petitions for modification of the abatement period.
§ 2200.38 Employee contests.
§ 2200.39 Statement of position.
§ 2200.40 Motions and requests.
§ 2200.41 [Reserved]
§ 2200.50 [Reserved]
§ 2200.51 Prehearing conferences and orders.
§ 2200.52 General provisions governing discovery.
§ 2200.53 Production of documents and things.
§ 2200.54 Requests for admissions.
§ 2200.55 Interrogatories.
§ 2200.56 Depositions.
§ 2200.57 Issuance of subpoenas; petitions to revoke or modify subpoenas; right to inspect or copy data.
§ 2200.60 Notice of hearing; location.
§ 2200.61 Submission without hearing.
§ 2200.62 Postponement of hearing.
§ 2200.63 Stay of proceedings.
§ 2200.64 Failure to appear.
§ 2200.65 Payment of witness fees and mileage; fees of persons taking depositions.
§ 2200.66 Transcript of testimony.
§ 2200.67 Duties and powers of judges.
§ 2200.68 Disqualification of the judge.
§ 2200.69 Examination of witnesses.
§ 2200.70 Exhibits.
§ 2200.71 Rules of evidence.
§ 2200.72 Objections.
§ 2200.73 Interlocutory review.
§ 2200.74 Filing of briefs and proposed findings with the Judge; oral argument at the hearing.
§ 2200.90 Decisions of Judges.
§ 2200.91 Discretionary review; petitions for discretionary review; statements in opposition to petitions.
§ 2200.92 Review by the Commission.
§ 2200.93 Briefs before the Commission.
§ 2200.94 Stay of final order.
§ 2200.95 Oral argument before the Commission.
§ 2200.96 Commission receipt pursuant to 28 U.S.C. 2112(a)(1) of copies of petitions for judicial review of Commission orders when petitions for review are filed in two or more courts of appeals with respect to the same order.
§ 2200.100 Settlement.
§ 2200.101 Failure to obey rules.
§ 2200.102 Withdrawal.
§ 2200.103 Expedited proceeding.
§ 2200.104 Standards of conduct.
§ 2200.105 Ex parte communication.
§ 2200.106. Amendment to rules.
§ 2200.107 Special circumstances; waiver of rules.
§ 2200.108 Official Seal of the Occupational Safety and Health Review Commission.
§ 2200.120 Settlement procedure.
§ 2200.200 Purpose.
§ 2200.201 Application.
§ 2200.202 Eligibility for Simplified Proceedings.
§ 2200.203 Commencing Simplified Proceedings.
§ 2200.204 Discontinuance of Simplified Proceedings.
§ 2200.205 Filing of pleadings.
§ 2200.206 Disclosure of information.
§ 2200.207 Pre-hearing conference.
§ 2200.208 Discovery.
§ 2200.209 Hearing.
§ 2200.210 Review of Judge's decision.
§ 2200.211 Applicability of subparts A through G.
Subpart A—General Provisions
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§ 2200.1 Definitions.
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§ 2200.2 Scope of rules; applicability of Federal Rules of Civil Procedure; construction.
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§ 2200.3 Use of gender and number.
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§ 2200.4 Computation of time.
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§ 2200.5 Extension of time.
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§ 2200.6 Record address.
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§ 2200.7 Service and notice.
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§ 2200.8 Filing.
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§ 2200.9 Consolidation.
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§ 2200.10 Severance.
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§ 2200.11 [Reserved]
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§ 2200.12 References to cases.
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Subpart B—Parties and Representatives
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§ 2200.20 Party status.
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§ 2200.21 Intervention; appearance by non-parties.
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§ 2200.22 Representation of partiesand intervenors.
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§ 2200.23 Appearances and withdrawals.
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§ 2200.24 Brief of an amicus curiae.
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Subpart C—Pleadings and Motions
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§ 2200.30 General rules.
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§ 2200.31 Caption; titles of cases.
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§ 2200.32 Signing of pleadings and motions.
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§ 2200.33 Notices of contest.
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§ 2200.34 Employer contests.
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§ 2200.35 Disclosure of corporate parents, subsidiaries, and affiliates.
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§ 2200.36 [Reserved]
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§ 2200.37 Petitions for modification of the abatement period.
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§ 2200.38 Employee contests.
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§ 2200.39 Statement of position.
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§ 2200.40 Motions and requests.
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§ 2200.41 [Reserved]
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Subpart D—Prehearing Procedures and Discovery
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§ 2200.50 [Reserved]
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§ 2200.51 Prehearing conferences and orders.
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§ 2200.52 General provisions governing discovery.
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§ 2200.53 Production of documents and things.
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§ 2200.54 Requests for admissions.
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§ 2200.55 Interrogatories.
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§ 2200.56 Depositions.
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§ 2200.57 Issuance of subpoenas; petitions to revoke or modify subpoenas; right to inspect or copy data.
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Subpart E—Hearings
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§ 2200.60 Notice of hearing; location.
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§ 2200.61 Submission without hearing.
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§ 2200.62 Postponement of hearing.
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§ 2200.63 Stay of proceedings.
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§ 2200.64 Failure to appear.
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§ 2200.65 Payment of witness fees and mileage; fees of persons taking depositions.
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§ 2200.66 Transcript of testimony.
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§ 2200.67 Duties and powers of judges.
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§ 2200.68 Disqualification of the judge.
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§ 2200.69 Examination of witnesses.
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§ 2200.70 Exhibits.
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§ 2200.71 Rules of evidence.
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§ 2200.72 Objections.
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§ 2200.73 Interlocutory review.
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§ 2200.74 Filing of briefs and proposed findings with the Judge; oral argument at the hearing.
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Subpart F—Posthearing Procedures
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§ 2200.90 Decisions of Judges.
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§ 2200.91 Discretionary review; petitions for discretionary review; statements in opposition to petitions.
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§ 2200.92 Review by the Commission.
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§ 2200.93 Briefs before the Commission.
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§ 2200.94 Stay of final order.
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§ 2200.95 Oral argument before the Commission.
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§ 2200.96 Commission receipt pursuant to 28 U.S.C. 2112(a)(1) of copies of petitions for judicial review of Commission orders when petitions for review are filed in two or more courts of appeals with respect to the same order.
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Subpart G—Miscellaneous Provisions
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§ 2200.100 Settlement.
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§ 2200.101 Failure to obey rules.
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§ 2200.102 Withdrawal.
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§ 2200.103 Expedited proceeding.
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§ 2200.104 Standards of conduct.
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§ 2200.105 Ex parte communication.
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§ 2200.106. Amendment to rules.
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§ 2200.107 Special circumstances; waiver of rules.
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§ 2200.108 Official Seal of the Occupational Safety and Health Review Commission.
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Subpart H—Settlement Part
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§ 2200.120 Settlement procedure.
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Subparts I–L [Reserved]
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Subpart M—Simplified Proceedings
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§ 2200.200 Purpose.
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§ 2200.201 Application.
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§ 2200.202 Eligibility for Simplified Proceedings.
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§ 2200.203 Commencing Simplified Proceedings.
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§ 2200.204 Discontinuance of Simplified Proceedings.
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§ 2200.205 Filing of pleadings.
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§ 2200.206 Disclosure of information.
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§ 2200.207 Pre-hearing conference.
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§ 2200.208 Discovery.
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§ 2200.209 Hearing.
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§ 2200.210 Review of Judge's decision.
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§ 2200.211 Applicability of subparts A through G.
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