[Federal Register Volume 62, Number 147 (Thursday, July 31, 1997)] [Rules and Regulations] [Pages 40933-40934] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 97-20130] ======================================================================= ----------------------------------------------------------------------- OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 29 CFR Part 2200 Rules of Procedure for E-Z Trials AGENCY: Occupational Safety and Health Review Commission. ACTION: Final Rule. ----------------------------------------------------------------------- SUMMARY: This document eliminates the sunset provision from the procedures governing the E-Z Trial program and continues the E-Z Trial program as part of the Commission Rules of Procedure, as codified in Title 29 of the Code of Federal Regulations as Part 2200. In addition, this document implements revisions to the procedural rules governing the E-Z Trial program which are intended to assist the E-Z Trial process in meeting its objective of allowing parties in less complex cases to argue their cases before the Commission with as few legal formalities as possible. DATES: Effective July 31, 1997. FOR FURTHER INFORMATION CONTACT: Earl R. Ohman, Jr., General Counsel, (202) 606-5410, Occupational Safety and Health Review Commission, 1120 20th Street NW, 9th Floor, Washington DC 20036-3419. SUPPLEMENTARY INFORMATION: On June 24, 1997, the Occupational Safety and Health Review Commission published in the Federal Register (62 FR 34031) proposed changes to the procedural rules governing the E-Z Trial program. The Commission would like to thank those who took the time and interest to submit comments. The Secretary of Labor responded by stating that it appears that many of the concerns she initially had with the E-Z Trial program can be avoided if the Commission continues to exercise sound judgment in the designation of cases for E-Z Trial, to be receptive to motions by either party to modify or discontinue the procedure, and to conduct pre-hearing conferences in such a manner as to prevent surprises at trial. The Secretary also expressed her wish that the Commission remain open to future modifications of the rule as it gains experience with the E-Z Trial program. The Commission has evaluated the E-Z Trial program during its pilot stage and has decided to eliminate the sunset provision of the E-Z Trial procedures and to maintain E-Z Trial as part of the Commission's Rules of Procedure. The Commission notes that E-Z Trial has reduced the time necessary to try and reach a decision in cases of the type eligible for E-Z Trial from 423 days to 141 days--a two-thirds reduction. In addition, feedback received from the focus groups held concerning E-Z Trial reflects that the program has realized many of its other goals. The comments received in response to the proposed amendments raise issues which the Commission hopes its modified procedures adequately address and the Commission remains open to future modifications as the need may arise. 1. Eligibility for E-Z Trial The Commission proposed amending Rule 202 to make cases involving a fatality or an allegation of willfulness ineligible for E-Z Trial. The Commission also proposed that cases having an aggregate proposed penalty of more than $10,000, but not more than $20,000, may be considered for E-Z Trial designation at the discretion of the Chief Administrative Law Judge. The Commission received no comments specifically opposing these changes. Accordingly, the Commission adopts the proposed amendments. 2. Disclosure of Information Currently, Rule 206 requires the Secretary of Labor to disclose to the employer copies of the narrative (Form OSHA 1-A) and the worksheet (Form OSHA 1-B), or their equivalents, within 12 working days after a case has been designated for E-Z Trial. The Commission proposed amending the rule to require the Secretary to provide the employer with reproductions of any photographs or videotapes that the Secretary intends to use at the hearing within 30 calendar days of designation for E-Z Trial. One commentator suggested that the Secretary should be required to disclose all photographs or videotapes, not just the ones the Secretary anticipates using at the hearing. The commentator stated that there may be photographs or videotapes which would be helpful to an employer's defense, but which the Secretary does not intend to use, and noted that under the proposed rule, the Secretary is not required to disclose such evidence. While the Commission expects that the Secretary would turn over such material without being required to do so, in order to make it clear that no loophole exists in the E-Z Trial procedures and because the E-Z Trial process favors disclosure over the traditional avenues of discovery, the Commission has decided that the Secretary should provide to the employer as part of the disclosure requirement any exculpatory evidence, including photographs and videotapes. Accordingly, the Commission has revised Rule 206 to include the [[Page 40934]] disclosure of any exculpatory material the Secretary has in her possession. 3. Pre-hearing Conference The proposed rule provides that the pre-hearing conference be conducted as soon as practicable after the employer has received the narrative and worksheet under the provisions of Rule 206. One commentator suggested that the pre-hearing conference be held only after the employer has also received any photographs or videotapes so that the employer has the benefit of all mandatory disclosure before the pre-hearing conference. The commentator expressed concern that allowing the pre-hearing conference to go forward without the employer's prior access to any photographs or videotapes places the employer in an unfair position. Because Rule 207 requires the parties to set forth an agreed statement of issues and facts, witnesses and exhibits, defenses, motions, and any other pertinent matter including affirmative defenses at the pre-hearing conference, the commentator noted that an employer may not be properly prepared to do so without the photographs and videotapes. We acknowledge the interest in having an employer fully prepared for the pre-hearing conference, and we note that under the proposed rule, there is no requirement that the Judge hold the pre-hearing conference before the employer receives any photographs or videotapes. We expect that generally the pre-hearing conference will be scheduled after the employer is in receipt of any photographs and videotapes. However, the Commission has decided to adopt the proposed rule which allows the Judge to exercise his or her discretion to conduct the pre- hearing conference at any time after the employer is in receipt of the narrative and the worksheet. 4. Hearing One of the objectives of the E-Z Trial process is to expeditiously adjudicate less complex cases. As a result, the Commission believes that cases proceeding under the E-Z Trial process should be exempt from Rule 60, which requires that the parties be given notice of the time, place, and nature of the hearing at least thirty days in advance of the hearing. Because the cases designated for E-Z Trial contain relatively few citation items and do not involve complex matters of fact or law, the Commission believes that the parties will not be harmed by allowing the Judge to schedule the hearing with less than 30 days notice. Accordingly, the Commission has revised Rule 209 to reflect the exemption from Rule 60. 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 amends 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. Section 2200.201 is amended by removing paragraph (b) and the designation for paragraph (a). 3. Section 2200.202 is revised to read as follows: Sec. 2200.202 Eligibility for E-Z Trial. (a) Those cases selected for E-Z Trial will be those that do not involve complex issues of law or fact. Cases appropriate for E-Z Trial would generally include those with one or more of the following characteristics: (1) Relatively few citation items, (2) An aggregate proposed penalty of not more than $10,000, (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 $10,000, but not more than $20,000, if otherwise appropriate, may be selected for E-Z Trial at the discretion of the Chief Administrative Law Judge. 4. Section 2200.206(a) is revised to read as follows: Sec. 2200.206 Disclosure of information. (a) Disclosure to employer. (1) Within 12 working days after a case is designated for E-Z Trial, 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 E-Z Trial, 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 E-Z Trial, 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. * * * * * 5. Section 2200.207(a) is amended by revising the first sentence to read as follows: Sec. 2200.207 Pre-hearing conferences. (a) When held. As early as practicable after the employer has received the documents set forth in Sec. 2200.206(a)(1), the presiding Judge will order and conduct a pre-hearing conference.* * * * * * * * 6. Section 2200.209(a) is revised to read as follows: Sec. 2200.209 Hearing. (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 Sec. 2200.60, 2200.73, and 2200.74 which will not apply. * * * * * Dated: July 25, 1997. Earl R. Ohman, Jr., General Counsel. [FR Doc. 97-20130 Filed 7-30-97; 8:45 am] BILLING CODE 7600-01-M