[Federal Register Volume 60, Number 83 (Monday, May 1, 1995)]
[Proposed Rules]
[Pages 21058-21061]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-10604]



=======================================================================
-----------------------------------------------------------------------

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

29 CFR Part 2200


Rules of Procedure

AGENCY: Occupational Safety and Health Review Commission.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The Occupational Safety and Health Review Commission proposes 
to revise its rules governing simplified proceedings and to institute a 
pilot E-Z Trial program. This program would be instituted on a limited 
basis for a one year trial period. After the trial period, the 
Commission would evaluate the results and determine whether it should 
continue the E-Z Trial program and, if so, what modifications should be 
made. As the name implies, E-Z Trial would simplify and accelerate the 
adjudicative process for cases that warrant a less formal, less 
expensive process. The most significant change to the rules would 
strengthen the role of Commission judges in determining whether a case 
is tried under simplified proceedings. The Commission has concluded 
that the current underutilization of simplified proceedings could be 
remedied through a mechanism by which the Chief Administrative Law 
Judge or the judge assigned to an individual case could unilaterally 
direct that a case be tried under simplified proceedings. Thus, under 
the E-Z Trial program, the Commission's Chief Judge would have the 
authority to determine whether a case would proceed by either 
conventional proceedings or the E-Z Trial program. This should result 
in greater use of simplified proceedings while preserving the use of 
conventional proceedings where needed. E-Z Trial should reduce the time 
and expense of litigation in such cases. However, the presiding judge 
may discontinue E-Z Trial proceedings and reinstate conventional 
procedures if the [[Page 21059]] case no longer is appropriate for the 
simplified rules. In this way, the Commission can provide efficient, 
user-friendly adjudication, while assuring insofar as possible in all 
cases that due process is met and a hearing is conducted that meets the 
requirements of the Administrative Procedure Act, 5 U.S.C. 554, 556 
(``APA''). At any time, any party may request that conventional rather 
than E-Z Trial proceedings be used. Discontinuance of E-Z Trial is at 
the discretion of the judge after consultation with the Chief Judge. At 
the conclusion of an E-Z Trial proceeding, a party may file a petition 
for discretionary review under Sec. 2200.91 if they can establish that 
they have been materially prejudiced either by the use of E-Z Trial 
rather than conventional proceedings or by a lack of due process during 
those proceedings, provided objections to use of the E-Z Trial 
procedure were raised in a timely fashion to the judge.

DATES: Comments must be received by May 31, 1995.

ADDRESSES: All comments concerning these proposed rules should be 
addressed to Earl R. Ohman, Jr., General Counsel, One Lafayette Centre, 
1120 20th St., NW.--9th Floor, Washington, DC 20036-3419.

FOR FURTHER INFORMATION CONTACT:
Earl R. Ohman, Jr., General Counsel, (202) 606-5410.

SUPPLEMENTARY INFORMATION:

Development of the Proposed Rules

    Adjudications by the Occupational Safety and Health Review 
Commission and its Administrative Law Judges are governed by the 
regulations published at 29 CFR part 2200--Rules of Procedure. 
Conventional proceedings are governed by subparts A through G of Part 
2200. Simplified proceedings are governed by subpart M. Simplified 
proceedings differ from conventional proceedings primarily in the 
following ways: (1) Pleadings generally are not required in simplified 
proceedings; (2) discovery is generally not permitted; (3) the Federal 
Rules of Evidence do not apply, as they do in conventional proceedings; 
and (4) interlocutory appeals are not permitted.
    The proposed E-Z Trial program is designed to see that certain 
cases of lesser magnitude before the Commission are handled in a simple 
way, to reduce formality and bring down the cost and time demanded of 
parties in pursuing a case, while protecting due process rights with an 
``on the record'' hearing conducted in accordance with the APA. Cases 
would be processed promptly. The proposed project would draw in part 
from the Commission's current rules for simplified proceedings. As 
under the current simplified proceedings, required documentation would 
be minimized and pleadings and discovery would be eliminated completely 
in most cases. Cases will be reviewed for eligibility for E-Z Trial as 
soon as possible in order to avoid the filing of pleadings wherever 
practicable. Under the E-Z Trial program, informal discussions between 
the parties and the judge would be held to narrow areas of dispute and 
encourage settlement. If the case is not resolved in a pre-hearing 
conference, the hearing itself would be comparatively informal in 
nature, with the format of the hearing being prescribed by the 
presiding judge. Written briefs would in most cases be replaced by oral 
argument. Judges would issue bench decisions when appropriate and 
otherwise would typically issue written decisions within 45 days of the 
completion of the trial.

Purpose of Subpart M

    Under the proposed rule, Sec. 2200.200(b)(1), complaints and 
answers would not be required for the E-Z Trial process. Section 
2200.200(b)(2) would note that, prior to the hearing, discussions among 
the parties and the judge would be required to narrow and define the 
issues between the parties. This should encourage case settlement, and 
accordingly this discussion would be scheduled as soon as possible. 
Section 2200.200(b)(3) would not allow discovery to be conducted except 
on the order of the judge. The current rule prohibiting interlocutory 
appeals, Sec. 2200.211, is incorporated into the proposed rule as 
Sec. 2200.200(b)(4). Section 2200.200(b)(5) would stress that the 
hearing is less formal.

Application

    Under the proposed rule, Sec. 2200.201 would only note that the 
rules in Subpart M would apply to proceedings before a judge if an E-Z 
Trial case is commenced under the rules proposed in Sec. 2200.203.

Eligibility for E-Z Trial

    The current eligibility rule, Sec. 2200.202, specifically excludes 
cases from being tried under simplified proceedings if they involve the 
merits of an alleged violation of specified standards.\1\ Under the 
proposed rule, Sec. 2200.202 would not specifically exclude cases that 
involve any particular standards. The proposed rule does not detail the 
circumstances in which these procedural rules should be utilized. It 
anticipates that experience gathered through the E-Z Trial program is 
the best way to refine the circumstances for which the procedures are 
suited. Nevertheless, in order to provide some guidance in the initial 
application of these rule changes, the Commission suggests that cases 
that might be appropriate for E-Z Trial would generally include those 
with (1) relatively few citation items, (2) an aggregate proposed 
penalty not more than $7500, (3) no allegation of willfulness, (4) a 
hearing that is expected to take less than two days, or (5) a pro se 
respondent. These criteria are neither rigid nor exhaustive. E-Z Trial 
should not be selected for technically complex cases requiring 
discovery or extensive expert testimony.

    \1\Those standards are: 29 CFR 1910.94, 1910.95, 1910.96, 
1910.97, 1910.1000 through 1910.1101, 1926.52, 1926.53, 1926.54, 
1926.55, 1926.57, 1926.800(c), and any occupational health standard 
that may be added to subpart Z of part 1910.
---------------------------------------------------------------------------

Procedures for Commencing E-Z Trial

    The current rule for simplified proceedings, Sec. 2200.203, allows 
any party to request simplified proceedings. Under the proposed rule, 
Sec. 2200.203(a), the Chief Judge can assign an appropriate case for E-
Z Trial at his discretion either on his own motion or at the request of 
a party. In addition, the proposed rule would eliminate the more 
complex filing requirements found under the current rule which mandates 
that the request for simplified proceedings be filed with the Executive 
Secretary and served on all of the following: (i) The employer, (ii) 
the Secretary of Labor, (iii) any authorized employee representatives 
and (iv) posted for the benefit of any unrepresented affected 
employees. Because E-Z Trial can be commenced by the Chief Judge on his 
own motion, it is not necessary to require complex filing procedures.

Procedures for Discontinuing E-Z Trial

    Section 2200.204 sets forth the procedures for discontinuing 
simplified proceedings after the judge has ordered them implemented. 
The Commission purposes several changes to this section, which largely 
parallel the changes proposed in the rule on commencing E-Z Trial. The 
proposed rule, Sec. 2200.204(a), would require that the judge assigned 
to the case consult with the Chief Judge prior to discontinuing E-Z 
Trial. Unlike the current rule, the proposed rule would not necessarily 
discontinue E-Z Trial even if all parties consent to discontinuance. 
The current rule's prohibition of interlocutory review (a limited 
appeal before conclusion of the trial) of simplified 
[[Page 21060]] proceedings is covered in proposed rule 
Sec. 2200.200(b)(4)'s prohibition of interlocutory appeals for E-Z 
Trial proceedings.

Filing of Pleadings

    E-Z Trial is intended to provide parties with a less formal 
adjudicative process. Once a case is designated for E-Z Trial, under 
the proposed rule, Sec. 2200.205(a), the Secretary would not have to 
file a complaint as required under current rule Sec. 2200.34(a), a 
response to a petition for modification of the abatement period under 
current rule Sec. 2200.37(d)(5), or a response to an employee contest 
to the abatement period under current rule Sec. 2200.38(a). In 
addition, under proposed rule Sec. 2200.205(b), a motion would not be 
viewed favorably if the subject of the motion has not been first 
discussed among the parties. The Commission is not presently amending 
the time limits for filing pleadings. Instead, the Commission intends 
to process cases as promptly as practicable in order to avoid the 
filing of pleadings.

Pre-hearing Conference

    Under the proposed rule, Sec. 2200.206(a) requires that as early as 
practicable, the presiding judge would conduct a pre-hearing 
conference. The judge has the discretion to determine the format of the 
pre-hearing conference. The pre-hearing conference would be ``live,'' 
and can be conducted in person or by such electronic means as telephone 
or video conferences. It cannot be conducted by such devices as fax 
machines. In addition, the current rule does not require that 
affirmative defenses such as ``unpreventable employee misconduct,'' 
``infeasibility,'' and ``greater hazard,'' be raised prior to the 
hearing. Proposed rule Sec. 2200.206(b) requires that affirmative 
defenses would be raised at the pre-hearing conference, and that 
affirmative defenses cannot otherwise be raised in later proceedings 
except under extraordinary circumstances. The judge would issue an 
order setting forth any agreements reached by the parties during the 
pre-hearing conference.

Discovery

    No substantive change is proposed to the current rule on discovery, 
Sec. 2200.210. Parties may request discovery, but no discovery would be 
conducted except on order of the judge.

Hearing

    It is expected that the E-Z Trial hearing would be conducted in the 
format decided by the hearing judge. Witnesses, however, would be sworn 
and the proceedings would be reported. The requirement for a reporter 
and transcript, currently found in Sec. 2200.208, would become part of 
the new rule Sec. 2200.208(d). Typically, oral argument would be 
presented at the close of the hearing. However, the judge has the 
discretion to permit the parties to file written briefs instead. If 
appropriate, the judge has the option of announcing his decision from 
the bench on the record. If not announced from the bench, a written 
decision would be issued within 45 days, unless an extension was 
granted by the Chief Judge.

Review of Judge's Decision

    Unlike the current rule, this proposed rule does not require the 
judge to prepare a written decision, but would instead permit him to 
issue a decision from the bench. In that event, that portion of the 
transcript containing the judge's bench decision will be considered the 
written decision and will be included in the judge's order.

Applicability of the Commission's Conventional Rules

    Included in the list of rules that do not apply to E-Z Trials is 
Sec. 2200.74, which covers the filing of briefs and proposed findings 
of fact with the judge, as well as oral arguments at the hearing. No 
other substantive change is proposed to the current rule, 
Sec. 2200.212.

List of Subjects in 29 CFR Part 2200

    Administrative practice and procedure, Hearing and appeal 
procedures.

    For the reasons set forth in the preamble, the Occupational Safety 
and Health Review Commission proposes to amend title 29, chapter XX, 
part 2200, subpart M of the Code of Federal Regulations as follows:

PART 2200--RULES OF PROCEDURE

    1. The authority citation for part 2200 continues to read as 
follows:

    Authority: 29 U.S.C. 661(g).

    2. Subpart M is revised to read as follows:

Subpart M--E-Z Trials

Sec.
2200.200  Purpose.
2200.201  Application.
2200.202  Eligibility for E-Z Trial.
2200.203  Commencing E-Z Trial.
2200.204  Discontinuance of E-Z Trial.
2200.205  Filing of pleadings.
2200.206  Pre-hearing conference.
2200.207  Discovery.
2200.208  Hearing.
2200.209  Review of Judge's decision.
2200.210  Applicability of Subparts A through G.

Subpart M--E-Z Trials


Sec. 2200.200  Purpose.

    (a) The purpose of the E-Z Trials 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) Discovery is generally not permitted.
    (4) Interlocutory appeals are not permitted.
    (5) 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 decision from the bench.


Sec. 2200.201  Application.

    The rules in this subpart will govern proceedings before a Judge in 
a case chosen for E-Z Trial under Sec. 2200.203.


Sec. 2200.202  Eligiblity for E-Z Trial.

    All cases with a low aggregate penalty are eligible for E-Z Trial. 
Those cases selected for E-Z Trial will be those that also do not 
involve complex issues of law or fact.


Sec. 2200.203  Commencing E-Z Trial.

    (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 E-Z Trial.
    (b) Party request. Within twenty days of the notice of docketing, 
any party may request the Chief Judge or the Judge assigned to the case 
to assign the case for E-Z Trial. The request must be in writing. For 
example, ``I request an
E-Z Trial'' 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 [[Page 21061]] case may grant a party's request and 
assign a case for E-Z Trial 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 Sec. 2200.34. If a 
party has requested E-Z Trial or the Judge has assigned the case for E-
Z Trial, the times for filing a complaint or answer will not run. If a 
request for E-Z Trial is denied, the period for filing a complaint or 
answer will begin to run upon issuance of the notice denying
E-Z Trial.


Sec. 2200.204  Discontinuance of E-Z Trial.

    (a) Procedure. If it becomes apparent at any time that a case is 
not appropriate for E-Z Trial, the Judge assigned to the case may, upon 
motion by any party or upon the Judge's own motion, discontinue E-Z 
Trial and order the case to continue under conventional rules. Before 
discontinuing E-Z Trial, the Judge will consult with the Chief Judge.
    (b) Party Motion. At any time during the proceedings any party may 
request that the E-Z Trial 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 E-Z Trial. All 
other parties will have seven days from the filing of the motion to 
state their agreement or disagreement and their reasons.
    (c) Ruling. If E-Z Trial is discontinued, the Judge may issue such 
orders as are necessary for an orderly continuation under conventional 
rules.


Sec. 2200.205  Filing of pleadings.

    (a) Complaint and answer. Once a case is designated for E-Z Trial, 
the complaint and answer requirements are suspended. If the Secretary 
has filed a complaint under Sec. 2200.34(a), a response to a petition 
under Sec. 2200.37(d)(5), or a response to an employee contest under 
Sec. 2200.38(a), and if E-Z Trial has been ordered, no response to 
these documents will be required.
    (b) Motions. A primary purpose of
E-Z Trials 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.


Sec. 2200.206  Pre-hearing conference.

    (a) When held. As early as practicable, 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.


Sec. 2200.207  Discovery.

    Discovery, including requests for admissions, will only be allowed 
under the conditions and time limits set by the Judge.


Sec. 2200.208  Hearing.

    (a) Procedures. The Judge will hold a hearing on any issue that 
remains in dispute at the conclusion of the pre-hearing conference. The 
hearing will be in accordance with subpart E of these rules, except for 
Secs. 2200.71, 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 possible, the Judge will render his 
decision from the bench. Alternatively, within 45 days of the hearing, 
the Judge will issue a written decision. The decision will be in 
accordance with Sec. 2200.90. If additional time is needed, approval of 
the Chief Judge is required.


Sec. 2200.209  Review of Judge's decision.

    Any party may petition for Commission review of the Judge's 
decision as provided in Sec. 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.


Sec. 2200.210  Applicability of Subparts A through G.

    The provisions of subpart D (except for Sec. 2200.57) and 
Secs. 2200.34, 2200.37(d)(5), 2200.38, 2200.71, 2200.73 and 2200.74 
will not apply to E-Z Trials. 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 E-Z Trials.

    Dated: April 25, 1995.
Ray H. Darling, Jr.,
Executive Secretary.
[FR Doc. 95-10604 Filed 4-28-95; 8:45 am]
BILLING CODE 7600-01-M