[Federal Register Volume 70, Number 42 (Friday, March 4, 2005)]
[Proposed Rules]
[Pages 10574-10581]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-4257]


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OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

29 CFR Parts 2200 and 2204


Revisions to Procedural Rules Governing Practice Before the 
Occupational Safety and Health Review Commission

AGENCY: Occupational Safety and Health Review Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: This document proposes several revisions to the procedural 
rules governing practice before the Occupational Safety and Health 
Review Commission.

DATES: Comments must be received by April 4, 2005.

FOR FURTHER INFORMATION CONTACT: Patrick Moran, Deputy General Counsel, 
(202) 606-5410, 1120 20th St., NW., Ninth Floor, Washington, DC 20036-
3457.

SUPPLEMENTARY INFORMATION: On June 17, 2004 the Commission published an 
Advanced Notice of Proposed Rulemaking (ANPR), 69 FR 33878. In that 
notice the Commission announced that it was considering revisions to 
its rules concerning electronic filing, the expansion of the range of 
cases eligible for E-Z Trial, and the Settlement Part, the availability 
of sanctions for rules violations and expanding the authority of 
administrative law judges to impose such sanctions, the grounds for 
obtaining Commission review of interlocutory orders issued by its 
judges, and the restriction of practice before the Commission of 
lawyers and in-house company and union representatives. The Commission 
solicited public comments regarding these areas and invited the public 
to suggest other changes. The Commission thanks those who responded to 
the ANPR. The comments were helpful and played a large part in aiding 
the Commission to formulate these proposed rule changes. Now, the 
Commission asks for comments on these proposed rule changes, especially 
from those who practice before it.
    Having considered the comments filed in response to the ANPR, this 
document proposes several revisions governing practice before the 
Occupational Safety and Health Review Commission. Although a few of the 
revisions are technical and clarifying in nature, this proposal also 
contains several significant changes to Commission practice and 
procedure. For example, the Commission is proposing new rules to allow 
and facilitate electronic service and filing of

[[Page 10575]]

pleadings, briefs and other documents. The Commission is also proposing 
restrictions on when non-attorneys may represent employers in 
Commission proceedings, modifications to its settlement and discovery 
rules, and changes to the eligibility limits on E-Z Trial.
    Several rule changes are minor in nature. This document proposes 
several technical changes, including a correction to the Commission's 
nine-digit zip code in Rules 7 and 8. Several rules, such as Rule 11 
and 41, have been moved. Accordingly, several rules have been 
renumbered, and cross-references updated. The Commission proposes 
revising Rule 5 to give its judges the discretion to require a party to 
respond to a motion or order filed shortly before the hearing where the 
normal response time would not expire until after the hearing has 
commenced. The Commission also proposes to amend Rule 8(f)(3) to 
eliminate the 3-day grace period for mailing documents after they have 
been faxed. The Commission believes that when a document has been 
faxed, there is no reason to delay mailing the original. A modification 
and reordering of the rule on privilege is also proposed. Specifically, 
the Commission proposes to abolish Rule 11 and move those parts that 
the Commission deems relevant to the Commission's rule on discovery, 
Rule 52. The Commission's experience has been that privilege issues 
generally arise in discovery, are generally resolved by the parties and 
if not resolved by the parties, are generally handled in the context of 
discovery disputes. Accordingly, the following portions of Rule 11 will 
be inserted in Rule 52:
    (1) The assertion of a privilege must be accompanied by specific 
allegations and supporting affidavits, depositions, or testimony. It is 
believed that these requirements reduce the unwarranted assertion of 
privileges;
    (2) Claimed privilege material may be examined in camera or ex 
parte;
    (3) The judge is given wide latitude to fashion an appropriate 
protective order;
    (4) A party unsuccessfully asserting a privilege may, as a matter 
of right, have the material sealed until review.
    (5) The portion of the rule governing protective orders would be 
moved to Rule 52(e).
    The Commission also proposes that, except for Simplified 
Proceedings, only attorneys in good standing be permitted to represent 
a party before the Commission or its judges. This restriction would not 
limit the right to appear before the Commission of any party, affected 
employee, or owner, partner, officer, or employee of a party when the 
party is a labor organization, or business entity. This proposal 
generated more public comment than any other mentioned in the ANPR. 
While the reaction was generally negative, we note that most of the 
comments came from practitioners who would be most affected by the 
proposal and from small employers and industry groups who were 
concerned about the increased costs necessitated by hiring an attorney. 
After we carefully considered the matter, we think the best course is 
limit in part non-attorney representation before the Commission. While 
we recognize the desire for economical access to the Commission's 
adjudicatory process, we also are concerned about accountability and 
the quality of representation. It has been the Commission's experience 
that lay representatives generally do not serve their clients well 
before the Commission. In particular, lay representatives have 
displayed difficulty in navigating the federal rules of evidence and 
procedure. On occasion lay representatives may represent more than one 
employer cited at a particular worksite and not fully comprehend the 
potential conflicts of interest such a situation can present. The 
Commission does believe, however, that non-legal representation can be 
effective for cases tried under the less demanding requirements of 
Simplified Proceedings and proposes to continue to permit lay 
representations in such cases.
    The Commission proposes to redesignate the general rule on 
sanctions (currently Rule 41) without substantive change to Rule 101. 
Another relatively minor modification involves Rule 51 on Scheduling 
Conferences. The Commission would make such conferences discretionary 
with the judge. We believe that the current rule is beneficial in large 
and complex cases, but may be a hindrance in small to mid-sized cases.
    The Commission proposes several changes to Rule 52, its Discovery 
Rule. The Commission believes that its procedures are unnecessarily 
complicated by the application of the extensive requirements for 
initial disclosures contained in Federal Rule of Civil Procedure (FRCP) 
26(a). It is the view of the Commission that application of FRCP 26(a) 
is unworkable with pro se employers and results in needless additional 
expense to employers represented by counsel. Accordingly, the 
Commission would add a clause to Rule 52(a)(1) making Federal Rule 
26(a) inapplicable to Commission proceedings. Also, as mentioned 
earlier, the Commission proposes to add a paragraph to Rule 52 setting 
forth its rule addressing claims of privilege.
    The current Commission rule on oral arguments provides only that 
arguments before the Commission be electronically recorded. In the 
past, the Commissioners have found that a written transcript would aid 
them in reviewing the argument. Therefore, the Commission would amend 
Rule, 95(i)(1) to allow for a written transcription of oral arguments. 
Parties wishing to order a transcript would be able to purchase one at 
their own expense. The Commission would also require that any party who 
files a motion for oral argument indicate why oral argument would 
assist the Commission in deciding the case.
    The Commission's Voluntary Settlement rule, Rule 101, predates the 
Mandatory Settlement rule, Rule 120. The Commission finds it redundant 
to have a separate voluntary and mandatory settlement rule. Therefore, 
the Commission proposes eliminating Rule 101 and includes a provision 
in Rule 120 expressly allowing a party to voluntarily enter the 
settlement process, at which time the requirements of Rule 120 would 
apply. The mandatory settlement rules are intended to deal with large, 
complex cases. It is the Commission's view that, before discovery is 
completed, the parties are generally not sufficiently familiar with the 
details of such cases to warrant entry into the mandatory settlement 
process. Thus, the Commission proposes to change the timing for entry 
into the mandatory settlement process until discovery is completed. In 
contrast, since cases involved in the voluntary settlement process may, 
in some cases, be relatively simple, parties will be allowed to enter 
the voluntary settlement process at any time.
    Several additional changes to the Mandatory Settlement Rules are 
also proposed. The Commission proposes giving the settlement judge the 
authority to hold a ``mini-trial'' in order to narrow the issues 
remaining between the parties. It is the opinion of the Commission and 
its judges that such ``mini-trials'' would make clear to the parties 
both the strength and weaknesses of their case and, therefore, 
facilitate settlement. the mandatory settlement rule has generally 
proven successful, and the Commission believes that the procedure 
should be expanded for greater judicial economy and reduced cost to 
litigants. Accordingly, the Commission recommends lowering the 
eligibility limits from cases with an aggregate penalty of $200,000 to 
those with an aggregate penalty of $100,000.

[[Page 10576]]

    Currently, there is no provision in the rules allowing the 
settlement judge to continue as the trial judge. The Commission 
believes that such a provision would be of benefit in those few large 
and complex cases that would require a significant amount of time for a 
new judge to become familiar with the case. If all parties, the 
settlement judge, and the Chief Administrative Law Judge agree to the 
settlement judge's continued participation as trial judge, we believe 
that judicial economies and reduced litigant expense would result. This 
new consent provision is predicated on the consent of the parties, the 
settlement judge, and the Chief Administrative Law Judge in order to 
ensure that the settlement judge's impartiality was not compromised by 
his or her participation in the settlement process. Therefore, the 
Commission would also add a provision that would allow settlement judge 
to remain as the trial judge upon the consent of the judge and all 
parties.
    The Commission proposes several changes to its E-Z Trial Rules. 
First, it proposes changing the name from E-Z Trial to Simplified 
Proceedings. The Commission believes that the name ``E-Z Trial'' 
conveys a heightened sense of informality and that the name change more 
accurately represents the nature of these proceedings. Because these 
procedures have been a success, the Commission believes that the 
eligibility requirements should be loosened. Therefore, it proposes to 
expand eligibility by increasing the aggregate penalty limits to 
$20,000 for Rule 202(a) and $30,000 for Rule 202(b).
    The Commission also proposes to amend its rules to permit and 
facilitate the electronic filing and service of documents. Objections 
to making electronic filing mandatory were received by several 
practitioners and the Secretary of Labor. These commentators pointed 
out that many small, pro se employers who appear before the Commission 
may not be able to file or receive documents electronically. While the 
Commission expects the number to dwindle in time, it agrees with the 
commentators that it would be premature to make electronic filing 
mandatory at this time. According, the Commission proposes tomake 
electronic filing optional. Among the highlights of the proposal:
    (1) Electronic service of documents among the parties may be had 
only when all parties must participate.
    (2) Electronic filing of a document with the Commission may be 
accomplished at any time by any party with the consent of the other 
parties and contingent upon the parties agreeing to electronic service.
    (3) Service is effective upon receipt. The 3-day mailing 
presumption will not be included in the response time when a party is 
served electronically.
    (4) Filing is effective upon receipt. Documents will be accompanied 
by a certificate of service.
    (5) Only electronic signatures will be required.
    (6) The rule will direct parties to the Commission's Web site for 
directions and technical specifications.
    (7) Sensitive information will be given special treatment. (See 
Proposed Rule 8(g)(5) that will be set out in the rule and not on the 
Web site.)
    Finally, the Commission proposes to amend its EAJA Rule 302 (29 CFR 
2204.302) regarding when an EAJA application may be filed and the 
Commission's aggregation EAJA Rule 105(f), 29 CFR 2204.105(f). The 
current Rule 302, which requires an EAJA application to be filed within 
30 days of a Commission order, is in tension with section 11 of the 
Occupational Safety and Health Act of 1970, 29 U.S.C. 660 and the 
Federal Rules of Appellate Procedure (FRAP), which allow a party 60 
days to appeal to the Circuit Court of Appeals, and developing case 
law. See e.g. Scafar Contracting Inc. v. SOL, 325 F.3d 422 (3d Cir. 
2003). The Commission proposes to bring its rule in line with the Act, 
FRAP and developing case law and allow a party 30 days after the 
Commission decision becomes unreviewable in a Federal Circuit Court to 
file an EAJA application. Similarly, the Commission's current 
aggregation rule, which requires the net worth and number of employees 
of an EAJA applicant to be aggregated with that of affiliated 
companies, is at odds with the growing body of case law that disfavors 
such presumption of aggregation. See e.g. National Association of Mfrs. 
v. DOL, 159 F.3d 597 (D.C. Cir. 1998); Caremore, Inc. v. NLRB, 150 F.3d 
628 (6th Cir. 1998). Rescinding its rule on aggregation will free the 
Commission to conform its aggregation requirements to this changing 
case law.
    The Commission received several suggestions for additional charges 
to its rules. Generally, these suggestions involved among other things, 
pleading matters, such as the time for raising affirmative defenses; 
discovery issues, including the swearing of response to requests for 
admissions, the taking of depositions as of right; and the availability 
of subpoenas. While the Commission values these suggestions, they do 
not, in its view, represent serious problems and are generally best 
handled through the proper exercise of the judge's discretion in 
accordance with Commission rules. However, the Commission will monitor 
these areas and may consider these suggestions in future rules changes.

List of Subjects in 29 CFR Parts 2200 and 2204

    Hearings and appeal procedures, Administrative practice and 
procedure.

Text of Amendment

    For the reasons set forth in the preamble, the Occupational Safety 
and Health Review Commission proposes to amend title 29, chapter XX, 
parts 2200 and 2204 of the Code of Federal Regulations as follows:

PART 2200--[AMENDED]

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

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

    2. Section 2200.5 is revised to read as follows:


Sec.  2200.5  Extension of time.

    Upon motion of a party, for good cause shown, the Commission or 
Judge may enlarge or shorten any time prescribed by these rules or 
prescribed by an order. All such motions shall be in writing but, in 
exigent circumstances in a case pending before a Judge, an oral request 
may be made and thereafter shall be followed by written motion filed 
with the Judge within 3 working days. A request for an extension of 
time should be received in advance of the date on which the pleading or 
document is due to be filed. However, in exigent circumstances, an 
extension of time may be granted even though the request was filed 
after the designated time for filing has expired. In such 
circumstances, the party requesting the extension must show, in 
writing, the reasons for the party's failure to make the request before 
the time prescribed for the filing had expired. The motion may be acted 
upon before the time for response has expired.
    3. In Sec.  2200.7, paragraphs (c) and (g) are revised to read as 
follows:


Sec.  2200.7  Service and notice.

* * * * *
    (c) How accomplished. Unless otherwise ordered, service may be 
accomplished by postage pre-paid first class mail at the last known 
address, by electronic transmission, or by personal delivery. Service 
is deemed effected at the time of mailing (if by mail), at the time of 
receipt (if by electronic transmission), or at the time of personal 
delivery (if by personal delivery). Facsimile transmission of documents

[[Page 10577]]

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.).
* * * * *
    (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 consent or petition for 
modification of the abatement period, post, where the citation is 
required to be posted, a copy of the notice of contest and a notice 
informing such affected employees of their right to party status and of 
the availability of all pleadings for inspection and copying at 
reasonable times. A notice in the following form shall be deemed to 
comply with this paragraph:


(Name of employer)
    Your employer has been cited by the Secretary of Labor for 
violation of the Occupational Safety and Health Act of 1970. The 
citation has been contested and will be the subject of a hearing before 
the OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION. Affected 
employees are entitled to participate in this hearing or parties under 
terms and conditions established by the OCCUPATIONAL SAFETY AND HEALTH 
REVIEW COMMISSION in its Rules of Procedure. Notice of intent to 
participate must be filed no later than 10 days before the hearing. Any 
notice of intent to participate should be sent to: Occupational Safety 
and Health Review Commission, Office of the Executive Secretary, One 
Lafayette Centre, 1120 20th Street, NW., Suite 980, Washington, DC 
20036-3457.
    All pleadings relevant to this matter may be inspected at: (Place 
reasonably convenient to employees, preferably at or near workplace.)
    Where appropriate, the second sentence of the above notice will be 
deleted and the following sentence will be substituted:
    The reasonableness of the period prescribed by the Secretary of 
Labor for abatement of the violation has been contested and will be the 
subject of a hearing before the OCCUPATIONAL SAFETY AND HEALTH REVIEW 
COMMISSION.
* * * * *
    4. Section 2200.8 is revised to read as follows:


Sec.  2200.8  Filing.

    (a) What to file. All papers required to be served on a party or 
intervenor, except for those papers associated with part of a discovery 
request under Rules 52 through 56, shall be filed either before service 
or within a reasonable time thereafter.
    (b) Where to file. Prior to assignment of a case to a Judge, all 
papers shall be filed with the Executive Secretary at One Lafayette 
Centre, 1120 20th Street, NW., Suite 980, Washington, DC 20036-3457. 
Subsequent to the assignment of the case to a Judge, all papers shall 
be filed with the Judge at the address given in the notice informing of 
such assignment. Subsequent to the docketing of the Judge's report, all 
papers shall be filed with the Executive Secretary, except as provided 
in Sec.  2200.90(b)(3).
    (c) How to file. Unless otherwise ordered, filings may be 
accomplished by postage-prepaid first class mail, personal delivery, or 
electronic transmission or facsimile transmission.
    (d) Number of copies. Unless otherwise ordered or stated in this 
part:
    (1) If a case is before a Judge or if it has not yet been assigned 
to a Judge, only the original of a document shall be filed.
    (2) If a case is before the Commission for review, the original and 
eight copies of a document shall be filed.
    (e) Filing date. (1) Filing date. Except for the documents listed 
in paragraph (e)(2) of this section, 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 requests for interlocutory 
reviews (Sec.  2200.73(b)), petitions for discretionary reviews (Sec.  
2200.91), and EAJA applications (Sec.  2204.301).
    (3) Counsel and the parties shall have sole responsibility for 
insuring that the document is timely received by the Commission.
    (f) Facsimile transmission. (1) Any document may be filed with the 
Commission or its Judges by facsimile transmission. Filing shall be 
deemed completed at the time that the facsimile transmission is 
received by the Commission or the Judge. The filed facsimile shall have 
the same force and effect as the original.
    (2) All facsimile transmissions shall include a facsimile of the 
appropriate certificate of service.
    (3) It is the responsibility of parties desiring to file documents 
by the use of facsimile transmission equipment to utilize equipment 
that is compatible with facsimile transmission equipment operated by 
the Commission. Legibility of the transmitted documents is the 
responsibility of the serving party.
    (g) Electronic filing. (1) Where all parties consent to electronic 
service and electronic filing, a document may be filed by electronic 
transmission with the Commission and its judges. The certificate of 
service accompanying the document must state that the other parties 
consent to filing by electronic transmission. The electronic 
transmission shall be in the manner specified by the Commission's Web 
site (http://www.OSHRC.gov).
    (2) A document filed in conformance with these rules constitutes a 
written document for the purpose of applying these rules, and a copy 
printed by the Commission and placed in the case file shall have the 
same force and effect as the original.
    (3) A certificate of service shall accompany each document 
electronically filed. The certificate shall set forth the dates and 
manner of both filing and service. It is the responsibility of the 
transmitting party to retain records showing the date of transmission, 
including receipts.
    (4) A party that files a document by an electronic transmission 
shall utilize equipment and software that is compatible with equipment 
operated by the Commission and shall be responsible for the legibility 
of the document.
    (5) Information that is sensitive but not privileged shall be filed 
as follows:
    (i) If Social Security numbers must be included in a document, only 
the last four digits of that number shall be used;
    (ii) If names of minor children must be mentioned, only the 
initials of that child shall be used;
    (iii) If dates of birth must be included, only the year shall be 
used;
    (iv) If financial account numbers must be filed, only the last four 
digits of these numbers shall be used;
    (v) If a personal identifying number, such as a driver's license 
number must be filed, only the last four digits shall be used. Parties 
shall exercise caution when filing medical records, medical treatment 
records, medical diagnosis records, employment history, and individual 
financial information, and

[[Page 10578]]

shall redact or exclude certain materials unnecessary to a disposition 
of the case.
    (6) A transmittal letter shall not be filed electronically or by 
other means when a document is transmitted noting:
    (i) The transmittal of a document;
    (ii) The inclusion of an attachment;
    (iii) A request for a return receipt; or
    (iv) A request for additional information concerning the filing.
    (7) The signature line of any document shall include the notation 
``/s/'' followed by the typewritten name or graphical duplicate of the 
hand-written signature of the party representative filing the document. 
Such representation of the signature shall be deemed to be the original 
signature of the representative for all purposes unless the party 
representative shows that such representation of the signature was 
unauthorized.
    (8) Privileged information shall not be filed electronically. 
Privileged information or information that is asserted by any party to 
be privileged shall not be filed electronically.


Sec.  2200.11  [Removed and Reserved]

    5. Section 2200.11 is removed and reserved.
    6. In Sec.  2200.22, paragraph (a) is revised to read as follows:


Sec.  2200.22  Representation of parties and intervenors.

    (a)(1) Representation. Any party or intervenor may appear in 
person, through an attorney or, when a case is heard in simplified 
proceedings, through another representative who is not an attorney.
    (2) Attorneys. Attorneys admitted to practice before the highest 
court of any State, Territory, District, Commonwealth, or possession of 
the United States, and in good standing, are permitted to practice 
before the Commission.
    (3) Other persons. A person who is not authorized to practice 
before the Commission as an attorney under paragraph (a)(1) of this 
section may practice before the Commission as a representative of a 
party if he is:
    (i) A party;
    (ii) An affected employee;
    (iii) An owner, partner, officer, or employee of a party when the 
party is a labor organization, a partnership, a corporation, or other 
business entity.
    (4) A representative must file an appearance in accordance with 
Sec.  2200.23. In the absence of an appearance by a representative, a 
party or intervenor will be deemed to appear for him or herself.
* * * * *
    7. Section 2200.32 is revised to read as follows:


Sec.  2200.32  Signing of pleadings and motions.

    Pleadings and motions shall be signed by the filing party or by the 
party's representative. The signature of a representative constitutes a 
representation by him that he is authorized to represent the party or 
parties on whose behalf the pleading is filed. The signature of a 
representative or party also constitutes a certificate by him that he 
has read the pleading, motion, or other paper, that to the best of his 
knowledge, information, and belief, formed after reasonable inquiry, it 
is well grounded in fact and is warranted by existing law or a good 
faith argument for the extension, modification, or reversal of existing 
law, and that it is not interposed for any improper purpose, such as to 
harass or to cause unnecessary delay or needless increase in the cost 
of litigation. If a pleading, motion or other paper is signed in 
violation of this rule, such signing party or its representative shall 
be subject tot he sanctions set forth in Sec.  2200.101 or Sec.  
2200.104. A signature by a party representative constitutes a 
representation by him that he understands that the rules and orders of 
the Commission and its judges apply equally to attorney and non-
attorney representatives.


Sec.  2200.41  [Removed and Reserved]

    8. Section 2200.41 is removed and reserved.
    9. In Sec.  2200.51, paragraph (a)(1) is revised to read as 
follows:


Sec.  2200.51  Prehearing conferences and orders.

    (a) Scheduling conference. (1) The Judge may, upon his or her 
discretion, consult with all attorneys and any unrepresented parties, 
by a scheduling conference, telephone, mail, or other suitable means, 
and within 30 days after the filing of the answer, enter a scheduling 
order that limits the time:
    (i) To join other parties and to amend the pleadings;
    (ii) To file and hear motions; and
    (iii) To complete discovery.
* * * * *
    10. In Sec.  2200.52, paragraphs (a)(1) and (d) through (1) are 
revised and a new paragraph (m) is added to read as follows:


Sec.  2200.52   General provisions governing discovery.

    (a) General. (1) Methods and limitations. In conformity with these 
rules, any party may, without leave of the Commission or Judge, obtain 
discovery by one or more of the following methods: production of 
documents or things or permission to enter upon land or other property 
for inspection and other purposes (Sec.  2200.53); requests for 
admission to the extent provided in Sec.  2200.54; and interrogatories 
to the extent provided in Sec.  2200.55. Discovery is not available 
under these rules through depositions except to the extent provided in 
Sec.  2200.56. In the absence of a specific provision, procedure shall 
be in accordance with the Federal Rules of Civil Procedure, except that 
the provisions of Rule 26(a) of the Federal Rules of Civil Procedure do 
not apply to Commission proceedings.
* * * * *
    (d) Privilege. (1) Claims of privilege. A person claiming that 
information is privileged shall claim the privilege in writing or, if 
during a hearing, on the record. The claim shall: Identify the 
information that would be disclosed; set forth the privilege that is 
claimed; and allege the facts showing that the information is 
privileged. The claim shall be supported by affidavits, depositions, or 
testimony and shall specify the relief sought. The claim may be 
accompanied by a motion for a protective order or by a motion that the 
allegedly privileged information be received and the claim ruled upon 
in camera, that is with the record and hearing room closed to the 
public, or ex parte, that is, without the participation of parties and 
their representatives. The judge may enter an order and impose terms 
and conditions on his or her examination of the claim as justice may 
require, including an order designed to ensure that the alleged 
privileged information not be disclosed until after the examination is 
completed.
    (2) Deliberative process privilege. A claim that the information 
sought is privileged because it is part of the ``deliberative process'' 
is subject to the same conditions as other claims of privilege as set 
out in paragraph (d)(1) of this section.
    (3) Upholding or rejecting claims of privilege. If the judge 
upholds the claim of privilege, the judge may order and impose terms 
and conditions as justice may require, including a protective order. If 
the judge overrules the claim, the person claiming the privilege may 
obtain as of right an order sealing from the public those portions of 
the record containing the allegedly privileged information pending 
interlocutory or final review of the ruling, or final disposition of 
the case, by the Commission. Interlocutory review of such an order 
shall be given priority consideration by the Commission.

[[Page 10579]]

    (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 
Fed.R.Civ.P.37, including the following:
    (1) An order that designated facts shall be taken to be established 
for purposes of the case in accordance with the claim of the party 
obtaining that order;
    (2) An order refusing to permit the disobedient party to support or 
to oppose designated claims or defenses, or prohibiting it from 
introducing designated matters in evidence;
    (3) An order striking out pleadings or parts thereof, or staying 
further proceedings until the order is obeyed; and
    (4) An order dismissing the action or proceeding or any part 
thereof, or rendering a judgment by default against the disobedient 
party.
    (g) Unreasonable delays. None of the discovery procedures set forth 
in these rules shall be sued 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 (e) 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 through 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 Rule 53, requests for admission under Rule 54 and responses 
thereto, interrogatories under Rule 55 and the answers thereto, and 
depositions under Rule 56 shall be served upon other counsel or 
parties, but shall not be filed with the Commission or the Judge. The 
party responsible for service of the discovery material shall retain 
the original and become the custodian.
    (k) Relief from discovery requests. If relief is sought under Rules 
101 or 52(e), (f), or (g) concerning any interrogatories, requests for 
production or inspection, requests for admissions, answers to 
interrogatories, or responses to request for admissions, copies of the 
portions of the interrogatories, requests, answers, or responses in 
dispute shall be filed with the Judge or Commission contemporaneously 
with any motion filed under Rules 101 or 52(e), (f), or (g).
    (1) 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.
    11. In Sec.  2200.90, paragraph (b)(3) is revised to read as 
follows:


Sec.  2200.90  Decisions of Judges.

* * * * *
    (b) * * *
    (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 reviews with leave of the Commission. 
Until the Judge's report has been docketed by the Executive Secretary, 
the Judge may relieve a party of default or grant reinstatement under 
Sec. Sec.  2200.101(b), 2200.52(f) or 2200.64(b).
* * * * *
    12. In Sec.  2200.95, paragraphs (a) and (i) are revised to read as 
follows:


Sec.  2200.95  Oral argument before the Commission.

    (a) When ordered. Upon motion of any party, or upon its own motion, 
the Commission may order oral argument. Parties requesting oral 
argument must demonstrate why oral argument would facilitate 
resolutions of the issues before the Commission. Normally, motions for 
oral argument shall not be considered until after all briefs have been 
filed.
* * * * *
    (i) Recording oral argument. (1) Unless the Commission directs 
otherwise, oral arguments shall be

[[Page 10580]]

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 coy.
    (3) Error in the transcript of the oral argument may be corrected 
by the Commission on its own motion, or joint motion by the parties, or 
on motion by any party. The motion shall state the error in the 
transcript and the correction to be made. Corrections will be made by 
hand with pen and ink and by the appending of an errata sheet.
* * * * *
    13. Section 2200.101 is revised to read as follows:


Sec.  2200.101  Failure to obey rules.

    (a) Sanctions. When any party has failed to plead or otherwise 
proceed as provided by these rules or as required by the Commission or 
Judge, he may be declared to be in default either: On the initiative of 
the Commission or Judge, after having been afforded an opportunity to 
show cause why he should not be declared to be in default; or on the 
motion of a party. Thereafter, the Commission or Judge, in their 
discretion, may enter a decision against the defaulting party or strike 
any pleading or document not file din accordance with these rules.
    (b) Motion to set aside sanctions. For reasons deemed sufficient by 
the Commission or Judge and upon motion expeditiously made, the 
Commission or Judge may set aside a sanction imposed under paragraph 
(a) of this section. See Sec.  2200.90(b)(3).
    (c) Discovery sanctions. This section does not apply to sanctions 
for failure to comply with orders compelling discovery, which are 
governed by Sec.  2200.52(b).
    (d) Show cause orders. All show cause orders issued by the 
Commission or Judge under paragraph (a) of this section shall be served 
upon the affected party by certified mail, return receipt requested.
    14. In Sec.  2200.120, paragraphs (a), (b), (d)(2) and (d)(3) and 
(g) are revised and a new paragraph (c)(6) is added to read as follows:


Sec.  2200.120  Settlement part.

    (a) Applicability. (1) This section applies to:
    (i) Notices of contest by employers in which the aggregate amount 
of the penalties sought by the Secretary is $100,000 or greater and 
notices of contest by employers which are determined to be suitable for 
assignment under this section for reasons deemed appropriate by the 
Chief Administrative Law Judge; (ii) Upon motion of any party following 
the docketing of the notice of contest, or otherwise with the consent 
of the parties at any time in the proceedings, the Chief Administrative 
Law Judge may assign a case to a Settlement Judge for processing under 
this section whenever it is determined that there is a reasonable 
prospect of substantial settlement with the assistance of mediation by 
a Settlement Judge.
    (2) In the event either the Secretary or the employer objects to 
the use of a Settlement Judge procedure, such procedure shall not be 
imposed. This clause applies only to notices of contest by employers 
and to applications for fees under the Equal Access to Justice Act and 
29 CFR Part 2204.
    (b) Proceedings under this part. Notwithstanding any other 
provisions of these rules, upon completion of discovery the Chief 
Administrative Law Judge shall assign to the Settlement Part any case 
which satisfies the criteria set forth in paragraph (a)(1)(i) of this 
section. The Chief Administrative Law Judge may also assign to the 
Settlement Part, at any time during the proceeding, any case that 
satisfied the criteria set forth in paragraph (a)(1)(ii) of this 
section. The Chief Administrative Law Judge shall either act as or 
appoint a Settlement Part Judge, who shall be a Judge other than the 
one assigned to hear and decide the case (except as provided in 
paragraph (f)(2) of this section), to conduct proceedings under the 
Settlement Part as set forth in this section.
* * * * *
    (c) * * *
    (6) Mini-Hearing. Where the Settlement Judge finds that it may help 
narrow the issues, he or she may order the parties to participate in a 
mini-hearing. The confidentiality rules of paragraph (d)(3) of this 
section shall apply to the mini-hearing.
    (d) * * *
    (2) Participation in conference. The Settlement Part Judge may 
require that any attorney or other representative who is expected to 
try the case for each party by present. The Settlement Part Judge may 
also require that the party's representative be accompanied by an 
official of the party having full settlement authority on behalf of the 
party. The parties and their representatives or attorneys are expected 
to be completely candid with the Settlement Part Judge so that he may 
properly guide settlement discussions. The failure to be present at a 
settlement conference or otherwise to comply with the orders of the 
Settlement Part Judge or the refusal to cooperate fully within the 
spirit of this rule may result in the imposition of sanctions under 
Sec.  2200.101.
    (3) Confidentiality. All statements made, and all information 
presented, during the course of proceedings under this section shall be 
regarded as confidential and shall not be divulged outside of these 
proceedings except with the consent of the parties. The Settlement Part 
Judge shall if necessary issue appropriate orders in accordance with 
Sec.  2200.52(e) to protect confidentiality. The Settlement Part Judge 
shall not divulge any statements or information presented during 
private negotiations with a party or his representative except with the 
consent of that party. No evidence of statements or conduct in 
proceedings under this section within the scope of Federal Rule of 
Evidence 408, no notes or other material prepared by or maintained by 
the Settlement Part Judge, and no communications between the Settlement 
Part Judge and the Chief Administrative Law Judge including the report 
of the Settlement Part Judge under paragraph (f) of this section, will 
be admissible in any subsequent hearing except by stipulation of the 
parties. Documents disclosed in the settlement process may not be used 
in litigation unless obtained through appropriate discovery or 
subpoena. The Settlement Part Judge shall not discuss the merits of the 
case with any other person, nor appear as a witness in any hearing of 
the case.
* * * * *
    (g) Report of Settlement Part Judge. (1) The Settlement Part Judge 
shall promptly notify the Chief Administrative Law Judge in writing of 
the status of the case at such time that he determines further 
negotiations would be fruitless. If the Settlement Part Judge has not 
made such a determination and a settlement agreement is not achieved 
within 120 days following assignment of the case to the Settlement Part 
Judge, the Settlement Part Judge shall then advise the Chief 
Administrative Law Judge in writing of his assessment of the likelihood 
that the parties could come to

[[Page 10581]]

a settlement agreement if they were afforded additional time for 
settlement discussions and negotiations. The Chief Administrative Law 
Judge may then in his discretion allow an additional period of time, 
not to exceed 30 days, for further proceedings under this section. If 
at the expiration of the period allotted under this paragraph the 
Settlement Part Judge has not approved a full settlement pursuant to 
Sec.  2200.100, he shall furnish to the Chief Administrative Law Judge 
copies of any written stipulations and orders embodying the terms of 
any partial settlement the parties have reached.
    (2) At the termination of the settlement period without a full 
settlement, the Chief Administrative Law Judge shall promptly assign 
the case to an Administrative Law Judge other than the Settlement Part 
Judge or Chief Administrative Law Judge for appropriate action on the 
remaining issues. If all the parties, the Settlement Judge and the 
Chief Administrative Law Judge agree, the Settlement Part Judge may be 
retained as the hearing judge.

Subpart M--Amended

    15. In Subpart M all references to ``E-Z Trial'' are revise to read 
``Simplified Proceedings''
    16. In Sec.  2200.202, paragraphs (a)(2) and (b) are revised to 
read as follows:


Sec.  2200.202  Eligibility for Simplified Proceedings.

    (a) * * *
    (2) an aggregate proposed penalty of not more than $20,000,

* * * * *
    (b) Those cases with an aggregate proposed penalty of more than 
$20,000, but not more than $30,000, if otherwise appropriate, may be 
selected for Simplified Proceedings at the discretion of the Chief 
Administrative Law Judge.

PART 2204--[AMENDED]

    17. The authority citation for part 2204 continues to read as 
follows:

    Authority: Sec. 203(a)(1), Pub. L. 96-481, 94 Stat. 2325 (5 
U.S.C. 504(c)(1)); Pub. L. 99-80, 99 Stat. 183.


Sec.  2204.105  [Amended]

    18. In Sec.  2204.105, paragraph (f) is removed.
    19. Section 2204.302 is amended by revising paragraph (a) and 
removing paragraph (d):


Sec.  2204.302  When an application may be filed.

    (a) An application may be filed whenever an applicant has prevailed 
in a proceeding or in a discrete substantive portion of the proceeding, 
but in no case later than thirty days after the period for seeking 
review in a court of appeals expires.
* * * * *

    Dated: March 1, 2005.
Patrick Moran,
Deputy General Counsel.
[FR Doc. 05-4257 Filed 3-3-05; 8:45 am]
BILLING CODE 7600-01-M