[Federal Register Volume 70, Number 84 (Tuesday, May 3, 2005)]
[Rules and Regulations]
[Pages 22785-22792]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-8744]


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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: Final rule.

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

DATES: These revised rules will effect on August 1, 2005. They apply to 
all cases docketed on or after that date. They also apply to further 
proceedings in cases then pending, except to the extent that their 
application would be infeasible or would work an injustice, in which 
event the present rules apply.

FOR FURTHER INFORMATION CONTACT: Patrick Moran, Deputy General Counsel, 
Occupational Safety and Health Review Commission, 1120 20th St. NW., 
Ninth Floor, Washington, DC 20036-3457, Phone Number: (202) 606-5410.

SUPPLEMENTARY INFORMATION: On March 4, 2005, the Commission published 
in the Federal Register several proposed changes to its rules of 
procedure. 70 FR 10574 (March 4, 2005). The Commission found the 
comments it received in response to that proposal to be very helpful. 
As a result, several proposed changes have been modified and one 
proposed change has been deleted. The Commission thanks those who 
responded for their time and interest, and the quality of their 
comments.

1. Service, Filing and Notice

    The Commission proposed revising section 2200.5 to give its Judges 
the discretion to require a party to respond more quickly to a motion 
or order filed shortly before the hearing where the normal response 
time would not expire until after the hearing has commenced. The 
Commission has modified its original proposal to make it clear that the 
Judge may enlarge or shorten any time period contained in the rules 
upon motion of a party with good cause shown or upon the Judge's own 
motion. One commentator suggested that the rule be further amended to 
give a Judge the discretion to dispense with written follow-ups to oral 
motions for extensions of time. The Commission declines to follow this 
suggestion. The Commission believes that it is important for the record 
to thoroughly document the motions and the Judge's disposition of the 
motions. The small burden imposed on the parties by requiring such 
follow-up written motions is outweighted by the interest in maintaining 
a complete record of the proceedings.
    The Commission also proposed amending section 2200.7 to allow for 
the electronic service of documents when all parties consent in writing 
and the certificate of service of the electronic transmission states 
such consent and the method of transmission. It proposed amending 
section 2200.8 to allow for the electronic filing of documents. These 
proposals were well received by the commentators, although one 
commentator suggested that electronic filing not be made mandatory 
since access to computers and the Internet is not yet universal. The 
Commission agrees and, while encouraging the use of electronic filing, 
will continue to leave it optional for the foreseeable future.
    In response to a commentator's request, the Commission would 
clarify that, even where the parties have not consented to the 
electronic filing of all documents, they may still consent to the 
electronic filing of individual documents.
    Another commentator noted that section 2200.8 did not specifically 
contemplate that electronically filed documents would be made available 
on-line and that, if such documents are not electronically available, 
there was no purpose for the redaction of certain information set forth 
in section 2200.8(g)(5). The Commission has decided against making 
electronically filed documents available on-line at this time, as the 
Commission does not have the equipment or resources to make such 
documents available on-line. Moreover, because electronic filing 
remains optional, and only certain documents may be electronically 
filed, the limited on-line availability of documents could confuse and 
even mislead interested parties. Regarding the need to redact certain 
information, the Commission recognizes that despite the resources it 
has devoted to closing all known security gaps within its own systems, 
the security of documents filed through the Internet remains a concern. 
Therefore, it believes that good practice dictates that potentially 
sensitive information be redacted from electronically filed documents.
    That same commentator also opined that section 2200.8(g)(6) had a 
typographical error in that the rule should list those items that the 
Commission wanted to receive with electronic filings, rather than 
suggesting, as the proposed rule did, that it specifically did not want 
those items. The Commission stresses that this was not a typographical 
error and that, indeed, the Commission wants to underscore that those 
items listed in the rule should not be sent with any electronic filing.
    The commentator also suggested that section 2200.8(g)(7) be revised 
to eliminate the requirement for an /s/ if a graphical duplicate of a 
signature is included. The Commission fails to see how the requirement 
imposes any sort of burden on the parties and will adopt the rule as 
proposed.
    The Commission also proposed to amend section 2200.8(f) by 
eliminating the 3-day grace period for mailing documents after they 
have been faxed. The Commission has reconsidered the rule and now is of 
the view that a faxed document can serve as an original and that a 
follow-up mailing is unnecessary. Technology has advanced to the point 
where faxed documents are generally much clearer than they were just a 
few years ago. Where there is a problem with the clarity of a tax, the 
Commission will contact the sending party and request that the document 
be re-faxed, mailed, or electronically filed.

2. Practice Before the Commission

    The Commission received a number of comments regarding its proposal 
to amend section 2200.22 to restrict practice before the Commission to 
attorneys. Based on the responses received from those commenting, the 
Commission has decided to withdraw the proposal. Nevertheless, the 
Commission remains concerned about the quality of representation 
provided by non-legal representatives. It will continue to monitor the 
situation and explore different methods to help small

[[Page 22786]]

businesses and other parties receive the quality of representation they 
deserve when appearing before the Review Commission.

3. Prehearing Conferences and Orders

    The Commission proposed amending section 2200.51 to give the Judge 
the discretion, rather than require the Judge, to consult with all 
attorneys and any unrepresented parties and entered a scheduling order 
that limits the time (i) to join other parties and to amend the 
pleadings; (ii) to file and hear motions; and (iii) to complete 
discovery. We received two comments, both in opposition to the 
proposal. Both commentators argued that mandatory consultation promotes 
the orderly scheduling of pretrial matters, and promotes the efficient 
use of time and resources. The Commission appreciates these concerns, 
but believes that, while in most instances, Judges will consult with 
the parties, leaving these matters to the Judge's discretion gives the 
Judge the flexibility needed to exercise better control over the 
docket.

4. General Provisions Concerning Discovery

    The Commission's proposed changes to its discovery rule at section 
2200.52 received several comments. The proposal to amend section 
2200.52(a) by explicitly making Federal Rule of Civil Procedure 26(a), 
which sets forth a lengthy list of required disclosures, inapplicable 
to Commission proceedings, was favorably received by the commentators.
    The Commission's proposal to incorporate the contents of section 
2200.11 in the discovery rule was also favorably received. Two 
commentators, however, were concerned that section 2200.52(d)(1), as 
proposed, would impose an undue burden on the parties, insofar as it 
could be read to require a party to produce a lengthy list of 
supporting documents when first claiming that requested information is 
privileged. The commentators noted that these matters are often 
resolved amicably among the parties and suggested that supporting 
documentation be required only in response to either an order from the 
Judged or a motion to compel. We agree with these comments and have 
amended the rule accordingly. The Commission notes that, as adopted, 
the rule continues to eliminate the current 15-day response period for 
claims of privilege. The Commission remains of the view that the Judge 
should have the discretion and flexibility to determine on a case-by-
case basis how long the parties need to respond to claims of privilege.
    The Commission has also amended the proposed rule by deleting the 
specific reference to the ``deliberative process privilege.'' Upon 
reconsideration the Commission recognizes the ``deliberative process 
privilege'' and believes that it should be treated as would any other 
privilege.
    A commentator also pointed out an apparent inconsistency between 
the proposed rule at section 2200.52(j) and current section 2200.54(a) 
and (b), insofar as the former states that requests for admission not 
be filed with the judge while the latter requires such a filing. We 
thank the commentator for the observation and we have amended sections 
2200.54(a) and (b) to be consistent with the new rule at section 
2200.52(j).

5. Oral Argument

    The Commisssion proposed amending its rules on oral argument, set 
forth in section 2200.95, to allow for the written transcription of 
oral arguments and to require that any party who files a motion for 
oral argument must demonstrate why oral argument would facilitate 
resolution of issues before the Commission. No comments were received 
on this proposal, and we have adopted the rule as proposed.

6. Settlement Part

    The Commission proposed several changes to section 2200.120, the 
Settlement Part. The commentators responded favorably to the 
Commission's proposal to lower the threshold for cases eligible for the 
Mandatory Settlement Part, from penalties of $200,000 to those of 
$100,000. One commentator objected to assigning a case to mandatory 
settlement negotiations only after the completion of discovery. The 
commentator observed that the longer a case proceeds, the more the 
parties have invested in the case, and the less likely settlement 
becomes. While the Commission sees merit in these views, it remains of 
the opinion that, generally, settlement negotiations in complex cases 
are not fruitful until the parties complete discovery and can more 
fully assess the strengths and weaknesses of their case. The Commission 
observes, however, that there is nothing in the rule to prevent the 
parties from asking the Judge to begin the settlement procedure at an 
earlier stage of the proceedings.
    Several commentators also objected to explicitly granting the 
Settlement Judge the authority to hold a mini-trial. The commentators 
observed that in some cases, the expense of such a proceeding would 
negate the primary reason for seeking settlement. It was also pointed 
out that, as proposed, the rule left unanswered many questions 
regarding the conduct of the mini-trial. Upon reconsideration, the 
Commission finds substantial merit in these comments and has omitted 
any reference to a ``mini-trial'' in the rule as adopted; it has 
instead substituted a provision that allows the judge, with the consent 
of the parties, to conduct such other settlement proceedings as may aid 
in the settlement of the case.
    The Commission has also redrafted the confidentiality provisions of 
the Settlement Part at section 2200.120(d)(3). First, the Commission 
stresses that the confidentiality provisions apply only to matters 
divulged as a result of participation in the Settlement Part, and do 
not apply to matters properly obtained during discovery. For that 
matter, the Commission does not believe that the protective orders 
allowed by section 2200.52(e) are particularly relevant to the 
Settlement Part and the reference to that rule has been eliminated. 
Instead, the Judge is authorized to issue appropriate orders to protect 
confidentiality, which may or may not include matters set forth in 
section 2200.52(e).
    The Commission has also decided to make several changes to its 
original proposal. For example, the Commission determined that the 
proposed period a case can remain in mandatory settlement proceedings 
was unduly long, especially given that discovery would have been 
completed prior to the initiation of settlement proceedings. Therefore, 
the initial period a case can be in mandatory settlement proceedings 
has been reduced from 120 days to 60 days. Also, the Commission 
clarified section 2200.120(a) to make it clear that a party can only 
prevent a case from entering voluntary settlement proceedings. As 
previously written, section 2200.120 could have been interpreted as 
giving a party a veto over cases entering both voluntary and mandatory 
settlement proceedings. While the scope of these changes has resulted 
in the rule being largely redrafted, we have here noted the significant 
substantive changes from the original proposal.

7. Simplified Proceedings

    The commentators were supportive of the Commission's proposal to 
raise the penalty limit for cases eligible for Simplified Proceedings 
from a minimum of $10,000 to $20,000, and commensurately raising the 
penalty

[[Page 22787]]

limit for cases that the Chief Administrative Law Judge has discretion 
to assign to Simplified Proceedings from a maximum of $20,000 to 
$30,000.

8. Equal Access to Justice Act

    The Commission proposed amending its rules implementing the Equal 
Access to Justice Act (EAJA) by (1) eliminating section 2204.105(f), 
which mandated that the net worth of an applicant be aggregated with 
its affiliates, and (2) revising section 2204.302, which sets out the 
time from which a final order is calculated for purposes of determining 
when an EAJA application must be filed. These amendments were proposed 
to bring the Commission's rules in closer conformity to the developing 
case law. No comments were received on these proposals and, except for 
a minor technical revision to section 2204.302, the proposed amendments 
are adopted.

9. Other Changes

    Because of the revisions, certain non-substantive technical changes 
to existing rules have been made. For example, sections 2200.32 and 
105(a) have revised cross-references, while section 2200.106 has a 
corrected zip code for the Commission.

List of Subjects

29 CFR Part 2200

    Hearing and appeal procedures, Administrative practice and 
procedure.

29 CFR Part 2204

    Administrative practice and procedure. Equal access to justice.

Text of Amendment

0
For the reasons set forth in the preamble, the Occupational Safety and 
Health Review Commission amends Title 29, Chapter XX, Parts 2200 and 
2204 of the Code of Federal Regulations as follows:

PART 2200--[AMENDED]

0
1. The authority citation for part 2200 continues to read as follows:

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


0
2. Section 2200.5 is revised to read as follows:


Sec.  2200.5  Extension of time.

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

0
3. In Section 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 
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 se3rved 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 vent that there are 
any affected employees who are not represented by an authorized 
employee representative, the employer shall, immediately upon receipt 
of notice of the docketing of the notice of contest or petition for 
modification of the abatement period, post, where the citation is 
required to be posted, a copy of the notice of contest and a notice 
informing such affected employees of their right to party status and of 
the availability of all pleadings for inspection and copying at 
reasonable times. A notice in the following form shall be deemed to 
comply with this paragraph:

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

    Where appropriate, the second sentence of the above notice will be 
deleted and the following sentence will be substituted:

    The reasonableness of the period prescribed by the Secretary of 
Labor for abatement of the violation has been contested and will be 
the subject of a hearing before the OCCUPATIONAL SAFETY AND HEALTH 
REVIEW COMMISSION.

* * * * *

0
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:

[[Page 22788]]

    (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 (Sec.  2200.73(b)), petitions for discretionary 
review (Sec.  2200.91), and EAJA applications (Sec.  2204.301).
    (3) Counsel and the parties shall have sole responsibility for 
ensuring that the document is timely received by the Commission.
    (f) Facsimile transmissions. (1) Any document may be filed with the 
Commission or its Judges by facsimile transmission. Filing shall be 
deemed completed at the time that the facsimile transmission is 
received by the Commission or the Judge. The filed facsimile shall have 
the same force and effect as an original.
    (2) All facsimile transmissions shall include a facsimile of the 
appropriate certificate of service.
    (3) It is the responsibility of parties desiring to file documents 
by the use of facsimile transmission equipment to utilize equipment 
that is compatible with facsimile transmission equipment operated by 
the Commission. Legibility of the transmitted documents is the 
responsibility of the serving party.
    (g) Electronic filing. (1) Where all parties consent to electronic 
service and electronic filing, a document may be filed by electronic 
transmission with the Commission and its judges. The certificate of 
service accompanying the document must state that the other parties 
consent to filing by electronic transmission. The electronic 
transmission shall be in the manner specified by the Commission's Web 
site (http://www.OSHRC.gov).
    (2) A document filed in conformance with the 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.


Sec.  2200.11  [Removed]

0
5. Section 2200.11 is removed and reserved.

0
6. Section 2200.32 is revised to read as follows:


Sec.  2200.32  Signing of pleadings and motions.

    Pleadings and motions shall be signed by the filing party or by the 
party's representative. The signature of a representative constitutes a 
representation by him that he is authorized to represent the party or 
parties on whose behalf the pleading is filed. The signature of a 
representative or party also constitutes a certificate by him that he 
has read the pleading, motion, or other paper, that to the best of his 
knowledge, information, and belief, formed after reasonable inquiry, it 
is well grounded in fact and is warranted by existing law or a good 
faith argument for the extension, modification, or reversal of existing 
law, and that 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 part or its representative shall 
be subject to the sanctions set forth in Sec.  2200.101 or Sec.  
2200.104. A signature by a party representative constitutes a 
representation by him that he understands that the rules and orders of 
the Commission and its Judges apply equally to attorney and non-
attorney representatives.


Sec.  2200.41  [Removed]

0
7. Section 2200.41 is removed and reserved.

0
8. In Section 2200.51, paragraph (a)(1) is revised to read as follows:


Sec.  2200.51  Prehearing conferences and others.

    (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.
* * * * *

0
9. In Section 2200.52, paragraph (a)(1) and paragraphs (d) through (l) 
are revised and a new paragraph (m) is added to read as follows:


Sec.  2200.52  General provisions governing discovery.

    (a) General. (1) Methods and limitations. In conformity with these 
rules, any party may, without leave of the Commission or Judge, obtain 
discovery by one or more of the following methods:
    (i) Production of documents or things or permission to enter upon 
land or other property for inspection and other purposes (Sec.  
2200.53);

[[Page 22789]]

    (ii) Requests for admission to the extent provided in Sec.  
2200.54; and
    (iii) Interrogatories to the extent provided in Sec.  2200.55. 
Discovery is not available under these rules through depositions except 
to the extent provided in Sec.  2200.56. In the absence of a specific 
provision, procedure shall be in accordance with the Federal Rules of 
Civil Procedure, except that the provisions of Rule 26(a) of the 
Federal Rules of Civil Procedure do not apply to Commission 
proceedings.
* * * * *
    (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 classed 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. Request for production or inspection under 
Sec.  2200.53, request for admission under Sec.  2200.54 and responses 
thereto, interrogatories under Sec.  2200.55 and the answers thereto, 
and depositions under Sec.  2200.56 shall be served upon other counsel 
or parties, but shall not be filed with the Commission or the Judge. 
The party responsible for service of the discovery material shall 
retain the original and become the custodian.
    (k) Relief from discovery requests. If relief is sought under 
Sec. Sec.  2200.101 or 2200.52(e), (f), or (g) concerning any 
interrogatories, requests for production or inspection, requests for 
admissions, answers to interrogatories, or responses to requests for 
admissions, copies of the portions of the interrogatories, requests, 
answers, or responses in dispute shall be filed with the Judge or 
Commission contemporaneously with any motion

[[Page 22790]]

filed under Sec. Sec.  2200.101 or 2200.52(e), (f), or (g).
    (l) Use at hearing. If interrogatories, requests, answers, 
responses, or depositions are to be used at the hearing or are 
necessary to a prehearing motion which might result in a final order on 
any claim, the portions to be used shall be filed with the Judge or the 
Commission at the outset of the hearing or at the filing of the motion 
insofar as their use can be reasonably anticipated.
    (m) Use on review or appeal. When documentation of discovery not 
previously in the record is needed fro 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.

0
10. In Section 2200.54, paragraphs (a) and (b) are revised to read as 
follows:


Sec.  2200.54  Request for admissions.

    (a) Scope. At any time after the filing of the first responsive 
pleading or motion that delays the filing of an answer, such as a 
motion to dismiss, any party may serve upon any other party written 
requests for admissions, for purposes of the pending action only, of 
the genuineness and authenticity of any document described in or 
attached to the requests, or of the truth of any specified matter of 
fact. Each matter of which an admission is requested shall be 
separately set forth. The number of requested admissions shall not 
exceed 25, including subparts, without an order of the Commission or 
Judge. The party seeking to serve more than 25 requested admissions, 
including subparts, shall have the burden of persuasion to establish 
that the complexity of the case or the number of citation items 
necessitates a greater number of requested admissions.
    (b) Response to requests. Each matter is deemed admitted unless, 
within 30 days after service of the requests or within such shorter or 
longer time as the Commission or Judge may allow, the party to whom the 
requests are directed serves upon the requesting party a written answer 
specifically admitting or denying the matter involved in whole or in 
part, or asserting that it cannot be truthfully admitted or denied and 
setting forth in detail the reasons why this is so, or an objection, 
stating the detail the reasons therefor. The response shall be made 
under oath or affirmation and signed by the party or his 
representative.
* * * * *

0
11. In Section 2200.90, paragraph (b)(3) is revised to read as follows:


Sec.  2200.90  Decisions of judges.

* * * * *
    (b) The judge's report.
* * * * *
    (3) Correction of errors; Relief from default. Until the Judge's 
report has been directed for review or, in the absence of a direction 
for review, until the decision has become a final order, the Judge may 
correct clerical errors and errors arising through oversight or 
inadvertence in decisions, orders or other parts of the record. If a 
Judge's report has been directed for review the decision may be 
corrected during the pendency of review with leave of the Commission. 
Until the Judge's report has been docketed by the Executive Secretary, 
the Judge may relieve a party of default or grant reinstatement under 
Sec. Sec.  2200.101(b), 2200.52(f) or 2200.64(b).
* * * * *

0
12. In Section 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 resolution 
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 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.
* * * * *

0
13. Section 2200.101 is revised to read as follows:


Sec.  2200.101  Failure to obey rules.

    (a) Sanctions. When any party has failed to plead or otherwise 
proceed as provided by these rules or as required by the Commission or 
Judge, he may be declared to be in default either on the initiative of 
the Commission or Judge, after having been afforded an opportunity to 
show cause why he should not be declared to be in default, or on the 
motion of a party. Thereafter, the Commission or Judge, in their 
discretion, may enter a decision against the defaulting party or strike 
any pleading or document not filed in accordance with these rules.
    (b) Motion to set aside sanctions. For reasons deemed sufficient by 
the Commission or Judge and upon motion expeditiously made, the 
Commission or Judge may set aside a sanction imposed under paragraph 
(a) of this section. See Sec.  2200.90(b)(3).
    (c) Discovery sanctions. This section does not apply to sanctions 
for failure to comply with orders compelling discovery, which are 
governed by Sec.  2200.52(f).
    (d) Show cause orders. All show cause orders issued by the 
Commission or Judge under paragraph (a) of this section shall be served 
upon the affected party by certified mail, return receipt requested.
0
14. In Section 2200.105, paragraph (a) is revised to read as follows:


Sec.  2200.105  Ex parte communication.

    (a) General. Except as permitted by Sec.  2200.120 or as otherwise 
authorized by law, there shall be no ex parte communication with 
respect to the merits of any case not concluded, between any 
Commissioner, Judge, employee, or agent of the Commission who is 
employed in the decisional process and any of the parties or 
intervenors, representatives or other interested persons.
* * * * *

0
15. Section 2200.106 is revised to read as follows:


Sec.  2200.106.  Amendment to rules.

    The Commission may at any time upon its own motion or initiative, 
or upon written suggestion of any interested person setting forth 
reasonable grounds therefor, amend or revoke any of the rules contained 
herein. The Commission invites suggestions from interested parties to 
amend or revoke rules of procedure. Such suggestions should be 
addressed to the Executive Secretary of the Commission at One Lafayette 
Centre,

[[Page 22791]]

1120 20th Street, NW., Suite 980, Washington, DC 20036-3457.

0
16. Section 2200.120 is revised to read as follows:


Sec.  2200.120  Settlement procedure.

    (a) Voluntary Settlement. (1) Applicability and duration. (i) This 
section applies only to notices of contests by employers, and to 
applications for fees under the Equal Access to Justice Act and 29 CFR 
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. Nothwithstanding 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 my 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 other wise to comply with the orders of the Settlement 
Judge or the refusal to cooperate fully within the spirit of this rule 
may result in the imposition of sanctions under Sec.  2200.101.
    (3) Confidentiality of settlement proceedings. All statements made 
and all information presented during the course of settlement 
proceedings under this section shall be regarded as confidential and 
shall not be divulged outside of these proceedings except with the 
consent of the parties. The Settlement Judge shall issue appropriate 
orders to protect confidentiality of settlement proceedings. The 
Settlement Judge shall not divulge any statements or information 
presented during private negotiations with a party or his 
representative during settlement proceedings except with the consent of 
that party. No evidence of statements or conduct in settlement 
proceedings under this section within the scope of Federal Rule of 
Evidence 408, no notes or other material prepared by or maintained by 
the Settlement Judge in connection with settlement proceedings, and no 
communications between the Settlement Judge and the Chief 
Administrative Law Judge in connection with settlement proceedings 
including the report of the Settlement Judge under paragraph (f) of 
this section, will be admissible in any subsequent hearing except by 
stipulation of the parties. Documents disclosed in the settlement 
proceeding may not be used in litigation unless obtained through 
appropriate discovery or subpoena. With respect to the Settlement 
Judge's participation in settlement proceedings, the Settlement Judge 
shall not discuss the merits of the case with any other person, nor 
appear as a witness in any hearing of the case.
    (e) Record of settlement proceedings. No material of any form 
required to be held confidential under paragraph (d)(3) of this section 
shall be considered part of the official case record required to be 
maintained under 29 U.S.C. 661(g), nor shall any such material be open 
to public inspection as required by section 661(g), unless the parties 
otherwise stipulate. With the exception of an order approving the terms 
of any partial settlement agreed to between the parties as set forth in 
paragraph (f)(1) of this section, the Settlement Judge shall not file 
or cause to be filed in the official case record any material in his 
possession relating to these settlement proceedings, including but not 
limited to communications with the Chief Administrative Law Judge and 
his report under paragraph (f) of this section, unless the parties 
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

[[Page 22792]]

embodying the terms of any partial settlement the parties have reached.
    (2) At the termination of the settlement period without a full 
settlement, the Chief Administrative Law Judge shall promptly assign 
the case to an Administrative Law Judge other than the Settlement Judge 
or Chief Administrative Law Judge for appropriate action on the 
remaining issues. If all the parties, the Settlement Judge and the 
Chief Administrative Law Judge agree, the Settlement Judge may be 
retained as the Hearing Judge.
    (g) Non-reviewability. Notwithstanding the provisions of Sec.  
2200.73 regarding interlocutory review, any decision concerning the 
assignment of any Judge and any decision by the Settlement Judge to 
terminate settlement proceedings under this section is not subject to 
review, appeal, or rehearing.

Subpart-M[Amended]

0
17. In Subpart M all references to ``E-Z Trail'' are revised to read 
``Simplified Proceedings.''

0
18. In Section 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]

0
1. The authority citation for Part 2204 continues to read as follows:

    Authority: 29 U.S.C. 661(g); 5 U.S.C. 504(c)(1)

Sec.  2204.105  [Amended]

0
2. In Section 2204.105, paragraph (f) is removed.
0
3. In Section 2204.302 is amended by revising paragraph (a) and 
removing paragraph (d) to read as follows:


Sec.  2204.302  When an application may be filed.

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

    Dated: April 27, 2005.
W. Scott Railton,
Chairman.

    Dated: April 27, 2005.
Thomasina V. Rogers,
Commissioner.

    Dated: April 27, 2005.
James M. Stephens,
Commissioner.
[FR Doc. 05-8744 Filed 5-2-05; 8:45 am]
BILLING CODE 7600-01-M