[Federal Register Volume 77, Number 233 (Tuesday, December 4, 2012)]
[Proposed Rules]
[Pages 72142-72193]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-28516]



[[Page 72141]]

Vol. 77

Tuesday,

No. 233

December 4, 2012

Part IV





Department of Labor





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Office of the Secretary





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29 CFR Part 18





 Rules of Practice and Procedure for Hearings Before the Office of 
Administrative Law Judges; Proposed Rule

  Federal Register / Vol. 77 , No. 233 / Tuesday, December 4, 2012 / 
Proposed Rules  

[[Page 72142]]


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DEPARTMENT OF LABOR

Office of the Secretary

29 CFR Part 18

RIN 1290-AA26


Rules of Practice and Procedure for Hearings Before the Office of 
Administrative Law Judges

AGENCY: Office of the Secretary, Labor.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Labor proposes to revise and reorganize the 
Rules of Practice and Procedure for Administrative Hearings Before the 
Office of Administrative Law Judges, from our regulations, which 
provide procedural guidance to administrative law judges, claimants, 
employers, and Department of Labor representatives seeking to resolve 
disputes under a variety of employment and labor laws. The Office of 
Administrative Law Judges promulgated these regulations in 1983. The 
regulations were modeled on the Federal Rules of Civil Procedure (FRCP) 
and have proved extraordinarily helpful in providing litigants with 
familiar rules governing hearing procedure.
    Since 1983, the FRCP have been amended many times. Moreover, in 
2007 the FRCP were given a complete revision to improve style and 
clarity. The nature of litigation has also changed in the past 28 
years, particularly in the areas of discovery and electronic records. 
Thus, OALJ has revised its regulations to make the rules more 
accessible and useful to parties, and to harmonize administrative 
hearing procedures with the current FRCP. The goal in amending the 
regulations is to provide clarity through the use of consistent 
terminology, structure and formatting so that parties have clear 
direction when pursuing or defending against a claim.
    In addition to revising the regulations to conform to modern legal 
procedure, the rules need to be modified to reflect the types of claims 
now heard by OALJ. When the rules were promulgated in 1983, OALJ 
primarily adjudicated occupational disease and injury cases. Presently, 
and looking ahead to the future, OALJ is and will be increasingly 
tasked with hearing whistleblower and other workplace retaliation 
claims, in addition to the occupational disease and injury cases. These 
types of cases require more structured management and oversight by the 
presiding administrative law judge and more sophisticated motions and 
discovery procedures than the current regulations provide. In order to 
best manage the complexities of whistleblower and discrimination 
claims, OALJ needs to update its rules to address the procedural 
questions that arise in these cases.

DATES: Submit comments on or before February 4, 2013.

ADDRESSES: You may submit comments by any of the following methods:
    Electronically: You may submit your comments and attachments 
electronically at www.regulations.gov.
    Mail, hand delivery, express mail, messenger or courier service: 
You may submit your comments and attachments to the U.S. Department of 
Labor, Office of Administrative Law Judges, 800 K Street NW., Suite 
400-North, Washington, DC 20001-8002; telephone (202) 693-7300. 
Deliveries (hand, express mail, messenger, and courier service) are 
accepted during the Office of Administrative Law Judges' normal 
business hours, 8:00 a.m.-4:30 p.m., e.t.
    Instruction for submitting comments: Please submit only one copy of 
your comments via any of the methods noted in this section. All 
submissions received must include the agency name, as well as RIN 1290-
AA26. Also, please note that due to security concerns, postal mail 
delivery in Washington, DC may be delayed. Therefore, in order to 
ensure that comments are received on time, the Department encourages 
the public to submit comments electronically as indicated above. For 
further information on submitting comments, plus additional information 
on the rulemaking process, see the ``Public Participation'' heading in 
the SUPPLEMENTARY INFORMATION section of this notice.

FOR FURTHER INFORMATION CONTACT: Todd Smyth at the U.S. Department of 
Labor, Office of Administrative Law Judges, 800 K Street NW Suite 400-
North, Washington, DC 20001-8002; telephone (202) 693-7300.

SUPPLEMENTARY INFORMATION:

I. Background

    Administrative law judges at the Office of Administrative Law 
Judges (OALJ), United States Department of Labor (Department), conduct 
formal hearings under the Administrative Procedure Act, 5 U.S.C. 554 
through 557. An administrative law judge manages hearings that mirror 
federal civil litigation, is bound by applicable rules of evidence and 
procedure, and is insulated from political influence. See Tennessee v. 
U.S. Dep't of Transp., 326 F.3d 729, 735-36 (6th Cir. 2003). An 
administrative law judge acts as the functional equivalent of a trial 
judge. See Fed. Mar. Comm'n v. S.C. State Ports Auth., 535 U.S. 743, 
756-57 (2002). The types of cases heard by administrative law judges 
involve a full range of complexity, from simple administrative review 
of an existing administrative record to de novo, trial-type litigation. 
Consequently, rules of practice and procedure are essential to a just, 
speedy, and inexpensive determination of every proceeding.
    The current Rules of Practice and Procedure for Administrative 
Hearings before the Office of Administrative Law Judges, 29 CFR part 
18, subpart A (Part 18, Subpart A), were published on July 15, 1983. 
See 48 FR 32538, 32538, July 15, 1983. Rarely have they been altered. 
Some rules relating to discovery were amended in 1994. See 59 FR 41874, 
41876, Aug. 15, 1994. The most recent amendment, made in August 1999, 
permitted the appointment of settlement judges in cases arising under 
the Longshore and Harbor Workers' Compensation Act (Longshore Act), 33 
U.S.C. 901 et seq., and associated statutes. See 64 FR 47088, 47089, 
Aug. 27, 1999. Since its original publication, Part 18, Subpart A has 
never been comprehensively revised to keep abreast of ongoing changes 
to the procedures that govern civil litigation in federal trial courts.
    The OALJ rules of practice and procedure are analogous to the 
Federal Rules of Civil Procedure used in the United States District 
Courts. Congress authorized the Supreme Court to prescribe rules for 
the United States District Courts in 1934, under the Rules Enabling 
Act, 28 U.S.C. 2072. The original version of those rules became 
effective on September 16, 1938.\1\ Since 1938, thirty-three sessions 
of Congress have approved changes to the FRCP, from 1941 through the 
most recent amendments that took effect on December 1, 2010. 
Significant amendments became effective in 1948, 1963, 1966, 1970, 
1980, 1983, 1987, 1993, 2000, 2006, 2007, 2009, and 2010. Id. The 
procedural rules for OALJ have not kept pace with the eight groups of 
changes to the FRCP since the early 1980s.
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    \1\ Staff of H. Comm. on the Judiciary, 111th Cong., Federal 
Rules of Civil Procedure with Forms at vii (Comm. Print 2010), 
www.uscourts.gov/uscourts/RulesAndPolicies/rules/2010%20Rules/Civil%20Procedure.pdf.
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    The disputes that comprise the docket at OALJ have also changed 
with time. When the rules of practice and procedure were first 
published, OALJ's judges mainly (but not exclusively) were devoting 
their efforts to deciding benefit claims under two broad statutory 
categories:

[[Page 72143]]

     The Black Lung Benefits Act, subchapter 4 of the Federal 
Coal Mine Health and Safety Act of 1969, as amended, 30 U.S.C. 901 et 
seq. (1969); and
     The Longshore Act and its extensions, which included the 
Nonappropriated Fund Instrumentalities Act, 5 U.S.C. 8171 (1927); the 
Outer Continental Shelf Lands Act, 43 U.S.C. 1333 (1953); and the 
Defense Base Act, as amended, 42 U.S.C. 1651 (1941).\2\
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    \2\ Judges at OALJ continue to hear a very few claims under 
another Longshore Act extension, the District of Columbia Workmen's 
Compensation Act of 1928, 36 DC Code Sec.  501 et seq., despite the 
District's adoption of its own workers' compensation law. For claims 
that involve an injury suffered before the District's own law took 
effect in mid-1982, judges at OALJ continue to hear them. Keener v. 
Wash. Metro. Transit Auth., 800 F.2d 1173, 1175 (D.C. Cir. 1986).
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    Over the last nearly two decades, Congress charged the Department 
of Labor (and consequently the OALJ) with the responsibility to hear 
and decide matters under many new statutes. Most relate to complaints 
by employees who assert their employers retaliated against them after 
they engaged in whistleblower activity. Some of these statutes for 
example are:
     Section 110 of the Comprehensive Environmental Response, 
Compensation and Liability Act, 42 U.S.C. 9610, Public Law 96-510, 94 
Stat. 2787, enacted on December 11, 1980;
     Section 405 of the Surface Transportation Assistance Act 
of 1982 (STAA), 49 U.S.C. 31105, Public Law 97-424, 96 Stat. 2097, 
2157-58, first enacted on January 6, 1983 (and originally codified as 
49 U.S.C. 2301 et seq.), and last amended by sec. 1536 of the 
Implementing Recommendations of the 9/11 Commission Act of 2007, Public 
Law 110-53, 121 Stat. 464, enacted on August 3, 2007;
     Section 212(n)(2)(C)(iv) of the Immigration and 
Nationality Act, 8 U.S.C. 1182(n)(2)(C)(iv), as amended by the American 
Competitiveness and Workforce Improvement Act of 1998, which was part 
of the Omnibus Consolidated and Emergency Supplemental Appropriations 
Act of 1998, Public Law 105-277, div. C, tit. IV, sec. 411(a), 112 
Stat. 2681-641 to 2681-657, enacted on October 21,1998;
     Section 519 of the Wendell H. Ford Aviation Investment and 
Reform Act for the 21st Century (AIR21), 49 U.S.C. 42121, Public Law 
106-181, 114 Stat. 145, enacted on April 5, 2000;
     Section 6(a) of the Pipeline Safety Improvement Act of 
2002, 49 U.S.C. 60129, Public Law 107-355, 116 Stat. 2989, enacted on 
December 17, 2002;
     Section 806 of the Corporate and Criminal Fraud 
Accountability Act of 2002 (the Sarbanes-Oxley Act), 18 U.S.C. 1514A, 
Public Law 107-204, 116 Stat. 802, first enacted on July 30, 2002, and 
last amended by sec. 929A of the Dodd-Frank Wall Street Reform and 
Consumer Protection Act, Public Law 111-203, 124 Stat. 1848, 1852, 
enacted on July 21, 2010;
     Section 1413 of the Implementing Recommendations of the 9/
11 Commission Act of 2007, 6 U.S.C. 1142, Public Law 100-53, 121 Stat. 
414, that amended the National Transit Systems Security Act on August 
3, 2007; and
     Section 1521 of the Implementing Recommendations of the 9/
11 Commission Act of 2007, 49 U.S.C. 20109, Public Law 100-53, 121 
Stat. 444, that amended the Federal Railroad Safety Act on August 3, 
2007.
    Congress remains active in the area of whistleblower protection. On 
July 21, 2010, Congress created and expanded whistleblower protection 
for employees in the financial services industry under the Dodd-Frank 
Wall Street Reform and Consumer Protection Act, Public Law 111-203. On 
October 15, 2010, it amended another employment protection program that 
includes the opportunity for a hearing before an administrative law 
judge at the OALJ. See the amendment to the Seaman's Protection Act in 
sec. 611 of the Coast Guard Authorization Act of 2010, 46 U.S.C. 2114, 
Public Law 111-281, 124 Stat. 2969. This year Congress established an 
additional right to an administrative hearing for whistleblowing 
employees in sec. 402 of the FDA Food Safety Modernization Act, 21 
U.S.C. 399d, Public Law 111-353, 124 Stat. 3968, enacted January 4, 
2011.
    The substantive program regulations the Department has published to 
implement many of the statutes that grant workers and employers formal 
hearings on claims of workplace retaliation offer limited guidance 
about the procedures those adjudications should follow. Regulations 
often incorporate instead the procedural rules of Part 18, Subpart A. 
See, e.g., 29 CFR 1978.107(a), 1979.107(a), 1980.107(a) (2011) (STAA, 
AIR21, and Sarbanes-Oxley regulations, respectively). In adopting 
program regulations, the Department has acknowledged it was leaving 
matters like the ``place of hearing, right to counsel, procedures, 
evidence and record of hearing, oral arguments and briefs, and 
dismissal for cause'' to the Part 18, Subpart A rules precisely 
``because the Office of Administrative Law Judges has adopted its own 
rules of practice that cover these matters.'' 76 FR 2808, 2814, Jan. 
18, 2011 (amending the 29 CFR part 24 regulations that cover 
whistleblowers in the nuclear power and environmental industries).
    The growth in whistleblower jurisdiction has led OALJ to search for 
ways to manage those proceedings efficiently. Implementing procedures 
the federal district courts have developed or refined since 1983 will 
improve the current Part 18, Subpart A rules.
    For example, several regulations that govern whistleblower claims 
explicitly grant the presiding judge ``broad discretion to limit 
discovery'' as a way to ``expedite the hearing.'' 29 CFR 1979.107(b), 
1980.107(b), 1981.107(b). The Department's discussion when it published 
the final rules on Sarbanes-Oxley matters offered as an illustration 
that the judge may ``limit the number of interrogatories, requests for 
production of documents or depositions allowed.'' 69 FR 52104, 52110, 
Aug. 24, 2004. Other program regulations, such as those that govern 
disputes under the Energy Reorganization Act and six environmental 
statutes that cover whistleblowers in the nuclear and environmental 
industries published at 29 CFR part 24, incorporate the Part 18, 
Subpart A regulations without an explicit reference to a judge's 
authority to control discovery. See 29 CFR 24.107(a). The Preface to 
those Part 24 regulations nonetheless recognizes that the current Part 
18, Subpart A regulations invest a judge with broad authority ``to 
limit discovery in appropriate circumstances.'' 76 FR at 2815. Whether 
a program regulation specifically recognizes a judge's authority to 
limit or manage discovery, or implicitly does so by adopting the Part 
18, Subpart A regulations, the judge will consider the parties' views 
on the discovery appropriate to develop the facts for hearing before 
limiting it. As detailed below, the early initial disclosures the 
federal courts now require parties to exchange under Fed. R. Civ. P. 
26(a)(1) obviates the need for some formal discovery. The discovery 
plan that parties craft under Fed. R. Civ. P. 26(f) after they confer 
at the outset of the litigation offers a ready way to tailor discovery 
to the proceeding.
    A 2010 study surveyed lawyers who were the attorneys of record in 
federal civil cases that terminated in the last quarter of 2008 about 
their satisfaction with the current FRCP. Lawyers from the Litigation 
Section of the American Bar Association and from the National 
Employment Lawyers Association were sampled too. The survey instrument 
had been developed jointly by the American

[[Page 72144]]

College of Trial Lawyers and the Institute for the Advancement of the 
American Legal System. A majority of lawyers across all the groups 
responded that active case management by judges offered a useful way to 
limit or avoid abusive, frivolous, or unnecessary discovery. Emery G. 
Lee & Thomas E. Willging, Attorney Satisfaction with the Federal Rules 
of Civil Procedure: Report to the Judicial Conference Advisory 
Committee on Civil Rules 3, 9 (2010). These survey results mesh 
comfortably with comments the Department received as the 29 CFR part 24 
regulations were amended. Some lawyers who commented there urged the 
Department, among other things, to require parties to those 
whistleblower claims to exchange the initial disclosures now mandated 
by Fed. R. Civ. P. 26(a)(1). 76 FR at 2815.
    Updating the Part 18, Subpart A regulations has value beyond 
whistleblower litigation. Regulations for the Longshore and Harbor 
Workers' Compensation Act published at 20 CFR 702.331 through 702.351 
predate Part 18, Subpart A. They sketch out only broad outlines of how 
hearings should proceed, so the parties and judges fall back on the 
Part 18, Subpart A rules in cases brought under the Longshore Act and 
its extensions. Workers, their employers, and insurance carriers also 
will profit from updated procedures that avoid the need to serve 
discovery to learn basic information, and allow more focused case 
management.
    The Department believes that in many instances the current Part 18, 
Subpart A rules provide limited guidance. Judges have addressed the 
current rules' limitations by managing procedural matters through 
orders, often directing parties to follow aspects of the various 
updates to the FRCP. The consequent variety in approaches to case 
management has troubled some lawyers, especially those with nationwide 
client bases who routinely practice before different judges throughout 
the nation.
    Lastly, the Department recognizes that the current Part 18, Subpart 
A rules can be stated more clearly, something the 2007 style amendments 
to the FRCP highlight. The style amendments were the first 
comprehensive overhaul since the FRCP were adopted in 1938. Taking more 
than four years to complete, they aspired to simplify and clarify 
federal procedure. The more austere sentence structure used throughout 
the restyled FRCP made them shorter, easier to read and more clearly 
articulated. The amendments proposed to Part 18, Subpart A emulate 
those improvements.
    The Department's principal goals in revising Part 18, Subpart A 
were to:
     Bring the rules into closer alignment with the current 
FRCP;
     Revise the rules to aid the development of facts germane 
to additional sorts of adjudications the Department's judges handle;
     Enhance procedural uniformity, while allowing judges to 
manage cases flexibly, because (a) An administrative proceeding is 
meant to be less formal than a jury trial; (b) local trial practice in 
different regions of the country should be accommodated when doing so 
does not affect substantive rights; and (c) governing statutes and 
substantive regulations may impose their own specific procedural 
requirements; and
     Make the rules clearer and easier to understand through 
the use of consistent terminology, structure, and formatting.

II. Alignment With the Federal Rules of Civil Procedure

    The decisions and orders that judges enter to resolve cases under 
sec. 556 and 557 of the Administrative Procedure Act resemble findings 
of fact and conclusions of law federal district and magistrate judges 
enter in non-jury cases under Fed. R. Civ. P. 52. Matters proceed 
before OALJ much the way non-jury cases move through the federal 
courts.
    Using language similar or identical to the applicable FRCP gains 
the advantage of the broad experience of the federal courts and the 
well-developed precedent they have created to guide litigants, judges, 
and reviewing authorities within the Department on procedure. Parties 
and judges obtain the additional advantage of focusing primarily on the 
substance of the administrative disputes, spending less time on the 
distraction of litigating about procedure.
    Part 18, Subpart A currently provides that the ``Rules of Civil 
Procedure for the District Courts of the United States shall be applied 
in any situation not provided for or controlled by these rules, or by 
any statute, executive order or regulation.'' 29 CFR 18.1(a). 
Experienced practitioners know to consult the FRCP for guidance in 
circumstances the current Part 18, Subpart A rules do not explicitly 
cover. Given the developments in the FRCP since 1983, parties and 
judges switch back and forth between two different sources of procedure 
(the Part 18, Subpart A rules and the FRCP). This is a less than ideal 
situation. The proposed revision continues the current practice of 
looking to the federal civil rules to resolve procedural questions that 
the revised Part 18, Subpart A rules do not explicitly cover, a 
principle that Sec.  18.1(a) has embodied for over twenty-five years.
    Pretrial procedures under the FRCP have significantly changed since 
Part 18, Subpart A was published in 1983. Some of the most significant 
changes have encompassed:
     The scope of pretrial discovery;
     How time is computed under the FRCP;
     The innovation of early mandatory disclosures about 
documentary proof and lay and expert witness testimony that were 
unknown to litigation practice in 1983, the related discovery plans the 
parties now negotiate, and the ongoing duty parties now bear to 
supplement their mandatory disclosures and discovery responses;
     Alterations to the rule on pretrial conferences to 
encourage judges to manage cases, and give them the tools to do so;
     Imposing presumptive limitations on aspects of discovery;
     Adding rules on the discovery of electronically stored 
information, a rare source of information in the early 1980's that has 
become ubiquitous today; and
     The procedure, but not the standard, for granting summary 
judgment under Fed. R. Civ. P. 56 that was substantially revised in 
2010.
    The 2007 style amendments to the FRCP in some instances altered the 
original numbering of provisions that first came into being after 1983. 
The current rule numbers from the 2010 edition of the FRCP are used in 
the following discussion of significant changes in litigation practice 
since 1983.

A. Scope of Discovery

    The scope of discovery has changed. The formulation used in current 
Part 18, Subpart A at Sec.  18.14 extends discovery to ``any matter, 
not privileged, which is relevant to the subject matter involved in the 
proceeding.'' The FRCP now permits parties the somewhat narrower 
opportunity to learn about unprivileged matters ``relevant to a party's 
claim or defense.'' Advisory Committee Notes to the 2000 Amendments to 
Fed. R. Civ. P. 26(b)(1); Jeffery W. Stemple & David F. Herr, Applying 
Amended Rule 26(b)(1) in Litigation: The New Scope of Discovery, 199 
F.R.D. 396, 398 (2001).

B. Time Computation

    Litigation requires timely filings and actions. The way time is 
calculated under Fed. R. Civ. P. 6 changed in 2009. In the Department's 
view, the Part 18, Subpart A rules should be harmonized with the FRCP 
so parties and their lawyers use the simpler, clearer, and more 
consistent way federal courts now

[[Page 72145]]

calculate time. Part 18, Subpart A presently excludes weekends and 
legal holidays when computing some deadlines but not others. See 
current 29 CFR 18.4(a). Fed. R. Civ. P. 6 now counts intervening 
weekends and holidays for all time periods. Most short periods found 
throughout the FRCP were extended to offset the shift in the time-
computation rules and to ensure that each period is reasonable. Five-
day periods became 7-day periods and 10-day periods became 14-day 
periods, in effect maintaining the status quo.
    Time periods in the FRCP shorter than 30 days also were revised to 
multiples of 7 days, to reduce the likelihood of ending on weekends. 
Other changes to the FRCP time-computation rules affect how to tell 
when the last day of a period ends, and how to compute backward-counted 
periods that end on a weekend or holiday.

C. Mandatory Disclosures, Their Supplements, and Discovery Plans

    The Department believes that the success the federal courts have 
had with requiring parties to exchange elementary information early in 
the dispute, without the need for a formal discovery demand, should be 
incorporated into OALJ's procedures for most cases. The same is true 
for the way the federal courts require parties to disclose the opinions 
of experts, and to supplement disclosures and discovery responses.
    Disclosures of information relevant to the claims or defenses a 
party may raise in the litigation were required in the 1993 amendments 
to the FRCP. See David D. Siegel, The Recent (Dec. 1, 1993) Changes in 
the Federal Rules of Civil Procedure: Background, the Question of 
Retroactivity, and a Word about Mandatory Disclosure, 151 F.R.D. 147 
(1993). Although originally subject to variation by local rule of a 
district court, by 2000 the disclosures became mandatory and nationally 
uniform (although the federal courts exempted a narrow group of cases 
that were unlikely to benefit from required disclosures).
    The disclosure obligation was narrowed in 2000 to embrace only 
information the party would use to support its claims or defenses at a 
pretrial conference, to support a motion, to question a witness during 
a discovery deposition, or at trial. Advisory Committee Notes to the 
2000 Amendments to Fed. R. Civ. P. 26(a). These mandatory disclosures 
cover basic information needed to prepare most cases for trial or to 
make an informed decision about settlement. Advisory Committee Notes to 
the 1993 Amendments to Fed. R. Civ. P. 26(a). They must be exchanged at 
the outset of the proceeding, even before the opponent issues any 
discovery request, and for the most part there is a moratorium on 
discovery until the automatic disclosures are made. Fed. R. Civ. P. 
26(d)(1). Few excuses for failing to make timely disclosures are 
countenanced. Fed. R. Civ. P. 26(a)(1)(E). These prompt initial 
disclosures lead to an early conference where the parties discuss 
whether the case can be settled and negotiate a proposed discovery 
schedule they report to the judge. Fed. R. Civ. P. 26(f)(2).
    Other amendments enhanced the pretrial disclosure of the opinions 
of an expert witness. A party now is required to:
     Provide a detailed written report, signed by an expert who 
is retained or specially employed to give expert testimony, under Fed. 
R. Civ. P. 26(a)(2)(B);
     Deliver the report before the expert is deposed, under 
Fed. R. Civ. P. 26(b)(4); and
     Prepare and serve a disclosure of the expert's testimony 
if the expert was not retained or specially employed to testify (and so 
not required to write and sign a report), under Fed. R. Civ. P. 
26(a)(2)(C).
    By signing and serving a required disclosure (or any discovery 
response), the lawyer attests that it is complete and correct; 
consistent with the rules; not interposed for an improper purpose; and 
not unreasonable nor unduly burdensome or expensive, given the needs 
and prior discovery in the case, the amount in controversy, and the 
importance of the issues at stake. Fed. R. Civ. P. 26(g).
    A required disclosure that turns out to have been incomplete or 
incorrect in some material respect must be supplemented ``in a timely 
manner.'' Fed. R. Civ. P. 26(e). The duty to supplement extends to a 
required report or disclosure about expert witness testimony and to a 
discovery response. Id.

D. Case Management Through Pretrial Conferences and Orders

    The amendments to Fed. R. Civ. P. 16 made in 1993 enhanced a 
judge's authority to manage litigation with the goal of achieving the 
just, speedy, and inexpensive determination of a matter through the use 
of scheduling orders under Fed. R. Civ. P. 16(b) and pretrial 
conferences under Fed. R. Civ. P. 16(c). Those revisions to Fed. R. 
Civ. P. 16 expanded the judge's authority to ``take appropriate 
action'' in a civil case. Charles R. Ritchey, Rule 16 Revised, and 
Related Rules: Analysis of Recent Developments for the Benefit of the 
Bench and Bar, 157 F.R.D. 69, 75 (1994).
    A pretrial conference offers the opportunity to appropriately 
control the extent and timing of discovery. At a conference the parties 
and judge may consider ways to avoid unnecessary proof and cumulative 
evidence at trial (including expert testimony) under what is now Fed. 
R. Civ. P. 16(c)(2)(D). Determining whether a motion for summary 
adjudication is even appropriate, and setting the time to file it, may 
be discussed under Fed. R. Civ. P. 16(b)(3)(A), (c)(2)(E). See 
generally D. Brock Hornby, Summary Judgment Without Illusions, 13 Green 
Bag 2d 273, 284-85 (2010) (explaining the complexity of the summary 
judgment process). Controlling discovery and setting deadlines for 
initial, expert, and pretrial disclosures under Fed. R. Civ. P. 26; for 
stipulations under Fed. R. Civ. P. 29; and dealing with failures to 
make disclosures or to cooperate in discovery under Fed. R. Civ. P. 37, 
all may be considered at a pretrial conference under Fed. R. Civ. P. 
16(c)(2)(F). A pretrial order that limits the length of trial under 
Fed. R. Civ. P. 16(c)(2)(O) offers the parties a better opportunity to 
determine their priorities and be selective in presenting their 
evidence than if limits are imposed only at the time of trial. Limits 
on trial time must be reasonable in the circumstances and ordinarily 
imposed only after the parties are given the opportunity to outline the 
nature of the testimony they expect to offer through various witnesses 
and the time they expect to need for direct and cross-examination. See 
Advisory Committee Note to the 1993 Amendments to Fed. R. Civ. P. 
16(c)(15). Exploring settlement and the use of alternative dispute 
resolution procedures can be considered under Fed. R. Civ. P. 
16(c)(2)(I). Separate trials may be set for potentially dispositive 
issues under Fed. R. Civ. P. 16(c)(2)(M).

E. Presumptive Limitations on Discovery

    Discovery practice in federal court litigation has been altered 
since 1983 in a number of ways. The amendments were not meant to block 
needed discovery, but to provide judicial supervision to curtail 
excessive discovery. Advisory Committee Note to the 1993 Amendments to 
Fed. R. Civ. P. 33(a). The FRCP now presumptively limit the number of 
interrogatories a party may serve, including ``all discrete subparts;'' 
the number of depositions taken by oral examination or on written 
questions; taking the deposition of a

[[Page 72146]]

witness more than once; and restricting the deposition of a witness to 
one day of no more than seven hours. Fed. R. Civ. P. 33(a); Fed. R. 
Civ. P. 30(a)(2)(A)(i), (ii), (d)(1); and Fed. R. Civ. P. 
31(a)(2)(A)(i).
    These presumptive limitations are adjusted as a case requires, 
often through the scheduling order the judge enters on the discovery 
plan the parties propose after their initial conference. Fed. R. Civ. 
P. 26(b)(2)(A), (f)(3)(E); see also, Advisory Committee Notes to the 
2000 Amendments to Fed. R. Civ. P. 26(b)(2).
    Parties also must seek to resolve discovery disputes informally 
before filing a motion. Fed. R. Civ. P. 26(c)(1); see also, Advisory 
Committee Notes to the 1993 Amendments to Fed. R. Civ. P. 26(a) 
(concerning what was then the new subparagraph (B)).

F. Discovery of Electronically Stored Information

    E-discovery provisions that recognize how pervasive digital 
information has become were incorporated into the FRCP in 2006. Richard 
L. Marcus, E-Discovery & Beyond: Toward Brave New World or 1984?, 236 
F.R.D. 598, 604-605 (2006). The amendments recognize the integral role 
digital data such as email, instant messaging, and web-based 
information play in contemporary life and in discovery; they introduced 
into the FRCP the concept of ``electronically stored information.'' As 
with changes to the presumptive limits on various discovery methods, 
the discovery plan the parties develop is expected to address any 
issues about disclosure or discovery of electronically stored 
information, including the form in which it should be produced. Fed. R. 
Civ. P. 26(f)(3)(C); Fed. R. Civ. P. 34(b)(2)(D), (E); see also 
Advisory Committee Notes to the 2006 Amendments to Fed. R. Civ. P. 
26(f); Advisory Committee Notes to the 2006 Amendments to Fed. R. Civ. 
P. 34(b); Hopson v. Mayor & City Council of Balt., 232 F.R.D. 228, 245 
(D. Md. 2006).
    Digital information is so omnipresent that federal courts now 
deride as ``frankly ludicrous'' arguments that a trial lawyer who 
claims to be ``computer illiterate'' should be excused from fulfilling 
the rules' e-discovery obligations. Martin v. Nw. Mut. Life Ins. Co., 
No. 804CV2328T23MAP, 2006 WL 148991, at *2 (M.D. Fla. Jan. 19, 2006) 
(unpublished). Today a lawyer bears an affirmative duty not just to ask 
a client to locate and gather paper and electronic documents, but to 
search out sources of electronic information. Phoenix Four, Inc. v. 
Strategic Res. Corp., No. 05 Civ. 4837(HB), 2006 WL 2135798, at *5 
(S.D.N.Y. Aug. 1, 2006) (unpublished); In re A & M Fla. Prop. II, LLC, 
No. 09-15173, 2010 WL 1418861, at *6 (Bankr. S.D.N.Y. Apr. 7, 2010) 
(unpublished). Those efforts must, however, be proportional to what is 
at stake in the litigation. Fed. R. Civ. P. 26(b)(2)(C)(iii); see also, 
The Sedona Principles: Second Edition, Best Practices Recommendations & 
Principles for Addressing Electronic Document Production, Principle 2, 
cmt. 2.b., at 17 (2007) (``Electronic discovery burdens should be 
proportional to the amount in controversy and the nature of the case. 
Otherwise, transaction costs due to electronic discovery will overwhelm 
the ability to resolve disputes fairly in litigation.''); cf., Pension 
Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, 
685 F.Supp.2d 456, 464-65 (S.D.N.Y. 2010) (describing significant 
discovery burdens that were reasonable in a $550 million claim arising 
from the liquidation of hedge funds; but those burdens may be 
inappropriate in litigation where much less is at stake).
    In addition, the parties should discuss and agree at the initial 
conference on how to handle inadvertent disclosure of digital 
information that otherwise would enjoy attorney-client privilege or 
work product protection. Fed. R. Civ. P. 26(f)(3)(D). Their agreement 
plays a pivotal role under recently enacted Fed. R. Evid. 502(b), (d), 
and (e). They avoid a waiver of privilege or work product protection 
when their agreement is incorporated into a scheduling order or another 
order. See Advisory Committee Notes to the 2006 amendments to Fed. R. 
Civ. P. 26(f).
    The current FRCP not only guide the resolution of discovery 
disputes, but also set standards for allocating the potentially high 
cost of discovery among the parties when the sources of digital data 
are not readily accessible. Advisory Committee Notes to 2006 Amendments 
to Fed. R. Civ. P. 26(b)(2) (``The conditions [the judge imposes] may 
also include payment by the requesting party of part or all of the 
reasonable costs of obtaining information from sources that are not 
reasonably accessible.'')

G. Summary Decision

    A motion for summary adjudication carries the potential to dispose 
of an entire claim or portions of it with finality but without a trial, 
so it plays a key role in litigation. The procedure ought to be the 
same at the OALJ as in U.S. district courts; any divergence creates an 
incentive for a party to prefer the forum with the summary decision 
r[eacute]gime most favorable to its position. This matters because 
under many statutes whistleblower litigation begins at OALJ, but the 
complainant may proceed in U.S. district court if a final order has not 
been entered within a relatively short time after the claim is first 
brought to the attention of the Department. See, e.g., 18 U.S.C. 
1514A(b)(1)(B) (2010) (Sarbanes-Oxley Act); 42 U.S.C. 5841(b)(4) (2010) 
(Energy Reorganization Act); 46 U.S.C. 2114(b) (2010) (Seaman's 
Protection Act); 49 U.S.C. 31105(c) (2010) (Surface Transportation 
Assistance Act).
    Federal Rule of Civil Procedure 56 was recently revised effective 
December 1, 2010. It now instructs the judge to state a reason for 
granting or denying the motion, usually by identifying the central 
issues, which can help the parties focus any further proceedings. 
Advisory Committee Notes to 2010 Amendments to Fed. R. Civ. P. 56(a). 
The judge is not obliged to search the record independently to 
determine whether there is a factual dispute for trial, but nonetheless 
may consider record materials the parties never called to the judge's 
attention. Advisory Committee Notes to 2010 Amendments to Fed. R. Civ. 
P. 56(c)(3). A formal affidavit is not required to support the motion; 
an unsworn declaration signed under penalty of perjury suffices, 
recognizing the status 28 U.S.C. 1746 gives to those statements. Fed. 
R. Civ. P. 56(c)(4). Even if the motion is not granted, or granted only 
in part, the judge may find that certain facts are undisputed and treat 
them as established. Fed. R. Civ. P. 56(g). Invoking this authority 
demands care, however. To limit litigation expenses, a nonmovant who 
feels confident a genuine dispute as to one or a few facts will defeat 
the motion may choose not to file a detailed response to all facts the 
movant stated. That choice should not expose the party to the risk that 
the additional facts will be treated as established under subdivision 
(g). Advisory Committee Notes to 2010 Amendments to Fed. R. Civ. P. 
56(h).
    The judge may sanction a party who submits an affidavit or 
declaration with its motion papers in bad faith or solely for delay. 
Fed. R. Civ. P. 56(h).

H. Additional Matters

    Other portions of the FRCP have also undergone significant changes, 
including rules on the subjects of:
     Sanctions under Fed. R. Civ. P. 11 in 1993, see Edward D. 
Cavanagh, Rule 11 of The Federal Rules of Civil Procedure: The Case 
Against Turning Back the Clock, 162 F.R.D. 383, 396 (1995); and
     Subpoenas under Fed. R. Civ. P. 45 in 1991, see David D. 
Siegel, Federal

[[Page 72147]]

Subpoena Practice Under the New Rule 45 of The Federal Rules of Civil 
Procedure, 139 F.R.D. 197, 197 (1992).
    The proposed revisions to Part 18, Subpart A reflect the general 
tenor of these amendments.

III. Evolution in Types of Cases

    Congress has vested the Department (and therefore OALJ) with the 
responsibility to conduct formal hearings pursuant to more than 60 
laws, including at least 19 that protect employees from retaliation for 
whistleblowing.
    The bulk of hearings conducted by OALJ involve longshore workers' 
compensation and black lung benefits claims. This was true when OALJ's 
rules of practice were published in 1983 and is still true today.\3\ 
These cases have benefited from having established rules of practice 
and procedure modeled on the FRCP. The evolution in the types of cases 
heard by OALJ, however, has resulted in a significant increase in 
hearings that are the functional equivalent of a civil trial in federal 
or state court, absent only the jury. In particular, whistleblower 
cases now account for a significant portion of OALJ's workload, 
disproportionate to their percentage of the overall docket. As noted 
above, many of the statutes creating the responsibility for 
whistleblower adjudication by the Department of Labor were promulgated 
after the Part 18, Subpart A rules were published in 1983. Nine 
whistleblower laws with the potential for ALJ hearings within the 
Department of Labor were enacted after the year 2000. Hearings arising 
under these statutes often involve complex fact patterns and novel 
legal issues. Overall, whistleblower litigation typically requires more 
extensive discovery, case management, motion work, summary decision 
practice, and time in trial than many of the other types of cases heard 
by OALJ.
---------------------------------------------------------------------------

    \3\ OALJ also conducts administrative review in a large number 
of immigration-related appeals involving both permanent and 
temporary labor certification applications. Many of these reviews do 
not require an evidentiary hearing because the review is on the 
existing record.
---------------------------------------------------------------------------

    Moreover, intensive litigation is typical in cases arising under 
the Defense Base Act. Although the Defense Base Act has been in 
existence since World War II, increasing use of contract services by 
the military and other parts of the federal government has resulted in 
significantly more hearings conducted by OALJ under that law in recent 
years. These cases tend not to settle, and therefore require more case 
management by judges as compared with other workers' compensation cases 
adjudicated by OALJ. OALJ also now conducts hearings involving labor 
condition applications of employers who employ H-1B nonimmigrant 
workers. OALJ's experience is that many of these cases do not settle; 
they also involve extensive procedural motions and multi-day hearings.
    Thus, the change in the case mix before OALJ has heightened the 
need for procedural rules that are clearly written, permit improved and 
more consistent case management by judges, and are familiar to the 
national legal community under current federal court practice.

IV. Flexibility/Uniformity

    Notwithstanding the variety of statutes and regulations that 
generate disputes at OALJ, the provisions of the Administrative 
Procedure Act at 5 U.S.C. 556 offer broad guidance to administrative 
law judges about how to conduct proceedings. Flexibility in applying 
procedural rules is desirable, so that judges manage litigation 
according to the needs of an individual case. The Department's 
opportunity to review the decision of its administrative law judges 
under 5 U.S.C. 557(b) safeguards a party from an abuse of that 
discretion.
    Some cases by their nature need special management. For example, 
applying a general rule that sets the time to respond to formal 
discovery demands may be inappropriate in a case that demands expedited 
handling. A striking illustration of an expedited proceeding is one to 
review a denial of an employer's application to the Office of Foreign 
Labor Certification under 20 CFR 655.103 to certify the use of non-
immigrant workers in temporary agricultural employment under the H-2A 
visa program of the Immigration & Nationality Act, 8 U.S.C. 
1101(a)(15)(H)(ii)(a), 1188(e). In such cases, the employer only has 
five business days to seek review of an application's denial under 20 
CFR 655.141(b)(4) and 655.142(c). Where the employer requests 
administrative review, the judge has only five business days after 
receipt of the administrative file from the Office of Foreign Labor 
Certification to render a decision. 20 CFR 655.171(a) (2011). Where the 
employer requests de novo review, the Part 18, Subpart A rules apply, 
but the hearing must be convened within five business days after the 
administrative law judge receives the administrative file, and the 
decision must follow within ten calendar days. 20 CFR 655.171(b). 
Additionally, for some types of cases--for example, those adjudicated 
under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. 901 
et seq., and its extensions such as the Defense Base Act, 42 U.S.C. 
1651, et seq., and the Black Lung Benefits Act, 30 U.S.C. 901 et seq.--
the Department's substantive regulations also include procedural 
provisions. See 20 CFR parts 702 (Longshore) and 725 (Black Lung).
    The proposed rules have been drafted to authorize a judge to tailor 
procedures to the case, through a prehearing order. A judge may take a 
broad range of actions under proposed Sec.  18.50(b)(2) and (3). 
Parties may be ordered to confer about settlement early in the case, 
required to make prehearing disclosures without any formal discovery 
demand from the other party, and directed to draft a discovery plan. 
Yet the judge also may relieve the parties from the obligation to make 
initial disclosures, and alter the general limitations on the number of 
interrogatories and the number and length of depositions. This 
flexibility permits a judge to address, in an individualized way, the 
needs of any specific case. The judge also may address any regional 
differences in litigation practices that may require direction or 
clarification.

V. Clarity/Re-Organization

    The FRCP underwent a complete revision that culminated in 2007 to 
improve their style and clarity. Restyled Federal Rules of Appellate 
Procedure took effect in 1998, as the restyled Federal Rules of 
Criminal Procedure did in 2002. Sources that guided drafting, usage, 
and style for all three revisions included the Guidelines for Drafting 
and Editing Court Rules, which the Standing Committee on Federal Rules 
of Practice and Procedure of the Judicial Conference of the United 
States published at 169 F.R.D. 171 (1997), and Bryan A. Garner's A 
Dictionary of Modern Legal Usage (2d ed. 1995). The purpose of the 
style revisions was twofold: to make the rules easier to understand, 
and to make style and terminology consistent throughout the rules. See 
Advisory Committee's Notes to the 2007 Amendments to Fed. R. Civ. P. 1. 
The restyled federal civil rules reduced the use of inconsistent, 
ambiguous, redundant, repetitive, or archaic words. For example, the 
restyled rules replaced ``shall'' with ``must,'' ``may,'' or 
``should,'' as appropriate, based on which one the context and the 
established interpretation made correct. Id. The sole exception was the 
highly controversial restoration of the ``shall'' in Fed. R. Civ. P. 
56(a) on summary judgment when it was amended in 2010. Advisory 
Committee's Notes to the 2010 Amendments to Fed. R. Civ. P. 56(a).
    The drafting guidelines the authors of the 2007 style amendments 
used to

[[Page 72148]]

enhance the clarity and readability of the FRCP also were used as the 
Department revised Part 18, Subpart A. Proposed revisions typically are 
based on the text of the restyled federal civil rule for the 
corresponding subject, unless there was a reason to deviate from the 
federal rule's language. As one example, the word ``court'' is replaced 
throughout with the word ``judge,'' because administrative 
adjudications do not take place in a court. Where substantive 
deviations from the FRCP were made, the reason for the deviation is 
noted in the portion of the Notice of Proposed Rulemaking pertaining to 
the specific proposed rule. Where there is no corresponding federal 
civil rule, the Department used the FRCP drafting guidelines to revise 
the existing Part 18, Subpart A rules, to improve their clarity and 
internal consistency. The ordering of some rules was altered to improve 
the overall clarity of the Part 18, Subpart A regulations. A conversion 
table that shows the current Part 18, Subpart A rules and their 
corresponding proposed rule appears at the end of this Preface. In 
drafting the text of the proposed rules, the Department also took into 
account two Executive Orders:
     Executive Order 12866 (1993), which requires that 
regulations be ``simple and easy to understand, with the goal of 
minimizing uncertainty and litigation * * * '' 58 FR 51735, sec. 
1(b)(12), Sept. 30, 1993 (amended 2002 & 2007); and
     Executive Order 12988 (1996), which requires that 
regulations be written in ``clear language.'' 61 FR 4729, sec. 3(b)(2) 
(Feb. 5, 1996).

    The Plain Writing Act of 2010, 5 U.S.C. 301, Public Law 111-274, 
124 Stat. 2861 (2010), while not directly applicable to regulations, 
recognizes the value of plain writing in government documents by 
requiring clear, concise, and well-organized publications. The Office 
of Management and Budget has published a ``Best Practices Guide for 
Regulations'' available on the internet.\4\ These proposed rules follow 
the guidance these sources offer.
---------------------------------------------------------------------------

    \4\ This guide is available at http://www.regulations.gov/exchange/sites/default/files/doc_files/20101130_eRule_Best_Practices_Document_rev.pdf.
---------------------------------------------------------------------------

    Section 6(a) of Executive Order 13,563 (dated January 18, 2011), 
states: ``To facilitate the periodic review of existing significant 
regulations, agencies shall consider how best to promote retrospective 
analysis of rules that may be outmoded, ineffective, insufficient, or 
excessively burdensome, and to modify, streamline, expand, or repeal 
them in accordance with what has been learned.'' 76 FR at 3821. The 
Executive Order also requires each agency to prepare a plan for 
reviewing its regulations. Although the revision of Part 18, Subpart A 
began well before this recent Executive Order, the proposed revisions 
meet the Order's requirements, by replacing outmoded rules with a more-
readily understandable version.

VI. Regulatory Review

A. Executive Order 12866 (Regulatory Planning and Review)

    This proposed rule has been drafted and reviewed in accordance with 
Executive Order 12866. The Department of Labor, in coordination with 
the Office of Management and Budget (OMB), has determined that this 
proposed rule is not a ``significant regulatory action'' under 
Executive Order 12866, section 3(f) because rule because the rule will 
not have an annual effect on the economy of $100 million or more; nor 
create a serious inconsistency or otherwise interfere with an action 
taken or planned by another agency; nor materially alter the budgetary 
impact of entitlements, grants, user fees, or loan programs or the 
rights and obligations of recipients thereof. Furthermore, the rule 
does not raise a novel legal or policy issue arising out of legal 
mandates, the President's priorities or the principles set forth in 
this Executive Order. Accordingly, the proposed rule has not been 
reviewed by OMB.

B. Regulatory Flexibility Act/Small Business Regulatory Enforcement 
Fairness Act

    The Department concludes that the Regulatory Flexibility Act, 5 
U.S.C. 601 et. seq. does not apply since the changes proposed here 
consist of amendments to rules of agency organization, procedure and 
practice, and consequently are exempt from the notice and public 
comment requirements of the Administrative Procedure Act, see 5 U.S.C. 
553(b)(3)(A).

C. Executive Order 12291 (Federal Regulation)

    The Department has reviewed this rule in accordance with Executive 
Order 12291 and determined it is not a ``major rule'' under Executive 
Order 12291 because it is not likely to result in (1) An annual effect 
on the economy of $100 million or more; (2) a major increase in costs 
or prices for consumers, individual industries, Federal, State, or 
local government agencies, or geographic regions; or (3) significant 
adverse effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States-based enterprises to 
compete with foreign-based enterprises in domestic or export markets. 
Accordingly, no regulatory impact analysis is required.

D. Unfunded Mandates Reform Act of 1995 and the Executive Order 13132 
(Federalism)

    The Department has reviewed this proposed rule in accordance with 
the requirements of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 
1531 et seq., and Executive Order 13132. The Department concludes that 
the requirements of these provisions do not apply to the proposed rule, 
because the proposed rule does not place any mandate on State, local, 
or tribal governments.

E. Paperwork Reduction Act

    The Department certifies that this proposed rule has been assessed 
in accordance with the requirements of the Paperwork Reduction Act, 44 
U.S.C. 3501 et seq. (1995)(PRA). The Department concludes that the 
requirements of the PRA do not apply to this rulemaking because this 
regulation does not contain any information collection requirements 
that require the approval of the Office of Management and Budget.

F. The National Environmental Policy Act of 1969 (Environmental Impact 
Assessment)

    The Department has reviewed the proposed rule in accordance with 
the requirements of the National Environmental Policy Act (NEPA) of 
1969, as amended (42 U.S.C. 4321 et seq.) and the Department of Labor's 
NEPA procedures (29 CFR part 11). The Department concludes that the 
requirements of the NEPA do not apply to this rulemaking as there are 
no requirements or provisions contained in this proposed rule that 
involve assuring the maintenance of a healthful environment and there 
are no provisions impacting the responsibilities to preserve and 
enhance that environment contained herein and, thus, has not conducted 
an environmental assessment or an environmental impact statement.

G. The Privacy Act of 1974, 5 U.S.C. 552a, as Amended

    The Department has reviewed this proposed rule in accordance with 
the Privacy Act of 1974, as amended (5 U.S.C. 552a). This rulemaking 
would not require any new process, filing or collection of any new 
information in the proceedings before the Office of

[[Page 72149]]

Administrative Law Judges and therefore, the Department has determined 
this proposed rule would not result in a new or revised Privacy Act 
System of Records.

H. Federal Regulations and Policies on Families

    The Department has reviewed this proposed rule in accordance with 
the requirements of the Federal Regulations and Policies on Families, 
Section 654 of the Treasury and General Government Appropriations Act 
of 1999. These proposed regulations were not found to have a potential 
negative effect on family well-being as it is defined there under.

I. Executive Order 13045 (Protection of Children From Environmental 
Health Risks and Safety Risks)

    The Department certifies that this proposed rule has been assessed 
regarding environmental health risks and safety risks that may 
disproportionately affect children. These proposed regulations were not 
found to have a potential negative effect on the health or safety of 
children.

J. Executive Order 12630 (Governmental Actions and Interference With 
Constitutionally Protected Property Rights)

    The Department has reviewed this proposed rule in accordance with 
E.O. 12630 and has determined that it does not contain any ``policies 
that have takings implications'' in regard to the ``licensing, 
permitting, or other condition requirements or limitations on private 
property use, or that require dedications or exactions from owners of 
private property.''

K. Executive Order 13175 (Consultation and Coordination with Indian 
Tribal Governments)

    The Department has reviewed this proposed rule in accordance with 
E.O. 13175 and has determined that it does not have ``tribal 
implications.'' The proposed rule does not ``have substantial direct 
effects on one or more Indian tribes, on the relationship between the 
Federal government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal government and Indian 
tribes.''

L. Executive Order 12988 (Civil Justice Reform)

    This regulation has been drafted and reviewed in accordance with 
Executive Order 12988, Civil Justice Reform, and will not unduly burden 
the Federal court system. The regulation has been written so as to 
minimize litigation and provide a clear legal standard for affected 
conduct, and has been reviewed carefully to eliminate drafting errors 
and ambiguities.

M. Executive Order 13211 (Actions Concerning Regulations that 
Significantly Affect Energy Supply, Distribution, or Use)

    The Department has reviewed this proposed regulation in accordance 
with Executive Order 13211 and determined that the proposed rule is not 
subject to Executive Order 13211 because it is not a significant 
regulatory action under Executive Order 12866, will not have a 
significant adverse effect on the supply, distribution, or use of 
energy, and has not been designated by the Administrator of the Office 
of Information and Regulatory Affairs as a significant energy action.

VII. Public Participation

A. APA Requirements for Notice and Comment

    The changes proposed here consist of amendments to rules of agency 
organization, procedure and practice, and consequently are exempt from 
the notice and public comment requirements of the Administrative 
Procedure Act, see 5 U.S.C. 553(b)(3)(A). However, the Department 
wishes to provide the public with an opportunity to submit comments on 
any aspect of the entire proposed rule.

B. Publication of Comments

    Please be advised that the Department will post all comments 
without making any change to the comments, including any personal 
information provided. The www.regulations.gov Web site is the Federal 
e-rulemaking portal and all comments received electronically or by 
mail, hand delivery, express mail, messenger or courier service are 
available and accessible to the public on this Web site. Therefore, the 
Department recommends that commenters safeguard their personal 
information by not including social security numbers, personal 
addresses, telephone numbers, and email addresses in comments. It is 
the responsibility of the commenter to safeguard his or her 
information.

C. Access to Docket

    In addition to all comments received by the Department being 
accessible on www.regulations.gov, the Department will make all the 
comments available for public inspection during normal business hours 
at the above address. If you need assistance to review the comments, 
the Department will provide you with appropriate aids such as readers 
or print magnifiers. The Department will make copies of the proposed 
rule available, upon request, in large print or electronic file on 
computer disc. The Department will consider providing the proposed rule 
in other formats upon request. To schedule an appointment to review the 
comments and/or obtain the proposed rule in an alternate format, 
contact Todd Smyth at the U.S. Department of Labor, Office of 
Administrative Law Judges, 800 K Street NW., Suite 400-North, 
Washington, DC 20001-8002; telephone (202) 693-7300.

                                   Part 18, Subpart A--Cross Referencing Chart
----------------------------------------------------------------------------------------------------------------
   New section     New section title     Old section      Old section title    Federal rule of civil procedure
----------------------------------------------------------------------------------------------------------------
                                               GENERAL PROVISIONS
----------------------------------------------------------------------------------------------------------------
18.10...........  Scope and purpose.         18.1/18.26  Scope of rules and  Fed. R. Civ. P. 1
                                                          conduct of
                                                          hearings.
18.11...........  Definitions.......               18.2  Definitions.......  ...................................
18.12...........  Proceedings before     18.25/18.29(a)  Proceedings before  ...................................
                   administrative                         administrative
                   law judge.                             law judge/
                                                          authority of the
                                                          administrative
                                                          law judge.
18.13...........  Settlement judge                 18.9  Consent order or    ...................................
                   procedure.                             settlement;
                                                          settlement judge
                                                          procedure.
18.14...........  Ex parte                        18.38  Ex parte            ...................................
                   communication.                         communications.
18.15...........  Substitution of                 18.30  Unavailability of   Fed. R. Civ. P. 63
                   administrative                         administrative
                   law judge.                             law judge.
18.16...........  Disqualification..              18.31  Disqualification..  ...................................

[[Page 72150]]

 
18.17...........  Legal assistance..              18.35  Legal assistance..  ...................................
----------------------------------------------------------------------------------------------------------------
                                           PARTIES AND REPRESENTATIVES
----------------------------------------------------------------------------------------------------------------
18.20...........  Parties to a                    18.10  Parties, how        ...................................
                   proceeding.                            designated.
18.21...........  Party appearance       18.39/18.34(a)  18.39, Waiver of    ...................................
                   and participation.                     right to appear
                                                          and failure to
                                                          participate or to
                                                          appear--text was
                                                          incorporated into
                                                          proposed
                                                          ``participation''
                                                          rule.
18.22...........  Representatives...              18.34  Representatives...  ...................................
18.23...........  Disqualification    .................  ..................  ...................................
                   and discipline of
                   representatives.
18.24...........  Briefs from amicus              18.12  Amicus curiae.....  ...................................
                   curiae.
----------------------------------------------------------------------------------------------------------------
                             SERVICE, FORMAT AND TIMING OF FILINGS AND OTHER PAPERS
----------------------------------------------------------------------------------------------------------------
18.30...........  Service and filing               18.3  Service and filing  Fed. R. Civ. P. 5
18.31...........  Privacy protection  .................  ..................  Fed. R. Civ. P. 5.2
                   for filings and
                   exhibits.
18.32...........  Computing and                    18.4  Time computations.  Fed. R. Civ. P. 6
                   extending time.
18.33...........  Motions and other                18.6  Motions and         Fed. R. Civ. P. 7(b) & 43(c)
                   papers.                                requests.
18.34...........  Format of papers    .................  ..................  ...................................
                   filed.
18.35...........  Signing motions     .................  ..................  Fed. R. Civ. P. 11
                   and other papers;
                   representations
                   to the judge;
                   sanctions.
18.36...........  Amendments after                 18.5  Responsive          ...................................
                   referral to the                        pleadings--answer
                   Office of                              and request for
                   Administrative                         hearings.
                   Law Judges.
----------------------------------------------------------------------------------------------------------------
                                              PREHEARING PROCEDURE
----------------------------------------------------------------------------------------------------------------
18.40...........  Notice of hearing.              18.27  Notice of hearing.  ...................................
18.41...........  Continuances and                18.28  Continuances......  ...................................
                   changes in place
                   of hearing.
18.42...........  Expedited                       18.42  Expedited           ...................................
                   proceedings.                           proceedings.
18.43...........  Consolidation;                  18.11  Consolidation of    Fed. R. Civ. P. 42
                   separate hearings.                     hearings.
18.44...........  Prehearing                       18.8  Prehearing          Fed. R. Civ. P. 16
                   conference.                            conferences.
----------------------------------------------------------------------------------------------------------------
                                            DISCLOSURE AND DISCOVERY
----------------------------------------------------------------------------------------------------------------
18.50...........  General provisions  .................  ..................  Fed. R. Civ. P. 26(a), (d), (f),
                   governing                                                  (g)
                   disclosure and
                   discovery.
18.51...........  Discovery scope                 18.14  Scope of discovery  Fed. R. Civ. P. 26(b)
                   and limits.
18.52...........  Protective orders.              18.15  Protective orders.  Fed. R. Civ. P. 26(c)
18.53...........  Supplementing                   18.16  Supplementation of  Fed. R. Civ. P. 26(e)
                   disclosures and                        responses.
                   responses.
18.54...........  Stipulations about              18.17  Stipulations        Fed. R. Civ. P. 29
                   discovery and                          regarding
                   procedure.                             discovery.
18.55...........  Using depositions               18.23  Use of depositions  Fed. R. Civ. P. 32
                   at hearings.                           at hearings.
18.56...........  Subpoena..........              18.24  Subpoenas.........  Fed. R. Civ. P. 45
18.57...........  Failure to make                 18.21  Motion to compel    Fed. R. Civ. P. 37
                   disclosures or to                      discovery.
                   cooperate in
                   discovery;
                   sanctions.
----------------------------------------------------------------------------------------------------------------
                                               TYPES OF DISCOVERY
----------------------------------------------------------------------------------------------------------------
18.60...........  Interrogatories to              18.18  Written             Fed. R. Civ. P. 33
                   parties.                               interrogatories
                                                          to parties/.
18.61...........  Producing                       18.19  Production of       Fed. R. Civ. P. 34
                   documents,                             documents and
                   electronically                         other evidence;
                   stored                                 entry upon land
                   information, and                       for inspection
                   tangible things,                       and other
                   or entering onto                       purposes; and
                   land, for                              physical and
                   inspection and                         mental
                   other purposes..                       examination.
18.62...........  Physical and                    18.19  Production of       Fed. R. Civ. P. 35
                   mental                                 documents and
                   examinations.                          other evidence;
                                                          entry upon land
                                                          for inspection
                                                          and other
                                                          purposes; and
                                                          physical and
                                                          mental
                                                          examination.
18.63...........  Requests for                    18.20  Admissions........  Fed. R. Civ. P. 36
                   admission.
18.64...........  Depositions by                  18.22  Depositions by      Fed. R. Civ. P. 30
                   oral examination.                      oral examinations.
18.65...........  Depositions by      .................  ..................  Fed. R. Civ. P. 31
                   written questions.
----------------------------------------------------------------------------------------------------------------
                                           DISPOSITION WITHOUT HEARING
----------------------------------------------------------------------------------------------------------------
18.70...........  Motions for         .................  ..................  ...................................
                   dispositive
                   action.
18.71...........  Approval of                      18.9  ..................  ...................................
                   settlement and
                   consent findings.

[[Page 72151]]

 
18.72...........  Summary decision..        18.40/18.41  18.40, Motion for   Fed. R. Civ. P. 56
                                                          summary decision
                                                          merged with
                                                          18.41, Summary
                                                          decision.
----------------------------------------------------------------------------------------------------------------
                                                     HEARING
----------------------------------------------------------------------------------------------------------------
18.80...........  Prehearing                       18.7  Prehearing          ...................................
                   statement.                             statements.
18.81...........  Formal hearing....              18.43  Formal hearings...  Fed. R. Civ. P. 43(a)
18.82...........  Exhibits..........  18.47/18.48 18.49/ Exhibits/records    ...................................
                                                  18.50   in other
                                                          proceedings/
                                                          designation of
                                                          parts of
                                                          documents/
                                                          authenticity.
18.83...........  Stipulations......              18.51  Stipulations......  ...................................
18.84...........  Official notice...              18.45  Official notice...  ...................................
18.85...........  Privileged,               18.46/18.56  In camera and       ...................................
                   sensitive, or                          protective orders/
                   classified                             restricted access.
                   materials.
18.86...........  Hearing room                    18.37  Hearing room        ...................................
                   conduct.                               conduct.
18.87...........  Standards of                    18.36  Standards of        ...................................
                   conduct.                               conduct.
18.88...........  Transcript of                   18.52  Record of hearings  ...................................
                   proceedings.
----------------------------------------------------------------------------------------------------------------
                                                  POST HEARING
----------------------------------------------------------------------------------------------------------------
18.90...........  Closing the               18.54/18.55  Closing the record/ ...................................
                   record;                                receipt of
                   additional                             documents after
                   evidence.                              hearing.
18.91...........  Post-hearing brief              18.57  Decision of the     ...................................
                                                          administrative
                                                          law judge and
                                                          post-hearing
                                                          briefs.
18.92...........  Decision and order              18.57  Decision of the     ...................................
                                                          administrative
                                                          law judge and
                                                          post-hearing
                                                          briefs.
18.93...........  Motion for          .................  ..................  Fed. R. Civ. P. 59(e)
                   reconsideration.
18.94...........  Indicative ruling   .................  ..................  Fed. R. Civ. P. 62.1
                   on a motion for
                   relief that is
                   barred by a
                   pending petition
                   for review.
18.95...........  Review of Decision              18.58  Appeals...........  ...................................
----------------------------------------------------------------------------------------------------------------
                                                DELETED SECTIONS
----------------------------------------------------------------------------------------------------------------
                  Deleted...........              18.13  Discovery methods.  ...................................
                  Deleted...........              18.32  Separation of       ...................................
                                                          functions.
                  Deleted...........              18.33  Expedition........  ...................................
                  Deleted...........              18.53  Closing of          ...................................
                                                          hearings.
                  Deleted...........              18.59  Certification of    ...................................
                                                          official record.
----------------------------------------------------------------------------------------------------------------

General Provisions

Sec.  18.10 Scope and purpose.

    The Department proposes to remove the current Sec.  18.1 and add 
Sec.  18.10. The proposed Sec.  18.10 is modeled after Fed. R. Civ. P. 
1.
    As in the current rule, the proposed rule states that in the event 
the procedures in Part 18, Subpart A are inconsistent with a governing 
statute, regulation, or executive order, the latter controls. The 
Department recognizes that specific procedural regulations have already 
been promulgated for some statutes under which administrative law 
judges adjudicate cases, and that these regulations may prescribe 
procedures inconsistent with these proposed rules. The Department has 
found that the phrase ``rule of special application'' has not clearly 
conveyed the intent of this sentence. Thus, proposed Sec.  18.10 
rephrases this sentence as follows: ``To the extent that these rules 
may be inconsistent with a governing statute, regulation, or executive 
order, the latter controls. If a specific Department of Labor 
regulation governs a proceeding, the provisions of that regulation 
apply, and these rules apply to situations not addressed in the 
governing regulation.''
    Subdivision (a) recognizes that some of the Department's 
regulations involving proceedings before OALJ include extremely 
detailed procedures and requirements. These rules do not address 
requirements that are specific to certain types of cases. For example, 
the regulations for Black Lung compensation benefits proceedings, at 20 
CFR parts 718 and 725, include specific evidentiary limitations (see 20 
CFR 725.414). Similarly, the regulations in both Black Lung and 
Longshore compensation cases require that hearings be held within 75 
miles of the claimants residence if possible. See 20 CFR 725.454(a), 
702.337(a).
    Additionally, the Department recognizes that the provisions of a 
specific regulation may be inconsistent with these rules. In such 
event, the specific regulation--and not these rules--applies. For 
example, in a case arising under the Black Lung Benefits Act, there is 
inconsistency between the regulation at proposed Sec.  18.93, Motion 
for reconsideration, which provides parties 10 days after service of 
the judge's decision and order to file a motion for reconsideration, 
and the black lung regulation at 20 CFR 725.479(b), which provides 30 
days after the filing of the judge's decision and order to file a 
motion for reconsideration. Because the regulations at 20 CFR part 725 
govern proceedings arising under the Black Lung Benefits Act, the 
regulation at sec. 725.479(b) would control.
    The Department proposes to relocate the language from current Sec.  
18.26 to proposed Sec.  18.10 because it is more properly located with 
the other general guiding principles. The Department proposes to 
clarify the meaning of

[[Page 72152]]

current Sec.  18.26 under subdivision (b). First, current Sec.  18.26 
only references sec. 554 of the APA. However, Subchapter II of Chapter 
5 of the APA determines how the entire proceeding, including the 
hearing, will be conducted. Accordingly, the proposed rule revises and 
expands the reference to include all of Subchapter II, instead of only 
referencing sec. 554. Second, Subchapter II instructs how the entire 
proceeding should be conducted; accordingly, the reference to hearings 
in the current rule was changed to proceedings in order to encompass 
the entire process of adjudicating a case before OALJ.
    The current Sec.  18.1(b)--renumbered as Sec.  18.10(c)--is revised 
to improve the clarity of the rule. The Department does not propose 
changes to the judge's ability to waive, modify, or suspend the rules 
by these revisions.

Sec.  18.11 Definitions.

    The Department proposes to revise the current Sec.  18.2 and 
renumber it as Sec.  18.11. The definitions in Sec.  18.2 supplement 
the definitions stated in sec. 551 of the Administrative Procedure Act. 
The Department proposes to amend the opening sentence of this section 
by referencing the definitions provided in sec. 551 of the 
Administrative Procedure Act. The definitions in sec. 551 apply to OALJ 
proceedings.
    The Department proposes to delete the following terms from the 
current Sec.  18.2: (a), Adjudicatory proceeding; (c), Administrative 
Procedure Act; (d), Complaint; (g), Party; (h), Person; (i), Pleading; 
(j), Respondent; (k), Secretary; (l), Complainant; (m), Petition; (n), 
Consent Agreement; (o), Commencement of Proceeding. Except for the 
``Administrative Procedure Act,'' those terms are no longer used in the 
proposed revisions to the rules or sec. 551 of the APA defines the 
term. When a proposed section references the Administrative Procedure 
Act, the name of the Act and the appropriate section number is stated.
    The Department proposes to define the following terms that are not 
defined by the APA: (a), Calendar call; (b), Chief Judge; (c), Docket 
clerk; and (h), Representative. The terms ``calendar call,'' ``docket 
clerk'' and ``representative'' are used with more frequency in the 
proposed revision of the rules. The Department proposes to define 
``Chief Judge'' to clarify that the term also includes a judge to whom 
the Chief Judge delegates authority. The Department proposes to define 
``representative'' to clarify that, unless otherwise specified, the 
term applies to all representatives who represent a person or party 
before OALJ. The Department proposes to define ``docket clerk'' to 
clarify current practice before OALJ. When a case is first filed with 
OALJ it is received by the Chief Docket Clerk in the national office 
located in Washington, DC. But once a case is assigned to a judge in a 
district office all filings should be made with the docket staff in 
that office.
    The Department proposes to amend the definitions of the following 
terms to improve clarity and specificity: (d), Hearing; (e), Judge; 
(f), Order; and (g), Proceeding. The Department proposes to expand the 
definition of ``hearing'' to encompass more than sessions where 
evidence is submitted. Hearings to determine issues of fact may rely on 
official notice rather than oral testimony subject to cross 
examination, and hearings to determine issues of law may not require 
the submission of evidence. The Department proposes to revise the 
definition of ``judge'' to eliminate the reference in the current rule 
to presiding officers not appointed as administrative law judges 
pursuant to 5 U.S.C. 3105.
    The Department proposes to revise the definition of ``order'' and 
delete the reference in the current rule to rulemaking. The Part 18, 
Subpart A rules and these proposed revisions apply to the adjudication 
of cases and not rulemaking. This reference is therefore superfluous. 
The Department proposes to revise the definition of ``proceeding'' to 
avoid defining a term using the term itself; the proposed definition 
provides a more accurate definition, one that includes the creation of 
a record leading to an adjudication or order.

Sec.  18.12 Proceedings before administrative law judge.

    The Department proposes to revise the current Sec. Sec.  18.25 and 
18.29(a) and combine the content into proposed Sec.  18.12.
    The proposed Sec.  18.12 is divided into two subdivisions: 
designation and authority. The Department proposes to relocate the 
content of current Sec.  18.25 to proposed Sec.  18.12(a). This section 
incorporates the revised definition of ``judge'' and ``Chief Judge'' 
from proposed Sec.  18.11.
    The Department proposes to relocate the content of current Sec.  
18.29(a) to proposed Sec.  18.12(b). The enumerated powers of the judge 
in the proposed subdivision (b) are similar to those listed in sec. 556 
of the APA (5. U.S.C. 556) and those listed in the current Sec.  
18.29(a), except for stylistic changes. For example, proposed 
subparagraphs (b)(4), (b)(5) and part of (b)(2) are taken directly from 
sec. 556. Under subdivision (b), the Department clarifies that OALJ may 
conduct hearings as determined by the Secretary of Labor when no 
statute entitles a person to an ``on the record'' hearing. The proposed 
subparagraph (b)(1) is meant to clarify the administrative law judge's 
powers to regulate both formal and informal proceedings, including 
setting prehearing conferences, and when appointed as a settlement 
judge, to conduct settlement conferences. The current Sec.  18.29 
(a)(1) only addresses formal hearings. The current Sec.  18.29(a)(6) 
and (a)(9) has been deleted because these provisions are redundant of 
the proposed introductory statement.
    The difference between paragraph (b)(3) and (b)(4) is that the 
former applies to parties to the cause of action whereas the later 
applies to non-parties. Under (b)(3) judges have the authority to grant 
motions to compel a party to respond to a request for the production of 
documents, requests for written responses to interrogatories, requests 
for admission, and attendance at a proceeding. Issuing subpoenas 
authorized by law is the only way a judge can exercise control over 
non-parties.
    The Department proposes to delete current Sec.  18.29(b), because 
its content is addressed in the applicable statutes (e.g., 33 U.S.C. 
927(b)(Longshore and Harbor Workers' Compensation Act).

Sec.  18.13 Settlement judge procedure.

    The Department proposes to revise the current Sec.  18.9 and 
renumber it as proposed Sec.  18.13.
    There are three topics addressed in the current Sec.  18.9: (1) 
Motions for consent findings and order; (2) approval of settlement 
agreements; and (3) the settlement judge procedure. Motions for 
approval of a settlement agreement and for a consent finding and order 
(current Sec.  18.9 (a)-(d)) are now addressed in the proposed Sec.  
18.71, Approval of settlement or consent findings). Proposed Sec.  
18.13 provides the procedures for parties wishing to use the settlement 
judge process. The revisions to the previous subdivision (e) are 
largely structural and stylistic.
    Under proposed subdivision (c) the Department proposes to extend 
the number of days for the settlement proceeding from 30 to 60 days. 
Based on OALJ's experience related to Longshore and Harbor Worker's 
Compensation Act cases, 30 calendar days is not enough time to complete 
a settlement agreement. For example, parties may need more than 30 days 
in cases dealing with location issues, or Medicare set asides, or in 
international negotiations under the Defense Base Act.

[[Page 72153]]

    The Department proposes to delete the cross-referencing clause in 
current subdivision (d) because it is inherent within the rule that a 
settlement judge's powers terminate immediately if settlement 
negotiations are terminated.
    Under proposed subdivision (f) the Department proposes to provide 
the settlement judge the option of conducting the settlement conference 
in the manner he or she considers most appropriate, giving the 
settlement judge wider discretion over the mode of the settlement 
conference. The current Sec.  18.9 requires the settlement judge to 
conduct the settlement conference by telephone, except in specific 
situations. The Department determined that telephone conferences have 
not been the most expedient way to conduct settlement conferences; 
therefore the proposed change expands the judge's authority to 
determine what process the parties want to use and to best utilize 
changing technology.
    Under the proposed subdivision (g) the Department proposes to 
delete the language in current Sec.  18.9(e)(8) regarding the 
inadmissibility of settlement statements and conduct because the 
confidentiality of dispute resolution communications is now extensively 
addressed by the Administrative Dispute Resolution Act. See 5 U.S.C. 
574.
    The Department proposes to delete the current Sec.  18.9(e)(9) 
because the requirements for a consent order or settlement agreement 
are generally covered by the governing statute or implementing 
regulation. This language is possibly misleading because it implies 
that all settlements must have the elements of consent findings. There 
are also additional requirements found in specific regulations. See, 
e.g., Clean Air Act 29 CFR 1979.11(d)(2) and Longshore and Harbor 
Worker's Compensation Act 20 CFR 702.242 and 702.243.
    The language from the current Sec.  18.9(e)(10) is relocated to 
proposed subdivision (h). The Department is extending the period of 
time parties have to submit the required settlement documents to the 
presiding judge from 7 days to 14 days. This will allow parties 
additional time to draft the settlement documents and will decrease the 
number of requests for an extension of time.

Sec.  18.14 Ex parte communication.

    The Department proposes to revise the current Sec.  18.38 and 
renumber it as proposed Sec.  18.14.
    The Department proposes stylistic changes to the current Sec.  
18.38, specifically subdivision (a). The language in the proposed rule 
clarifies that the prohibition against ex parte communication applies 
to the parties, their representatives, and other interested persons, as 
well as the judge. The Department proposes to change ``any person'' to 
``interested persons'' to be consisted with the Administrative 
Procedure Act. See 5 U.S.C. 557(d)(1)(A).
    The Department proposes to delete the description of ex parte 
communication; however, this change is not intended to change the 
definition of ex parte communication. The notification of procedural 
request requirement is now covered by proposed Sec. Sec.  18.33, 
Motions and other papers, and 18.41, Continuances and changes in place 
of hearing.
    The Department deleted the current subdivision (b), Sanctions, 
because sanctions are covered in applicable statutes. In particular, 
the Administrative Procedure Act provides an option of imposing 
sanctions following ex parte communications if sufficient grounds 
exist. See 5 U.S.C. 556(d)(2000); 5 U.S.C. 557(d)(1). Section 5 U.S.C. 
557(d)(1)(D) gives the administrative law judge broad authority to 
sanction any knowing violation of the APA's prohibition on ex parte 
contacts. Accordingly, it is unnecessary to repeat the statute in these 
regulations.

Sec.  18.15 Substitution of administrative law judge.

    The Department proposes to revise the current Sec.  18.30 and 
renumber it as proposed Sec.  18.15.
    The Department proposes to change the title of this section to 
``Substitution of administrative law judge'' to more accurately reflect 
the procedure provided by the rule--how a substitute judge is appointed 
when the presiding judge becomes unavailable.
    The Department proposes a revision to the current subdivision (a) 
modeled after Fed. R. Civ. P. 63. The Department proposes to require 
the successor judge to certify that he or she is familiar with the 
record before continuing with the presentation of the evidence. 
Included in this subpart is a reference to proposed Sec.  18.12, the 
section that defines the procedure for appointing a judge to a case.
    Under the proposed subdivision (b), the Department proposes to 
codify the longstanding Department of Labor policy, based on Strantz v. 
Director, OWCP, 3 B.L.R. 1-431 (1981), of notifying the parties that 
the original judge is no longer available, allowing them to object to 
the successor judge issuing a decision based on the existing record, 
and ordering supplemental proceedings upon a showing of good cause.
    Finally, administrative need within OALJ routinely requires that 
cases be reassigned among judges prior to the submission of evidence, 
such as where a case is continued prior to a scheduled docket. The 
proposed Sec.  18.15 does not affect those reassignments.

Sec.  18.16 Disqualification.

    The Department proposes to revise the current Sec.  18.31 and 
renumber it as proposed Sec.  18.16. The proposed revisions are largely 
stylistic.
    Under subdivision (a), the Department proposes to delete the 
current notice requirement; however, this is not a procedural change. 
Parties will be notified when a presiding judge has disqualified 
himself or herself in due course with the appointment of a new judge.
    The current Sec.  18.31 requires a motion to disqualify to be 
accompanied by a supporting affidavit. The Department proposes to 
clarify in Sec.  18.16(b) that as an alternative or addition to a 
supporting affidavit a motion to disqualify may be accompanied by 
supporting declarations or other documents. A presiding judge who 
receives a motion to disqualify must rule on the motion in a written 
order that states the grounds for the ruling.
    The Department proposes to delete the current subdivision (c), 
which provides that the Chief Judge will appoint a new presiding judge 
if a judge recuses himself or herself. This procedure is covered by the 
substitution provisions of proposed Sec.  18.15 and, therefore, is 
superfluous here.

Sec.  18.17 Legal assistance.

    The Department proposes to revise the current Sec.  18.35 and 
renumber it as proposed Sec.  18.17. The Department proposes largely 
stylistic revisions to this section. The rule continues to be that OALJ 
does not appoint representatives or refer parties to representatives. 
In addition, the Department proposes to revise this section to 
expressly state that OALJ does not provide legal assistance to parties. 
The Department proposes to change the reference to ``counsel'' to 
``representative'' because the former is too narrow and does not 
include non-attorney representatives.

Parties and Representatives

Sec.  18.20 Parties to a proceeding.

    The Department proposes to revise the current Sec.  18.10 and 
renumber it as proposed Sec.  18.20.

[[Page 72154]]

    The Department proposes to delete the definition of ``party'' in 
the current subdivision (a) because this definition is provided in the 
APA. See 5 U.S.C. 551(3).
    The current Sec.  18.10 includes provisions regarding how a party 
may intervene in a case. The Department proposes to delete subdivisions 
(b)-(d) because impleading and intervention are rare circumstances 
before OALJ. If circumstances require, then the parties or judge may 
refer to the Fed. R. Civ. P. 19, Required joinder of parties, Fed. R. 
Civ. P. 20, Permissive joinder of parties, and Fed. R. Civ. P. 24, 
Intervention. As set forth in proposed Sec.  18.10(a) the rules of 
civil procedure will apply to circumstances not covered by the 
Department's rules.

Sec.  18.21 Party appearance and participation.

    The Department proposes to revise and combine the current 
Sec. Sec.  18.34(a) and 18.39 into proposed Sec.  18.21, Party 
appearance and participation, because both address a party's right to 
appear.
    The Department proposes to relocate the content from the current 
Sec.  18.34(a) to proposed Sec.  18.21(a). This subpart states that a 
party has a right to appear and participate in a proceeding in person 
or through a representative. The enumeration of the rights currently 
included in Sec.  18.34(a) is summarized by the words ``appear and 
participate in the proceeding.'' The current Sec.  18.34(a) addresses 
the possible actions a party may take during the course of a proceeding 
as provided by the rules. The Department proposes to delete this 
language because these actions are covered by other sections within the 
Rules, most specifically within Title III: Filings, Title V: Discovery, 
and Title VIII: Hearings.
    The proposed subdivisions (b) and (c) are based on the current 
Sec.  18.39(a) and (b), respectively. The Department has removed the 
10-day timeframe with the intention that the presiding judge will set 
an appropriate time for response.

Sec.  18.22 Representatives.

    The Department proposes to revise the current Sec.  18.34 and 
renumber it as proposed Sec.  18.22.
    The Department proposes to narrow the scope of proposed Sec.  18.22 
so that it functions as a list of qualifications and duties for 
attorneys and non-attorney representatives who represent parties before 
OALJ. The content from the current subdivision (a) is not included in 
proposed Sec.  18.22, as explained in the note to the proposed Sec.  
18.21, Party appearance and participation.
    The Department proposes not to include the content from current 
subdivisions (c) through (f) in proposed Sec.  18.22 because the 
substantive rights of parties and subpoenaed witnesses are delineated 
by other regulations under Part 18, Subpart A.
    The Department proposes to relocate the current subdivision (b) to 
subdivision (a), Notice of appearance. Under the proposed subdivision 
(a), the Department clarifies that each representative must file a 
``notice of appearance'' when first making an appearance and that the 
notice is to include the statements and documentation required for 
admission to appear as either an attorney or non-attorney 
representative. This provision codifies current practice and clarifies 
the timing of when the ``notice of appearance'' must be filed.
    The Department proposes to relocate the current subdivision (g) to 
proposed subdivision (b), Categories of representation; admission 
standard. Under proposed paragraph (b)(1), the Department defines the 
terms ``attorney'' and ``attorney representative'' under the proposed 
rules. The current Sec.  18.34(g) uses the phrase ``attorney at law'' 
to describe whose appearance is governed by current subsections (g)(1) 
and (g)(2); however, the Department proposes to delete this phrase from 
the proposed rules because it is ambiguous. As in the current Sec.  
18.34, an attorney who is in good standing in his or her licensing 
jurisdiction may represent a party or subpoenaed witness. An attorney's 
own representation of good standing is sufficient proof thereof, unless 
otherwise directed by the judge. Under new subparagraph (b)(1)(B), an 
attorney who is not in good standing in his or her licensing 
jurisdiction will not be permitted to appear before OALJ unless that 
attorney establishes in writing why the failure to maintain good 
standing is not disqualifying.
    The Department proposes to add a new provision under subparagraph, 
(b)(1)(C) Disclosure of discipline, that places the duty on an attorney 
to promptly disclose to the judge any current action suspending, 
enjoining, restraining, disbarring, or otherwise restricting him or her 
in the practice of law.
    Under the proposed paragraph (b)(2), the Department clarifies that 
an individual who is not an attorney may represent a party or a 
subpoenaed witness upon the judge's approval. The Department proposes 
to clarify what information must be included in a written request to 
serve as a non-attorney representative and provides the standard the 
judge will use to determine whether the non-attorney representative has 
the qualifications or ability to render assistance. The judge may deny 
a person's request to serve as a non-attorney representative only after 
providing the party or subpoenaed witness with notice and an 
opportunity to be heard.
    The Department proposes to add subdivisions (c), Duties, (d), 
Prohibited actions, and (e), Withdrawal of appearance, to proposed 
Sec.  18.22. In subdivision (c), the Department determined that the 
best approach to determining the governing code of conduct is to 
require attorneys to adhere to the rules of conduct of their licensing 
jurisdiction. Under subdivision (d), the Department proposes to state 
specific actions a representative is prohibited from taking while 
representing a party before OALJ. The proposed subdivision (e) provides 
the procedure for a representative of record to withdraw as a 
representative before OALJ and codifies current practice.

Sec.  18.23 Disqualification and discipline of representatives.

    The Department determined that a separate rule identifying the 
grounds and creating procedures for disqualification of a 
representative was appropriate. The proposed Sec.  18.22, 
Representatives, addresses a representative's qualifications and 
duties. The proposed Sec.  18.87, Standards of conduct, creates a 
procedure for excluding a party or representative for poor behavior 
during the course of a particular proceeding. The Department determined 
that the grounds and procedures for disqualifying a representative are 
distinct and separate from the concepts addressed in the current 
Sec. Sec.  18.34 and 18.36, and, accordingly, proposes Sec.  18.23.
    The proposed Sec.  18.23 deals with both the disqualification of 
lawyers from practicing before the Department because professional 
discipline has been imposed on them in other jurisdictions, and 
discipline the Department itself may impose on lawyers or other 
representatives who misbehave during administrative litigation.
    Lawyers traditionally have been regulated under a state-centered 
regime of professional self-regulation, in which federal administrative 
agencies played no role. State supreme courts, the admitting and 
disciplinary authority for their states' lawyers, often delegate to the 
state bar association the regulatory task of writing advisory ethics 
opinions; they also rely heavily on the American Bar Association to 
develop model ethics

[[Page 72155]]

rules and to suggest how to structure their systems of lawyer 
discipline.
    Administrative agencies may discipline lawyers who represent 
clients before them. Before the advent of the Administrative Procedure 
Act, the U.S. Supreme Court recognized that quasi-judicial agencies 
empowered to adopt rules of procedure could set admission requirements. 
Goldsmith v. U.S. Bd. of Tax Appeals, 270 U.S. 117, 122 (1926). The 
legislative history of sec. 6(a) of the federal Administrative 
Procedure Act ``leaves no doubt that Congress intended to keep 
unchanged the agencies' existing powers to regulate practice before 
them.'' 5 U.S.C. 555(b); Attorney General's Manual on the 
Administrative Procedure Act (U.S. Dep't of Justice 1947) (hereinafter 
Attorney General's Manual), at 65.
    Congress later abolished nearly all agency requirements for 
admission to practice with the Agency Practice Act of 1965. 5 U.S.C. 
500(b), first enacted in Public Law 89332, 79 Stat. 1281, later 
incorporated into the U.S. Code by Public Law 9083, 81 Stat. 195 (Sept. 
11, 1967) (with minor stylistic changes). See also the Report to 
Accompany S. 1758, House Committee on the Judiciary, H.R. Rep. No. 
1141, 89th Cong., 1st Sess.(1965), reprinted in 1965 U.S. Code Cong. & 
Admin. News, 89th Cong., 1st Sess at 4170. Any lawyer who is a member 
in good standing of a state bar could practice before federal agencies, 
unless an agency is authorized to impose additional requirements, 
something Congress did for the Patent and Trademark Office. 5 U.S.C. 
500(d)(4). The Agency Practice Act is neutral on the authority of 
agencies to discipline representatives, including lawyers. 5 U.S.C. 
500(d)(2) (stating that the Agency Practice Act does not ``authorize or 
limit the discipline, including disbarment, of individuals who appear 
in a representative capacity before an agency.''). The courts of 
appeals read the authority to adopt rules of practice and procedure as 
power to discipline the wayward, to protect the integrity of the 
agency's procedures and the public generally. Polydorff v. ICC, 773 
F.2d 372 (DC Cir. 1985) (upholding the authority of the ICC to 
discipline an attorney); Touche Ross & Co. v. SEC, 609 F.2d 570, 581-
582 (2d Cir. 1979) (upholding the authority of the SEC to discipline 
accountants who practice before it); Koden v. U.S. Dep't of Justice, 
564 F.2d 228 (7th Cir. 1977) (upholding the authority of the 
Immigration and Naturalization Service to discipline attorneys who 
appeared before it).
    According to the Reporter for the American Bar Association Special 
Committee on Evaluation of Ethical Standards, who drafted the Model 
Code of Professional Responsibility a generation ago, the ABA has long 
stated that its ethical standards apply to the conduct of lawyers 
before all adjudicatory entities. Michael P. Cox, Regulation of 
Attorneys Practicing Before Federal Agencies, 34 Case W. Res. L. Rev 
173, 202 & n. 132 (1982). The ABA Model Rules of Professional Conduct 
were adopted by the ABA House of Delegates in 1983, and have been 
amended several times thereafter. They serve as models for the legal 
ethics rules of most states. The current ABA Model Code of Professional 
Conduct (2010) imposes many obligations on trial lawyers. Among them 
are duties to exhibit candor; to follow procedural rules; to deal 
fairly with opposing parties and their lawyers, including the 
obligation to turn over evidence in discovery and refrain from altering 
evidence; and to avoid disruptive behavior. See Model Rules 3.3; 8.4 
(c) and (d); 3.4(a) and (c); and 3.5(d). All apply to lawyers who 
practice before ``tribunals,'' a term that specifically embraces 
administrative agencies as well as courts. See Model Rule 1.0(m).
    The Department proposes to divide Sec.  18.23 into four 
subdivisions: (a), Disqualification, (b), Discipline, (c), 
Notification, and (d), Reinstatement. Under subdivision (a), the 
Department proposes to regulate lawyers who gained the right to 
practice before the Department through admission to the bar of the 
highest court of a State or similar governmental unit, but lost it or 
had the right to practice limited due to a criminal conviction or 
proven professional misconduct. The Department proposes that 
representatives qualified under proposed Sec.  18.22 may be 
disqualified upon conviction of any of the serious crimes described in 
subparts (a)(1)(A) and (B).
    A lawyer may also become disqualified under subparts (a)(1)(C) and 
(D), as reciprocal discipline when another jurisdiction finds the 
lawyer guilty of professional misconduct, or the lawyer consents to 
disbarment, suspension, or resigns while an investigation into 
allegations of misconduct is pending. Federal courts routinely enforce 
reciprocally any limitations on practice state courts have imposed, 
after satisfying themselves that those disciplinary proceedings met the 
substantive requirements the U.S. Supreme Court set nearly a century 
ago in Selling v. Radford, 243 U.S. 46 (1917). The Department has 
relied on this rule, and given reciprocal effect to discipline state 
courts imposed on lawyers who have appeared before the Department's 
administrative law judges. In The Matter of the Qualifications of 
Edward A. Slavin, Jr., ARB Case No. 05-003, OALJ Case No. 2004-MIS-5 
(Nov. 30, 2005), also available at 2005 WL 3263825 (DOL Adm.Rev.Bd).
    Lawyers who litigate before the Department are expected to adhere 
to the rules of conduct promulgated by the jurisdiction(s) where they 
are admitted to practice, which typically are founded on the American 
Bar Association's Model Rules of Professional Conduct. Contumacious 
behavior, the violation of the rules of practice the Department has 
adopted, or failure to follow the procedural dictates of a governing 
statute, program regulation or of a judge's order also opens the lawyer 
to discipline by the Department. See proposed Sec.  18.23 (b)(1). State 
supreme courts have disciplined lawyers for misconduct in litigation 
before the Department.
    Under paragraph (a)(2), the Chief Judge must provide notice and an 
opportunity to be heard as to why the representative should not be 
disqualified from practice before the Office of Administrative Law 
Judges. The Chief Judge's determination must be based on the 
``reliable, probative and substantial evidence of record, including the 
notice and response.''
    Under subdivision (b), the Department proposes the procedure for 
disciplinary proceedings initiated because of a representative's 
conduct before OALJ. The disciplinary procedure is structured so that 
the representative's conduct and defense will be reviewed by a 
presiding judge, who applies the APA's review standard of reliable, 
probative, and substantial evidence of record. The representative may 
appeal the presiding judge's decision to the Chief Judge who reviews 
the decision under the substantial evidence standard. The Chief Judge's 
decision is not subject to review within the Department of Labor. The 
proposed Sec.  18.95, Review of Decision, provides that the statute or 
regulation that conferred hearing jurisdiction provides the procedure 
for review of a judge's decision. If the statute or regulation does not 
provide a procedure, the judge's decision becomes the Secretary's final 
administrative decision.
    Under subdivision (c), the Department proposes to provide notice 
that when an attorney representative is suspended or disqualified by 
OALJ, the Chief Judge will alert the attorney's licensing 
jurisdiction(s) and the National Lawyer Regulatory Data Bank by 
providing a copy of the decision and order. The National Lawyer 
Regulatory Data Bank is the national clearing house of

[[Page 72156]]

disciplinary information, maintained by the American Bar Association 
Standing Committee on Professional Discipline. All states and the 
District of Columbia, as well as many federal courts and some agencies, 
provide disciplinary information to the Data Bank. See http://www.americanbar.org/groups/professional_responsibility/services/databank.html.
    Under subdivision (d), the Department proposes the procedure a 
representative suspended or disqualified under this section must follow 
to request reinstatement to practice before OALJ.

Sec.  18.24 Briefs from amicus curiae.

    The Department proposes to delete the current Sec.  18.12 and 
replace it with proposed Sec.  18.24.
    The title of Sec.  18.24 was drafted to emphasize that an amicus 
curiae may participate in a proceeding only by filing a brief. The 
final statement that an amicus curiae brief must be filed by the close 
of the hearing was added to provide a timeframe for filing. If an 
amicus curiae wishes to participate in the formal hearing, then the 
person or organization must petition the judge to participate as an 
intervenor.

Service, Format and Timing of Filings and Other Papers

Sec.  18.30 Service and filing.

    The Department proposes to revise the current Sec.  18.3 and 
renumber it as proposed Sec.  18.30. The proposed Sec.  18.30 is 
modeled after Fed. R. Civ. P. 5. In the current Part 18, Subpart A 
rules service and filing requirements are listed under several 
sections. The Department proposes to delete those references and have 
this section address all the general service and filing procedures.
    Similar to Fed. R. Civ. P. 5, the Department proposes to 
restructure the current Sec.  18.3 into two subparts: (a), Service on 
parties and (b), Filing with Office of Administrative Law Judges. 
Portions of the current subdivision (a) and subdivision (e) that 
address the actual form of filings are not included in proposed Sec.  
18.30 and are instead addressed in proposed Sec.  18.34, Format of 
papers filed. For example, current subdivision (a) states: ``All 
documents should clearly designate the docket number, if any, and short 
title of the matter.'' This language is included in proposed Sec.  
18.34.
    The Department proposes to incorporate the content from the current 
subdivision (d) into proposed subdivision (a) because the service 
process is the same for all papers, including complaints.
    Under subdivision (a), the Department proposes to provide general 
guidance on how parties are served. The Department proposes to add a 
certificate of service requirement under subparagraph (a)(3). The 
current Part 18, Subpart A does not define a certificate of service, so 
including the definition in the service and filing section clarifies 
the requirements of certifying that a paper was served on another 
party. In the past, pro se parties before OALJ have failed to provide 
certificates of service, requiring judges to follow up with the other 
parties to the case to verify that a paper was served.
    In order to distinguish between a clerk employed at a party's place 
of business and the OALJ clerk who receives documents for the Office, 
the Department proposes to amend item (a)(2)(B)(iv) and paragraph 
(b)(2) by adding the term ``docket clerk.'' Docket clerk is defined in 
proposed Sec.  18.2, Definitions, to clarify that the docket clerk is 
the Chief Docket Clerk at the Office of Administrative Law Judges in 
Washington, DC or, once a case is assigned to a judge in a district 
office, the docket staff in that office.
    Under proposed subdivision (b), the Department specifies the 
procedure for filing papers with OALJ. Under subparagraph (b)(1), 
parties are required to file within a reasonable time papers served on 
other parties or participants. However, like the current rule, parties 
are not required to file discovery documents, unless the judge orders 
or the party uses them in the proceeding. The required filing provision 
also extends to any required disclosures ordered by the judge under 
Sec.  18.50, General provisions governing discovery and disclosure.
    The Department proposes to provide the procedure for filing by 
facsimile in proposed subparagraph (b)(3)(A)--currently subdivision 
(f). In recognition of OALJ's nationwide jurisdiction and circumstances 
requiring last-minute filings, the Department proposes to clarify that 
parties may file by facsimile only as directed or permitted by the 
judge.
    The Department proposes to relocate the content from the current 
subdivisions (f)(6) and (g) to proposed subdivision (b) because theses 
subdivisions address those parts of the filing process.
    The Department proposes to delete the current (f)(3) because 
paragraph (a)(3) will apply in all cases. The proposed section adds a 
specific mechanism by which the parties can establish that the fax was 
sent and received and puts the burden on the party to maintain the 
original document.
    The Department proposes to delete the current (f)(7) to limit the 
use of fax submissions to times when ordered by the Judge.

Sec.  18.31 Privacy protection for filings and exhibits.

    Proceedings before OALJ are open to the public. The current Part 
18, Subpart A does not include a privacy requirement that parties 
redact personal data identifiers from filings. OALJ has a policy 
statement encouraging such redaction, but the notice is advisory, not 
mandatory. See www.oalj.dol.gov/ACCESS_TO_COURT_RECORDS.HTM/.
    The 2007 revision of the FRCP included the addition of Fed. R. Civ. 
P. 5.2 in response to the E-Government Act of 2002, 44 U.S.C. 3501. The 
Advisory Committee Note addressing Fed. R. Civ. P. 5.2 states that the 
privacy and security concern addressed by this rule is the electronic 
availability of filed documents. The scope of Fed. R. Civ. P. 5.2 is 
limited to filings with the court, and extends to trial exhibits when 
they are filed with the court.
    The Department proposes a privacy protection rule based on Fed. R. 
Civ. P. 5.2 which will serve two agency-specific purposes. Like Fed. R. 
Civ. P. 5.2, proposed Sec.  18.31 will reach any electronic filings 
with OALJ. In addition, Sec.  18.31 will clarify the job of the Freedom 
of Information Act officer who reviews files in the case of a FOIA 
request. As a result of the broader purpose of OALJ's privacy 
protection rule, the Sec.  18.31 extends to filings and exhibits. The 
majority of personal information to be redacted by the FOIA officer is 
contained in the exhibits, not the filings.
    The proposed subdivision (a) lists the personal data identifiers 
that parties must redact from filings submitted to OALJ, unless the 
judge orders otherwise. The Department also lists filings that are 
exempted from the redaction requirement under proposed subdivision (b). 
Under subdivision (b), OALJ has exempted the record of administrative 
proceedings and exhibits filed within the Department of Labor and 
submitted to OALJ.
    Under subdivision (c), the Department proposes to provide parties 
with the option to file a reference list of redacted information. The 
term ``redacted'' is intended to govern a filing that is prepared with 
abbreviated or blocked-out identifiers in the first instance, as well 
as a filing in which a personal identifier is edited after its 
preparation.
    Under subdivision (d), the Department proposes to allow a person to 
waive the protections of the rule as to that person's own personal

[[Page 72157]]

information by filing it unsealed and in unredacted form. One may wish 
to waive the protection if it is determined that the costs of redaction 
outweigh the benefits to privacy. If a person files an unredacted 
identifier by mistake, that person may seek relief from the judge.
    The proposed subdivision (d) provides that a judge may, for good 
cause, require more extensive protection of material than otherwise 
required by this section. The Department does not intend for this 
subdivision to affect the limitations on sealing that are otherwise 
applicable to the judge. See Sec.  18.85, Privileged, sensitive and 
classified material.

Sec.  18.32 Computing and extending time.

    The Department proposes to delete the current Sec.  18.4 and 
replace it with proposed Sec.  18.32. The proposed Sec.  18.32 is 
modeled after Fed. R. Civ. P. 6. References to service and filing in 
the current Sec.  18.4 are now addressed in proposed Sec.  18.30, 
Service and filing.
    The Department proposes to increase the scope of the computation 
provisions in current Sec.  18.4(a) to apply to time periods set out in 
``these rules, [the] judge's order, or in any statute, regulation, or 
executive order that does not specify a method for computing time.'' 
The expanded scope creates consistency in cases that fall under 
statutes and regulations that do not have time computation provisions. 
The revisions do not supplant a computation scheme from another agency 
or rule.
    Under proposed subdivision (a), the Department proposes to add the 
definitions of ``last day,'' ``next day,'' and ``legal holiday.'' The 
current subdivision (a) includes a sentence explaining the computation 
of time for periods less than 7 days. The Department proposes to delete 
this sentence from the proposed rule to be consistent with the 
Department's general revision to provide at least 14 days to respond or 
file.
    Subdivision (b) provides the criteria judges will use when 
responding to a request for an extension of time. The Department 
proposes this subdivision to provide litigants with fair notice as to 
the applicable standard of review.
    The Department proposes to delete the current Sec.  18.4(c)(1) and 
(3), which permit the addition of 5 days for filing by mail and when a 
party is served by mail. Some litigants have found this time-
calculation provision confusing. To replace these provisions, the 
Department proposes to add subdivision (c) to function like Fed. R. 
Civ. P. 6(d). Three days are added after particular types of service 
listed in proposed Sec.  18.30(a)(2)(B)(iii) or (iv). The decrease in 
the number of days for responding is offset by the extension of time to 
respond from 10 days to 14 days. Days are no longer added to the date 
of filing when filing by mail. The Department proposes this change to 
make the practice before OALJ more uniform and consistent with the 
procedure in the district courts.

Sec.  18.33 Motions and other papers.

    The Department proposes to revise current Sec.  18.6 and renumber 
it as proposed Sec.  18.33. Proposed Sec.  18.33 is modeled after Fed. 
R. Civ. P. 7(b) and Fed. R. Civ. P. 43(c).
    Under Sec.  18.33, the Department proposes to clarify the filing 
requirements for motions and other papers and add the language from 
Fed. R. Civ. P. 7(b) to proposed Sec.  18.33 (a) and (b). Under 
proposed subdivision (a) ``[a] request for an order must be made by 
motion.'' This applies to any requests made to a judge. A motion must: 
(1) Be in writing, unless made during a hearing; (2) state with 
particularity the grounds for seeking the order; (3) state the relief 
sought; and (4) unless the relief sought has been agreed to by all 
parties, be accompanied by affidavits, declarations, or other evidence, 
and (5) if required by subsection (C)(4), include a memorandum of the 
points and authorities supporting the movant's position.
    The proposed subdivision (b) provides that ``the rules governing 
captions and other matters of form apply to motions and other 
requests.''
    Under subdivision (c), the Department proposes to add that written 
motions before a hearing must be served with supporting papers at least 
21 days prior to hearing. A written motion served within 21 days before 
the hearing must state why the motion was not made earlier. The current 
version of this section does not set a timeframe for serving and filing 
motions prior to the hearing. The Department proposes to add this 
timeframe to provide judges sufficient time to rule on pre-hearing 
motions. This may narrow the issues for the hearing and save witness 
travel time and expenses. The exceptions to this regulation include: 
(A) When the motion may be heard ex parte; (B) when these rules or an 
appropriate statute, regulation, or executive order set a different 
time; or (C) when an order sets a different time.
    The proposed subdivision (d) requires that a response to a motion 
be filed within 14 days after the motion is served. The Department 
proposes to increase the amount of time a party has to respond from the 
10 days in the current version of the rule to 14 days. The change to 14 
days comports with the general revision to set time periods based on 
multiples of 7.
    Under paragraph (c)(3), the Department proposes to add the 
requirement that counsel for the moving party confer or attempt to 
confer with opposing counsel in a good faith effort to resolve the 
subject matter of the motion, except when a party is unrepresented or 
for particular types of motions listed under subparagraphs (c)(3)(A) 
through (c)(3)(C). This provision is consistent with the FRCP and the 
Department anticipates that this will reduce the number of motions by 
encouraging the parties to resolve issues amongst themselves. Paragraph 
(c)(4) clarifies that unless the motion is unopposed, the supporting 
papers for the motion must include affidavits, declarations or other 
proof to establish the factual basis for the relief. For a dispositive 
motion and a motion relating to discovery, a memorandum of points and 
authorities must also be submitted. A judge may direct the parties file 
additional documents in support of any motion.
    The Department proposes to delete the language in current Sec.  
18.6(d) from this section and address motions to compel in Sec. Sec.  
18.35, Signing motions and other papers; representations to the judge; 
sanctions, 18.56, Subpoena, and 18.57, Failure to make disclosures or 
to cooperate in discovery; Sanctions.
    Cases may be reassigned to different judges based on the 
administrative needs of the Office of Administrative Law Judges. 
Therefore, the Department proposes to add subdivision (f) to address 
renewed or repeated motions made to a different judge than the judge 
who previously ruled on the motion.

Sec.  18.34 Format of papers filed.

    The Department proposes to add a new Sec.  18.34, Format of papers 
filed, to provide the format a party should use when filing papers with 
OALJ. This proposed section expands the current document filing 
requirements located under current Sec.  18.3(a) to provide litigants 
with more specific formatting requirements. The current Sec.  18.3(a) 
provides that ``all documents should clearly designate the docket 
number, if any, and short title of the matter'' and ``each document 
filed shall be clear and legible.'' The proposed Sec.  18.34 states 
that every paper filed must be printed in black ink on 8.5 x 11-inch 
opaque white paper. The Department proposes the black ink requirement 
because litigants sometimes file handwritten papers with colored ink 
that can be difficult to read.

[[Page 72158]]

    The current caption requirements are located under current Sec.  
18.3(e). Under proposed Sec.  18.34, the Department clarifies that 
filed papers must begin with a caption that includes: (a) the parties' 
names, (b) a title that describes the paper's purpose, and (c) the 
docket number assigned by the Office of Administrative Law Judges. If 
the case number is an individual's Social Security number then only the 
last four digits may be used. See 18.31(a)(1). If OALJ has not assigned 
a docket number, the paper must bear the case number assigned by the 
Department of Labor agency where the matter originated. The Department 
proposes to relocate the address and telephone number requirement in 
the current Sec.  18.3(e) to proposed Sec.  18.35(a).

Sec.  18.35 Signing motions and other papers; representations to the 
judge; sanctions.

    The Department proposes to add a new Sec.  18.35 modeled after Fed. 
R. Civ. P. 11. This section establishes the standards attorneys and 
parties must meet when filing motions or other documents with OALJ. It 
also regulates the circumstances in which sanctions may be imposed if 
the standards of Sec.  18.35 are not met.
    Under subdivision (a), every written motion and other paper filed 
with OALJ must be dated and signed by a representative of record or by 
a party personally if the party is unrepresented. The paper must state 
the signer's address, telephone number, facsimile number and email 
address, if any. If a document subject to Sec.  18.35 is not signed, 
the judge has the power to strike the document unless the proponent 
signs it promptly upon notification of the missing signature.
    Under subdivision (b), the Department sets the standards that 
motions and other papers regulated by Sec.  18.35 must meet. It also 
specifically provides that the standards are applicable to later 
advocacy of such documents, as well as to the initial submission of the 
documents.
    The Department proposes to regulate who may be sanctioned for 
violations of Sec.  18.35(b), as well as how the sanctions process may 
be initiated under subdivision (a). This subdivision also governs the 
extent and limitations of the judge's sanctioning power.
    Sections 18.50 through 18.65, governing the discovery process, 
control the circumstances when sanctions may be imposed for 
inappropriate behavior in discovery. For that reason, Sec.  18.35(d) 
clarifies that Sec.  18.35(a), (b) and (c) have no applicability to 
discovery issues.

Sec.  18.36 Amendments after referral to the Office of Administrative 
Law Judges.

    The Department proposes to revise the current Sec.  18.5 and 
renumber it as proposed Sec.  18.36.
    Proceedings before the Office of Administrative Law Judges are 
rarely initiated by a complaint and answer. Accordingly, the Department 
proposes to delete subdivisions (a)-(d) in current Sec.  18.5. However, 
a judge may still require the parties to file a complaint and answer in 
certain cases for the purpose of clarifying the issues in the 
proceeding.
    Amendments and supplemental pleadings are an infrequent occurrence 
because proceedings are rarely initiated before OALJ with a complaint 
and answer. If amended or supplemental complaints and answers are 
required, then the judge may apply Fed. R. Civ. P. 15. Accordingly, 
current Sec.  18.5(e) is deleted and the proposed Sec.  18.36 provides 
the judge discretion to allow parties to amend and supplement their 
filings.

Prehearing Procedure

Sec.  18.40 Notice of hearing.

    The Department proposes to revise the current Sec.  18.27 and 
renumber it as proposed Sec.  18.40.
    The current subdivision (a) makes reference to notice of prehearing 
conferences. Notice of prehearing conferences is controlled by proposed 
Sec.  18.44, Prehearing conferences, so the Department deleted this 
reference in proposed Sec.  18.40. In proposed Sec.  18.40 (a), the 
number of days for timely notice is changed from 15 days to 14 days. 
The change comports with the general revision to set time periods based 
on multiples of 7.
    The current subdivision (b) addresses the judge's ability to change 
the date, time, or place for a hearing and the number of days notice 
required for a change. The Department determined that this provision is 
appropriately grouped with continuances, instead of with the notice of 
hearing requirements. The Department proposes to relocate a revised 
version of this subpart to proposed Sec.  18.41(a), Continuances and 
changes in place of hearing.
    The current subdivision (c)--now proposed subdivision (b)--is 
edited to not only address how the judge will determine the location 
for the hearing, but also the date and time of the hearing. This 
proposed subdivision also includes a consideration of the ``necessity 
of the parties and witnesses in selecting the date, time and place of 
the hearing.'' This requirement is expressed in sec. 554 of the APA and 
more accurately reflects the considerations a judge must make when 
determining the date, time, and place for the hearing.

Sec.  18.41 Continuances and changes in place of hearing.

    The Department proposes to revise the current Sec.  18.28 and 
renumber it as proposed Sec.  18.41.
    The Department proposes to clarify in this section when a judge may 
continue a hearing. This procedure in part is located under current 
Sec.  18.27(b); however, the Department determined that the procedure 
of a judge continuing a case is more appropriately grouped in this 
continuance rule. Under Sec.  18.41(a), the Department proposes to 
require that the judge provide reasonable notice to the parties of a 
change in date, time or place of the hearing. The proposed change 
permits the judge to inform the parties of the changes within a 
reasonable time based on the circumstances of the continuance. This 
flexibility permits the judge to adjust the hearing schedule as needed 
without having to comport with a 14-day notice requirement. However, 
the reasonable notice still protects a party's due process rights to 
have notice of the hearing.
    The Department proposes to revise the current subdivision (b) to 
address a party's request to continue or change the place of a hearing. 
The current regulation requires a party to file a motion for a 
continuance at least 14 days before the date set for hearing. The 
Department proposes to eliminate the 14-day filing requirement. 
Instead, the proposed regulation requires that a party ``promptly'' 
file a motion after becoming aware of the circumstances supporting a 
continuance. If a party is immediately aware of the conflict upon 
receipt of the notice of hearing, the party should file a motion to 
continue at once.
    Under subdivision (b), the Department proposes to permit a party to 
orally move to continue a hearing, but only in exceptional 
circumstances. The proposed Sec.  18.33, Motions and other papers, 
requires that motions be made in writing; this section, however, 
provides a limited exception. For the reasons discussed above, the time 
limit for an oral motion if the request is made 10 days before the 
hearing is not included. Under proposed paragraph (b)(1), if a party 
makes an oral motion for a continuance it must immediately notice the 
other parties of the request.
    The final sentence of the current subdivision (b) addresses oral 
motions for a continuance at a calendar call or hearing. The Department 
proposes to

[[Page 72159]]

address oral motions at a hearing in proposed Sec.  18.33(e). 
Therefore, the Department proposes to omit this reference from proposed 
subdivision (b).
    The Department proposes to add a regulation under Sec.  18.41 
(b)(2). Under this paragraph, a party may move to change the location 
of the hearing. This proposed provision permits the parties to inform 
the judge when a more suitable hearing location is available.

Sec.  18.42 Expedited proceedings.

    The Department proposes to delete the current Sec.  18.42 and 
replace it with proposed Sec.  18.42.
    The Department proposes to delete the references to expedited 
proceedings that are required by statute or regulation in current 
subdivisions (a)-(d) and (f). Expedited hearings are controlled by the 
statute or regulation requiring the accelerated proceedings and do not 
require either party to file a motion requesting an expediting 
proceeding. The timing of the hearing and decision in cases expedited 
by statute or regulation is determined by the governing statute or law. 
For example, under 20 CFR 655.171(a), Temporary Employment of Foreign 
Workers in the United States, when an employer requests administrative 
review an ALJ must issue a decision within 5 business days of receipt 
of the administrative file. See also 20 CFR 655.33(f). The Department 
proposes not to include the current subdivision (f) in its entirety 
because it is unnecessary and may be in conflict with the governing 
law.
    The proposed Sec.  18.33, Motions and other papers, provides the 
requirements for filing a written motion, including a motion for an 
expedited proceeding. The Department proposes to delete the provisions 
in existing paragraphs (b)(1), (b)(2), and (b)(4) because a motion 
filed in accordance with proposed Sec.  18.33 must be in writing and 
describe with particularity the circumstances for seeking relief. The 
time for responding to a motion under proposed Sec.  18.33(d) is 14 
days, an addition of 4 days to the 10 days required in existing Sec.  
18.42(d). This change to 14 days comports with the general revision to 
set time periods based on multiples of 7.
    The Department proposes not to include the current subdivision (c) 
because service is addressed by proposed Sec.  18.30, Service and 
filing.
    The Department proposes to omit the provision in current 
subdivision (e) that provides for advanced pleading schedules, 
prehearing conferences, and hearings. The Department proposes to delete 
this regulation because setting the date for conferences is within the 
judge's general powers set forth in proposed Sec. Sec.  18.44, 
Prehearing conferences, and 18.12, Proceedings before administrative 
law judge. The 5-day limitation on advancing the hearing is extended to 
7 days. The change to 7 days comports with the general revision to set 
time periods based on multiples of 7.

Sec.  18.43 Consolidation; separate hearings.

    The Department proposes to delete the current Sec.  18.11 and 
replace it with the proposed Sec.  18.43. The proposed Sec.  18.43 is 
modeled after Fed. R. Civ. P. 42, Consolidation; separate trials.
    The Department proposes to revise this section to more accurately 
reflect the practice before OALJ. The current Sec.  18.11 describes the 
process of consolidating hearings, whereas the proposed Sec.  18.43 
addresses the judge's power to order consolidated and separate 
hearings. The proposed subdivision (a) clarifies that an administrative 
law judge may join for hearing any or all matters at issue in the 
proceedings or may issue any other order to avoid unnecessary cost or 
delay. The proposed subdivision (b) clarifies that for convenience, to 
avoid prejudice, or to expedite and economize, the judge may order a 
separate hearing on one or more issues.

Sec.  18.44 Prehearing conference.

    The Department proposes to delete the current Sec.  18.8 and 
replace it with proposed Sec.  18.44. The proposed Sec.  18.44 is 
modeled in part after Fed. R. Civ. P. 16.
    The current Sec.  18.8 states that the purpose of a prehearing 
conference is to ``expedite'' the proceedings. The Department proposes 
to expand the purpose for a prehearing conference in proposed 
subdivision (a) to include: establishing early and continuing control 
so that the case will not be protracted because of lack of management; 
discouraging wasteful prehearing activities; improving the quality of 
the hearing through more thorough preparation; and facilitating 
settlement. This revision more accurately reflects the purpose of 
prehearing conferences before OALJ.
    The Department proposes subdivision (b) to provide guidance on the 
scheduling and notice of the prehearing conference. This procedure is 
currently located in Sec.  18.8(a).
    The Department proposes subdivision (c) to require parties to 
participate in the conference as directed by the judge. This 
requirement is currently located in Sec.  18.8(a). In this subpart, the 
Department proposes to clarify that if a party is represented by an 
attorney or non-attorney representative, the representative must have 
authority to make stipulations and admissions and, to settle.
    The Department proposes subdivision (d) to expand the current 
subparagraph (a)(2) to include additional matters for consideration 
that the judge can take action on during prehearing conferences. This 
revision is modeled after Fed. R. Civ. P. 16(c)(2) and accurately 
reflects the breadth of issues addressed in prehearing conferences 
before OALJ.
    The Department proposes to combine the current subdivisions (b) and 
(c) into subdivision (e). Under this subdivision, the Department 
proposes to change the default by stating that judges may direct that 
the prehearing conference be recorded and transcribed. The current 
Sec.  18.8 requires stenographic recording and transcription, unless 
otherwise directed by the judge. This change reflects the routine 
practice of unrecorded prehearing conferences. Typically there is no 
testimony taken during prehearing conferences so unrecorded conferences 
are more cost-efficient. In certain cases, such as those involving 
unrepresented parties, judges may continue to order recorded prehearing 
conferences.

Disclosure and Discovery

Sec.  18.50 General provisions governing disclosure and discovery.

    The Department proposes to adopt a new section to govern discovery 
and disclosure, incorporating portions of Fed. R. Civ. P. 26 not 
already addressed by specific Part 18, Subpart A regulations. The 
current Part18A provides limited guidance regarding discovery and 
disclosure. The Department, therefore, is establishing better guidance 
in proposed Sec.  18.50. The proposed subdivisions (a), (c), and (d) 
apply to all cases, except as specified, while subdivision (b) is 
invoked by a judge's order.
    Under subdivision (a), a party may seek discovery at any time after 
a judge issues an initial notice or order. The rule creates a 
possibility that a party may seek discovery prior to the judge issuing 
an order requiring the parties to confer under Sec.  18.50(b). Instead 
of providing for that situation in this section, the Department 
anticipates that the judge's initial notice or order would address 
discovery sought before the conference, or that a party may file an 
appropriate motion requesting relief or instruction.
    Unless, on motion, the judge orders otherwise for the parties' and 
witnesses' convenience and in the interests of

[[Page 72160]]

justice, the methods of discovery may be used in any sequence and 
discovery by one party does not require any other party to delay its 
discovery. There is also no requirement that a party conduct discovery 
in a manner like that used by other parties; each party is free to 
conduct any authorized discovery in any sequence regardless of the 
discovery conducted by other parties.
    Under subdivision (b), a judge may order parties to confer and 
develop a proposed discovery plan, to be submitted in writing, 
addressing the discovery schedule and any modifications to the limits 
or scope of discovery. The discovery plan should indicate the parties' 
positions or proposals concerning: Automatic discovery; discovery scope 
and schedule; electronic information; privilege issues; discovery 
limits; and other discovery orders. Section 18.50(b) places a joint 
obligation on the representatives (and on unrepresented parties) to 
schedule the discovery conference and to attempt in good faith to agree 
on a proposed discovery plan and a report outlining the plan.
    The results of the discovery conference may be reported to the 
judge using Form 52 of the Appendix of Forms that is incorporated into 
the FRCP through Fed. R. Civ. P. 84. The judge uses that information to 
craft a scheduling order that controls the development of the case.
    Under subdivision (c), parties are required to disclose certain 
information automatically, without the need for discovery requests, at 
two points during the litigation. First, at the commencement of a 
proceeding before OALJ, each party must automatically provide to the 
other parties the identity of individuals (including experts) likely to 
have discoverable information, a description of documents by category 
and location, and a computation of each category of damages. Under 
proposed subparagraph (c)(1)(B), five categories of proceedings are 
excluded from this initial disclosure, because in these proceedings 
discovery is generally not applicable, or is limited due to the nature 
of the proceeding. Second, later in the case litigants must serve 
written reports of experts they retained to testify; an expert not 
retained or specially employed to provide expert testimony--a treating 
physician often falls into this category--need not write a report, but 
the party must serve an equivalent disclosure about that expert's 
opinions and their bases.
    Under proposed subparagraph (c)(1)(C), representatives of the 
Department's Office of Workers' Compensation Programs are exempted from 
the requirement to provide initial disclosure, except under specified 
circumstances. Under the governing regulation for Black Lung cases, the 
District Director is required to provide a complete copy of the 
administrative record to all parties. 20 CFR 725.421(b). In Longshore 
cases, the District Director provides a copy of the pre-hearing 
statements to the Office of Administrative Law Judges, but under the 
regulation is prohibited from transmitting the administrative record. 
20 CFR 702.319. The proposed subparagraph also recognizes that under 
certain situations the Department's representative actively litigates 
(e.g., when representing the Black Lung Disability Trust Fund in a case 
in which no responsible operator has been identified, see 20 CFR 
725.497(d); or when an employer in a Longshore case has made a claim 
under 33 U.S.C. 908(f) for reimbursement by the ``special fund.'') Then 
the Department's representative must make the initial disclosures.
    Expert opinions ultimately are disclosed in one of two ways. Each 
witness retained to provide expert testimony must produce a report. 
Each expert report must be in writing, signed by the expert, and must 
contain the specific information listed under subparagraph (c)(2)(B). 
Under subparagraph (c)(2)(A), judges have the discretion to set the 
time for this disclosure by prehearing order. For witnesses who are not 
required to provide a written report, under subparagraph (c)(2)(C) a 
party must state the subject matter on which the witness is expected to 
present expert opinion evidence and provide a summary of the facts and 
opinions to which the witness is expected to testify. For example, 
under 20 CFR 725.414(c) in Black Lung cases an expert may testify in 
lieu of a report and is not required to submit a written report. Such 
expert witnesses in Black Lung cases are commonly treating physicians 
who do not prepare written expert reports in the course of business. 
This provision drawn from Fed. R. Civ. P. 26(a)(2)(C) provides the 
mechanism to get the equivalent information. Under subparagraph 
(c)(2)(D), parties must supplement expert disclosures when required 
under proposed Sec.  18.53, Supplementing disclosures and responses.
    Under paragraph (c)(3), in addition to required disclosures, a 
party must provide to the other parties and promptly file the 
prehearing disclosures described in proposed Sec.  18.80, Prehearing 
statements.
    Under paragraph (c)(4) unless the judge orders otherwise, all 
disclosures under this section must be in writing, signed, and served.
    Under subdivision (d), every disclosure under Sec.  18.50(c) and 
every discovery request, response, or objection must be signed by at 
least one of the party's representatives in the representative's own 
name, or by the party personally if unrepresented. The document must 
also contain the signer's address and telephone number. The signature 
constitutes a certification that the document is complete and correct 
to the best of the signer's knowledge, information, and belief, and it 
is being served for proper purposes within the rules. Under paragraph 
(d)(2), parties have no duty to act on an unsigned disclosure, request, 
response, or objection until it is signed and the judge must strike it 
unless a signature is promptly supplied after the omission is called to 
the representative's or party's attention. If a certification violates 
this regulation without substantial justification, judges have the 
authority to impose an appropriate sanction, either on motion or on his 
or her own, under paragraph (d)(3).

Sec.  18.51 Discovery scope and limits.

    The Department proposes to delete the current Sec.  18.14 and 
replace it with proposed Sec.  18.51. The proposed Sec.  18.51 is 
modeled after Fed. R. Civ. P. 26(b), Discovery scope and limits.
    The Department proposes to revise the scope of discovery in current 
Sec.  18.14(a) based on a 2000 amendment to Fed. R. Civ. P. 26(b)(1) 
which narrowed the scope of discovery. The current subdivision (a) 
permits parties to seek ``discovery regarding any matter, not 
privileged, which is relevant to the subject matter involved in the 
proceeding * * *'' In the proposed Sec.  18.51, the parties are 
instructed to confine requests to ``any nonprivileged matter that is 
relevant to any party's claim or defense * * *'' The Department 
proposes to incorporate this amendment to control discovery costs 
without interfering with the fair resolution of the case. The parties 
are permitted to seek discovery related to the claims or defenses and, 
if needed, the judge may permit a party to seek discovery of any matter 
related to the case's subject matter.
    The Department proposes to relocate the limitations in current 
Sec.  18.14(b) regarding objections to discovery to the third sentence 
of proposed Sec.  18.51(a). The Department proposes to clarify that a 
party may seek discovery of relevant information, even if the 
information would not be admissible at the hearing, as long as the 
discovery ``appears

[[Page 72161]]

reasonably calculated to lead to the discovery of admissible 
evidence.''
    In Sec.  18.51(b), the Department proposes additional limitations 
on the frequency and extent of discovery not contained in the current 
Sec.  18.14. The limitations imposed by the current Sec.  18.14 are 
limited to relevant information and information that is protected by a 
privilege. The Department proposes limitations on discovery that are 
designed to control the costs and burdens of discovery, as appropriate.
    The Department proposes to provide limitations on the frequency of 
using discovery tools in Sec. Sec.  18.64, Oral depositions, 18.65, 
Written depositions, 18.60, Interrogatories, and 18.63, Requests for 
admission. The Department proposes paragraph (b)(1) to provide a judge 
the discretion to alter the limits imposed by these regulations.
    The Department proposes paragraph (b)(2) to limit the discovery of 
electronically stored information (ESI). The existing Part 18, Subpart 
A rules, promulgated in 1983, do not mention ESI; the proposed changes 
governing ESI reflect the contemporary nature of document management 
and discovery methods. In order to control the costs and burdens of 
producing documents, proposed paragraph (b)(2) establishes a 
requirement that a party need not provide discovery of ESI if the 
information is not reasonably accessible because of undue burden or 
cost. If the party requesting the information files a motion to compel 
or the party holding the information seeks a protective order, the 
judge must consider the items in proposed paragraph (b)(4).
    Under paragraph (b)(3), the Department states that by requesting 
electronically stored information, a party consents to the application 
of Federal Rule of Evidence 502 with regard to inadvertently disclosed 
privileged or protected information. Because there is currently no 
equivalent to Fed. R. Evid. 502 in OALJ's rules of evidence, 29 CFR 
part 18, subpart B, the Department proposes this regulation to inform 
parties that Fed. R. Evid. 502 is applicable to inadvertently disclosed 
privileged or protected ESI.
    The factors a judge must consider when determining whether to limit 
the frequency or extent of discovery under proposed paragraph (b)(4) 
involve balancing the need for the information and the costs and 
burdens of producing the information. The limitations in paragraph 
(b)(4) apply to all motions to limit the frequency and extent of 
discovery under subdivision (b).
    The Department proposes subdivisions (c) and (d) to elaborate the 
limitations on discovery of hearing preparation materials and experts, 
respectively. The proposed subdivision (c) contains the same 
limitations as the current Sec.  18.14(c). A party may not discover 
documents and tangible things prepared in anticipation of litigation or 
the hearing unless the information is discoverable as relevant under 
subdivision (a) and the party requesting the information can show that 
there is a substantial need for the information and the party cannot 
obtain substantially equivalent information without undue hardship. 
Although enumerated differently in proposed subdivision (c), the 
requirements remain the same. Like the current subdivision (c), 
proposed paragraph (c)(2) instructs the judge to protect against 
disclosure of an attorney's or other representative's mental 
impressions, conclusion, opinions, or legal theories when ordering the 
production of hearing preparation material.
    Proposed paragraph (c)(3) permits a party or witness access to the 
person's own previous statement by request. A party or witness may have 
provided a statement prior to retaining legal counsel or understanding 
the consequences of the statement regarding the subject matter of the 
litigation. The party or witness may obtain a copy of the statement by 
request without making an additional showing.
    Proposed subdivision (d) is modeled after Fed. R. Civ. P. 26(b)(4) 
and addresses requests for hearing preparation information prepared by 
experts who may testify at the hearing. Effective cross-examination of 
an expert requires advance preparation and effective rebuttal requires 
knowledge of the line of testimony of the other side. This regulation 
helps the parties narrow the issues and eliminates surprises through 
prehearing disclosure of expert opinions.
    As is the current practice before OALJ, proposed paragraph (d)(1) 
provides that a party may depose an expert whose opinions may be 
presented at the hearing. The proposed subpart is modeled after Fed. R. 
Civ. P. 26(b)(4)(A), which requires the expert's report to be provided 
prior to the deposition. However, the exchange of a physician's report 
prior to the deposition has not been a common practice before OALJ, 
mostly based on time constraints of the testifying experts. Paragraph 
(d)(1), therefore, permits the parties to stipulate to taking a 
deposition before reviewing the expert's report and then produce the 
report when it is available.
    Proposed paragraph (d)(2) applies if a judge orders the parties to 
exchange required disclosures under proposed Sec.  18.50(c)(2)(B). If 
the judge orders the disclosure of expert opinions under Sec.  
18.50(c)(2)(B), then Sec.  18.51(d)(1) provides that the protections in 
paragraphs (c)(1) and(c)(2) will apply.
    Proposed subdivision (e) creates a procedure a party must follow to 
claim a privilege or to protect hearing preparation materials. 
Paragraph (e)(1) explains that a party must expressly claim a privilege 
or state that the information is subject to hearing preparation 
protection and describe the material well enough that the opponent can 
adequately assess the protection claim.
    Proposed paragraph (e)(2) provides the steps a party must take if 
it wishes to claim a privilege or other protection for discovery 
already produced. This regulation is modeled after Fed. R. Civ. P. 
26(b)(5)(B). The proposed subpart provides for in camera review by the 
judge so that such materials may be handled consistent with the 
parties' expectations regarding privileged or other protected 
documents, prior to creation of a final administrative record.

Sec.  18.52 Protective Orders.

    The Department proposes to delete the current Sec.  18.15 and 
replace it with proposed Sec.  18.52. The proposed Sec.  18.52 is 
modeled after Fed. R. Civ. P. 26(c), Protective orders.
    Similar to the current Sec.  18.15, the Department proposes Sec.  
18.52(a) to provide that a party, or any person from whom discovery is 
sought, may file a motion for a protective order to protect the party 
from annoyance, embarrassment, oppression, or undue burden or expense. 
The motion can only be brought by the individual whose interests are 
affected. Normally, the motion must be filed before the discovery is to 
occur, unless there is no opportunity to do so. The proposed regulation 
requires that the motion include a certification that the movant 
conferred or attempted to confer with the other affected parties to 
resolve the dispute before filing the motion. This requirement 
encourages the parties to work together to resolve discovery disputes, 
without involving the judge.
    The Department continues to require that the judge find good cause 
for issuing a protective order regarding the discovery sought. The 
judge has broad discretion in determining what constitutes good cause. 
Proposed paragraphs (a)(1) through (8) provide examples of orders the 
judge may enter. The proposed paragraphs (a)(1) through (5) provide the 
same remedies as the current paragraphs (a)(1) through (5); however, 
each paragraph is revised for

[[Page 72162]]

clarity. Similarly, the current paragraph (a)(6) is relocated to 
proposed paragraph (a)(7). The Department proposes to add paragraphs 
(a)(6) and (8) to provide the same remedies a judge may impose under 
Fed. R. Civ. P. 26(c)(1). Respectively, the judge may order that a 
deposition be sealed and opened as the judge orders or the judge may 
order the parties to simultaneously file documents or information in 
sealed envelopes, to be opened as the judge orders.
    The Department proposes to clarify under subdivision (b) that when 
a judge denies a motion for a protective order in whole or in part, the 
judge may order that the party or person provide or permit discovery. 
This provision clarifies the control the judge exercises in resolving 
discovery disputes, as there is currently no regulatory guidance on 
this issue.

Sec.  18.53 Supplementing disclosures and responses.

    The Department proposes to delete the current Sec.  18.16 and 
replace it with proposed Sec.  18.53. The proposed Sec.  18.53 is 
modeled after Fed. R. Civ. P. 26(e), Supplementing disclosures and 
responses. This revision improves the clarity of the section while 
retaining the same procedural requirements.

Sec.  18.54 Stipulations about discovery and procedure.

    The Department proposes to delete the current Sec.  18.17 and 
replace it with proposed Sec.  18.54. The proposed Sec.  18.54 is 
modeled after Fed. R. Civ. P. 29, Stipulations about discovery and 
procedure.
    The revision improves the clarity of the section while retaining 
the same procedural requirements. The Department proposes to clarify in 
subdivision (b) that ``a stipulation extending the time for any form of 
discovery must have the judge's approval if it would interfere with the 
time set for completing discovery, for hearing a motion, or for a 
hearing.''

Sec.  18.55 Using depositions at hearings.

    The Department proposes to delete the current Sec.  18.23 and 
replace it with the proposed Sec.  18.55. The proposed Sec.  18.55 is 
modeled after Fed. R. Civ. P. 32.
    The Department states a new procedure in proposed Sec.  18.55(a) 
modeled after Fed. R. Civ. P. 32(a)(5), Limitations on use. The 
Department proposes a specific provision, at proposed Sec.  
18.55(a)(4), regarding depositions of experts, treating physicians, or 
examining physicians. Deposition testimony from physicians is quite 
commonly used in proceedings before the Department's administrative law 
judges. The provision at current Sec.  18.23(a)(2) covers expert 
witnesses, but does not address a treating physician (who is not 
necessarily an expert retained to testify). The proposed rule codifies 
current practice. Under proposed paragraph (a)(6)--the current Sec.  
18.23(a)(6) is relocated to proposed Sec.  18.55(a)(8)--a deposition 
may be used against any party who had reasonable notice of the 
deposition. A deposition cannot be used against a party who received 
less than 14 days' notice and who has filed a motion for a protective 
order that was pending at the time of the deposition. Likewise, a 
deposition cannot be used against a party who demonstrates an inability 
to obtain counsel for representation at the deposition despite the 
exercise of diligence. The provision in Fed. R. Civ. P. 32(a)(7), which 
reflects the impact of FRCP on substitution of parties, has not been 
included because the proposed rule does not address the issue of 
substitution of a party. In general, except for situations where a 
named party dies and a successor is substituted, there is no 
substitution of parties in matters before OALJ. Successors to deceased 
claimants in Black Lung and Longshore cases are not uncommon; these may 
be covered under specific provisions. See, e.g., 20 CFR 725.360, 33 
U.S.C. 919(f).
    The Department proposes to add subdivision (c) to clarify that a 
party must provide a transcript of any deposition testimony the party 
offers. The judge may receive testimony in non-transcript form as well. 
This addition codifies a current common procedure within OALJ.
    The Department proposes to add subdivision (d), Waiver of 
objections, with four new regulations. These regulations are modeled 
after Fed. R. Civ. P. 32 and should be familiar federal practice to 
attorneys. First, under paragraph (d)(1), To the notice, an objection 
to an error or irregularity in a deposition notice is waived unless 
promptly served in writing on the party giving notice. Second, 
paragraph (d)(2), To the officer's qualification, provides that an 
objection based on disqualification of the officer before whom a 
deposition is to be taken is waived if not made before the deposition 
begins or promptly after the basis for disqualification becomes known 
or, with reasonable diligence, could have been known. The Department 
proposes this regulation to be consistent with the federal rule; 
however, officer disqualification rarely comes up in current practice.
    Third, under subparagraph (d)(3)(C), Objection to a written 
question, the Department proposes to clarify that an objection to the 
form of a written question is waived if not served in writing on the 
party which submitted the question within the time for serving a 
responsive question or, if the question is a recross-question, within 7 
days after being served with it. The current regulation, located in 
current paragraph (b)(3), does not designate a set length of time a 
party has to object to a written question.
    Lastly, the Department proposes to add paragraph (d)(4), To 
completing and returning the deposition, to clarify that an objection 
to how the officer transcribed the testimony--or prepared, signed, 
certified, sealed, endorsed, sent, or otherwise dealt with the 
deposition--is waived unless a motion to suppress is made promptly 
after the error or irregularity becomes known or, with reasonable 
diligence, could have been known. This is not a procedural change from 
the current Sec.  18.23(b)(2).
    The Department proposes to delete the current subdivision (c) 
because it does not align with the federal rule and is substantive 
rather than procedural.

Sec.  18.56 Subpoena.

    The Department proposes to delete the current Sec.  18.24 and 
replace it with proposed Sec.  18.56. The proposed Sec.  18.56 is 
modeled after Fed. R. Civ. P 45, Subpoena. Judges may issue subpoenas 
only as authorized by a statute or law and the Department does not 
propose any procedural changes to this rule. Instead, the Department 
proposes this section to help litigants better understand the subpoena 
process before OALJ.
    The Department proposes to add form and content requirements for 
subpoenas under paragraph (a)(2). Under this new provision, every 
subpoena must state the title of the matter and, where applicable, show 
the case number assigned by OALJ or the Office of Worker's Compensation 
Programs (OWCP). In the event that the case number is an individual's 
Social Security number only the last four numbers may be used. See 
Sec.  18.31(a)(1). The subpoena must bear either the signature of the 
issuing judge or the signature of an attorney authorized to issue the 
subpoena under proposed paragraph (a)(3). The subpoena must command 
each person to whom it is directed to do the following at a specified 
time and place: attend and testify; produce designated documents, 
electronically stored information, or tangible things in that person's 
possession, custody, or control; or

[[Page 72163]]

permit inspection of premises. The subpoena must set out the text of 
proposed subdivisions (c) and (d) of this section.
    The Department proposes to add the following provisions under 
paragraph (a)(2). The proposed subparagraph (a)(2)(B) provides that a 
subpoena commanding attendance at a deposition must state the method 
for recording the testimony. The proposed subparagraph (a)(2)(C) 
provides that a command to produce documents or to inspect premises may 
be issued separately or joined with a command to appear to testify. 
Under subparagraph (a)(2)(D), the Department proposes to clarify that a 
subpoena can be used to obtain inspections, testing or samplings of the 
property, documents, or electronic data of a non-party.
    Under paragraph (a)(3), the Department proposes to permit subpoenas 
to be issued by an attorney representative only when authorized by the 
presiding judge. This provision applies only to representatives who are 
attorneys. In the authorizing document, the presiding judge may limit 
the parameters under which the authorized attorney may issue subpoenas.
    Under subdivision (b), the Department proposes to clarify the 
process of serving subpoenas. Under paragraph (b)(1), if the subpoena 
commands the production of documents, electronically stored 
information, or tangible things or the inspection of premises before 
the formal hearing, then before it is served, a notice must be served 
on each party. The purpose of such notice is to afford other parties an 
opportunity to object to the production or inspection, or to serve a 
demand for additional documents or things. In current practice, this 
notice requirement from Fed. R. Civ. P. 45(b)(1) is stated on subpoenas 
to produce documents, information or objects, or to permit inspection 
of premises. Additionally, the proposed Sec.  18.56(b)(1) retains the 
provision in the current Sec.  18.24(a) which allows parties to serve 
subpoenas by certified mail.
    Under paragraph (b)(1), if the subpoena requires a person's 
attendance, the fees for 1 day's attendance and the mileage allowed by 
law must be tendered with the subpoena. This is a procedural change as 
the current Sec.  18.24(a) requires that fees to be paid ``in advance 
of the date of the proceeding.''
    Under paragraph (b)(2), the Department clarifies that subject to 
proposed Sec.  18.56(c)(3)(A)(ii), a subpoena may be served at any 
place within a State, Commonwealth, or Territory of the United States, 
or the District of Columbia. Paragraph (b)(3) provides that 28 U.S.C. 
1783 governs issuing and serving a subpoena directed to a United States 
national or resident who is in a foreign country. Under paragraph 
(b)(4), if necessary, service can be proved by the person making 
service by filing with the judge a statement showing the date and 
manner of service and the names of the persons served. This statement 
must be certified by the server. This regulation does not establish any 
cutoff or deadline for serving subpoenas. However, a subpoena for a 
deposition or for the production of documents may be governed by the 
discovery deadline.
    The Department proposes to delete the current Sec.  18.24(b) 
because under the proposed paragraph (c)(3) the presiding judge, rather 
than the chief judge, has the power to quash or modify a subpoena if it 
fails to allow a reasonable time to comply.
    The Department proposes to expand the current subdivision (c) to 
include other provisions that protect a person subject to a subpoena. 
The core concept of the proposed subdivision is that an attorney or 
representative responsible for requesting, issuing, or serving a 
subpoena has a duty not to issue a subpoena for improper purposes or to 
impose undue burden on the recipient of the subpoena. The proposed 
subdivision (c) continues to provide the mechanisms for recipients of 
subpoenas to challenge subpoenas. The cautionary language in Sec.  
18.56(c) must be reprinted on every subpoena.
    The Department proposes to clarify under paragraph (c)(1) that a 
party or representative responsible for requesting, issuing, or serving 
a subpoena must take reasonable steps to avoid imposing undue burden on 
a person subject to the subpoena. The judge must enforce this duty and 
may impose an appropriate sanction.
    Under subparagraph (c)(2)(A), the Department proposes a new 
regulation that a person subpoenaed to produce documents or things or 
to permit an inspection need not actually appear at the designated 
time, as long as the person complies with the subpoena, unless also 
commanded to appear for the deposition or hearing. A person subpoenaed 
to produce documents or things or to permit an inspection may serve an 
objection to all or part of the subpoena within 14 days after service 
of the subpoena (or before the time designated in the subpoena, if 
sooner).
    Once an objection has been served on the party issuing the 
subpoena, the subpoena recipient is not obligated to comply with the 
subpoena. Failure to serve timely objections may constitute a waiver of 
objections to the subpoena other than objections relating to service. 
Only non-parties may serve objections; parties must contest a subpoena 
by a motion to quash or modify. If the subpoena recipient timely serves 
an objection to the subpoena under Sec.  18.56(c)(2)(B), the serving 
party may file a motion to compel production or inspection under Sec.  
18.56(c)(2)(B)(i). This motion must be served on the subpoena recipient 
as well. Under Sec.  18.56(c)(2)(B)(ii), the presiding judge may issue 
an order compelling the subpoena recipient to comply with the subpoena 
but the order must protect a person who is neither a party nor a 
party's officer from significant expense resulting from compliance.
    Under the proposed Sec.  18.56, a subpoena recipient may still move 
to quash a subpoena under paragraph (c)(3). If the judge finds the 
subpoena objectionable he or she may quash it altogether or modify it 
to cure the objection. The Department proposes to delete the 10-day 
time period for filing and answering a motion and instead use Fed. R. 
Civ. P. 45(c)(3) as a model. Thus, under the proposed Sec.  18.56 a 
motion to quash must be ``timely'' filed, and should certainly be filed 
before the subpoena's return date. Failure to file a motion to quash 
may constitute a waiver of objections to the subpoena. In subparagraph 
(c)(3)(A) the Department proposes to list situations in which a 
subpoena will be quashed or modified. These situations include: (i) 
Failing to allow a reasonable time to reply; (ii) requiring a non-party 
to travel too far; (iii) requiring disclosure of privileged or 
protected information; and (iv) subjecting a person to undue burden.
    Under subparagraph (c)(3)(B), the Department proposes to list 
circumstances in which a subpoena will be quashed or modified unless 
the serving party shows a ``substantial need'' for the testimony, 
documents, or inspection. In such cases the judge will condition 
compliance on the serving party compensating the recipient. This 
subparagraph provides limited protection for trade secrets or other 
confidential research, development, or commercial information. It 
provides limited protection for unretained experts, so that parties 
cannot obtain their testimony without paying their fees. It also 
provides limited protection to nonparties who would incur substantial 
expenses to travel more than 100 miles to attend a hearing.
    The Department proposes to add a new regulation under subdivision 
(d)--the current subdivision (d) is relocated to subdivision (e)--that 
provides that documents may be produced as they are normally kept or 
may be separated and

[[Page 72164]]

organized. When privileges are asserted, the privilege must be 
expressly described. The cautionary language of Sec.  18.56(d) must be 
reprinted on every subpoena.
    The Department proposes that the scope of production under a 
subpoena be the same as the scope of discovery generally under proposed 
Sec.  18.51, Discovery scope and limits. The requirements also track 
closely those imposed in Fed. R. Civ. P. 45. Under proposed 
subparagraph (d)(1)(A), the Department proposes that the responding 
party has the option of allowing the serving party to inspect and copy 
the documents where they are normally kept or the party may collect the 
responsive documents and organize and label them to correspond to the 
categories in the demand. See Fed. R. Civ. P. 45(d)(1). The responding 
party may make copies for the requesting party, but is not obligated to 
do so. See Fed. R. Civ. P. 45(a)(1)(D).
    Under subparagraph (d)(1)(B), the Department proposes to allow, but 
not require, the requesting party to specify the form in which it is 
requesting electronic data (i.e., hard copy or electronic; if 
electronic, the precise manner of production). If the requesting party 
does not specify the form, then the responding person must produce it 
in the form in which it is ordinarily maintained in or in a form that 
is reasonably usable. In any event, under proposed subparagraph 
(d)(1)(C) a party need not produce electronic data in more than one 
form. See Fed. R. Civ. P. 45(d)(1)(B) & (C).
    Under subparagraph (d)(1)(D), the Department proposes that if the 
responding party believes that the production of electronic data from 
certain sources will cause undue burden or cost, the person can, in 
lieu of producing the documents, identify those sources. If a motion to 
compel or quash is filed, the responding party will have the burden of 
showing that production would cause undue burden or cost. The burden 
then shifts to the requesting party to show good cause why the data 
should be produced nonetheless. In such cases, the judge may specify 
conditions for the production. See Fed. R. Civ. P. 45(d)(1)(D).
    Under paragraph (d)(2), the Department proposes that when a 
subpoena recipient seeks to withhold information that is privileged, 
the recipient must expressly claim the privilege and describe the 
nature of the documents, communications, or tangible things not 
produced in sufficient detail that the court and parties can assess the 
privilege. Under subparagraph (d)(2)(B), the Department proposes to 
establish a procedure to recall privileged information that has already 
been produced in response to a subpoena. See Fed. R. Civ. P. 
45(d)(2)(A) & (B).
    The Department proposes to relocate the content from the current 
subdivision (d) to subdivision (e) with no procedural changes.

Sec.  18.57 Failure to make disclosures or to cooperate in discovery; 
sanctions.

    The Department proposes to delete the current Sec.  18.21 and 
replace it with proposed Sec.  18.57. The proposed Sec.  18.57 is 
modeled after Fed. R. Civ. P. 37 and incorporates the current Sec.  
18.6(d) and the current Sec.  18.15(a).
    The proposed Sec.  18.57 provides the mechanisms for enforcing the 
provisions of the other discovery rules by imposing sanctions on 
parties who violate the discovery regulations. In general, sanctions 
are imposed in a two-step process in which a party must first obtain an 
order compelling discovery under proposed Sec.  18.57(a), and then move 
for sanctions under proposed Sec.  18.57(b). If, however, the 
responding party totally fails to respond to an entire discovery 
request, the sanctions may be available immediately. The Department 
proposes to grant judges greater discretion when imposing sanctions.
    Under subdivision (a), the Department proposes to combine and 
expand the regulations under current Sec. Sec.  18.6(d) and 18.21(a), 
and 18.15(a). This subdivision covers motions to compel discovery and 
motions to compel disclosure. A party may file a motion to compel under 
Sec.  18.57(a)(2) after the opponent fails to make the automatic 
disclosures required by Sec.  18.50(c), fails to respond to discovery 
served pursuant to the discovery rules, or makes an improper or 
incomplete disclosure or discovery response. When taking a deposition, 
the party asking a question may complete or adjourn the examination 
before moving for an order. Under proposed subdivision (a)(1), the 
motion to compel must be accompanied by a certification that the movant 
has in good faith conferred or attempted to confer with the other party 
or person in an effort to resolve the dispute without the action of the 
judge. This is a procedural change proposed by the Department to 
encourage litigants to resolve matters amongst themselves and to help 
reduce litigation expenses. In current practice, many judges encourage 
parties to confer before filing certain motions.
    The Department proposes to expand current Sec.  18.21(c) to apply 
to evasive or incomplete disclosures in proposed Sec.  18.57(a)(3). As 
under the current Sec.  18.21(d), if the motion to compel is denied the 
judge may issue any protective order authorized under proposed Sec.  
18.52.
    The Department proposes to add Sec.  18.57(b), which sets forth the 
sanctions that become available if a party or deponent fails to obey a 
judge's order regarding discovery. Under this provision, a judge has 
the discretion to impose one or more of the listed sanctions or any 
other procedural sanction deemed appropriate, including: deeming facts 
established; prohibiting evidence; striking pleadings; and issuing a 
stay, dispositive ruling, or default judgment. The judge is not limited 
to the sanctions listed under Sec.  18.57(b)(1) and may make any order 
that is ``just.''
    Under proposed Sec.  18.57(b)(2), if a party fails to comply with 
an order under Sec.  18.62 to produce another for a mental or physical 
examination, the party is subject to the same sanctions under Sec.  
18.57(b)(1) that would apply if the party failed to appear, unless the 
party can show that the party was unable to produce the individual.
    The Department proposes to add Sec.  18.57(c), Failure to disclose, 
to supplement an earlier response, or to admit, which is a procedural 
change modeled after Fed. R. Civ. P. 37. Under this section, if a 
party: (1) Fails to make the automatic disclosures under Sec.  18.50(c) 
in a timely manner; (2) makes false or misleading disclosures; (3) 
fails to supplement a prior discovery response as required by Sec.  
18.53; or (4) fails to supplement a prior discovery request, the party 
will not be permitted to use at trial or in a motion the documents, 
information, or witnesses not properly disclosed, unless the party had 
``substantial justification'' or the failure was harmless. Under Sec.  
18.57(c), in addition to or in lieu of precluding the evidence, upon 
motion and after an opportunity to be heard, the judge may impose other 
appropriate sanctions, including any of the orders listed in Sec.  
18.57(b)(1).
    The sanctions under this provision apply to an improper statement 
of inability to admit or deny, as well as to improper denial. The 
sanctions in this subdivision do not apply to failure to respond to a 
request for admissions because such a failure is deemed an admission.
    The Department proposes to add Sec.  18.57(d), Party's failure to 
attend its own deposition, serve answers to interrogatories, or respond 
to a request for inspection. This subdivision provides that upon motion 
sanctions are immediately available against a party who completely 
fails to participate in the discovery process. For example,

[[Page 72165]]

sanctions are available when the party fails to appear for the party's 
deposition after being served with proper notice, fails to answer or 
object to properly served interrogatories, or fails to serve a written 
response to a properly-served request to inspect documents or things. 
Thus, a judge's order is not a prerequisite to sanctions under this 
subdivision. While this subdivision does not specify when the motion 
for sanctions must be filed, it should be filed without ``unreasonable 
delay'' or before the entry of the decision and order.
    The proposed subparagraph (d)(1)(B) states that a motion for 
sanctions under Sec.  18.57(d), for failure to respond to 
interrogatories or requests for inspection, must include a 
certification that the movant has in good faith conferred or attempted 
to confer with the other party or person in an effort to obtain a 
response without court action. Note that this requirement does not 
apply to the failure to appear for a deposition.
    The proposed paragraph (d)(2) states that a failure described in 
Sec.  18.57(d)(1)(A) is not excused on the ground that the discovery 
sought was objectionable, unless the party failing to act has a pending 
motion for a protective order under Sec.  18.52(a). Under proposed 
paragraph (d)(3), sanctions may include any of the orders listed in 
Sec.  18.57(b)(1).
    The Department proposes to add subdivision (e) to prohibit the 
imposition of sanctions for failure to produce certain types of 
electronically stored information, in the absence of exceptional 
circumstances. The Department recognizes that certain types of 
electronically stored information are lost during the regular operation 
of a computer system and therefore parties should not be sanctioned for 
failing to produce such data. An example of the type of data that is 
contemplated by this provision is the metadata (or data about data) 
that computers automatically store, such as the last time a document 
was opened. Each time the document is opened the information that was 
stored in that field is deleted and replaced by new data. A party would 
not likely be sanctioned for the loss of the data when a document was 
last opened.
    The protections in proposed Sec.  18.57(e) are expressly limited to 
the good-faith operation of the computer system. Thus, a party cannot 
exploit the protections of this subdivision to deliberately delete 
relevant information. Under certain circumstances, a party wishing to 
require another party to preserve electronic data can write a letter to 
the party placing it on notice that the electronic data may be relevant 
and should be preserved, or can seek a preservation order from the 
judge. If either action is taken, a party must suspend those features 
of its computer system that result in the routine loss of information.
    The Department proposes subdivision (f) to provide the procedure a 
judge must follow in impose sanctions under this section. A judge may 
impose sanctions under this section upon (1) a separately filed motion; 
or (2) notice from the judge followed by a reasonable opportunity to be 
heard.
    The Department proposes to include the content from the current 
Sec.  18.21(d) in the proposed Sec.  18.33(a).

Types of Discovery

Sec.  18.60 Interrogatories to parties.

    The Department proposes to revise the current Sec.  18.18 and 
renumber it as proposed Sec.  18.60. The proposed Sec.  18.60 is 
modeled after Fed. R. Civ. P. 33 and should be read in conjunction with 
proposed Sec.  18.51, which establishes the scope of all discovery 
rules.
    The Department proposes to change the current subdivision (a) to 
state that unless otherwise stipulated or ordered by the judge, a party 
may serve on any other party no more than 25 written interrogatories, 
including all discrete subparts. Leave to serve additional 
interrogatories may be granted to the extent consistent with proposed 
Sec.  18.51. The Department proposes this change to model Fed. R. Civ. 
P. 33 as the current Sec.  18.18 does not set a limit on the number of 
written interrogatories a party may serve on another party.
    The procedure for answering interrogatories is relocated from the 
current subdivision (a) to proposed subdivision (b). The Department 
proposes to delete the service and filing language from this section 
because the Department is proposing Sec.  18.30, Service and Filing, to 
cover the service and filing regulations before OALJ.
    The Department proposes to relocate the current subdivision (c) to 
proposed Sec.  18.60(a)(2), Scope. Under this proposed subpart, the 
scope of interrogatories is the broad discovery available under Sec.  
18.51; thus, an interrogatory may relate to any matter that may be 
inquired into under proposed Sec.  18.51. Interrogatories may be served 
after the parties have conducted the discovery conference under Sec.  
18.51, or earlier if the judge so orders. In the proceedings listed in 
Sec.  18.50(c)(1)(B) as exempted from initial disclosures, there is no 
preliminary waiting period to serve interrogatories. The Part 18, 
Subpart A rules do not set an outer limit on how late in the case 
interrogatories may be served, but the judge may set such a limit.
    The Department proposes subdivision (b), Answers and objections, to 
provide the procedural requirements parties must adhere to in answering 
and objecting to interrogatories. As under the current regulation, the 
responding party must answer interrogatories separately and in writing 
within 30 days after service.
    Failure to serve a response in a timely manner may constitute a 
waiver of all objections. Under subdivision (b) the Department 
clarifies that the time period to answer may be shortened or extended 
by written agreement under proposed Sec.  18.54, Stipulations about 
discovery procedure. This subpart also clarifies that the grounds for 
objecting to an interrogatory must be stated with specificity. Any 
ground not stated in a timely objection is waived unless the judge, for 
good cause, excuses the failure. This is a procedural change modeled 
after Fed. R. Civ. P. 33.
    The Department proposes to add a new subdivision (c) which provides 
that an answer to an interrogatory may be used to the extent allowed by 
the applicable rules of evidence. This reflects the varying evidentiary 
requirements applicable to claims brought before OALJ. Interrogatory 
answers are not admissions, but generally may be used as though made in 
court by the party. Interrogatories may not be used to obtain 
documents. Rather, a document request must be made under proposed Sec.  
18.61, Producing documents, electronically stored information, and 
tangible things, or entering onto land, for inspection and other 
purposes. However, interrogatories may inquire about the existence of 
documents and the facts contained therein. Documents may, under certain 
circumstances, be produced in lieu of answering an interrogatory, as 
discussed in proposed subdivision (d).
    The Department proposes to add a new subdivision (d), Option to 
produce business records. A party may produce business records in lieu 
of answering an interrogatory when the burden of extracting the 
requested information would be substantially equal for either party. 
Only business records may be used in lieu of interrogatory answers; 
thus, a party cannot produce pleadings or deposition transcripts 
instead of answering an interrogatory. The responding party must 
specify the records that must be reviewed in sufficient detail to 
enable the interrogating party to locate and identify

[[Page 72166]]

them as readily as the responding party could. It is not sufficient to 
state that the business records may contain the information. The 
responding party must also give the interrogating party a reasonable 
opportunity to examine and audit the records and to make copies, 
compilations, abstracts, or summaries.

Sec.  18.61 Producing documents, electronically stored information, and 
tangible things, or entering onto land, for inspection and other 
purposes.

    The Department proposes to revise the current Sec.  18.19 and 
renumber it as proposed Sec.  18.61. The proposed Sec.  18.61 is 
modeled after Fed. R. Civ. P. 34, Producing documents, electronically 
stored information, and tangible things, or entering onto land, for 
inspection and other purposes.
    The Department is proposing a separate section, Sec.  18.62, for 
physical and mental examinations; therefore, the language regarding 
physical and mental examinations is not included in this proposed 
section. The purpose of proposed Sec.  18.61 is to set forth the 
procedures for obtaining access to documents and things within the 
control of other parties, and for gaining entry upon other parties' 
land for inspection. This proposed section should be read in 
conjunction with proposed Sec.  18.51, which establishes the scope of 
all discovery rules.
    The proposed subdivision (a), like the current subdivision (a), 
generally addresses the scope of document requests. This subpart states 
that a party may serve on any party a request within the scope of Sec.  
18.51. Generally, any relevant, non-privileged document is discoverable 
unless it was prepared in anticipation of litigation, pertains to 
expert witnesses, or would be unreasonably burdensome to produce. 
``Documents'' is broadly defined to include all forms of recorded 
information. For clarity, the proposed subdivision (a) lists writings, 
drawings, graphs, charts, photographs, sound recordings, images, and 
other data or data compilations as discoverable documents. Under the 
proposed regulation, a party is generally not required to create 
documents to meet a document request, but only to produce documents 
already in existence.
    The Department proposes to incorporate current subdivisions (c) and 
(d) into proposed Sec.  18.61(b). These subparts are revised to improve 
clarity but retain the same procedural requirements.
    Under subdivision (b), the Department proposes to regulate the form 
in which electronic data must be produced (i.e. hard copy or 
electronic, and if electronic, the precise manner of production). This 
regulation is not included in the current rule. It allows, but does not 
require, the requesting party to specify the form in which it is 
requesting electronic data. The responding party can then produce it in 
that form or object and specify the form in which it will produce the 
electronic data. If the requesting party does not specify the form, 
then the responding party must produce it in the form in which it is 
ordinarily maintained or in a form that is reasonably usable. Unless 
the responding party is producing the data in the form specified by the 
requesting party, the responding party must specify the form it intends 
to use for production in its written response to the document request. 
If the responding party objects to the form stated by the requesting 
party, or if the requesting party is not satisfied with the form 
specified by the responding party, then the parties must meet and 
confer under Sec.  18.57(a)(1). Under any of these scenarios, a party 
need not produce electronic data in more than one form.
    The Department proposes to add a new regulation under subdivision 
(c), Nonparties, as the current Part18A is silent on this issue. 
Although document requests or requests for inspection cannot be served 
on a non-party, documents or inspections can be obtained from a non-
party by a subpoena under proposed Sec.  18.56, Subpoenas.
    The Department proposes to delete the service and filing language 
in the current subdivision (f) because the Department is proposing 
Sec.  18.30, Service and filing, to cover the service and filing 
regulations before OALJ.

Sec.  18.62 Physical and mental examinations.

    The Department proposes a new Sec.  18.62 modeled after Fed. R. 
Civ. P. 35 to regulate physical and mental examinations. Physical and 
mental examinations are currently covered by Sec.  18.19; however, due 
to the high frequency of requests for physical and mental examinations 
the Department determined that there is a need for a separate section 
that sets forth the procedure for such requests.
    The Department proposes to divide Sec.  18.62 into three subparts: 
Examinations by motion, examinations by notice, and examiner's reports. 
This proposal reflects the distinction between examination by notice 
and examination by motion found in the federal rule.
    The proposed subdivision (a) clarifies that a party may serve upon 
another party whose mental or physical condition is in controversy a 
notice to attend and submit to an examination by a suitable licensed or 
certified examiner. This provision notifies parties they may serve a 
request to attend and submit to an examination on another party only if 
their mental or physical condition is in controversy. The examiner must 
be licensed or certified to perform the examination.
    The Department proposes to amend the content requirements of a 
notice to attend a physical or mental examination, currently located 
under Sec.  18.19(c)(4). The proposed paragraph (a)(2) provides that a 
notice must specify: (A) The legal basis for the examination; (B) the 
time, place, manner, conditions, and scope of the examination, as well 
as the person or persons who will perform it; and (C) how the 
reasonable transportation expenses were calculated.
    The Department proposes to add the requirement that ``unless 
otherwise agreed by the parties, the notice must be served no fewer 
than 14 days before the examination date.'' The Department determined 
that a 14-day notice period provides the person to be examined enough 
time to make arrangements to attend the physical or mental examination 
or file an objection. Under paragraph (a)(4), the person to be examined 
must serve any objection to the notice no later than 7 days after the 
notice is served. The objection must be stated with particularity. 
Under the current Sec.  18.19, the party to be examined has 30 days to 
object after service of the request. The Department proposes to shorten 
the timeframe a party has to object in order to quickly resolve the 
objection and expedite the proceedings.
    Under subdivision (b), the Department proposes to provide the 
procedure for objecting to an examination. Upon objection, the 
requesting party may file a motion to compel a physical or mental 
examination. The motion must include the elements required by Sec.  
18.62(a)(2).
    The Department proposes to provide the procedure for examiner's 
reports under subdivision (c) in order to delete the reference to Fed. 
R. Civ. P. 35(b) in the current Sec.  18.19(c)(4). The party who 
initiated the examination must deliver a complete copy of the 
examination report to the party examined, together with like reports of 
all earlier examinations of the same condition. The examiner's report 
must be in writing and must set out in detail the examiner's findings, 
including diagnoses, conclusions, and the results of any tests.

[[Page 72167]]

Sec.  18.63 Requests for admission.

    The Department proposes to revise the current Sec.  18.20 and 
renumber it as proposed Sec.  18.63. The proposed Sec.  18.63 is 
modeled after Fed. R. Civ. P. 36.
    The Department proposes to combine the current subdivisions (b), 
(c), and (d) into proposed subdivision (a). Under subdivision (a), the 
Department proposes to establish the procedure whereby one party serves 
requests for admission on another party, who must investigate and 
either admit, deny with specificity, or object to each requested 
admission.
    The scope of requests for admission is the broad discovery 
available under proposed Sec.  18.51. The proposed subdivision (a) 
clarifies that a party may serve on any party a written request to 
admit facts relating to facts, the application of law to facts, or 
opinions about either.
    Under paragraph (a)(2), Form; copy of a document, the Department 
clarifies that each fact or matter for which admission is requested 
should be set forth in a separate paragraph. All facts that are part of 
the request should be set forth in the request--it is improper to 
incorporate facts by reference to other text.
    Proposed paragraph (a)(3), Time to respond; effect of not 
responding, retains the same procedural requirements of current 
subdivision (b) and clarifies that a shorter or longer time for 
responding may be stipulated to under proposed Sec.  18.54 or be 
ordered by the judge.
    Proposed paragraph (a)(4), Answer, retains the same procedural 
requirements of current subdivision (c) and clarifies that if a matter 
is not admitted the answer must specifically deny it or state in detail 
why the answering party cannot truthfully admit or deny it. A denial 
must fairly respond to the substance of the matter; and when good faith 
requires that a party qualify an answer or deny only a part of a 
matter, the answer must specify the part admitted and qualify or deny 
the rest.
    Under proposed paragraph (a)(5), Objections, the grounds for 
objecting to a request must be stated. A party must not object solely 
on the ground that the request presents a genuine issue for hearing. 
The proposed paragraph (a)(6) retains the same procedural requirements 
of current subdivision (d).
    The Department proposes to combine and relocate the current 
subdivisions (e) and (f) to proposed subdivision (b), Effect of an 
admission; withdrawing or amending it. There are no procedural changes 
to these subparts; however, the proposed subdivision (b) clarifies that 
a judge may permit withdrawal or amendment if it would promote the 
presentation of the merits of the action and if the judge is not 
persuaded that it would prejudice the requesting party in maintaining 
or defending the action on the merits.

Sec.  18.64 Depositions by oral examination.

    The Department proposes to revise the current Sec.  18.22 and 
renumber it as proposed Sec.  18.64. The proposed Sec.  18.64 is 
modeled after Fed. R. Civ. P. 30, Depositions by oral examination.
    Under Sec.  18.64 the Department expands the procedures for taking 
depositions by oral examination and this section must be considered in 
conjunction with the other discovery rules, in particular proposed 
Sec.  18.51 governing the scope of discovery. The Department's 
regulations for depositions by written questions are located under 
proposed Sec.  18.65.
    The Department proposes to revise subdivision (a) to address when a 
deposition may be taken. The language regarding how and by whom a 
deposition may be taken in current subdivision (a) is relocated to 
proposed subdivision (b). The Department proposes to limit the number 
of depositions that parties may take to 10 depositions per side, absent 
leave of the judge or stipulation with the other parties. Depositions 
may be taken at any time after an initial notice or order is entered 
acknowledging that the proceeding has been docketed at OALJ. If the 
judge orders the parties to confer under proposed Sec.  18.50(b), 
depositions must be taken within the time and sequence agreed upon by 
the parties. The Department proposes to limit the number of depositions 
to 10 to emphasize that representatives have an obligation to develop a 
mutually cost-effective plan for discovery in the case. Leave to take 
additional depositions should be granted when consistent with the 
principles of proposed Sec.  18.51(b)(2), and in some cases the ten-
per-side limit should be reduced in accordance with those same 
principles.
    Under paragraph (a)(1), the Department clarifies that a deponent's 
attendance may be compelled by subpoena under Sec.  18.56, Subpoena.
    Leave of the judge is required to depose someone if the parties 
have not stipulated to the deposition and (i) The deposition would 
result in more than 10 depositions being taken under this section or 
Sec.  18.65 by one of the parties; (ii) the deponent has already been 
deposed in the case; or (iii) the party seeks to take the deposition 
before the time specified in Sec.  18.50(a), unless the party certifies 
in the notice, with supporting facts, that the deponent is expected to 
leave the United States and be unavailable for examination in this 
country after that time. Leave of the judge must be obtained in order 
to take the deposition of a person confined to prison.
    The Department proposes to combine current subdivisions (b) and (c) 
into proposed subdivision (b), Notice of the deposition; other formal 
requirements. The Department proposes to change the timeframes under 
Sec.  18.64 to be consistent throughout Part18A. Under proposed 
paragraph (b)(1), except as stipulated or otherwise ordered by the 
judge, a party who wants to depose a person by oral questions must give 
reasonable written notice to every other party of no fewer than 14 
days. The current Sec.  18.22(c) provides that written notice must not 
be less than 5 days when the deposition is to be taken in the 
continental United States and not less than 20 days when the deposition 
is to be taken elsewhere. Under paragraph (b)(1), the Department 
proposes to clarify that if the name of the deponent is unknown, the 
notice must provide a general description sufficient to identify the 
person or the particular class or group to which the person belongs.
    The Department proposes to delete the language in current 
subdivision (b) requiring that the party giving notice state the name 
of the person before whom the deposition is to be taken. The name of 
the person before whom the deposition is to be taken is not relevant as 
long as the person meets the requirements stated in the regulation.
    The Department proposes to delete the filing language in the 
current subdivision (c) because the Department is proposing Sec.  
18.30, Service and filing, to cover the service and filing regulations 
before OALJ.
    The Department proposes to add several regulations to proposed 
subdivision (b) that are not found in the current Sec.  18.22. These 
provisions are modeled after Fed. R. Civ. P. 30(b)(2)-(b)(5) and come 
into current practice through the federal rule. Under proposed 
paragraph (b)(2), if a subpoena duces tecum is to be served on the 
deponent, the materials designated for production, as set out in the 
subpoena, must be listed in the notice or in an attachment. If the 
notice to a party-deponent is accompanied by a request for production 
under Sec.  18.61, the notice must comply with the requirements of 
Sec.  18.61(b).
    The Department proposes to regulate the method of recording 
depositions under paragraph (b)(3). The notice of

[[Page 72168]]

deposition must specify the method of recording the deposition 
testimony. Unless the judge orders otherwise, testimony may be recorded 
by audio, audiovisual, or stenographic means. The noticing party bears 
the recording costs. Any party may arrange to transcribe a deposition. 
Under proposed subparagraph (b)(3)(B) with prior notice to the deponent 
and other parties, any party may designate another method for recording 
the testimony in addition to that specified in the original notice. The 
party bears the expense of the additional recording or transcript 
unless the judge orders otherwise.
    Under proposed paragraph (b)(4), the Department clarifies that 
parties may stipulate--or the judge may on motion order--that a 
deposition be taken by telephone or other remote means. For the purpose 
of this section, the deposition takes place where the deponent answers 
the questions.
    The Department proposes to regulate the officer's duties when 
taking a deposition. Under proposed subparagraph (b)(5)(A), unless the 
parties stipulate otherwise, a deposition must be conducted before a 
person having power to administer oaths. The officer must begin the 
deposition with an on-the-record statement that includes: (i) The 
officer's name and business address: (ii) the date, time, and place of 
the deposition; (iii) the deponent's name; (iv) the officer's 
administration of the oath or affirmation to the deponent; (v) the 
identity of all persons present; and (vi) the date and method of 
service of the notice of deposition. Specifically, (b)(5)(A)(vi) is in 
response to OALJ noticing that statements regarding notice are lacking 
in depositions.
    The proposed subparagraph (b)(5)(B), provides that if the 
deposition is not recorded stenographically, the officer must repeat 
the items in proposed Sec.  18.64(b)(5)(A)(i)-(iii) at the beginning of 
each unit of the recording medium. The deponent's and attorneys' 
appearance or demeanor must not be distorted through recording 
techniques.
    The proposed subparagraph (b)(5)(C), provides that at the end of a 
deposition, the officer must state on the record that the deposition is 
complete and must set out any stipulations made by the attorneys about 
custody of the transcript or recording and of the exhibits, or about 
any other pertinent matters.
    The proposed paragraph (b)(6) provides that in its notice or 
subpoena, a party may name as the deponent a public or private 
corporation, a partnership, an association, a governmental agency, or 
other entity and must describe with reasonable particularity the 
matters for examination. The named organization must then designate one 
or more officers, directors, or managing agents, or designate other 
persons who consent to testify on its behalf; and it may set out the 
matters on which each person designated will testify. A subpoena must 
advise a nonparty organization of its duty to make this designation. 
The persons designated must testify about information known or 
reasonably available to the organization. This paragraph (6) does not 
preclude a deposition by any other procedure allowed by these rules.
    The Department proposes to incorporate a revised version of current 
subdivision (d) into proposed subdivision (c), Examination and cross-
examination; record of the examination; objections; written questions. 
Proposed subdivision (c) clarifies that after putting the deponent 
under oath or affirmation, the officer must record the testimony by the 
method designated under Sec.  18.64(b)(3)(A). The testimony must be 
recorded by the officer personally or by a person acting in the 
presence and under the direction of the officer.
    Under paragraph (c)(2), Objections, the Department proposes to add 
that an objection at the time of the examination-- whether to evidence, 
to a party's conduct, to the officer's qualifications, to the manner of 
taking the deposition, or to any other aspect of the deposition--must 
be noted on the record, but the examination still proceeds; the 
testimony is taken subject to any objection. An objection must be 
stated concisely in a nonargumentative and nonsuggestive manner. A 
person may instruct a deponent not to answer only when necessary to 
preserve a privilege, to enforce a limitation ordered by the judge, or 
to present a motion under Sec.  18.64(d)(3).
    Under paragraph (c)(3), Participating through written questions, 
the Department clarifies that instead of participating in the oral 
examination, a party may serve written questions in a sealed envelope 
on the party noticing the deposition, who must deliver them to the 
officer. The officer must ask the deponent those questions and record 
the answers verbatim.
    The Department proposes to delete the language in current Sec.  
18.22(d) regarding use of depositions at hearing because the Department 
is proposing section Sec.  18.55, Using depositions at hearing.
    The Department proposes to add subdivision (d), Duration; sanction; 
motion to terminate or limit, which incorporates current subdivision 
(e). The duration of depositions is not currently addressed by Part 18, 
Subpart A. Proposed subdivision (d), modeled after Fed. R. Civ. P. 
30(d), provides for a 7-hour time limit on depositions, which may be 
extended by the judge's order. This subdivision also provides 
protections from unreasonable or vexatious examination during a 
deposition.
    Under paragraph (d)(2) the judge may impose an appropriate 
sanction, in accordance with proposed Sec.  18.57, on a person who 
impedes, delays, or frustrates the fair examination of the deponent. 
Under proposed subparagraph (d)(3)(A), the Department clarifies that at 
any time during a deposition, the deponent or a party may move to 
terminate or limit it on the ground that it is being conducted in bad 
faith or in a manner that unreasonably annoys, embarrasses, or 
oppresses the deponent or party. If the objecting deponent or party so 
demands, the deposition must be suspended for the time necessary to 
obtain an order.
    The Department proposes to relocate the language in the current 
Sec.  18.22(e) regarding objections to the deposition conduct or 
proceeding to proposed Sec.  18.55(b) and (d).
    The Department proposes to add a new regulation under subdivision 
(e), Review by the witness; changes, modeled after Fed. R. Civ. P. 
30(e). Under paragraph (e)(1), on request by the deponent or a party 
before the deposition is completed, the deponent must be allowed 30 
days after being notified by the officer that the transcript or 
recording is available in which: (A) To review the transcript or 
recording; and (B) if there are changes in form or substance, to sign a 
statement listing the changes and the reasons for making them. Under 
paragraph (e)(2) the officer must note in the certificate prescribed by 
proposed Sec.  18.64(f)(1) whether a review was requested and, if so, 
must attach any changes the deponent makes during the 30-day period.
    The Department proposes to add a new regulation under subdivision 
(f), Certification and delivery; exhibits; copies of the transcript or 
recording; filing. This subdivision provides that the officer must 
certify in writing that the witness was duly sworn and that the 
deposition transcript was a true record of the testimony given by the 
deponent. The certificate must accompany the record of the deposition. 
Unless the judge orders otherwise, the officer must seal the deposition 
in an envelope or package bearing the title of the action and marked 
``Deposition of [witness's name{time} '' and must promptly send it to 
the party or the party's representative

[[Page 72169]]

who arranged for the transcript or recording. The party or the party's 
representative must store it under conditions that will protect it 
against loss, destruction, tampering, or deterioration.
    Proposed subparagraph (f)(2)(A) provides that documents and 
tangible things produced for inspection during a deposition must, on a 
party's request, be marked for identification and attached to the 
deposition. Any party may inspect and copy them. However, if the person 
who produced them wants to keep the originals, the person may: (i) 
Offer copies to be marked, attached to the deposition, and then used as 
originals--after giving all parties a fair opportunity to verify the 
copies by comparing them with the originals; or (ii) give all parties a 
fair opportunity to inspect and copy the originals after they are 
marked--in which event the originals may be used as if attached to the 
deposition. Any party may move for an order that the originals be 
attached to the deposition pending final deposition or the proceeding 
under proposed subparagraph (f)(2)(B).
    Proposed paragraph (f)(3) provides that unless otherwise stipulated 
or ordered by the judge, the officer must retain the stenographic notes 
of a deposition taken stenographically or a copy of the recording of a 
deposition taken by another method. When paid reasonable charges, the 
officer must furnish a copy of the transcript or recording to any party 
or the deponent. Proposed paragraph (f)(4) provides that a party who 
files the deposition must promptly notify all other parties of the 
filing. But depositions are not ordinarily filed. See proposed Sec.  
18.30(b)(1)(B).
    The Department proposes to add a new regulation under subdivision 
(g), Failure to attend a deposition or serve a subpoena. This provision 
provides for a judge to order sanctions, in accordance with Sec.  
18.57, if a party who, expecting a deposition to be taken, attends in 
person or by an attorney, and the noticing party failed to: (1) Attend 
and proceed with the deposition; or (2) serve a subpoena on a nonparty 
deponent, who consequently did not attend. This sanction is permissive.

Sec.  18.65 Depositions by Written Questions.

    The Department proposes to add a new Sec.  18.65 modeled after Fed. 
R. Civ. P. 31. The Department proposes a new section to provide the 
procedure for taking depositions by written questions because the 
current Part 18, Subpart A rules do not specifically mention 
depositions by written questions. The current Sec.  18.19 addresses 
written interrogatories to a party and the current Sec.  18.22(a) 
states that ``[d]epositions may be taken by oral examination or upon 
written interrogatories before any person having power to administer 
oaths.'' The current Sec.  18.22(a) also provides that ``[d]epositions 
may be taken of any witness * * * .'' Since there is a specific rule 
addressing written interrogatories to a party, the Department 
determined that the current Sec.  18.22 contemplates taking written 
depositions of any witness.
    The proposed subdivision (a) addresses when a deposition may be 
taken. Any party may take depositions by serving written questions, 
which are asked by the deposition officer (stenographer) and answered 
orally by the witness. A party seeking to take a deposition by written 
questions must serve a notice on all other parties stating the name and 
address of the deponent, if known, or other general description 
sufficient to identify the deponent and providing the name or title and 
address of the stenographer or officer before whom the deposition will 
be taken.
    The notice of written deposition may be served at any time after 
the parties have conducted the discovery conference under Sec.  
18.50(b), or earlier with leave of the judge. In proceedings listed in 
proposed Sec.  18.51(c)(1)(B) as exempted from initial disclosures, 
there is no preliminary waiting period for written depositions. The 
latest time to conduct a deposition upon written questions will be 
governed by the judge's scheduling order. Subpoenas must be used to 
compel non-party witnesses.
    The written deposition questions for direct examination are served 
upon all parties with the notice. Within 14 days of service of the 
notice and direct examination questions, any other party may serve 
cross-examination questions. The noticing party may then serve redirect 
examination questions within 7 days, and the other party may serve re-
cross examination questions within 7 more days. The judge may shorten 
or lengthen these time periods upon motion and for cause shown. All 
questions must be served on all parties.
    All parties, including third-party respondents, are limited to 10 
depositions total, by written and/or oral examination. This number may 
be increased by stipulations or leave of the judge. Leave of the judge 
is required to depose someone a second time. If a deponent is in 
prison, leave of the judge is required to take a written deposition. 
The scope of the written questions is the same as oral questions, and 
is controlled by proposed Sec.  18.50. Objections to the form of a 
written question must be served in writing upon the party propounding 
the question within the time for serving succeeding questions and 
within 5 days of the last questions authorized.
    Under proposed subdivision (b), unless a different procedure is 
ordered by the judge, the party who noticed the deposition must deliver 
to the officer a copy of all the questions served and a copy of the 
notice. The officer then promptly proceeds in the manner provided in 
proposed Sec.  18.64 (c), (e), and (f) to take the deponent's testimony 
in response to the questions; prepare and certify the deposition; and 
send it to the party, attaching a copy of the questions and of the 
notice. A transcript is then prepared and submitted to the witness as 
provided in Sec.  18.64 governing oral depositions.
    Under proposed subdivision (c), the party who noticed the 
deposition must notify all other parties when it is completed. A party 
who files the depositions must promptly notify all other parties of the 
filing. But depositions are not ordinarily filed. See proposed Sec.  
18.30(b)(1)(B).

Disposition Without Hearing

Sec.  18.70 Motions for dispositive action.

    The Department determined that Part 18, Subpart A does not 
currently address all of the potential dispositive motions available to 
the parties. The Department proposes to add Sec.  18.70, Motions for 
dispositive action, to provide the regulations for filing dispositive 
motions in a single section. This proposed section codifies current 
practice and does not model a particular federal rule. The Department 
determined that motions for summary decision should remain a separate 
section because of the multiple requirements for filing and deciding a 
motion for summary decision and the need for that section to stand out 
among the rest.
    Under proposed subdivision (a), when consistent with statute, 
regulation or executive order, any party may move under proposed Sec.  
18.33 for disposition of the pending proceeding. If the judge 
determines at any time that subject-matter jurisdiction is lacking, the 
judge must dismiss the matter.
    Under proposed subdivision (b), a party may move to remand the 
matter to the referring agency when not precluded by statute or 
regulation. A remand order must include any terms or conditions and 
should state the reason for the remand.
    Under proposed subdivision (c), a party may move to dismiss part or 
all of the matter for reasons recognized under

[[Page 72170]]

controlling law, such as lack of subject-matter jurisdiction, failure 
to state a claim upon which relief can be granted, or untimeliness. If 
the opposing party fails to respond, the judge may consider the motion 
unopposed.
    Under the proposed subdivision (d), when the parties agree that an 
evidentiary hearing is not needed, they may move for a decision based 
on stipulations of fact or a stipulated record.

Sec.  18.71 Approval of settlement and consent findings.

    The Department proposes to revise the current Sec.  18.9 and 
renumber it as proposed Sec.  18.71.
    The current Sec.  18.9, Settlement judge procedure, addresses three 
topics: (1) Motions for consent findings and order; (2) approval of 
settlement agreements; (3) and the settlement judge procedure. The 
Department proposes that new Sec.  18.71 provide the regulations for 
approval of settlement agreements and motions for consent findings and 
order. The Department proposes to address the settlement judge 
procedure in proposed Sec.  18.13, Settlement judge procedure.
    In subdivision (a) the Department proposes to clarify when a party 
must submit a settlement agreement for the judge's review and approval. 
The Department does not propose any procedural changes from the current 
Sec.  18.9.
    In subdivision (b) the Department proposes to clarify when a party 
may file a motion for consent findings and what the order must contain. 
The Department does not propose any procedural changes from the current 
Sec.  18.9.

Sec.  18.72 Summary decision.

    The current Part 18, Subpart A contains two sections, Sec. Sec.  
18.40 and 18.41, that address summary decision. The Department 
determined these sections are repetitive and inadequately organized 
and, therefore, proposes Sec.  18.72, Summary decision, to address 
summary decision in a single section. The proposed Sec.  18.72 is 
modeled after Fed. R. Civ. P. 56 (December 2010 amendment).
    In addition to the significant stylistic changes, the Department 
proposes several procedural changes in Sec.  18.72. Under subdivision 
(b), the Department proposes to change the time requirements for filing 
and responding to motions for summary judgment. The current Sec.  
18.40(a) provides that a party may, at least 20 days before the date 
fixed for any hearing, file a motion for summary judgment. It states 
that any other party may within 10 days after service of the motion, 
serve opposing affidavits or countermove for summary judgment. The 
Department proposes to increase the timeframe for filing motions for 
summary decision to 30 days before the date fixed for the formal 
hearing.
    Parties should refer to proposed Sec.  18.33 for the procedure on 
responding to motions. Under proposed Sec.  18.33(d), the Department 
proposes to increase the number of days a party has to respond to a 
motion from 10 days to within 14 days from the date of service. Given 
the increased timeframe a party has to file an opposition or other 
response to a motion, the time for filing a summary decision motion 
must be extended to allow the judge an acceptable period of time to 
rule on the motion. If a motion is filed 30 days prior to the hearing 
date and the opposing party files an opposition or other response 14 
days after receiving the motion, the judge will generally have adequate 
time to rule on the motion before the hearing date.
    The current Sec.  18.40(a) permits a party to ``move with or 
without supporting affidavits for a summary decision * * *.'' Under 
paragraph (c)(1), the Department proposes to require a party to cite 
specific parts of the record to support or oppose the motion. This 
proposed change comports with the standard the judge uses to review the 
motion, ``that there is no genuine dispute as to any material fact and 
the movant is entitled to decision as a matter of law.''
    The last sentence of the current Sec.  18.40(a) states that the 
administrative law judge may set the matter for argument and/or call 
for submission of briefs. The Department proposes to relocate this 
language to proposed Sec.  18.33(d).
    The current Sec.  18.40(b) states the procedure for filing and 
serving a motion for summary judgment. This provision is not included 
in the proposed Sec.  18.72 because the service and filing of papers is 
covered by proposed Sec.  18.30, Service and filing.
    Under subdivision (c), the Department proposes a revised version of 
the current Sec.  18.40(c). This subdivision applies to both the moving 
and nonmoving party. Under paragraph (c)(4) the Department proposes to 
clarify that ``an affidavit or declaration used to support or oppose a 
motion must be made on personal knowledge, set out facts that would be 
admissible in evidence, and show that the affiant or declarant is 
competent to testify on the matters stated.''
    Under subdivision (d), the Department proposes a revised version of 
current Sec.  18.40(d). The Department proposes to provide the judge 
with more options when a moving party denies access to information 
during discovery. In addition to denying the motion for summary 
decision, the judge may permit more time for discovery, or issue any 
other appropriate order.
    The Department proposes to address three new topics under 
subdivisions (f), (g), and (h). Under subdivision (f), the Department 
proposes to clarify that after giving notice and a reasonable time to 
respond, the judge may: (1) Grant summary decision for a nonmovant; (2) 
grant the motion on grounds not raised by a party; or (3) consider 
summary decision on the judge's own after identifying for the parties 
material facts that may not be genuinely disputed. Under the current 
regulations, a judge who considers summary decision on his or her own 
must reference Fed. R. Civ. P. 56 in order to order summary judgment 
without a motion from the parties. The addition of this power within 
this proposed section allows the judge to rely on the Department's 
regulations.
    The Department does not propose to change the power a judge has to 
issue an order granting partial summary judgment. Under this proposed 
subdivision, the Department proposes a procedure that the judge and 
parties must follow in the hearing after the judge grants partial 
summary judgment. The judge may enter an order stating any material 
fact--including an item of damages or other relief--that is not 
genuinely in dispute and treat the fact as established in the case.
    Under proposed subdivision (h), the Department proposes to address 
the actions a judge may take if an affidavit or declaration is 
submitted in bad faith. These remedies are part of the judge's power to 
regulate the hearing under the Administrative Procedure Act.
    The Department proposes to delete the language in the current Sec.  
18.41(a)(2) stating what a summary judgment decision must contain. The 
Department proposes Sec.  18.92, Decision and order, to regulate the 
contents of summary judgment decisions.
    The Department proposes to relocate the language from the current 
Sec.  18.41(b) to the proposed 18.33(g) Motion hearing.

Hearing

Sec.  18.80 Prehearing statement.

    The Department proposes to revise the current Sec.  18.7 and 
renumber it as proposed Sec.  18.80.
    Under subdivision (a), the Department proposes to add the 
requirement that a participating party file a prehearing statement at 
least 21 days prior to the

[[Page 72171]]

date set for hearing, unless the judge orders otherwise. The current 
Sec.  18.7 does not have a timeframe for filing prehearing statements. 
However, judges typically include a timeframe in prehearing orders. It 
is not the Department's intention to require the applicable 
Department's agency to file a pre-hearing statement when it is not 
actively participating in the proceeding. For example, in a Black Lung 
claim in which an employer has been identified as the responsible 
operator, the Office of Workers' Compensation Programs, though a party-
in-interest, does not normally take an active role. In such 
circumstance it is not necessary for the Department's representative to 
file a pre-hearing statement.
    The Department proposes to add a new provision under subdivision 
(b) that requires the parties confer in good faith to stipulate to 
facts to the fullest extent possible and to prepare exhibit lists prior 
to filing prehearing statements. The Department proposes this change to 
help narrow the issues to be addressed at hearing and eliminate 
unnecessary travel for potential witnesses.
    Under subdivision (c), the Department proposes to provide a revised 
version of the content requirements for a prehearing statement from the 
current Sec.  18.7(b). The Department proposes to add that the 
prehearing statement must include a statement of the relief sought, a 
list of the party's exhibits and the joint exhibits. Otherwise, the 
content requirements remain procedurally the same as those in the 
current Sec.  18.7.
    The Department proposes to add a new regulation under subdivision 
(d) that permits the judge to require a joint prehearing statement 
instead of individual prehearing statements by the parties.
    The Department proposes to add a new regulation under subdivision 
(e) that requires a party to file objections to an opposing party's 
proposed exhibits or use of deposition testimony within 14 days of 
being served. A party's failure to object waives the objection unless 
the judge finds good cause for the failure to object.

Sec.  18.81 Formal hearing.

    The Department proposes to revise the current Sec.  18.43 and 
renumber it as proposed Sec.  18.81. The proposed Sec.  18.81 is 
modeled after Fed. R. Civ. P. 43.
    The Department proposes to revise the current subdivision (a) to 
more accurately address the situations when a hearing would be closed 
to the public. The current subdivision (a) states that hearings may be 
closed to the public when it is in the ``best interests of the parties, 
a witness, the public or other affected persons.'' The Department 
proposes to delete this language and instead state that hearings may be 
closed to the public ``when authorized by law and only to the minimum 
extent necessary.'' The proposed change states the standard a judge 
will apply when determining whether to close all or part of a hearing. 
The applicable law does not suggest that hearings are closed based on 
the ``best interests'' of the parties. Further, the presumption of open 
hearings is supported by the requirement that a judge close a hearing 
only to the minimum extent possible. The proposed subdivision (a) 
clarifies that the judge's order closing the hearing must explain why 
the reasons for closure outweigh the presumption of public access to 
the hearing. The Department proposes to clarify that the judge may also 
close the hearing to anticipated witnesses. Parties would not be 
excluded, however. See Fed. R. Evid. 615 cmt.
    The Department proposes to delete current subdivisions (b) and (c). 
The judge's jurisdiction to decide all issues of fact and related 
issues of law is addressed by proposed Sec.  18.12, Proceedings before 
administrative law judge. Amendments to conform to the evidence is 
addressed by proposed Sec.  18.36, Amendments after referral to the 
Office of Administrative Law Judges, and the note referring the parties 
to Fed. R. Civ. P. 15.
    The Department proposes to model a new subdivision (b) after Fed. 
R. Civ. P. 43(a). The proposed subdivision (b) requires that a witness 
testify in an open hearing. However, a judge may permit testimony in an 
open hearing by contemporaneous transmission from a different location 
``for good cause and with appropriate safeguards.'' The Department 
determined that if a witness needs to testify remotely, the witness or 
party must show good cause, instead of having to show compelling 
circumstances, which is the higher legal standard set forth in Fed. R. 
Civ. P. 43(a). The Department's decision to set a lesser standard is 
not intended to diminish the importance of presenting live testimony in 
hearings. The very ceremony of a hearing and the presence of the 
factfinder may exert a powerful force for telling the truth. However, 
in contrast to the federal courts, OALJ has more relaxed evidentiary 
standards. Hearings take place worldwide and are not constrained by the 
concept of ``venue.'' Appropriate safeguards will be addressed by the 
judge in the prehearing order or conference and may include the 
exchange of exhibits and assurances that the witness will not be 
coached during the testimony.
    Similarly, the Department proposes a new subdivision (c) to permit 
a party to participate in an open hearing by contemporaneous 
transmission from a different location for good cause and with 
appropriate safeguards. This provision accounts for the fact that some 
cases involve parties located outside the United States or in other 
remote locations that are unable to attend hearings in person. 
Subdivisions (b) and (c) are not intended to suggest that 
contemporaneous transmission is routine practice. The presiding judge 
may require advance notice to determine whether good cause exists.

Sec.  18.82 Exhibits.

    The Department proposes to revise the current Sec. Sec.  18.47 
through 18.50 as part of the general restyling of the Part 18, Subpart 
A rules of procedure. The current Sec. Sec.  18.47 through 18.50 are 
combined into a single section covering exhibits, proposed Sec.  18.82.
    The Department proposes to relocate the language from the current 
Sec.  18.47 to subdivisions (a), Identification, (b), Electronic data, 
(c), Exchange of exhibits, and (e), Substitution of copies for original 
exhibits, in Sec.  18.82. In subdivision (a), the Department proposes 
to add a provision stating that the exhibits should be numbered and 
paginated as the judge directs. The Department determined that this 
requirement is sufficiently broad to cover the variety of judges' 
preferences for organizing exhibits, so that references in the 
testimonial record to exhibit pages will be clear.
    The Department proposes to relocate the language from the current 
Sec.  18.48 to proposed subdivision (g), Records in other proceedings. 
The Department proposes to revise the structure of this subdivision for 
clarity, but does not propose any procedural changes.
    The Department proposes to relocate the language from the current 
Sec.  18.49 to proposed subdivision (f), Designation of parts of 
documents. The Department proposes to revise the structure of this 
subdivision and delete the redundant language. The Department proposes 
to revise the first sentence to emphasize the procedure for excluding 
irrelevant material. The second sentence is deleted as a matter left to 
each judge's discretion and because other rules will apply to 
submitting evidence and marking exhibits.
    The Department proposes to relocate the language from current Sec.  
18.50 to proposed subdivision (d), Authenticity. The Department 
proposes to revise the structure of this subdivision to improve

[[Page 72172]]

clarity, but does not propose any procedural changes.
    Under subdivision (b), Electronic data, the Department proposes 
that ``by order the judge may prescribe the format for the submission 
of data that is in electronic form.''

Sec.  18.83 Stipulations.

    The Department proposes to revise the current Sec.  18.51, renumber 
it as proposed Sec.  18.83, and include it under subdivision (a). The 
Department does not propose any procedural changes to this subpart.
    The Department proposes to add new regulations under subdivisions 
(b) and (c). These provisions are based on current practice as 
stipulations typically result from a judge's order. The proposed 
subdivision (b) applies to extensions of time not covered by proposed 
Sec. Sec.  18.33, Motions and other papers, and 18.41, Continuances and 
changes in place of hearing. The new provision states that ``[e]very 
stipulation that requests or requires a judge's action must be written 
and signed by all affected parties or their representatives. Any 
stipulation to extend time must state the reason for the date change.''
    Under proposed subdivision (c), the Department proposes that ``[a] 
proposed form of order may be submitted with the stipulation; it may 
consist of an endorsement on the stipulation of the words, `Pursuant to 
stipulation, it is so ordered' with spaces designated for the date and 
the signature of the judge.''

Sec.  18.84 Official notice.

    The Department proposes to revise the current Sec.  18.45 and 
renumber it as proposed Sec.  18.84.
    Under this section, the Department proposes to clarify the 
procedures a judge must follow when taking official notice. The 
Department proposes that official notice may be taken on motion of a 
party or on the judge's own. The current Sec.  18.45 states that 
official notice may be taken on ``any material fact, not appearing in 
evidence in the record, which is among the traditional matters of 
judicial notice.'' This proposed change clarifies that official notice 
may be taken of any ``adjudicative fact or matter subject to judicial 
notice.''
    The proposed Sec.  18.63, Request for admission and the current 
Sec.  18.201, Official notice of adjudicative facts, do not require 
advance notice before the judge takes official notice, but rather an 
opportunity to be heard. The Department, therefore, decided not to 
propose an advance notice requirement in this section. In some 
situations the judge may take official notice of a noncontroversial 
fact that was omitted in the evidence without noticing the parties 
before issuing a decision and order. The parties have an opportunity to 
be heard after the order is issued.

Sec.  18.85 Privileged, sensitive, or classified materials.

    The Department proposes to revise the current Sec. Sec.  18.46 and 
18.56 and combine them into a single section, proposed Sec.  18.85, 
covering privileged, sensitive, or classified material.
    The Department proposes to relocate the content from the current 
Sec.  18.46 to subdivision (a). The current Sec.  18.46 addresses 
several topics: (1) Limiting discovery and the introduction of evidence 
based on claims of privilege; (2) limiting the introduction of evidence 
based on claims of classified or sensitive information; (3) providing a 
summary or extracted version of a document to limit disclosures of 
classified or sensitive material; (4) permitting access to classified 
or sensitive matters despite their nature; and (5) requiring a 
representative to seek a security clearance in order to view the 
information.
    The proposed subdivision (a) is more limited in scope than the 
current Sec.  18.46. The procedures to limit the scope of discovery 
based on claims of privilege or sensitive information are addressed by 
proposed Sec. Sec.  18.51, Discovery scope and limits, and 18.52, 
Protective orders. Accordingly, the references to limiting discovery in 
current subdivision (a) and paragraph (b)(1) are deleted.
    The references to obtaining a security clearance in current 
paragraph (b)(2) are also deleted. The need for a participant in a 
hearing to obtain a security clearance is a rare event before OALJ. The 
Part 18, Subpart A rules are designed to apply to the typical types of 
cases heard by OALJ; the rules do not address all of the exceptions or 
possibilities that may occur in specific cases. Further, the process 
for seeking a security clearance would be determined by the federal 
agency holding the classified or sensitive information. OALJ does not 
independently facilitate a security clearance process. For these 
reasons, the references to obtaining a security clearance are deleted 
from proposed Sec.  18.85.
    The Department proposes to relocate the content from the current 
Sec.  18.56 to subdivision (b). The proposed rule retains the option 
provided in current subdivision (a) that a party or the judge may move 
to seal a portion of the record. This section continues to require that 
the sealed portion of the record be clearly marked and maintained 
separately from other parts of the record in the case.
    The proposed subdivision (b) imposes new requirements on parties. 
When filing a motion to seal the record, a party must propose a 
redaction no broader than necessary for inclusion in the public record. 
If the movant finds that a redaction would be so extensive as to make 
the material meaningless, the movant must file a summary of the 
material to be included in the public record. The requirement of filing 
a redacted copy or summary along with the motion to seal the record 
ensures that the public continues to have access to as much information 
as possible regarding the proceedings.
    Under paragraph (b)(2), if the judge issues an order sealing all or 
part of the record, the judge must explain why the need to seal part of 
the record outweighs the presumption of public access. A redacted 
version or summary of the material must be included in the record 
unless the redactions make the public version of the material 
meaningless, or if the redacted version or summary defeats the reason 
the original is sealed. Notwithstanding the judge's order, all parts of 
the record remain subject to statutes and regulations pertaining to 
public access to agency records.

Sec.  18.86 Hearing room conduct.

    The Department proposes to revise the current Sec.  18.37 and 
renumber it as proposed Sec.  18.86.
    The first sentence of the current Sec.  18.37 states that 
proceedings are to be conducted in an orderly manner. The Department 
proposes to amend this sentence to directly address how participants 
must conduct themselves during a hearing, instead of generally stating 
how the hearing should be managed. The proposed change provides direct 
instructions to the participants.
    The Department proposes to retain the prohibition on food and 
beverage consumption and the rearranging of furniture in the hearing 
location. The Department proposes to delete the reference to smoking. 
Prohibitions on smoking in public places, specifically hearing 
locations, are more ubiquitous than in 1983 when the current Part 18, 
Subpart A was adopted. A specific prohibition in Part 18, Subpart A, 
therefore, is not required.
    The Department proposes to add a prohibition on disrupting 
proceedings with electronic devices. This addition is a result of 
changing technology since the current Part 18, Subpart A was adopted. 
Electronic devices and their use can be distracting and disruptive 
during a hearing. Accordingly, limiting

[[Page 72173]]

the use and noise produced by electronic devices facilitates the 
orderly conduct of a hearing. Parties, witnesses and spectators are 
also prohibited from using video or audio recording devices to record 
hearings.

Sec.  18.87 Standards of conduct.

    The Department proposes to revise the current Sec.  18.36 and 
renumber it as proposed Sec.  18.87.
    The Department proposes to divide the current subdivision (b) into 
two subdivisions: (b), Exclusion for misconduct, and (c), Review of 
representative's exclusion. Under 18.87 (b), the Department proposes to 
define the types of conduct that may result in a party or the party's 
representative being excluded from a proceeding.
    Under subdivision (c), the Department proposes to provide the 
procedure a party's representative must initiate in order to be 
reinstated as a representative in a particular matter. The current 
Sec.  18.36 does not indicate a time period in which the representative 
must seek reinstatement. The Department proposes a 7-day time period 
for a representative to request reinstatement. Seven days is proposed 
so as not to create too long a delay in proceeding with the claim.

Sec.  18.88 Transcript of proceedings.

    The Department proposes to revise the current Sec.  18.52 and 
renumber it as proposed Sec.  18.88.
    The Department proposes to limit the application of this section to 
hearing transcripts and corrections to the transcript. The Department, 
therefore, proposes to delete the second and third sentences of the 
current subdivision (a). The second sentence refers to the basis of the 
judge's decision, which is controlled by sec. 557(b) of the APA. 
Because this current provision is covered by a statute, it is 
unnecessary to include the provision in the proposed Sec.  18.88. The 
Department propose to delete the references to exhibits in the third 
sentence because the identification, marking, and inclusion of exhibits 
in the record are addressed by proposed Sec.  18.82, Exhibits.
    The Department proposes to amend the first sentence of the current 
subdivision (a) to require that all hearings be recorded and 
transcribed. The Department proposes to delete the methods of recording 
and transcription in recognition of the variety of technologies used to 
record and transcribe proceedings. The deletion, however, does not 
alter the meaning or application of the rule. The rule continues to 
require a transcript of a hearing.
    Under subdivision (b), the Department proposes to extend the time 
permitted to file a motion to correct a transcript to 14 days. The 
current subdivision (b) requires that a party file the motion within 10 
days of receipt of the transcript. This change to 14 days comports with 
the general revision to set time periods based on multiples of 7.
    The Department proposes to add a new provision under subdivision 
(b) to permit a judge to correct a transcript on his or her own, 
without a prior motion from a party, prior to issuing a decision. If a 
judge corrects the transcript, the judge must provide notice to the 
parties.

Post Hearing

Sec.  18.90 Closing the record; additional evidence.

    The Department proposes to revise the current Sec. Sec.  18.54 and 
18.55 and combine them into proposed Sec.  18.90.
    The Department proposes to combine the current Sec.  18.54(a) and 
(b) into proposed subdivision (a). The Department proposes only 
stylistic changes to the language of these current subdivisions.
    The Department proposes to incorporate the provisions contained in 
existing Sec. Sec.  18.54(c) and 18.55 into proposed subdivision (b). 
The paragraph (b)(1) provides the standard the judge will apply when 
ruling on a motion to admit additional evidence. The proposed section 
retains the requirement that the additional evidence be ``new and 
material evidence.'' The proposed section requires that the party 
demonstrate that it could not have discovered the new evidence with 
reasonable diligence before the record closed.
    Under paragraph (b)(1), the Department proposes to require the 
party offering the additional evidence to file a motion promptly after 
discovering the evidence. This sentence makes several changes to the 
existing requirement in Sec.  18.55. First, the proposed section 
emphasizes that a party must file a motion asking to reopen the record 
for filing additional evidence. Requiring the party to file a motion 
incorporates the requirements of proposed Sec.  18.33, Motions and 
other papers, including the time to respond to motions.
    The Department proposes to delete the timeframe for filing and 
responding to additional evidence in the current Sec.  18.55. 
Constraining the party to filing new evidence 20 days after the close 
of the hearing was an unnecessarily restrictive time limit. If a party 
promptly files a motion seeking to reopen the record based on new and 
material evidence that was not available before the hearing, the judge 
will consider the motion based on the requirements of the proposed 
(b)(1).
    The Department proposes to clarify in paragraph (b)(2) that if the 
record is reopened, the other parties must have an opportunity to offer 
responsive evidence, and a new evidentiary hearing may be set.
    The Department proposes to revise the final sentence of the current 
Sec.  18.54(c) and relocate it to proposed subdivision (c). The 
Department proposes to revise this subdivision to instruct the parties 
that the record will remain open for additional appropriate motions; 
the content of the record is defined in proposed Sec.  18.88.

Sec.  18.91 Post-hearing brief.

    The Department proposes to revise the current Sec.  18.57 and 
separate the content into two separate sections: Sec. Sec.  18.91, 
Post-hearing briefs, and 18.92, Decisions of the administrative law 
judge. The Department proposes to relocate the content from the current 
Sec.  18.57(a) to proposed Sec.  18.91.
    The Department proposes to eliminate the 20-day filing period set 
in the current Sec.  18.57(a). The 20-day timeframe for filing proposed 
findings of fact, conclusions of law, and a proposed order is rarely 
used by parties before OALJ. Instead, the parties follow the schedule 
ordered by the judge at the close of the formal hearing or the judge's 
order granting a hearing on the record. Accordingly, the proposed 
section permits the parties to file closing briefs within the time 
period established by the judge.
    The Department determined that parties before OALJ rarely file 
proposed findings of facts and proposed order, as litigants file in 
state or federal district court. Rather, parties or their 
representatives typically file post-hearing briefs. Under the proposed 
Sec.  19.91, the Department proposes that judges allow a party or 
representative to file a post-hearing brief that emphasizes the three 
major items parties should emphasize in closing briefs: findings of 
fact, conclusions of law and the specific relief sought. Like the 
current regulation, the proposed section requires that the post-hearing 
briefs refer to all portions of the record and cite authorities 
supporting the party's assertions.
    The Department proposes to delete the provision in the current 
Sec.  18.57(a) that requires parties to serve post-hearing filings on 
all parties. Under proposed Sec.  18.30, Service and filing, all papers 
must be served on every party.

[[Page 72174]]

Therefore, it is unnecessary to repeat the requirement in this section.

Sec.  18.92 Decision and order.

    The Department proposes to revise the current Sec.  18.57 and 
separate the content into separate sections: Sec. Sec.  18.91, Post 
hearing briefs and 18.92, Decisions and order. The Department proposes 
to delete the language from the current Sec.  18.57(b) and replace it 
with proposed Sec.  18.92.
    The Department proposes to delete the reference to issuing a 
decision and order within 30 days of receipt of proposed consent 
findings and order. Instead, the proposed section states that ``at the 
conclusion of the proceeding, the judge must issue a written decision 
and order.'' OALJ has jurisdiction to decide claims under a variety of 
statutes which impose different, but specific timeframes for issuing a 
decision and order. When a statute or regulation does not specifically 
mention a timeframe for issuing a decision and order, the judge, as is 
current practice, will issue a decision and order within a reasonable 
time.
    The Department proposes to delete the last three sentences of the 
current Sec.  18.57. The statements repeat the requirements imposed by 
sec. 557(c) of the APA, therefore, the Department determined that it is 
unnecessary to repeat the substantive requirements of the judge's 
decision in OALJ's rules of procedure. These APA requirements will 
continue to apply to decisions and orders issued by OALJ judges.

Sec.  18.93 Motion for reconsideration.

    The Department proposes to add a new Sec.  18.93 modeled after Fed. 
R. Civ. P. 59(e), Motions to alter or amend a judgment.
    Under proposed Sec.  18.93, the Department proposes that ``a motion 
for reconsideration of a decision and order must be filed no later than 
10 days after service of the decision on the moving party.'' The 
purpose of this section is to make clear that judges possess the power 
to alter or amend a judgment after its entry.
    The Department proposes to set a 10-day limitation on filing a 
motion for reconsideration; however, it recognizes that governing 
statutes, regulations, and executive orders, such as the Black Lung 
regulations, may provide a different time for filing motions for 
reconsideration. In those circumstances, the rule of special 
application will apply.

Sec.  18.94 Indicative ruling on a motion for relief that is barred by 
a pending petition for review.

    The Department proposes to add a new Sec.  18.94 modeled after Fed. 
R. Civ. P. 62.1 (December 1, 2009). The current Part 18, Subpart A does 
not specifically mention indicative rulings on a motion for relief that 
is barred by a pending appeal or petition for review. The proposed 
Sec.  18.94 applies to motions made before a judge after an appeal has 
been docketed with an appellate board, and the judge no longer has 
jurisdiction over the merits of the case. At OALJ parties occasionally 
file post-appeal motions, so the Department determined that it is 
helpful to have a section that informs the judge and the appellate 
board how the motion should be addressed. Inclusion of this section is 
consistent with the Department's approach to include provisions from 
the FRCP unless the rule is inapplicable to OALJ proceedings.
    The proposed Sec.  18.94 does not attempt to define the 
circumstances in which an appeal limits or defeats the judge's 
authority to act in the face of a pending appeal. This section applies 
only when the rules that govern the relationship between the judge and 
appellate review boards deprive the judge of the authority to grant 
relief without appellate permission. If a judge concludes that he or 
she has authority to grant relief without appellate permission, he or 
she may act without falling back on the indicative ruling procedure.
    Often it will be appropriate for the judge to determine whether the 
judge in fact would grant the motion if the appellate review board 
remands for that purpose. But a motion may present complex issues that 
require extensive litigation and that may either be mooted or be 
presented in a different context by decision of the issues raised on 
appeal. In such circumstances the judge may prefer to state that the 
motion raises a substantial issue, and to state the reasons why the 
judge prefers to decide it only if the appellate review board agrees 
that it would be useful to decide the motion before decision of the 
pending appeal. The judge is not bound to grant the motion after 
stating that the motion raises a substantial issue; further proceedings 
on remand may show that the motion ought not to be granted.

Sec.  18.95 Review of Decision

    The Department proposes to revise the current Sec.  18.58 and 
renumber it as proposed Sec.  18.95. As in the current rule, the 
proposed rule states that the statute or regulation that conferred 
hearing jurisdiction provides the procedure for review of a judge's 
decision. If the statute or regulation does not provide a procedure, 
the judge's decision becomes the Secretary's final administrative 
decision. The Department does not propose any procedural changes to 
this rule.

Section Deletions

    The Department proposes to delete the current Sec.  18.13. The 
first sentence of the rule lists the methods of discovery available to 
a party. Prior to the 2007 amendments, the FRCP included a similar 
provision under Fed. R. Civ. P. 26; however, the 2007 amendments to the 
FRCP deleted this provision. The 2007 Advisory Committee Notes to Fed. 
R. Civ. P. 26 state that ``former Rule 26(a)(5) served as an index of 
the discovery methods provided by later rules. It was deleted as 
redundant.'' Similarly, the Department proposes to delete the first 
sentence of the current Sec.  18.13 just as Fed. R. Civ. P. 26(a)(5) 
was deleted. The second sentence to the current Sec.  18.13 explains 
that, unless the judge orders otherwise, there are no limits on the 
frequency or sequence for use of the discovery methods. The frequency, 
timing, and sequence of discovery are addressed by proposed Sec.  
18.50, General provisions governing disclosure and discovery. 
Accordingly, the Department proposes to delete the second sentence of 
the current Sec.  18.13.
    The Department proposes to delete the current Sec.  18.32. The text 
of current Sec.  18.32 is based on Sec.  554(d) of the APA. This 
regulation repeats the statute without adding additional procedures or 
guidance, therefore, the Department proposes to delete it.
    The Department proposes to delete the current Sec.  18.33. The 
parties' right to a hearing within a reasonable time is encompassed in 
proposed Sec.  18.10, Scope and purpose. The proposed Sec.  18.10(a) 
states that the rules of procedure ``should be construed and 
administered to secure the just, speedy, and inexpensive determination 
of every proceeding.'' The Department determined that repeating the 
statement of a speedy determination in current Sec.  18.33 is 
redundant.
    The Department proposes to delete the current Sec.  18.53. The 
proposed Sec.  18.12, Proceedings before administrative law judge, 
which combines the current Sec. Sec.  18.25 and 18.29, addresses the 
ability of the judge to conduct the hearing. The contents of the 
current Sec.  18.53 are repetitious given the revisions to the proposed 
Sec.  18.12.
    The Department proposes to delete the current Sec.  18.59. If OALJ 
receives a request for a certified copy of the record,

[[Page 72175]]

the request would originate with a reviewing body or court. The terms 
of sending the record would be controlled by the request or court 
order. Thus, it is not practicable to have a uniform rule governing the 
procedure for sending a certified copy of the record. Further, 
determining the appropriate record custodian and the procedures for 
certifying the record are internal matters within OALJ and the 
Department. Based on these facts, the Department has determined that 
the current Sec.  18.59 should be deleted.

List of Subjects in 29 CFR Part 18

    Administrative practice and procedure, Labor.

    Signed at Washington, DC.
Hilda L. Solis,
U.S. Secretary of Labor.

    For the reasons set out in the Preamble, the Office of the 
Secretary, Labor proposes to amend 29 CFR part 18 as set forth below.

PART 18--RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE 
HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES

    1. The authority citations for Part 18 continue to read as follows:

    Authority:  5 U.S.C. 301; 5 U.S.C. 551-553; 5 U.S.C. 571 note; 
E.O. 12778; 57 FR 7292.

    2. Revise Subpart A to read as follows:

Subpart A--General

Sec.

General Provisions

18.10 Scope and purpose.
18.11 Definitions.
18.12 Proceedings before administrative law judge.
18.13 Settlement judge procedure.
18.14 Ex parte communication.
18.15 Substitution of administrative law judge.
18.16 Disqualification.
18.17 Legal assistance.

Parties and Representatives

18.20 Parties to a proceeding.
18.21 Party appearance and participation.
18.22 Representatives.
18.23 Disqualification and discipline of representatives.
18.24 Briefs from amicus curiae.

Service, Format and Timing of Filings and Other Papers

18.30 Service and filing.
18.31 Privacy protection for filings and exhibits.
18.32 Computing and extending time.
18.33 Motions and other papers.
18.34 Format of papers filed.
18.35 Signing motions and other papers; representations to the 
judge; sanctions.
18.36 Amendments after referral to the Office of Administrative Law 
Judges.

Prehearing Procedure

18.40 Notice of hearing.
18.41 Continuances and changes in place of hearing.
18.42 Expedited proceedings.
18.43 Consolidation; separate hearings.
18.44 Prehearing conference.

Disclosure and Discovery

18.50 General provisions governing disclosure and discovery.
18.51 Discovery scope and limits.
18.52 Protective orders.
18.53 Supplementing disclosures and responses.
18.54 Stipulations about discovery procedure.
18.55 Using depositions at hearings.
18.56 Subpoena.
18.57 Failure to make disclosures or to cooperate in discovery; 
sanctions.

Types of Discovery

18.60 Interrogatories to parties.
18.61 Producing documents, electronically stored information, and 
tangible things, or entering onto land, for inspection and other 
purposes.
18.62 Physical and mental examinations.
18.63 Requests for admission.
18.64 Depositions by oral examination.
18.65 Depositions by written questions.

Disposition Without Hearing

18.70 Motions for dispositive action.
18.71 Approval of settlement or consent findings.
18.72 Summary decision.

Hearing

18.80 Prehearing statement.
18.81 Formal hearing.
18.82 Exhibits.
18.83 Stipulations.
18.84 Official notice.
18.85 Privileged, sensitive, or classified material.
18.86 Hearing room conduct.
18.87 Standards of conduct.
18.88 Transcript of proceedings.

Post Hearing

18.90 Closing the record; subsequent motions.
18.91 Post-hearing brief.
18.92 Decision and order.
18.93 Motion for reconsideration.
18.94 Indicative ruling on a motion for relief that is barred by a 
pending petition for review.
18.95 Review of Decision.

General Provisions


Sec.  18.10  Scope and purpose.

    (a) In general. These rules govern the procedure in proceedings 
before the United States Department of Labor, Office of Administrative 
Law Judges. They should be construed and administered to secure the 
just, speedy, and inexpensive determination of every proceeding. To the 
extent that these rules may be inconsistent with a governing statute, 
regulation, or executive order, the latter controls. If a specific 
Department of Labor regulation governs a proceeding, the provisions of 
that regulation apply, and these rules apply to situations not 
addressed in the governing regulation. The Federal Rules of Civil 
Procedure (FRCP) apply in any situation not provided for or controlled 
by these rules, or a governing statute, regulation, or executive order.
    (b) Type of proceeding. Unless the governing statute, regulation, 
or executive order prescribes a different procedure, proceedings follow 
the Administrative Procedure Act, 5 U.S.C. 551 through 559.
    (c) Waiver, modification, and suspension. Upon notice to all 
parties, the presiding judge may waive, modify, or suspend any rule 
under this subpart when doing so will not prejudice a party and will 
serve the ends of justice.


Sec.  18.11  Definitions.

    For purposes of these rules, these definitions supplement the 
definitions in the Administrative Procedure Act, 5 U.S.C. 551.
    (a) Calendar call means a meeting in which the judge calls cases 
awaiting hearings, determines case status, and assigns a hearing date 
and time.
    (b) Chief Judge means the Chief Administrative Law Judge of the 
United States Department of Labor Office of Administrative Law Judges 
and judges to whom the Chief Judge delegates authority.
    (c) Docket clerk means the Chief Docket Clerk at the Office of 
Administrative Law Judges in Washington, DC. But once a case is 
assigned to a judge in a district office, docket clerk means the docket 
staff in that office.
    (d) Hearing means that part of a proceeding consisting of a session 
to decide issues of fact or law that is recorded and transcribed and 
provides the opportunity to present evidence or argument.
    (e) Judge means an administrative law judge appointed under the 
provisions of 5 U.S.C. 3105.
    (f) Order means the judge's disposition of one or more procedural 
or substantive issues, or of the entire matter.
    (g) Proceeding means an action before the Office of Administrative 
Law Judges that creates a record leading to an adjudication or order.
    (h) Representative means any person permitted to represent another 
in a proceeding before the Office of Administrative Law Judges.


Sec.  18.12  Proceedings before administrative law judge.

    (a) Designation. The Chief Judge designates the presiding judge for 
all proceedings.

[[Page 72176]]

    (b) Authority. In all proceedings under this Part, the judge has 
all powers necessary to conduct fair and impartial proceedings, 
including those described in the Administrative Procedure Act, 5 U.S.C. 
556. Among them is the power to:
    (1) regulate the course of proceedings in accordance with 
applicable statute, regulation or executive order;
    (2) administer oaths and affirmations and examine witnesses;
    (3) compel the production of documents and appearance of witnesses 
within a party's control;
    (4) issue subpoenas authorized by law;
    (5) rule on offers of proof and receive relevant evidence;
    (6) dispose of procedural requests and similar matters;
    (7) terminate proceedings through dismissal or remand when not 
inconsistent with statute, regulation, or executive order;
    (8) issue decisions and orders;
    (9) exercise powers vested in the Secretary of Labor that relate to 
proceedings before the Office of Administrative Law Judges; and
    (10) take actions authorized by the FRCP.


Sec.  18.13  Settlement judge procedure.

    (a) How initiated. The Office of Administrative Law Judges provides 
settlement judges to aid the parties in resolving the matter that is 
the subject of the controversy. Upon a joint request by the parties or 
upon referral by the judge when no party objects, the Chief Judge may 
appoint a settlement judge. A settlement judge will not be appointed 
when settlement proceedings would be inconsistent with a statute, 
regulation, or executive order.
    (b) Appointment. The Chief Judge has discretion to appoint a 
settlement judge, who must be an active or retired judge. The 
settlement judge will not be appointed to hear and decide the case or 
approve the settlement without the parties' consent and the approval of 
the Chief Judge.
    (c) Duration of settlement proceeding. Unless the Chief Judge 
directs otherwise, settlement negotiations under this section must be 
completed within 60 days from the date of the settlement judge's 
appointment. The settlement judge may request that the Chief Judge 
extend the appointment. The negotiations will be terminated if a party 
withdraws from participation, or if the settlement judge determines 
that further negotiations would be unproductive or inappropriate.
    (d) Powers of the settlement judge. The settlement judge may 
convene settlement conferences; require the parties or their 
representatives to attend with full authority to settle any disputes; 
and impose other reasonable requirements to expedite an amicable 
resolution of the case.
    (e) Stay of proceedings before presiding judge. The appointment of 
a settlement judge does not stay any aspect of the proceeding before 
the presiding judge. Any motion to stay must be directed to the 
presiding judge.
    (f) Settlement conferences. Settlement conferences may be conducted 
by telephone, videoconference or in person at the discretion of the 
settlement judge after considering the nature of the case, location of 
the participants, availability of technology, and efficiency of 
administration.
    (g) Confidentiality. All discussions with the settlement judge are 
confidential; none may be recorded or transcribed. The settlement judge 
must not disclose any confidential communications made during 
settlement proceedings, except as required by statute, executive order, 
or court order. The settlement judge may not be subpoenaed or called as 
a witness in any hearing of the case or any subsequent administrative 
proceedings before the Department to testify to statements made or 
conduct during the settlement discussions.
    (h) Report. The parties must promptly inform the presiding judge of 
the outcome of the settlement negotiations. If a settlement is reached, 
the parties must submit the required documents to the presiding judge 
within 14 days of the conclusion of settlement discussions unless the 
presiding judge orders otherwise.
    (i) Non-reviewable decisions. Whether a settlement judge should be 
appointed, the selection of a particular settlement judge, or the 
termination of proceedings under this section, are matters not subject 
to review by Department officials.


Sec.  18.14  Ex parte communication.

    The parties, their representatives, or other interested persons 
must not engage in ex parte communications on the merits of a case with 
the judge.


Sec.  18.15  Substitution of administrative law judge.

    (a) Substitution during hearing. If the judge is unable to complete 
a hearing, a successor judge designated pursuant to Sec.  18.12 may 
proceed upon certifying familiarity with the record and determining 
that the case may be completed without prejudice to the parties. The 
successor judge must, at a party's request, recall any witness whose 
testimony is material and disputed and who is available to testify 
again without undue burden. The successor judge may also recall any 
other witness.
    (b) Substitution following hearing. If the judge is unable to 
proceed after the hearing is concluded, the successor judge appointed 
pursuant to Sec.  18.12 may issue a decision and order based upon the 
existing record after notifying the parties and giving them an 
opportunity to respond. Within 14 days of receipt of the judge's 
notice, a party may file an objection to the judge issuing a decision 
based on the existing record. If no objection is filed, the objection 
is considered waived. Upon good cause shown, the judge may order 
supplemental proceedings.


Sec.  18.16  Disqualification.

    (a) Disqualification on judge's initiative. A judge must withdraw 
from a proceeding whenever he or she considers himself or herself 
disqualified.
    (b) Request for disqualification. A party may file a motion to 
disqualify the judge. The motion must allege grounds for 
disqualification, and include any appropriate supporting affidavits, 
declarations or other documents. The presiding judge must rule on the 
motion in a written order that states the grounds for the ruling.


Sec.  18.17  Legal assistance.

    The Office of Administrative Law Judges does not appoint 
representatives, refer parties to representatives, or provide legal 
assistance.

Parties and Representatives


Sec.  18.20  Parties to a proceeding.

    A party seeking original relief or action is designated a 
complainant, claimant or plaintiff, as appropriate. A party against 
whom relief or other action is sought is designated a respondent or 
defendant, as appropriate. When participating in a proceeding, the 
applicable Department of Labor's agency is a party or party-in-
interest.


Sec.  18.21  Party appearance and participation.

    (a) In general. A party may appear and participate in the 
proceeding in person or through a representative.
    (b) Waiver of participation. By filing notice with the judge, a 
party may waive the right to participate in the hearing or the entire 
proceeding. When all parties waive the right to participate in the 
hearing, the judge may issue a decision and order based on the 
pleadings, evidence, and briefs.

[[Page 72177]]

    (c) Failure to appear. When a party has not waived the right to 
participate in a hearing, conference or proceeding but fails to appear 
at a scheduled hearing or conference, the judge may, after notice and 
an opportunity to be heard, dismiss the proceeding or enter a decision 
and order without further proceedings if the party fails to establish 
good cause for its failure to appear.


Sec.  18.22  Representatives.

    (a) Notice of appearance. When first making an appearance, each 
representative must file a notice of appearance that indicates on whose 
behalf the appearance is made and the proceeding name and docket 
number. The notice of appearance shall also include the statements and 
documentation required for admission to appear for the applicable 
category of representation found in subdivision (b) of this section.
    (b) Categories of representation; admission standards.
    (1) Attorney representative. Under these rules, ``attorney'' or 
``attorney representative'' means an individual who has been admitted 
to the bar of the highest court of a State, Commonwealth, or Territory 
of the United States, or the District of Columbia.
    (A) Attorney in good standing. An attorney who is in good standing 
in his or her licensing jurisdiction may represent a party or 
subpoenaed witness before the Office of Administrative Law Judges. The 
attorney's representation of good standing is sufficient proof of good 
standing, unless otherwise directed by the judge.
    (B) Attorney not in good standing. An attorney who is not in good 
standing in his or her licensing jurisdiction may not represent a party 
or subpoenaed witness before the Office of Administrative Law Judges, 
unless he or she obtains the judge's approval. Such an attorney must 
file a written statement that establishes why the failure to maintain 
good standing is not disqualifying. The judge may deny approval for the 
appearance of such an attorney after providing notice and an 
opportunity to be heard.
    (C) Disclosure of discipline. An attorney representative must 
promptly disclose to the judge any action suspending, enjoining, 
restraining, disbarring, or otherwise currently restricting him or her 
in the practice of law.
    (2) Non-attorney representative. An individual who is not an 
attorney as defined by paragraph (b)(1) may represent a party or 
subpoenaed witness upon the judge's approval. The individual must file 
a written request to serve as a non-attorney representative that sets 
forth the name of the party or subpoenaed witness represented and 
certifies that the party or subpoenaed witness desires the 
representation. The judge may require that the representative establish 
that he or she is subject to the laws of the United States and 
possesses communication skills, knowledge, character, thoroughness and 
preparation reasonably necessary to render appropriate assistance. The 
judge may inquire as to the qualification or ability of a non-attorney 
representative to render assistance at any time. The judge may deny the 
request to serve as non-attorney representative after providing the 
party or subpoenaed witness with notice and an opportunity to be heard.
    (c) Duties. A representative must be diligent, prompt, and 
forthright when dealing with parties, representatives and the judge, 
and act in a manner that furthers the efficient, fair and orderly 
conduct of the proceeding. An attorney representative must adhere to 
the applicable rules of conduct for the jurisdiction(s) in which the 
attorney is admitted to practice.
    (d) Prohibited actions. A representative must not:
    (1) threaten, coerce, intimidate, deceive or knowingly mislead a 
party, representative, witness, potential witness, judge, or anyone 
participating in the proceeding regarding any matter related to the 
proceeding;
    (2) knowingly make or present false or misleading statements, 
assertions or representations about a material fact or law related to 
the proceeding;
    (3) unreasonably delay, or cause to be delayed, without good cause, 
any proceeding; or
    (4) engage in any other action or behavior prejudicial to the fair 
and orderly conduct of the proceeding.
    (e) Withdrawal of appearance. A representative who desires to 
withdraw after filing a notice of appearance or a party desiring to 
withdraw the appearance of a representative must file a motion with the 
judge. The motion must state that notice of the withdrawal has been 
given to the party, client or representative. The judge may deny a 
representative's motion to withdraw when necessary to avoid undue delay 
or prejudice to the rights of a party.


Sec.  18.23  Disqualification and discipline of representatives.

    (a) Disqualification.
    (1) Grounds for disqualification. Representatives qualified under 
Sec.  18.22 may be disqualified upon:
    (A) conviction of a felony;
    (B) conviction of a misdemeanor, a necessary element of which 
includes:
    (i) interference with the administration of justice;
    (ii) false swearing;
    (iii) misrepresentation;
    (iv) fraud;
    (v) willful failure to file an income tax return;
    (vi) deceit;
    (vii) bribery;
    (viii) extortion;
    (ix) misappropriation;
    (x) theft; or
    (xi) attempt, conspiracy, or solicitation to commit a serious 
crime.
    (C) suspension or disbarment by any court or agency of the United 
States, the District of Columbia, any state, territory, commonwealth or 
possession of the United States;
    (D) disbarment on consent or resignation from the bar of a court or 
agency while an investigation into an allegation of misconduct is 
pending;
    (2) Disqualification procedure. The Chief Judge must provide notice 
and an opportunity to be heard as to why the representative should not 
be disqualified from practice before the Office of Administrative Law 
Judges. The notice will include a copy of the document that provides 
the grounds for the disqualification. Unless otherwise directed, any 
response must be filed within 21 days of service of the notice. The 
Chief Judge's determination must be based on the reliable, probative 
and substantial evidence of record, including the notice and response.
    (b) Discipline.
    (1) Grounds for discipline. The Office of Administrative Law Judges 
may suspend, disqualify, or otherwise discipline a representative. 
Conduct that may result in discipline includes:
    (A) an act, omission, or contumacious conduct relating to any 
proceeding before OALJ that violates these rules, an applicable 
statute, an applicable regulation, or the judge's order or instruction; 
or
    (B) failure to adhere to the applicable rules of conduct for the 
jurisdiction(s) in which the attorney is admitted to practice in any 
proceeding before OALJ.
    (2) Disciplinary procedure.
    (A) Notice. The Chief Judge must notify the representative of the 
grounds for proposed discipline, and of the opportunity for a hearing. 
A request for hearing must be filed within 21 days of service of the 
notice.
    (B) Default. If the representative does not respond to the notice, 
the Chief Judge may issue a final disciplinary order.
    (C) Disciplinary proceedings. If the representative responds to the 
notice, the Chief Judge will designate a judge to conduct a hearing, if 
requested, and to

[[Page 72178]]

issue a decision and order. The representative has the opportunity to 
present evidence, and argument. The decision must be based on the 
reliable, probative and substantial evidence of record, including any 
submissions from the representative.
    (D) Petition for review. A petition to review the decision and 
order must be filed with the Chief Judge within 30 days of the date of 
the decision and order, and state the grounds for review. The Chief 
Judge reviews the decision and order under the substantial evidence 
standard. The Chief Judge's decision is not subject to review within 
the Department of Labor.
    (c) Notification of disciplinary action. When an attorney 
representative is suspended or disqualified, the Chief Judge will 
notify the jurisdiction(s) in which the attorney is admitted to 
practice and the National Lawyer Regulatory Data Bank maintained by the 
American Bar Association Standing Committee on Professional Discipline, 
by providing a copy of the decision and order.
    (d) Application for reinstatement. A representative suspended or 
disqualified under this section may be reinstated by the Chief Judge 
upon application. At the discretion of the Chief Judge, consideration 
of an application for reinstatement may be limited to written 
submissions or may be referred for further proceedings pursuant to 
paragraph (b)(2) of this section.


Sec.  18.24  Briefs from amicus curiae.

    The United States or an officer or agency thereof, or a State, 
Territory, Commonwealth, or the District of Columbia may file an amicus 
brief without the consent of the parties or leave of the judge. Any 
other amicus curiae may file a brief only by leave of the judge, upon 
the judge's request, or if the brief states that all parties have 
consented to its filing. A request for leave to file an amicus brief 
must be made by written motion that states the interest of the movant 
in the proceeding. Unless otherwise directed by the judge, an amicus 
brief must be filed by the close of the hearing.

Service, Format and Timing of Filings and Other Papers


Sec.  18.30  Service and filing.

    (a) Service on parties.
    (1) In general. Unless these rules provide otherwise, all papers 
filed with OALJ or with the judge must be served on every party.
    (2) Service: how made.
    (A) Serving a party's representative. If a party is represented, 
service under this section must be made on the representative. The 
judge also may order service on the party.
    (B) Service in general. A paper is served under this section by:
    (i) handing it to the person;
    (ii) leaving it:
    (a) at the person's office with a clerk or other person in charge 
or, if no one is in charge, in a conspicuous place in the office; or
    (b) if the person has no office or the office is closed, at the 
person's dwelling or usual place of abode with someone of suitable age 
and discretion who resides there;
    (iii) mailing it to the person's last known address--in which event 
service is complete upon mailing;
    (iv) leaving it with the docket clerk if the person has no known 
address;
    (v) sending it by electronic means if the person consented in 
writing--in which event service is complete upon transmission, but is 
not effective if the serving party learns that it did not reach the 
person to be served; or
    (vi) delivering it by any other means that the person consented to 
in writing--in which event service is complete when the person making 
service delivers it to the agency designated to make delivery.
    (3) Certificate of service. A certificate of service is a signed 
written statement that the paper was served on all parties. The 
statement must include:
    (A) the title of the document;
    (B) the name and address of each person or representative being 
served;
    (C) the name of the party filing the paper and the party's 
representative, if any;
    (D) the date of service; and
    (E) how the paper was served.
    (b) Filing with Office of Administrative Law Judges.
    (1) Required filings. Any paper that is required to be served must 
be filed within a reasonable time after service with a certificate of 
service. But disclosures under Sec.  18.50(c) and the following 
discovery requests and responses must not be filed until they are used 
in the proceeding or the judge orders filing:
    (A) notices of deposition,
    (B) depositions,
    (C) interrogatories,
    (D) requests for documents or tangible things or to permit entry 
onto land; and
    (E) requests for admission.
    (2) Filing: when made--in general. A paper is filed when received 
by the docket clerk or the judge during a hearing.
    (3) Filing how made. A paper may be filed by mail, courier service, 
hand delivery, facsimile or electronic delivery.
    (A) Filing by facsimile.
    (i) When permitted. A party may file by facsimile only as directed 
or permitted by the judge. If a party cannot obtain prior permission 
because the judge is unavailable, a party may file by facsimile up to 
12 pages, including a statement of the circumstances precluding filing 
by delivery or mail. Based on the statement, the judge may later accept 
the document as properly filed at the time transmitted.
    (ii) Cover sheet. Filings by facsimile must include a cover sheet 
that identifies the sender, the total number of pages transmitted, and 
the matter's docket number and the document's title.
    (iii) Retention of the original document. The original signed 
document will not be substituted into the record unless required by law 
or the judge.
    (B) Any party filing a facsimile of a document must maintain the 
original document and transmission record until the case is final. A 
transmission record is a paper printed by the transmitting facsimile 
machine that states the telephone number of the receiving machine, the 
number of pages sent, the transmission time and an indication that no 
error in transmission occurred.
    (C) Upon a party's request or judge's order, the filing party must 
provide for review the original transmitted document from which the 
facsimile was produced.
    (4) Electronic filing, signing, or verification. A judge may allow 
papers to be filed, signed, or verified by electronic means.


Sec.  18.31  Privacy protection for filings and exhibits.

    (a) Redacted filings and exhibits. Unless the judge orders 
otherwise, in an electronic or paper filing or exhibit that contains an 
individual's Social-Security number, taxpayer-identification number, or 
birth date, the name of an individual known to be a minor, or a 
financial-account number, the party or nonparty making the filing must 
redact all such information, except:
    (1) the last four digits of the Social-Security number and 
taxpayer-identification number;
    (2) the year of the individual's birth;
    (3) the minor's initials; and
    (4) the last four digits of the financial-account number.
    (b) Exemptions from the redaction requirement. The redaction 
requirement does not apply to the following:
    (1) the record of an administrative or agency proceeding;
    (2) the official record of a state-court proceeding;
    (3) the record of a court or tribunal, if that record was not 
subject to the

[[Page 72179]]

redaction requirement when originally filed; and
    (4) a filing or exhibit covered by paragraph (c) of this section.
    (c) Option for filing a reference list. A filing that contains 
redacted information may be filed together with a reference list that 
identifies each item of redacted information and specifies an 
appropriate identifier that uniquely corresponds to each item listed. 
The reference list must be filed under seal and may be amended as of 
right. Any reference in the case to a listed identifier will be 
construed to refer to the corresponding item of information.
    (d) Waiver of protection of identifiers. A person waives the 
protection of paragraph (a) of this section as to the person's own 
information by filing or offering it without redaction and not under 
seal.
    (e) Protection of material. For good cause, the judge may order 
protection of material pursuant to Sec. Sec.  18.85, Privileged, 
sensitive, or classified material and 18.52, Protective orders.


Sec.  18.32  Computing and extending time.

    (a) Computing time. The following rules apply in computing any time 
period specified in these rules, a judge's order, or in any statute, 
regulation, or executive order that does not specify a method of 
computing time.
    (1) When the period is stated in days or a longer unit of time:
    (A) exclude the day of the event that triggers the period;
    (B) count every day, including intermediate Saturdays, Sundays, and 
legal holidays; and
    (C) include the last day of the period, but if the last day is a 
Saturday, Sunday, or legal holiday, the period continues to run until 
the end of the next day that is not a Saturday, Sunday, or legal 
holiday.
    (2) ``Last day'' defined. Unless a different time is set by a 
statute, regulation, executive order, or judge's order, the ``last 
day'' ends at 4:30 p.m. local time where the event is to occur.
    (3) ``Next day'' defined. The ``next day'' is determined by 
continuing to count forward when the period is measured after an event 
and backward when measured before an event.
    (4) ``Legal holiday'' defined. ``Legal holiday'' means the day set 
aside by statute for observing New Year's Day, Martin Luther King Jr.'s 
Birthday, Washington's Birthday, Memorial Day, Independence Day, Labor 
Day, Columbus Day, Veterans' Day, Thanksgiving Day, or Christmas Day; 
and any day declared a holiday by the President or Congress.
    (b) Extending time. When an act may or must be done within a 
specified time, the judge may, for good cause, extend the time:
    (1) with or without motion or notice if the judge acts, or if a 
request is made, before the original time or its extension expires; or
    (2) on motion made after the time has expired if the party failed 
to act because of excusable neglect.
    (c) Additional time after certain kinds of service. When a party 
may or must act within a specified time after service and service is 
made under Sec.  18.30(a)(2)(B)(iii) or (iv), 3 days are added after 
the period would otherwise expire under paragraph (a) of this section.


Sec.  18.33  Motions and other papers.

    (a) In general. A request for an order must be made by motion. The 
motion must:
    (1) be in writing, unless made during a hearing;
    (2) state with particularity the grounds for seeking the order;
    (3) state the relief sought;
    (4) unless the relief sought has been agreed to by all parties, be 
accompanied by affidavits, declarations, or other evidence; and
    (5) if required by subsection (c)(4), include a memorandum of 
points and authority supporting the movant's position.
    (b) Form. The rules governing captions and other matters of form 
apply to motions and other requests.
    (c) Written motion before hearing.
    (1) A written motion before a hearing must be served with 
supporting papers, at least 21 days before the time specified for the 
hearing, with the following exceptions:
    (A) when the motion may be heard ex parte;
    (B) when these rules or an appropriate statute, regulation, or 
executive order set a different time; or,
    (C) when an order sets a different time.
    (2) A written motion served within 21 days before the hearing must 
state why the motion was not made earlier.
    (3) A written motion before hearing must state that counsel 
conferred, or attempted to confer, with opposing counsel in a good 
faith effort to resolve the motion's subject matter, and whether the 
motion is opposed or unopposed. A statement of consultation is not 
required with pro se litigants or with the following motions:
    (A) to dismiss;
    (B) for summary decision; and
    (C) any motion filed as ``joint,'' ``agreed,'' or ``unopposed.''
    (4) Unless the motion is unopposed, the supporting papers must 
include affidavits, declarations or other proof to establish the 
factual basis for the relief. For a dispositive motion and a motion 
relating to discovery, a memorandum of points and authority must also 
be submitted. A Judge may direct the parties file additional documents 
in support of any motion.
    (d) Opposition or other response to a motion filed prior to 
hearing. A party to the proceeding may file an opposition or other 
response to the motion within 14 days after the motion is served. The 
opposition or response may be accompanied by affidavits, declarations, 
or other evidence, and a memorandum of the points and authorities 
supporting the party's position. Failure to file an opposition or 
response within 14 days after the motion is served may result in the 
requested relief being granted. Unless the judge directs otherwise, no 
further reply is permitted and no oral argument will be heard prior to 
hearing.
    (e) A motions made at hearing. A motion made at a hearing may be 
stated orally unless the judge determines that a written motion or 
response would best serve the ends of justice.
    (f) Renewed or repeated motions. A motion seeking the same or 
substantially similar relief previously denied, in whole or in part, 
must include the following information:
    (1) the earlier motion(s);
    (2) when the respective motion was made,
    (3) the judge to whom the motion was made,
    (4) the earlier ruling(s), and
    (5) the basis for the current motion.
    (g) Motion hearing. The judge may order a hearing to take evidence 
or oral argument on a motion.


Sec.  18.34  Format of papers filed.

    Every paper filed must be printed in black ink on 8.5 x 11-inch 
opaque white paper and begin with a caption that includes:
    (a) the parties' names,
    (b) a title that describes the paper's purpose, and
    (c) the docket number assigned by the Office of Administrative Law 
Judges. If the Office has not assigned a docket number, the paper must 
bear the case number assigned by the Department of Labor agency where 
the matter originated. If the case number is an individual's Social 
Security number then only the last four digits may be used. See 
18.31(a)(1).


Sec.  18.35  Signing motions and other papers; representations to the 
judge; sanctions.

    (a) Date and signature. Every written motion and other paper filed 
with OALJ must be dated and signed by at least one

[[Page 72180]]

representative of record in the representative's name--or by a party 
personally if the party is unrepresented. The paper must state the 
signer's address, telephone number, facsimile number and email address, 
if any. The judge must strike an unsigned paper unless the omission is 
promptly corrected after being called to the representative's or 
party's attention.
    (b) Representations to the judge. By presenting to the judge a 
written motion or other paper--whether by signing, filing, submitting, 
or later advocating it--the representative or unrepresented party 
certifies that to the best of the person's knowledge, information, and 
belief, formed after an inquiry reasonable under the circumstances:
    (1) it is not being presented for any improper purpose, such as to 
harass, cause unnecessary delay, or needlessly increase the cost of the 
proceedings;
    (2) the claims, defenses, and other legal contentions are warranted 
by existing law or by a nonfrivolous argument for extending, modifying, 
or reversing existing law or for establishing new law;
    (3) the factual contentions have evidentiary support or, if 
specifically so identified, will likely have evidentiary support after 
a reasonable opportunity for further investigation or discovery; and
    (4) the denials of factual contentions are warranted on the 
evidence or, if specifically so identified, are reasonably based on 
belief or a lack of information.
    (c) Sanctions.
    (1) In general. If, after notice and a reasonable opportunity to 
respond, the judge determines that paragraph (b) of this section has 
been violated, the judge may impose an appropriate sanction on any 
representative, law firm, or party that violated the rule or is 
responsible for the violation. Absent exceptional circumstances, a law 
firm must be held jointly responsible for a violation committed by its 
partner, associate, or employee.
    (2) Motion for sanctions. A motion for sanctions must be made 
separately from any other motion and must describe the specific conduct 
that allegedly violates paragraph (b) of this section. The motion must 
be served under Sec.  18.30(a), but it must not be filed or be 
presented to the judge if the challenged paper, claim, defense, 
contention, or denial is withdrawn or appropriately corrected within 21 
days after service or within another time the judge sets.
    (3) On the judge's initiative. On his or her own, the judge may 
order a representative, law firm, or party to show cause why conduct 
specifically described in the order has not violated paragraph (b) of 
this section.
    (4) Nature of a sanction. A sanction imposed under this section 
must be limited to what suffices to deter repetition of the conduct or 
comparable conduct by others similarly situated.
    (5) Requirements for an order. An order imposing a sanction must 
describe the sanctioned conduct and explain the basis for the sanction.
    (d) Inapplicability to discovery. This section does not apply to 
disclosures and discovery requests, responses, objections, and motions 
under Sec. Sec.  18.50 through 18.65.


Sec.  18.36  Amendments after referral to the Office of Administrative 
Law Judges.

    The judge may allow parties to amend and supplement their filings.

Prehearing Procedure


Sec.  18.40  Notice of hearing.

    (a) In general. Except when the hearing is scheduled by calendar 
call, the judge must notify the parties of the hearing's date, time, 
and place at least 14 days before the hearing. The notice is sent by 
regular, first-class mail, unless the judge determines that 
circumstances require service by certified mail or other means. The 
parties may agree to waive the 14-day notice for the hearing.
    (b) Date, time, and place. The judge must consider the convenience 
and necessity of the parties and the witnesses in selecting the date, 
time, and place of the hearing.


Sec.  18.41  Continuances and changes in place of hearing.

    (a) By the judge. Upon reasonable notice to the parties, the judge 
may change the time, date, and place of the hearing.
    (b) By a party's motion. A request by a party to continue a hearing 
or to change the place of the hearing must be made by motion.
    (1) Continuances. A motion for continuance must be filed promptly 
after the party becomes aware of the circumstances supporting the 
continuance. In exceptional circumstances, a party may orally request a 
continuance and must immediately notify the other parties of the 
continuance request.
    (2) Change in place of hearing. A motion to change the place of a 
hearing must be filed promptly.


Sec.  18.42  Expedited proceedings.

    A party may move to expedite the proceeding. The motion must 
demonstrate the specific harm that would result if the proceeding is 
not expedited. If the motion is granted, the formal hearing ordinarily 
will not be scheduled with less than 7 days notice to the parties, 
unless all parties consent to an earlier hearing.


Sec.  18.43  Consolidation; separate hearings.

    (a) Consolidation. If separate proceedings before the Office of the 
Administrative Law Judges involve a common question of law or fact, a 
judge may:
    (1) join for hearing any or all matters at issue in the 
proceedings;
    (2) consolidate the proceedings; or
    (3) issue any other orders to avoid unnecessary cost or delay.
    (b) Separate hearings. For convenience, to avoid prejudice, or to 
expedite and economize, the judge may order a separate hearing of one 
or more issues.


Sec.  18.44  Prehearing conference.

    (a) In general. The judge, with or without a motion, may order one 
or more prehearing conferences for such purposes as:
    (1) expediting disposition of the proceeding;
    (2) establishing early and continuing control so that the case will 
not be protracted because of lack of management;
    (3) discouraging wasteful prehearing activities;
    (4) improving the quality of the hearing through more thorough 
preparation; and
    (5) facilitating settlement.
    (b) Scheduling. Prehearing conferences may be conducted in person, 
by telephone, or other means after reasonable notice of time, place and 
manner of conference has been given.
    (c) Participation. All parties must participate in prehearing 
conferences as directed by the judge. A represented party must 
authorize at least one of its attorneys or representatives to make 
stipulations and admissions about all matters that can reasonably be 
anticipated for discussion at the prehearing conference, including 
possible settlement.
    (d) Matters for consideration. At the conference, the judge may 
consider and take appropriate actions on the following matters:
    (1) formulating and simplifying the issues, and eliminating 
frivolous claims or defenses;
    (2) amending the papers that had framed the issues before the 
matter was referred for hearing;
    (3) obtaining admissions and stipulations about facts and documents 
to avoid unnecessary proof, and ruling in advance on the admissibility 
of evidence;

[[Page 72181]]

    (4) avoiding unnecessary proof and cumulative evidence, and 
limiting the number of expert or other witnesses;
    (5) determining the appropriateness and timing of dispositive 
motions under Sec. Sec.  18.70 and 18.72;
    (6) controlling and scheduling discovery, including orders 
affecting disclosures and discovery under Sec. Sec.  18.50 through 
18.65;
    (7) identifying witnesses and documents, scheduling the filing and 
exchange of any exhibits and prehearing submissions, and setting dates 
for further conferences and for the hearing;
    (8) referring matters to a special master;
    (9) settling the case and using special procedures to assist in 
resolving the dispute such as the settlement judge procedure under 
Sec.  18.13, private mediation, and other means authorized by statute 
or regulation;
    (10) determining the form and content of prehearing orders;
    (11) disposing of pending motions;
    (12) adopting special procedures for managing potentially difficult 
or protracted proceedings that may involve complex issues, multiple 
parties, difficult legal questions, or unusual proof problems;
    (13) consolidating or ordering separate hearings under Sec.  18.43;
    (14) ordering the presentation of evidence early in the proceeding 
on a manageable issue that might, on the evidence, be the basis for 
disposing of the proceeding;
    (15) establishing a reasonable limit on the time allowed to present 
evidence; and
    (16) facilitating in other ways the just, speedy, and inexpensive 
disposition of the proceeding.
    (e) Reporting. The judge may direct that the prehearing conference 
be recorded and transcribed. If the conference is not recorded, the 
judge should summarize the conference proceedings on the record at the 
hearing or by separate prehearing notice or order.

Disclosure and Discovery


Sec.  18.50  General provisions governing disclosure and discovery.

    (a) Timing and sequence of discovery.
    (1) Timing. A party may seek discovery at any time after a judge 
issues an initial notice or order. But if the judge orders the parties 
to confer under paragraph (b) of this section:
    (A) the time to respond to any pending discovery requests is 
extended until the time agreed in the discovery plan, or that the judge 
sets in resolving disputes about the discovery plan, and
    (B) no party may seek additional discovery from any source before 
the parties have conferred as required by paragraph (b) of this 
section, except by stipulation.
    (2) Sequence. Unless, on motion, the judge orders otherwise for the 
parties' and witnesses' convenience and in the interests of justice:
    (A) methods of discovery may be used in any sequence; and
    (B) discovery by one party does not require any other party to 
delay its discovery.
    (b) Conference of the parties; planning for discovery.
    (1) In general. The judge may order the parties to confer on the 
matters described in paragraphs (b)(2) and (3) of this section.
    (2) Conference content; parties' responsibilities. In conferring, 
the parties must consider the nature and basis of their claims and 
defenses and the possibilities for promptly settling or resolving the 
case; make or arrange for the disclosures required by paragraph (c) of 
this section; discuss any issues about preserving discoverable 
information; and develop a proposed discovery plan. The representatives 
of record and all unrepresented parties that have appeared in the case 
are jointly responsible for arranging the conference, for attempting in 
good faith to agree on the proposed discovery plan, and for submitting 
to the judge within 14 days after the conference a written report 
outlining the plan. The judge may order the parties or representatives 
to attend the conference in person.
    (3) Discovery plan. A discovery plan must state the parties' views 
and proposals on:
    (A) what changes should be made in the timing, form, or requirement 
for disclosures under paragraph (c) of this section, including a 
statement of when initial disclosures were made or will be made;
    (B) the subjects on which discovery may be needed, when discovery 
should be completed, and whether discovery should be conducted in 
phases or be limited to or focused on particular issues;
    (C) any issues about disclosure or discovery of electronically 
stored information, including the form or forms in which it should be 
produced;
    (D) any issues about claims of privilege or of protection as 
hearing-preparation materials, including--if the parties agree on a 
procedure to assert these claims after production--whether to ask the 
judge to include their agreement in an order;
    (E) what changes should be made in the limitations on discovery 
imposed under these rules and what other limitations should be imposed; 
and
    (F) any other orders that the judge should issue under Sec.  18.52 
or under Sec.  18.44.
    (c) Required disclosures.
    (1) Initial disclosure.
    (A) In general. Except as exempted by paragraph (c)(1)(B) of this 
section or otherwise ordered by the judge, a party must, without 
awaiting a discovery request, provide to the other parties:
    (i) the name and, if known, the address and telephone number of 
each individual likely to have discoverable information--along with the 
subjects of that information--that the disclosing party may use to 
support its claims or defenses, unless the use would be solely for 
impeachment;
    (ii) a copy--or a description by category and location--of all 
documents, electronically stored information, and tangible things that 
the disclosing party has in its possession, custody, or control and may 
use to support its claims or defenses, unless the use would be solely 
for impeachment; and
    (iii) a computation of each category of damages claimed by the 
disclosing party--who must also make available for inspection and 
copying as under Sec.  18.61 the documents or other evidentiary 
material, unless privileged or protected from disclosure, on which each 
computation is based, including materials bearing on the nature and 
extent of injuries suffered.
    (B) Proceedings exempt from initial disclosure. The following 
proceedings are exempt from initial disclosure:
    (i) a proceeding under 29 CFR part 20 for review of an agency 
determination regarding the existence or amount of a debt, or the 
repayment schedule proposed by the agency;
    (ii) a proceeding before the Board of Alien Labor Certification 
Appeals under the Immigration and Nationality Act; and
    (iii) a proceeding under the regulations governing certification of 
H-2 non-immigrant temporary agricultural employment at 20 CFR part 655, 
subpart B;
    (iv) a rulemaking proceeding under the Occupational Safety and 
Health Act of 1970; and
    (v) a proceeding for civil penalty assessments under Employee 
Retirement Income Security Act of 1974, 29 U.S.C. 1132.
    (C) Parties Exempt from Initial Disclosure. The following parties 
are exempt from initial disclosure:
    (i) in a Black Lung benefits proceeding under 30 U.S.C. 901 et 
seq., the representative of the Office of

[[Page 72182]]

Workers' Compensation Programs of the Department of Labor, if an 
employer has been identified as the Responsible Operator and is a party 
to the proceeding (see 20 CFR 725.418(d)); and
    (ii) in a proceeding under the Longshore and Harbor Workers' 
Compensation Act, 33 U.S.C. 901 et seq., or an associated statute such 
as the Defense Base Act, 42 U.S.C. 1651 et seq., the representative of 
the Office of Workers' Compensation Programs of the Department of 
Labor, unless the Solicitor of Labor or the Solicitor's designee has 
elected to participate in the proceeding under 20 CFR 702.333(b), or 
unless an employer or carrier has applied for relief under the special 
fund, as defined in 33 U.S.C. 908(f).
    (D) Time for initial disclosures--in general. A party must make the 
initial disclosures required by paragraph (c)(1)(A) of this section 
within 21 days after an initial notice or order is entered 
acknowledging that the proceeding has been docketed at the OALJ unless 
(i) a different time is set by stipulation or a judge's order, or (ii) 
a party objects during the conference that initial disclosures are not 
appropriate in the proceeding and states the objection in the proposed 
discovery plan. In ruling on the objection, the judge must determine 
what disclosures, if any, are to be made and must set the time for 
disclosure.
    (E) Time for initial disclosures--for parties served or joined 
later. A party that is first served or otherwise joined later in the 
proceeding must make the initial disclosures within 21 days after being 
served or joined, unless a different time is set by stipulation or the 
judge's order.
    (F) Basis for initial disclosure; unacceptable excuses. A party 
must make its initial disclosures based on the information then 
reasonably available to it. A party is not excused from making its 
disclosures because it has not fully investigated the case or because 
it challenges the sufficiency of another party's disclosures or because 
another party has not made its disclosures.
    (2) Disclosure of expert testimony.
    (A) In general. A party must disclose to the other parties the 
identity of any witness who may testify at hearing, either live or by 
deposition. The judge should set the time for the disclosure by 
prehearing order.
    (B) Witnesses who must provide a written report. Unless otherwise 
stipulated or ordered by the judge, this disclosure must be accompanied 
by a written report--prepared and signed by the witness--if the witness 
is one retained or specially employed to provide expert testimony in 
the case or one whose duties as the party's employee regularly involve 
giving expert testimony. The report must contain:
    (i) a complete statement of all opinions the witness will express 
and the basis and reasons for them;
    (ii) the facts or data considered by the witness in forming them;
    (iii) any exhibits that will be used to summarize or support them;
    (iv) the witness's qualifications, including a list of all 
publications authored in the previous 10 years;
    (v) a list of all other cases in which, during the previous 4 
years, the witness testified as an expert at trial, a hearing, or by 
deposition; and
    (vi) a statement of the compensation to be paid for the study and 
testimony in the case.
    (C) Witnesses who do not provide a written report. Unless otherwise 
stipulated or ordered by the judge that the witness is not required to 
provide a written report, this disclosure must state:
    (i) the subject matter on which the witness is expected to present 
expert opinion evidence; and
    (ii) a summary of the facts and opinions to which the witness is 
expected to testify.
    (D) Supplementing the disclosure. The parties must supplement these 
disclosures when required under Sec.  18.53.
    (3) Prehearing disclosures. In addition to the disclosures required 
by paragraphs (c)(1) and (2) of this section, a party must provide to 
the other parties and promptly file the prehearing disclosures 
described in Sec.  18.80.
    (4) Form of disclosures. Unless the judge orders otherwise, all 
disclosures under paragraph (c) under this section must be in writing, 
signed, and served.
    (d) Signing disclosures and discovery requests, responses, and 
objections.
    (1) Signature required; effect of signature. Every disclosure under 
paragraph (c) of this section and every discovery request, response, or 
objection must be signed by at least one of the party's representatives 
in the representative's own name, or by the party personally if 
unrepresented, and must state the signer's address, telephone number, 
facsimile number, and email address, if any. By signing, a 
representative or party certifies that to the best of the person's 
knowledge, information, and belief formed after a reasonable inquiry:
    (A) with respect to a disclosure, it is complete and correct as of 
the time it is made; and
    (B) with respect to a discovery request, response, or objection, it 
is:
    (i) consistent with these rules and warranted by existing law or by 
a nonfrivolous argument for extending, modifying, or reversing existing 
law, or for establishing new law;
    (ii) not interposed for any improper purpose, such as to harass, 
cause unnecessary delay, or needlessly increase the cost of litigation; 
and
    (iii) neither unreasonable nor unduly burdensome or expensive, 
considering the needs of the case, prior discovery in the case, the 
amount in controversy, and the importance of the issues at stake in the 
action.
    (2) Failure to sign. Other parties have no duty to act on an 
unsigned disclosure, request, response, or objection until it is 
signed, and the judge must strike it unless a signature is promptly 
supplied after the omission is called to the representative's or 
party's attention.
    (3) Sanction for improper certification. If a certification 
violates this section without substantial justification, the judge, on 
motion or on his or her own, must impose an appropriate sanction, as 
provided in Sec.  18.57, on the signer, the party on whose behalf the 
signer was acting, or both.


Sec.  18.51  Discovery scope and limits.

    (a) Scope in general. Unless otherwise limited by a judge's order, 
the scope of discovery is as follows: Parties may obtain discovery 
regarding any nonprivileged matter that is relevant to any party's 
claim or defense--including the existence, description, nature, 
custody, condition, and location of any documents or other tangible 
things and the identity and location of persons who know of any 
discoverable matter. For good cause, the judge may order discovery of 
any matter relevant to the subject matter involved in the proceeding. 
Relevant information need not be admissible at the hearing if the 
discovery appears reasonably calculated to lead to the discovery of 
admissible evidence. All discovery is subject to the limitations 
imposed by paragraph (b)(4) of this section.
    (b) Limitations on frequency and extent.
    (1) When permitted. By order, the judge may alter the limits in 
these rules on the number of depositions and interrogatories or on the 
length of depositions under Sec.  18.64. The judge's order may also 
limit the number of requests under Sec.  18.63.
    (2) Specific limitations on electronically stored information. A 
party need not provide discovery of electronically stored information 
from sources that the party identifies as not

[[Page 72183]]

reasonably accessible because of undue burden or cost. On motion to 
compel discovery or for a protective order, the party from whom 
discovery is sought must show that the information is not reasonably 
accessible because of undue burden or cost. If that showing is made, 
the judge may nonetheless order discovery from such sources if the 
requesting party shows good cause, considering the limitations of 
paragraph (b)(4) of this section. The judge may specify conditions for 
the discovery.
    (3) By requesting electronically stored information, a party 
consents to the application of Federal Rule of Evidence 502 with regard 
to inadvertently disclosed privileged or protected information.
    (4) When required. On motion or on his or her own, the judge must 
limit the frequency or extent of discovery otherwise allowed by these 
rules when:
    (A) the discovery sought is unreasonably cumulative or duplicative, 
or can be obtained from some other source that is more convenient, less 
burdensome, or less expensive;
    (B) the party seeking discovery has had ample opportunity to obtain 
the information by discovery in the action; or
    (C) the burden or expense of the proposed discovery outweighs its 
likely benefit, considering the needs of the case, the amount in 
controversy, the parties' resources, the importance of the issues at 
stake in the action, and the importance of the discovery in resolving 
the issues.
    (c) Hearing preparation: materials.
    (1) Documents and tangible things. Ordinarily, a party may not 
discover documents and tangible things that are prepared in 
anticipation of litigation or for hearing by or for another party or 
its representative (including the other party's attorney, consultant, 
surety, indemnitor, insurer, or agent). But, subject to paragraph (d) 
of this section, those materials may be discovered if:
    (A) they are otherwise discoverable under paragraph (a) of this 
section; and
    (B) the party shows that it has substantial need for the materials 
to prepare its case and cannot, without undue hardship, obtain their 
substantial equivalent by other means.
    (2) Protection against disclosure. A judge who orders discovery of 
those materials must protect against disclosure of the mental 
impressions, conclusions, opinions, or legal theories of a party's 
representative concerning the litigation.
    (3) Previous statement. Any party or other person may, on request 
and without the required showing, obtain the person's own previous 
statement about the action or its subject matter. If the request is 
refused, the person may move for a judge's order. A previous statement 
is either:
    (A) a written statement that the person has signed or otherwise 
adopted or approved; or
    (B) a contemporaneous stenographic, mechanical, electrical, or 
other recording--or a transcription of it--that recites substantially 
verbatim the person's oral statement.
    (d) Hearing preparation: experts.
    (1) Deposition of an expert who may testify. A party may depose any 
person who has been identified as an expert whose opinions may be 
presented at trial. If Sec.  18.50(c)(2)(B) requires a report from the 
expert the deposition may be conducted only after the report is 
provided, unless the parties stipulate otherwise.
    (2) Hearing-preparation protection for draft reports or 
disclosures. Paragraphs (c)(1) and (2) of this section protect drafts 
of any report or disclosure required under Sec.  18.50(c)(2), 
regardless of the form in which the draft is recorded.
    (3) Hearing-preparation protection for communications between a 
party's representative and expert witnesses. Paragraphs (c)(1) and (2) 
under this section protect communications between the party's 
representative and any witness required to provide a report under Sec.  
18.50(c)(2)(B), regardless of the form of the communications, except to 
the extent that the communications:
    (A) relate to compensation for the expert's study or testimony;
    (B) identify facts or data that the party's representative provided 
and that the expert considered in forming the opinions to be expressed; 
or
    (C) identify assumptions that the party's representative provided 
and that the expert relied on in forming the opinions to be expressed.
    (4) Expert employed only for hearing preparation. Ordinarily, a 
party may not, by interrogatories or deposition, discover facts known 
or opinions held by an expert who has been retained or specially 
employed by another party in anticipation of litigation or to prepare 
for hearing and whose testimony is not anticipated to be used at the 
hearing. But a party may do so only:
    (A) as provided in Sec.  18.62(b); or
    (B) on showing exceptional circumstances under which it is 
impracticable for the party to obtain facts or opinions on the same 
subject by other means.
    (e) Claiming privilege or protecting hearing-preparation materials.
    (1) Information withheld. When a party withholds information 
otherwise discoverable by claiming that the information is privileged 
or subject to protection as hearing-preparation material, the party 
must:
    (A) expressly make the claim; and
    (B) describe the nature of the documents, communications, or 
tangible things not produced or disclosed--and do so in a manner that, 
without revealing information itself privileged or protected, will 
enable other parties to assess the claim.
    (2) Information produced. If information produced in discovery is 
subject to a claim of privilege or of protection as hearing-preparation 
material, the party making the claim must notify any party that 
received the information of the claim and the basis for it. After being 
notified, a party must promptly return, sequester, or destroy the 
specified information and any copies it has; must not use or disclose 
the information until the claim is resolved; must take reasonable steps 
to retrieve the information if the party disclosed it before being 
notified; and may promptly present the information to the judge for an 
in camera determination of the claim. The producing party must preserve 
the information until the claim is resolved.


Sec.  18.52  Protective orders.

    (a) In general. A party or any person from whom discovery is sought 
may file a written motion for a protective order. The motion must 
include a certification that the movant has in good faith conferred or 
attempted to confer with other affected parties in an effort to resolve 
the dispute without the judge's action. The judge may, for good cause, 
issue an order to protect a party or person from annoyance, 
embarrassment, oppression, or undue burden or expense, including one or 
more of the following:
    (1) forbidding the disclosure or discovery;
    (2) specifying terms, including time and place, for the disclosure 
or discovery;
    (3) prescribing a discovery method other than the one selected by 
the party seeking discovery;
    (4) forbidding inquiry into certain matters, or limiting the scope 
of disclosure or discovery to certain matters;
    (5) designating the persons who may be present while the discovery 
is conducted;
    (6) requiring that a deposition be sealed and opened only on the 
judge's order;
    (7) requiring that a trade secret or other confidential research, 
development, or commercial

[[Page 72184]]

information not be revealed or be revealed only in a specified way; and
    (8) requiring that the parties simultaneously file specified 
documents or information in sealed envelopes, to be opened as the judge 
directs.
    (b) Ordering discovery. If a motion for a protective order is 
wholly or partly denied, the judge may, on just terms, order that any 
party or person provide or permit discovery.


Sec.  18.53  Supplementing disclosures and responses.

    (a) In general. A party who has made a disclosure under Sec.  
18.50(c)--or who has responded to an interrogatory, request for 
production, or request for admission--must supplement or correct its 
disclosure or response:
    (1) in a timely manner if the party learns that in some material 
respect the disclosure or response is incomplete or incorrect, and if 
the additional or corrective information has not otherwise been made 
known to the other parties during the discovery process or in writing; 
or
    (2) as ordered by the judge.
    (b) Expert witness. For an expert whose report must be disclosed 
under Sec.  18.50(c)(2)(B), the party's duty to supplement extends both 
to information included in the report and to information given during 
the expert's deposition. Any additions or changes to this information 
must be disclosed by the time the party's prehearing disclosures under 
Sec.  18.50(c)(3) are due.


Sec.  18.54  Stipulations about discovery procedure.

    Unless the judge orders otherwise, the parties may stipulate that:
    (a) a deposition may be taken before any person, at any time or 
place, on any notice, and in the manner specified--in which event it 
may be used in the same way as any other deposition; and
    (b) other procedures governing or limiting discovery be modified--
but a stipulation extending the time for any form of discovery must 
have the judge's approval if it would interfere with the time set for 
completing discovery, for hearing a motion, or for hearing.


Sec.  18.55  Using depositions at hearings.

    (a) Using depositions.
    (1) In general. At a hearing, all or part of a deposition may be 
used against a party on these conditions:
    (A) the party was present or represented at the taking of the 
deposition or had reasonable notice of it;
    (B) it is used to the extent it would be admissible under the 
applicable rules of evidence if the deponent were present and 
testifying; and
    (C) the use is allowed by paragraphs (a)(2) through (8) of this 
section.
    (2) Impeachment and other uses. Any party may use a deposition to 
contradict or impeach the testimony given by the deponent as a witness, 
or for any other purpose allowed by the applicable rules of evidence.
    (3) Deposition of party, agent, or designee. An adverse party may 
use for any purpose the deposition of a party or anyone who, when 
deposed, was the party's officer, director, managing agent, or designee 
under Sec.  18.64(b)(6) or Sec.  18.65(a)(4).
    (4) Deposition of expert, treating physician, or examining 
physician. A party may use for any purpose the deposition of an expert 
witness, treating physician or examining physician.
    (5) Unavailable witness. A party may use for any purpose the 
deposition of a witness, whether or not a party, if the judge finds:
    (A) that the witness is dead;
    (B) that the witness is more than 100 miles from the place of 
hearing or is outside the United States, unless it appears that the 
witness's absence was procured by the party offering the deposition;
    (C) that the witness cannot attend or testify because of age, 
illness, infirmity, or imprisonment;
    (D) that the party offering the deposition could not procure the 
witness's attendance by subpoena; or
    (E) on motion and notice, that exceptional circumstances make it 
desirable--in the interests of justice and with due regard to the 
importance of live testimony in an open hearing--to permit the 
deposition to be used.
    (6) Limitations on use.
    (A) Deposition taken on short notice. A deposition must not be used 
against a party who, having received less than 14 days' notice of the 
deposition, promptly moved for a protective order under Sec.  
18.52(a)(2) requesting that it not be taken or be taken at a different 
time or place--and this motion was still pending when the deposition 
was taken.
    (B) Unavailable deponent; party could not obtain a representative. 
A deposition taken without leave of the judge under the unavailability 
provision of Sec.  18.64(a)(2)(A)(iii) must not be used against a party 
who shows that, when served with the notice, it could not, despite 
diligent efforts, obtain a representative to represent it at the 
deposition.
    (7) Using part of a deposition. If a party offers in evidence only 
part of a deposition, an adverse party may require the offeror to 
introduce other parts that in fairness should be considered with the 
part introduced, and any party may itself introduce any other parts.
    (8) Deposition taken in an earlier action. A deposition lawfully 
taken may be used in a later action involving the same subject matter 
between the same parties, or their representatives or successors in 
interest, to the same extent as if taken in the later action. A 
deposition previously taken may also be used as allowed by the 
applicable rules of evidence.
    (b) Objections to admissibility. Subject to paragraph (d)(3) of 
this section, an objection may be made at a hearing to the admission of 
any deposition testimony that would be inadmissible if the witness were 
present and testifying.
    (c) Form of presentation. Unless the judge orders otherwise, a 
party must provide a transcript of any deposition testimony the party 
offers, but the judge may receive the testimony in nontranscript form 
as well.
    (d) Waiver of objections.
    (1) To the notice. An objection to an error or irregularity in a 
deposition notice is waived unless promptly served in writing on the 
party giving the notice.
    (2) To the officer's qualification. An objection based on 
disqualification of the officer before whom a deposition is to be taken 
is waived if not made:
    (A) before the deposition begins; or
    (B) promptly after the basis for disqualification becomes known or, 
with reasonable diligence, could have been known.
    (3) To the taking of the deposition.
    (A) Objection to competence, relevance, or materiality. An 
objection to a deponent's competence--or to the competence, relevance, 
or materiality of testimony--is not waived by a failure to make the 
objection before or during the deposition, unless the ground for it 
might have been corrected at that time.
    (B) Objection to an error or irregularity. An objection to an error 
or irregularity at an oral examination is waived if:
    (i) it relates to the manner of taking the deposition, the form of 
a question or answer, the oath or affirmation, a party's conduct, or 
other matters that might have been corrected at that time; and
    (ii) it is not timely made during the deposition.
    (C) Objection to a written question. An objection to the form of a 
written question under Sec.  18.65 is waived if not served in writing 
on the party submitting the question within the time for serving 
responsive questions or, if the question is a recross-question, within 
7 days after being served with it.
    (4) To completing and returning the deposition. An objection to how 
the officer transcribed the testimony--or

[[Page 72185]]

prepared, signed, certified, sealed, endorsed, sent, or otherwise dealt 
with the deposition--is waived unless a motion to suppress is made 
promptly after the error or irregularity becomes known or, with 
reasonable diligence, could have been known.


Sec.  18.56  Subpoena.

    (a) In general.
    (1) Upon written application of a party the judge may issue a 
subpoena authorized by statute or law that requires a witness to attend 
and to produce relevant papers, books, documents, or tangible things in 
the witness' possession or under the witness' control.
    (2) Form and contents.
    (A) Requirements--in general. Every subpoena must:
    (i) state the title of the matter and show the case number assigned 
by the Office of Administrative Law Judges or the Office of Worker's 
Compensation Programs. In the event that the case number is an 
individual's Social Security number only the last four numbers may be 
used. See Sec.  18.31(a)(1);
    (ii) bear either the signature of the issuing judge or the 
signature of an attorney authorized to issue the subpoena under 
paragraph (a)(3) of this section;
    (iii) command each person to whom it is directed to do the 
following at a specified time and place: attend and testify; produce 
designated documents, electronically stored information, or tangible 
things in that person's possession, custody, or control; or permit the 
inspection of premises; and
    (iv) set out the text of paragraphs (c) and (d) of this section.
    (B) Command to attend a deposition--notice of the recording method. 
A subpoena commanding attendance at a deposition must state the method 
for recording the testimony.
    (C) Combining or separating a command to produce or to permit 
inspection; specifying the form for electronically stored information. 
A command to produce documents, electronically stored information, or 
tangible things or to permit the inspection of premises may be included 
in a subpoena commanding attendance at a deposition or hearing, or may 
be set out in a separate subpoena. A subpoena may specify the form or 
forms in which electronically stored information is to be produced.
    (D) Command to produce; included obligations. A command in a 
subpoena to produce documents, electronically stored information, or 
tangible things requires the responding party to permit inspection, 
copying, testing, or sampling of the materials.
    (3) The judge may, by order in a specific proceeding, authorize an 
attorney representative to issue and sign a subpoena.
    (b) Service.
    (1) By whom; tendering fees; serving a copy of certain subpoenas. 
Any person who is at least 18 years old and not a party may serve a 
subpoena. Serving a subpoena requires delivering a copy to the named 
person and, if the subpoena requires that person's attendance, 
tendering with it the fees for 1 day's attendance and the mileage 
allowed by law. Service may also be made by certified mail with return 
receipt. Fees and mileage need not be tendered when the subpoena issues 
on behalf of the United States or any of its officers or agencies. If 
the subpoena commands the production of documents, electronically 
stored information, or tangible things or the inspection of premises 
before the formal hearing, then before it is served, a notice must be 
served on each party.
    (2) Service in the United States. Subject to paragraph 
(c)(3)(A)(ii) of this section, a subpoena may be served at any place 
within a State, Commonwealth, or Territory of the United States, or the 
District of Columbia.
    (3) Service in a foreign country. 28 U.S.C. 1783 governs issuing 
and serving a subpoena directed to a United States national or resident 
who is in a foreign country.
    (4) Proof of service. Proving service, when necessary, requires 
filing with the judge a statement showing the date and manner of 
service and the names of the persons served. The statement must be 
certified by the server.
    (c) Protecting a person subject to a subpoena.
    (1) Avoiding undue burden; sanctions. A party or representative 
responsible for requesting, issuing, or serving a subpoena must take 
reasonable steps to avoid imposing undue burden on a person subject to 
the subpoena. The judge must enforce this duty and impose an 
appropriate sanction.
    (2) Command to produce materials or permit inspection.
    (A) Appearance not required. A person commanded to produce 
documents, electronically stored information, or tangible things, or to 
permit the inspection of premises, need not appear in person at the 
place of production or inspection unless also commanded to appear for a 
deposition or hearing.
    (B) Objections. A person commanded to produce documents or tangible 
things or to permit inspection may serve on the party or representative 
designated in the subpoena a written objection to inspecting, copying, 
testing or sampling any or all of the materials or to inspecting the 
premises--or to producing electronically stored information in the form 
or forms requested. The objection must be served before the earlier of 
the time specified for compliance or 14 days after the subpoena is 
served. If an objection is made, the following rules apply:
    (i) At any time, on notice to the commanded person, the serving 
party may move the judge for an order compelling production or 
inspection.
    (ii) These acts may be required only as directed in the order, and 
the order must protect a person who is neither a party nor a party's 
officer from significant expense resulting from compliance.
    (3) Quashing or modifying a subpoena.
    (A) When required. On timely motion, the judge must quash or modify 
a subpoena that:
    (i) fails to allow a reasonable time to comply;
    (ii) requires a person who is neither a party nor a party's officer 
to travel more than 100 miles from where that person resides, is 
employed, or regularly transacts business in person--except that, 
subject to paragraph (c)(3)(B)(iii) of this section, the person may be 
commanded to attend the formal hearing;
    (iii) requires disclosure of privileged or other protected matter, 
if no exception or waiver applies; or
    (iv) subjects a person to undue burden.
    (B) When permitted. To protect a person subject to or otherwise 
affected by a subpoena, the judge may, on motion, quash or modify the 
subpoena if it requires:
    (i) disclosing a trade secret or other confidential research, 
development, or commercial information;
    (ii) disclosing an unretained expert's opinion or information that 
does not describe specific occurrences in dispute and results from the 
expert's study that was not requested by a party; or
    (iii) a person who is neither a party nor a party's officer to 
incur substantial expense to travel more than 100 miles to attend the 
formal hearing.
    (C) Specifying conditions as an alternative. In the circumstances 
described in paragraph (c)(3)(B) of this section, the judge may, 
instead of quashing or modifying a subpoena, order appearance or 
production under specified conditions if the serving party:
    (i) shows a substantial need for the testimony or material that 
cannot be

[[Page 72186]]

otherwise met without undue hardship; and
    (ii) ensures that the subpoenaed person will be reasonably 
compensated.
    (d) Duties in responding to a subpoena.
    (1) Producing documents or electronically stored information. These 
procedures apply to producing documents or electronically stored 
information:
    (A) Documents. A person responding to a subpoena to produce 
documents must produce them as they are kept in the ordinary course of 
business or must organize and label them to correspond to the 
categories in the demand.
    (B) Form for producing electronically stored information not 
specified. If a subpoena does not specify a form for producing 
electronically stored information, the person responding must produce 
it in a form or forms in which it is ordinarily maintained or in a 
reasonably usable form or forms.
    (C) Electronically stored information produced in only one form. 
The person responding need not produce the same electronically stored 
information in more than one form.
    (D) Inaccessible electronically stored information. The person 
responding need not provide discovery of electronically stored 
information from sources that the person identifies as not reasonably 
accessible because of undue burden or cost. On motion to compel 
discovery or for a protective order, the person responding must show 
that the information is not reasonably accessible because of undue 
burden or cost. If that showing is made, the judge may nonetheless 
order discovery from such sources if the requesting party shows good 
cause, considering the limitations of Sec.  18.51(b)(4)(C). The judge 
may specify conditions for the discovery.
    (2) Claiming privilege or protection.
    (A) Information withheld. A person withholding subpoenaed 
information under a claim that it is privileged or subject to 
protection as hearing-preparation material must:
    (i) expressly make the claim; and
    (ii) describe the nature of the withheld documents, communications, 
or tangible things in a manner that, without revealing information 
itself privileged or protected, will enable the parties to assess the 
claim.
    (B) Information produced. If information produced in response to a 
subpoena is subject to a claim of privilege or of protection as 
hearing-preparation material, the person making the claim may notify 
any party that received the information of the claim and the basis for 
it. After being notified, a party must promptly return, sequester, or 
destroy the specified information and any copies it has; must not use 
or disclose the information until the claim is resolved; must take 
reasonable steps to retrieve the information if the party disclosed it 
before being notified; and may promptly present the information to the 
judge in camera for a determination of the claim. The person who 
produced the information must preserve the information until the claim 
is resolved.
    (e) Failure to obey. When a person fails to obey a subpoena, the 
party adversely affected by the failure may, when authorized by statute 
or by law, apply to the appropriate district court to enforce the 
subpoena.


Sec.  18.57  Failure to make disclosures or to cooperate in discovery; 
sanctions.

    (a) Motion for an order compelling disclosure or discovery.
    (1) In general. On notice to other parties and all affected 
persons, a party may move for an order compelling disclosure or 
discovery. The motion must include a certification that the movant has 
in good faith conferred or attempted to confer with the person or party 
failing to make disclosure or discovery in an effort to obtain it 
without the judge's action.
    (2) Specific motions.
    (A) To compel disclosure. If a party fails to make a disclosure 
required by Sec.  18.50(c), any other party may move to compel 
disclosure and for appropriate sanctions.
    (B) To compel a discovery response. A party seeking discovery may 
move for an order compelling an answer, designation, production, or 
inspection. This motion may be made if:
    (i) a deponent fails to answer a question asked under Sec. Sec.  
18.64 and 18.65;
    (ii) a corporation or other entity fails to make a designation 
under Sec. Sec.  18.64(d) and 18.65(a)(4);
    (iii) a party fails to answer an interrogatory submitted under 
Sec.  18.60; or
    (iv) a party fails to respond that inspection will be permitted--or 
fails to permit inspection--as requested under Sec.  18.61.
    (C) Related to a deposition. When taking an oral deposition, the 
party asking a question may complete or adjourn the examination before 
moving for an order.
    (3) Evasive or incomplete disclosure, answer, or response. For 
purposes of paragraph (a) of this section, an evasive or incomplete 
disclosure, answer, or response must be treated as a failure to 
disclose, answer, or respond.
    (b) Failure to comply with a judge's order.
    (1) For not obeying a discovery order. If a party or a party's 
officer, director, or managing agent--or a witness designated under 
Sec. Sec.  18.64(b)(6) and 18.65(a)(4)--fails to obey an order to 
provide or permit discovery, including an order under Sec.  18.50(b) or 
paragraph (a) of this section, the judge may issue further just orders. 
They may include the following:
    (A) directing that the matters embraced in the order or other 
designated facts be taken as established for purposes of the 
proceeding, as the prevailing party claims;
    (B) prohibiting the disobedient party from supporting or opposing 
designated claims or defenses, or from introducing designated matters 
in evidence;
    (C) striking claims or defenses in whole or in part;
    (D) staying further proceedings until the order is obeyed;
    (E) dismissing the proceeding in whole or in part; or
    (F) rendering a default decision and order against the disobedient 
party;
    (2) For not producing a person for examination. If a party fails to 
comply with an order under Sec.  18.62 requiring it to produce another 
person for examination, the judge may issue any of the orders listed in 
paragraph (b)(1) of this section, unless the disobedient party shows 
that it cannot produce the other person.
    (c) Failure to disclose, to supplement an earlier response, or to 
admit. If a party fails to provide information or identify a witness as 
required by Sec. Sec.  18.50(c) and 18.53, or if a party fails to admit 
what is requested under Sec.  18.63(a) and the requesting party later 
proves a document to be genuine or the matter true, the party is not 
allowed to use that information or witness to supply evidence on a 
motion or at a hearing, unless the failure was substantially justified 
or is harmless. In addition to or instead of this sanction, the judge, 
on motion and after giving an opportunity to be heard may impose other 
appropriate sanctions, including any of the orders listed in paragraph 
(b)(1) of this section.
    (d) Party's failure to attend its own deposition, serve answers to 
interrogatories, or respond to a request for inspection.
    (1) In general.
    (A) Motion; grounds for sanctions. The judge may, on motion, order 
sanctions if:
    (i) a party or a party's officer, director, or managing agent--or a 
person designated under Sec. Sec.  18.64(b)(6) and 18.65(a)(4)--fails, 
after being served with proper notice, to appear for that person's 
deposition; or

[[Page 72187]]

    (ii) a party, after being properly served with interrogatories 
under Sec.  18.60 or a request for inspection under Sec.  18.61, fails 
to serve its answers, objections, or written response.
    (B) Certification. A motion for sanctions for failing to answer or 
respond must include a certification that the movant has in good faith 
conferred or attempted to confer with the party failing to act in an 
effort to obtain the answer or response without the judge's action.
    (2) Unacceptable excuse for failing to act. A failure described in 
paragraph (d)(1)(A) of this section is not excused on the ground that 
the discovery sought was objectionable, unless the party failing to act 
has a pending motion for a protective order under Sec.  18.52(a).
    (3) Types of sanctions. Sanctions may include any of the orders 
listed in paragraph (b)(1) of this section.
    (e) Failure to provide electronically stored information. Absent 
exceptional circumstances, a judge may not impose sanctions under these 
rules on a party for failing to provide electronically stored 
information lost as a result of the routine, good-faith operation of an 
electronic information system.
    (f) Procedure. A judge may impose sanctions under this section 
upon:
    (1) a separately filed motion; or
    (2) notice from the judge followed by a reasonable opportunity to 
be heard.

Types of Discovery


Sec.  18.60  Interrogatories to parties.

    (a) In general.
    (1) Number. Unless otherwise stipulated or ordered by the judge, a 
party may serve on any other party no more than 25 written 
interrogatories, including all discrete subparts. Leave to serve 
additional interrogatories may be granted to the extent consistent with 
Sec.  18.51.
    (2) Scope. An interrogatory may relate to any matter that may be 
inquired into under Sec.  18.51. An interrogatory is not objectionable 
merely because it asks for an opinion or contention that relates to 
fact or the application of law to fact, but the judge may order that 
the interrogatory need not be answered until designated discovery is 
complete, or until a prehearing conference or some other time.
    (b) Answers and objections.
    (1) Responding party. The interrogatories must be answered:
    (A) by the party to whom they are directed; or
    (B) if that party is a public or private corporation, a 
partnership, an association, or a governmental agency, by any officer 
or agent, who must furnish the information available to the party.
    (2) Time to respond. The responding party must serve its answers 
and any objections within 30 days after being served with the 
interrogatories. A shorter or longer time may be stipulated to under 
Sec.  18.54 or be ordered by the judge.
    (3) Answering each interrogatory. Each interrogatory must, to the 
extent it is not objected to, be answered separately and fully in 
writing under oath.
    (4) Objections. The grounds for objecting to an interrogatory must 
be stated with specificity. Any ground not stated in a timely objection 
is waived unless the judge, for good cause, excuses the failure.
    (5) Signature. The person who makes the answers must sign them, and 
the attorney or non-attorney representative who objects must sign any 
objections.
    (c) Use. An answer to an interrogatory may be used to the extent 
allowed by the applicable rules of evidence.
    (d) Option to produce business records. If the answer to an 
interrogatory may be determined by examining, auditing, compiling, 
abstracting, or summarizing a party's business records (including 
electronically stored information), and if the burden of deriving or 
ascertaining the answer will be substantially the same for either 
party, the responding party may answer by:
    (1) specifying the records that must be reviewed, in sufficient 
detail to enable the interrogating party to locate and identify them as 
readily as the responding party could; and
    (2) giving the interrogating party a reasonable opportunity to 
examine and audit the records and to make copies, compilations, 
abstracts, or summaries.


Sec.  18.61  Producing documents, electronically stored information, 
and tangible things, or entering onto land, for inspection and other 
purposes.

    (a) In general. A party may serve on any other party a request 
within the scope of Sec.  18.51:
    (1) to produce and permit the requesting party or its 
representative to inspect, copy, test, or sample the following items in 
the responding party's possession, custody, or control:
    (A) any designated documents or electronically stored information--
including writings, drawings, graphs, charts, photographs, sound 
recordings, images, and other data or data compilations--stored in any 
medium from which information can be obtained either directly or, if 
necessary, after translation by the responding party into a reasonably 
usable form; or
    (B) any designated tangible things; or
    (2) to permit entry onto designated land or other property 
possessed or controlled by the responding party, so that the requesting 
party may inspect, measure, survey, photograph, test, or sample the 
property or any designated object or operation on it.
    (b) Procedure.
    (1) Contents of the request. The request:
    (A) must describe with reasonable particularity each item or 
category of items to be inspected;
    (B) must specify a reasonable time, place, and manner for the 
inspection and for performing the related acts; and
    (C) may specify the form or forms in which electronically stored 
information is to be produced.
    (2) Responses and objections.
    (A) Time to respond. The party to whom the request is directed must 
respond in writing within 30 days after being served. A shorter or 
longer time may be stipulated to under Sec.  18.54 or be ordered by the 
judge.
    (B) Responding to each item. For each item or category, the 
response must either state that inspection and related activities will 
be permitted as requested or state an objection to the request, 
including the reasons.
    (C) Objections. An objection to part of a request must specify the 
part and permit inspection of the rest.
    (D) Responding to a request for production of electronically stored 
information. The response may state an objection to a requested form 
for producing electronically stored information. If the responding 
party objects to a requested form--or if no form was specified in the 
request--the party must state the form or forms it intends to use.
    (E) Producing the documents or electronically stored information. 
Unless otherwise stipulated or ordered by the judge, these procedures 
apply to producing documents or electronically stored information:
    (i) A party must produce documents as they are kept in the usual 
course of business or must organize and label them to correspond to the 
categories in the request;
    (ii) If a request does not specify a form for producing 
electronically stored information, a party must produce it in a form or 
forms in which it is ordinarily maintained or in a reasonably usable 
form or forms; and
    (iii) A party need not produce the same electronically stored 
information in more than one form.
    (c) Nonparties. As provided in Sec.  18.56, a nonparty may be 
compelled to produce documents and tangible things or to permit an 
inspection.

[[Page 72188]]

Sec.  18.62  Physical and mental examinations.

    (a) Examination by notice.
    (1) In general. A party may serve upon another party whose mental 
or physical condition is in controversy a notice to attend and submit 
to an examination by a suitably licensed or certified examiner.
    (2) Contents of the notice. The notice must specify:
    (A) the legal basis for the examination;
    (B) the time, place, manner, conditions, and scope of the 
examination, as well as the person or persons who will perform it; and
    (C) how the reasonable transportation expenses were calculated.
    (3) Service of notice. Unless otherwise agreed by the parties, the 
notice must be served no fewer than 14 days before the examination 
date.
    (4) Objection. The person to be examined must serve any objection 
to the notice no later than 7 days after the notice is served. The 
objection must be stated with particularity.
    (b) Examination by motion.
    Upon objection by the person to be examined the requesting party 
may file a motion to compel a physical or mental examination. The 
motion must include the elements required by paragraph (a)(2) of this 
section.
    (c) Examiner's report.
    (1) Delivery of the report. The party who initiated the examination 
must, deliver a complete copy of the examination report to the party 
examined, together with like reports of all earlier examinations of the 
same condition.
    (2) Contents. The examiner's report must be in writing and must set 
out in detail the examiner's findings, including diagnoses, 
conclusions, and the results of any tests.


Sec.  18.63  Requests for admission.

    (a) Scope and procedure.
    (1) Scope. A party may serve on any other party a written request 
to admit, for purposes of the pending action only, the truth of any 
matters within the scope of Sec.  18.51 relating to:
    (A) facts, the application of law to fact, or opinions about 
either; and
    (B) the genuineness of any described documents.
    (2) Form; copy of a document. Each matter must be separately 
stated. A request to admit the genuineness of a document must be 
accompanied by a copy of the document unless it is, or has been, 
otherwise furnished or made available for inspection and copying.
    (3) Time to respond; effect of not responding. A matter is admitted 
unless, within 30 days after being served, the party to whom the 
request is directed serves on the requesting party a written answer or 
objection addressed to the matter and signed by the party or its 
attorney. A shorter or longer time for responding may be stipulated to 
under Sec.  18.54 or be ordered by the judge.
    (4) Answer. If a matter is not admitted, the answer must 
specifically deny it or state in detail why the answering party cannot 
truthfully admit or deny it. A denial must fairly respond to the 
substance of the matter; and when good faith requires that a party 
qualify an answer or deny only a part of a matter, the answer must 
specify the part admitted and qualify or deny the rest. The answering 
party may assert lack of knowledge or information as a reason for 
failing to admit or deny only if the party states that it has made 
reasonable inquiry and that the information it knows or can readily 
obtain is insufficient to enable it to admit or deny.
    (5) Objections. The grounds for objecting to a request must be 
stated. A party must not object solely on the ground that the request 
presents a genuine issue for hearing.
    (6) Motion regarding the sufficiency of an answer or objection. The 
requesting party may move to determine the sufficiency of an answer or 
objection. Unless the judge finds an objection justified, the judge 
must order that an answer be served. On finding that an answer does not 
comply with this section, the judge may order either that the matter is 
admitted or that an amended answer be served. The judge may defer final 
decision until a prehearing conference or a specified time before the 
hearing.
    (b) Effect of an admission; withdrawing or amending it. A matter 
admitted under this section is conclusively established unless the 
judge, on motion, permits the admission to be withdrawn or amended. The 
judge may permit withdrawal or amendment if it would promote the 
presentation of the merits of the action and if the judge is not 
persuaded that it would prejudice the requesting party in maintaining 
or defending the action on the merits. An admission under this section 
is not an admission for any other purpose and cannot be used against 
the party in any other proceeding.


Sec.  18.64  Depositions by oral examination.

    (a) When a deposition may be taken.
    (1) Without leave. A party may, by oral questions, depose any 
person, including a party, without leave of the judge except as 
provided in paragraph (a)(2) of this section. The deponent's attendance 
may be compelled by subpoena under Sec.  18.56.
    (2) With leave. A party must obtain leave of the judge, and the 
judge must grant leave to the extent consistent with Sec.  18.51(b):
    (A) if the parties have not stipulated to the deposition and:
    (i) the deposition would result in more than 10 depositions being 
taken under this section or Sec.  18.65 by one of the parties;
    (ii) the deponent has already been deposed in the case; or
    (iii) the party seeks to take the deposition before the time 
specified in Sec.  18.50(a), unless the party certifies in the notice, 
with supporting facts, that the deponent is expected to leave the 
United States and be unavailable for examination in this country after 
that time; or
    (B) if the deponent is confined in prison.
    (b) Notice of the deposition; other formal requirements.
    (1) Notice in general. Except as stipulated or otherwise ordered by 
the judge, a party who wants to depose a person by oral questions must 
give reasonable written notice to every other party of no fewer than 14 
days. The notice must state the time and place of the deposition and, 
if known, the deponent's name and address. If the name is unknown, the 
notice must provide a general description sufficient to identify the 
person or the particular class or group to which the person belongs.
    (2) Producing documents. If a subpoena duces tecum is to be served 
on the deponent, the materials designated for production, as set out in 
the subpoena, must be listed in the notice or in an attachment. If the 
notice to a party deponent is accompanied by a request for production 
under Sec.  18.61, the notice must comply with the requirements of 
Sec.  18.61(b).
    (3) Method of recording.
    (A) Method stated in the notice. The party who notices the 
deposition must state in the notice the method for recording the 
testimony. Unless the judge orders otherwise, testimony may be recorded 
by audio, audiovisual, or stenographic means. The noticing party bears 
the recording costs. Any party may arrange to transcribe a deposition.
    (B) Additional method. With prior notice to the deponent and other 
parties, any party may designate another method for recording the 
testimony in addition to that specified in the original notice. That 
party bears the expense of the additional record or transcript unless 
the judge orders otherwise.

[[Page 72189]]

    (4) By remote means. The parties may stipulate--or the judge may on 
motion order--that a deposition be taken by telephone or other remote 
means. For the purpose of this section, the deposition takes place 
where the deponent answers the questions.
    (5) Officer's duties.
    (A) Before the deposition. Unless the parties stipulate otherwise, 
a deposition must be conducted before a person having power to 
administer oaths. The officer must begin the deposition with an on-the-
record statement that includes:
    (i) The officer's name and business address;
    (ii) the date, time, and place of the deposition;
    (iii) the deponent's name;
    (iv) the officer's administration of the oath or affirmation to the 
deponent;
    (v) the identity of all persons present; and
    (vi) the date and method of service of the notice of deposition.
    (B) Conducting the deposition; avoiding distortion. If the 
deposition is recorded nonstenographically, the officer must repeat the 
items in paragraphs (b)(5)(A)(i)-(iii) of this section at the beginning 
of each unit of the recording medium. The deponent's and attorneys' 
appearance or demeanor must not be distorted through recording 
techniques.
    (C) After the deposition. At the end of a deposition, the officer 
must state on the record that the deposition is complete and must set 
out any stipulations made by the attorneys about custody of the 
transcript or recording and of the exhibits, or about any other 
pertinent matters.
    (6) Notice or subpoena directed to an organization. In its notice 
or subpoena, a party may name as the deponent a public or private 
corporation, a partnership, an association, a governmental agency, or 
other entity and must describe with reasonable particularity the 
matters for examination. The named organization must then designate one 
or more officers, directors, or managing agents, or designate other 
persons who consent to testify on its behalf; and it may set out the 
matters on which each person designated will testify. A subpoena must 
advise a nonparty organization of its duty to make this designation. 
The persons designated must testify about information known or 
reasonably available to the organization. This paragraph (6) does not 
preclude a deposition by any other procedure allowed by these rules.
    (c) Examination and cross-examination; record of the examination; 
objections; written questions.
    (1) Examination and cross-examination. The examination and cross-
examination of a deponent proceed as they would at the hearing under 
the applicable rules of evidence. After putting the deponent under oath 
or affirmation, the officer must record the testimony by the method 
designated under paragraph (b)(3)(A) of this section. The testimony 
must be recorded by the officer personally or by a person acting in the 
presence and under the direction of the officer.
    (2) Objections. An objection at the time of the examination--
whether to evidence, to a party's conduct, to the officer's 
qualifications, to the manner of taking the deposition, or to any other 
aspect of the deposition--must be noted on the record, but the 
examination still proceeds; the testimony is taken subject to any 
objection. An objection must be stated concisely in a nonargumentative 
and nonsuggestive manner. A person may instruct a deponent not to 
answer only when necessary to preserve a privilege, to enforce a 
limitation ordered by the judge, or to present a motion under paragraph 
(d)(3) of this section.
    (3) Participating through written questions. Instead of 
participating in the oral examination, a party may serve written 
questions in a sealed envelope on the party noticing the deposition, 
who must deliver them to the officer. The officer must ask the deponent 
those questions and record the answers verbatim.
    (d) Duration; sanction; motion to terminate or limit.
    (1) Duration. Unless otherwise stipulated or ordered by the judge, 
a deposition is limited to 1 day of 7 hours. The judge must allow 
additional time consistent with Sec.  18.51(b) if needed to fairly 
examine the deponent or if the deponent, another person, or any other 
circumstance impedes or delays the examination.
    (2) Sanction. The judge may impose an appropriate sanction, in 
accordance with Sec.  18.57, on a person who impedes, delays, or 
frustrates the fair examination of the deponent.
    (3) Motion to terminate or limit.
    (A) Grounds. At any time during a deposition, the deponent or a 
party may move to terminate or limit it on the ground that it is being 
conducted in bad faith or in a manner that unreasonably annoys, 
embarrasses, or oppresses the deponent or party. If the objecting 
deponent or party so demands, the deposition must be suspended for the 
time necessary to obtain an order.
    (B) Order. The judge may order that the deposition be terminated or 
may limit its scope and manner as provided in Sec.  18.52. If 
terminated, the deposition may be resumed only by the judge's order.
    (e) Review by the witness; changes.
    (1) Review; statement of changes. On request by the deponent or a 
party before the deposition is completed, the deponent must be allowed 
30 days after being notified by the officer that the transcript or 
recording is available in which:
    (A) To review the transcript or recording; and
    (B) if there are changes in form or substance, to sign a statement 
listing the changes and the reasons for making them.
    (2) Changes indicated in the officer's certificate. The officer 
must note in the certificate prescribed by paragraph (f)(1) of this 
section whether a review was requested and, if so, must attach any 
changes the deponent makes during the 30-day period.
    (f) Certification and delivery; exhibits; copies of the transcript 
or recording; filing.
    (1) Certification and delivery. The officer must certify in writing 
that the witness was duly sworn and that the deposition accurately 
records the witness's testimony. The certificate must accompany the 
record of the deposition. Unless the judge orders otherwise, the 
officer must seal the deposition in an envelope or package bearing the 
title of the action and marked ``Deposition of [witness's name]'' and 
must promptly send it to the party or the party's representative who 
arranged for the transcript or recording. The party or the party's 
representative must store it under conditions that will protect it 
against loss, destruction, tampering, or deterioration.
    (2) Documents and tangible things.
    (A) Originals and copies. Documents and tangible things produced 
for inspection during a deposition must, on a party's request, be 
marked for identification and attached to the deposition. Any party may 
inspect and copy them. But if the person who produced them wants to 
keep the originals, the person may:
    (i) Offer copies to be marked, attached to the deposition, and then 
used as originals--after giving all parties a fair opportunity to 
verify the copies by comparing them with the originals; or
    (ii) give all parties a fair opportunity to inspect and copy the 
originals after they are marked--in which event the originals may be 
used as if attached to the deposition.

[[Page 72190]]

    (B) Order regarding the originals. Any party may move for an order 
that the originals be attached to the deposition pending final 
disposition of the proceeding.
    (3) Copies of the transcript or recording. Unless otherwise 
stipulated or ordered by the judge, the officer must retain the 
stenographic notes of a deposition taken stenographically or a copy of 
the recording of a deposition taken by another method. When paid 
reasonable charges, the officer must furnish a copy of the transcript 
or recording to any party or the deponent.
    (4) Notice of filing. A party who files the deposition must 
promptly notify all other parties of the filing.
    (g) Failure to attend a deposition or serve a subpoena. A judge may 
order sanctions, in accordance with Sec.  18.57, if a party who, 
expecting a deposition to be taken, attends in person or by an 
attorney, and the noticing party failed to:
    (1) Attend and proceed with the deposition; or
    (2) serve a subpoena on a nonparty deponent, who consequently did 
not attend.


Sec.  18.65  Depositions by written questions.

    (a) When a deposition may be taken.
    (1) Without leave. A party may, by written questions, depose any 
person, including a party, without leave of the judge except as 
provided in paragraph (a)(2) of this section. The deponent's attendance 
may be compelled by subpoena under Sec.  18.56.
    (2) With leave. A party must obtain leave of the judge, and the 
judge must grant leave to the extent consistent with Sec.  18.51(b):
    (A) If the parties have not stipulated to the deposition and:
    (i) The deposition would result in more than 10 depositions being 
taken under this section or Sec.  18.64 by a party;
    (ii) the deponent has already been deposed in the case; or
    (iii) the party seeks to take a deposition before the time 
specified in Sec.  18.50(a); or
    (B) if the deponent is confined in prison.
    (3) Service; required notice. A party who wants to depose a person 
by written questions must serve them on every other party, with a 
notice stating, if known, the deponent's name and address. If the name 
is unknown, the notice must provide a general description sufficient to 
identify the person or the particular class or group to which the 
person belongs. The notice must also state the name or descriptive 
title and the address of the officer before whom the deposition will be 
taken.
    (4) Questions directed to an organization. A public or private 
corporation, a partnership, an association, or a governmental agency 
may be deposed by written questions in accordance with Sec.  
18.64(b)(6).
    (5) Questions from other parties. Any questions to the deponent 
from other parties must be served on all parties as follows: Cross-
questions, within 14 days after being served with the notice and direct 
questions; redirect questions, within 7 days after being served with 
cross-questions; and recross-questions, within 7 days after being 
served with redirect questions. The judge may, for good cause, extend 
or shorten these times.
    (b) Delivery to the officer; officer's duties. Unless a different 
procedure is ordered by the judge, the party who noticed the deposition 
must deliver to the officer a copy of all the questions served and of 
the notice. The officer must promptly proceed in the manner provided in 
Sec.  18.64(c), (e), and (f) to:
    (1) Take the deponent's testimony in response to the questions;
    (2) prepare and certify the deposition; and
    (3) send it to the party, attaching a copy of the questions and of 
the notice.
    (c) Notice of completion or filing.
    (1) Completion. The party who noticed the deposition must notify 
all other parties when it is completed.
    (2) Filing. A party who files the deposition must promptly notify 
all other parties of the filing.

Disposition Without Hearing


Sec.  18.70  Motions for dispositive action.

    (a) In general. When consistent with statute, regulation or 
executive order, any party may move under Sec.  18.33 for disposition 
of the pending proceeding. If the judge determines at any time that 
subject matter jurisdiction is lacking, the judge must dismiss the 
matter.
    (b) Motion to remand. A party may move to remand the matter to the 
referring agency. A remand order must include any terms or conditions 
and should state the reason for the remand.
    (c) Motion to dismiss. A party may move to dismiss part or all of 
the matter for reasons recognized under controlling law, such as lack 
of subject matter jurisdiction, failure to state a claim upon which 
relief can be granted, or untimeliness. If the opposing party fails to 
respond, the judge may consider the motion unopposed.
    (d) Motion for decision on the record. When the parties agree that 
an evidentiary hearing is not needed, they may move for a decision 
based on stipulations of fact or a stipulated record.


Sec.  18.71  Approval of settlement or consent findings.

    (a) Motion for approval of settlement agreement. When the 
applicable statute or regulation requires it, the parties must submit a 
settlement agreement for the judge's review and approval.
    (b) Motion for consent findings and order. Parties may file a 
motion to accept and adopt consent findings. Any agreement that 
contains consent findings and an order that disposes of all or part of 
a matter must include:
    (1) a statement that the order has the same effect as one made 
after a full hearing;
    (2) a statement that the order is based on a record that consists 
of the paper that began the proceeding (such as a complaint, order of 
reference, or notice of administrative determination), as it may have 
been amended, and the agreement;
    (3) a waiver of any further procedural steps before the judge; and
    (4) a waiver of any right to challenge or contest the validity of 
the order entered into in accordance with the agreement.


Sec.  18.72  Summary decision.

    (a) Motion for summary decision or partial summary decision. A 
party may move for summary decision, identifying each claim or 
defense--or the part of each claim or defense--on which summary 
decision is sought. The judge shall grant summary decision if the 
movant shows that there is no genuine dispute as to any material fact 
and the movant is entitled to decision as a matter of law. The judge 
should state on the record the reasons for granting or denying the 
motion.
    (b) Time to file a motion. Unless the judge orders otherwise, a 
party may file a motion for summary decision at any time until 30 days 
before the date fixed for the formal hearing.
    (c) Procedures.
    (1) Supporting factual positions. A party asserting that a fact 
cannot be or is genuinely disputed must support the assertion by:
    (A) citing to particular parts of materials in the record, 
including depositions, documents, electronically stored information, 
affidavits or declarations, stipulations (including those made for 
purposes of the motion only), admissions, interrogatory answers, or 
other materials; or
    (B) showing that the materials cited do not establish the absence 
or presence of a genuine dispute, or that an adverse party cannot 
produce admissible evidence to support the fact.
    (2) Objection that a fact is not supported by admissible evidence. 
A

[[Page 72191]]

party may object that the material cited to support or dispute a fact 
cannot be presented in a form that would be admissible in evidence.
    (3) Materials not cited. The judge need consider only the cited 
materials, but the judge may consider other materials in the record.
    (4) Affidavits or declarations. An affidavit or declaration used to 
support or oppose a motion must be made on personal knowledge, set out 
facts that would be admissible in evidence, and show that the affiant 
or declarant is competent to testify on the matters stated.
    (d) When facts are unavailable to the nonmovant. If a nonmovant 
shows by affidavit or declaration that, for specified reasons, it 
cannot present facts essential to justify its opposition, the judge 
may:
    (1) defer considering the motion or deny it;
    (2) allow time to obtain affidavits or declarations or to take 
discovery; or
    (3) issue any other appropriate order.
    (e) Failing to properly support or address a fact. If a party fails 
to properly support an assertion of fact or fails to properly address 
another party's assertion of fact as required by paragraph (c) of this 
section, the judge may:
    (1) give an opportunity to properly support or address the fact;
    (2) consider the fact undisputed for purposes of the motion;
    (3) grant summary decision if the motion and supporting materials--
including the facts considered undisputed--show that the movant is 
entitled to it; or
    (4) issue any other appropriate order.
    (f) Decision independent of the motion. After giving notice and a 
reasonable time to respond, the judge may:
    (1) grant summary decision for a nonmovant;
    (2) grant the motion on grounds not raised by a party; or
    (3) consider summary decision on the judge's own after identifying 
for the parties material facts that may not be genuinely in dispute.
    (g) Failing to grant all the requested relief. If the judge does 
not grant all the relief requested by the motion, the judge may enter 
an order stating any material fact--including an item of damages or 
other relief--that is not genuinely in dispute and treating the fact as 
established in the case.
    (h) Affidavit or declaration submitted in bad faith. If satisfied 
that an affidavit or declaration under this section is submitted in bad 
faith or solely for delay, the judge--after notice and a reasonable 
time to respond--may order sanctions or other relief as authorized by 
law.

Hearing


Sec.  18.80  Prehearing statement.

    (a) Time for filing. Unless the judge orders otherwise, at least 21 
days before the hearing, each participating party must file a 
prehearing statement.
    (b) Required conference. Before filing a prehearing statement, the 
party must confer with all other parties in good faith to:
    (1) stipulate to the facts to the fullest extent possible; and
    (2) revise exhibit lists, eliminate duplicative exhibits, prepare 
joint exhibits, and attempt to resolve any objections to exhibits.
    (c) Contents. Unless ordered otherwise, the prehearing statement 
must state:
    (1) the party's name;
    (2) the issues of law to be determined with reference to the 
appropriate statute, regulation, or case law;
    (3) a precise statement of the relief sought;
    (4) the stipulated facts that require no proof;
    (5) the facts disputed by the parties;
    (6) a list of witnesses the party expects to call;
    (7) a list of the joint exhibits;
    (8) a list of the party's exhibits;
    (9) an estimate of the time required for the party to present its 
case-in-chief; and
    (10) any additional information that may aid the parties' 
preparation for the hearing or the disposition of the proceeding, such 
as the need for specialized equipment at the hearing.
    (d) Joint prehearing statement. The judge may require the parties 
to file a joint prehearing statement rather than individual prehearing 
statements.
    (e) Signature. The prehearing statement must be in writing and 
signed. By signing, an attorney, representative, or party makes the 
certifications described in Sec.  18.50(d).


Sec.  18.81  Formal hearing.

    (a) Public. Hearings are open to the public. But, when authorized 
by law and only to the minimum extent necessary, the judge may order a 
hearing or any part of a hearing closed to the public, including 
anticipated witnesses. The order closing all or part of the hearing 
must state findings and explain why the reasons for closure outweigh 
the presumption of public access. The order and any objection must be 
part of the record.
    (b) Taking testimony. Unless a closure order is issued under 
paragraph (a) of this section, the witnesses' testimony must be taken 
in an open hearing. For good cause and with appropriate safeguards, the 
judge may permit testimony in an open hearing by contemporaneous 
transmission from a different location.
    (c) Party participation. For good cause and with appropriate 
safeguards, the judge may permit a party to participate in an open 
hearing by contemporaneous transmission from a different location.


Sec.  18.82  Exhibits.

    (a) Identification. All exhibits offered in evidence must be marked 
with a designation identifying the party offering the exhibit and must 
be numbered and paginated as the judge orders.
    (b) Electronic data. By order the judge may prescribe the format 
for the submission of data that is in electronic form.
    (c) Exchange of exhibits. When written exhibits are offered in 
evidence, one copy must be furnished to the judge and to each of the 
parties at the hearing, unless copies were previously furnished with 
the list of proposed exhibits or the judge directs otherwise. If the 
judge does not fix a date for the exchange of exhibits, the parties 
must exchange copies of exhibits at the earliest practicable time 
before the hearing begins.
    (d) Authenticity. The authenticity of a document identified in a 
pre-hearing exhibit list is admitted unless a party files a written 
objection to authenticity at least 7 days before the hearing. The judge 
may permit a party to challenge a document's authenticity if the party 
establishes good cause for its failure to file a timely written 
objection.
    (e) Substitution of copies for original exhibits. The judge may 
permit a party to withdraw original documents offered in evidence and 
substitute accurate copies of the originals.
    (f) Designation of parts of documents. When only a portion of a 
document contains relevant matter, the offering party must exclude the 
irrelevant parts to the greatest extent practicable.
    (g) Records in other proceedings. Portions of the record of other 
administrative proceedings, civil actions or criminal prosecutions may 
be received in evidence, when the offering party shows the copies are 
accurate.


Sec.  18.83  Stipulations.

    (a) The parties may stipulate to any facts in writing at any stage 
of the proceeding or orally on the record at a deposition or at a 
hearing. These stipulations bind the parties unless the judge 
disapproves them.

[[Page 72192]]

    (b) Every stipulation that requests or requires a judge's action 
must be written and signed by all affected parties or their 
representatives. Any stipulation to extend time must state the reason 
for the date change.
    (c) A proposed form of order may be submitted with the stipulation; 
it may consist of an endorsement on the stipulation of the words, 
``Pursuant to stipulation, it is so ordered,'' with spaces designated 
for the date and the signature of the judge.


Sec.  18.84  Official notice.

    On motion of a party or on the judge's own, official notice may be 
taken of any adjudicative fact or other matter subject to judicial 
notice. The parties must be given an adequate opportunity to show the 
contrary of the matter noticed.


Sec.  18.85  Privileged, sensitive, or classified material.

    (a) Exclusion. On motion of any interested person or the judge's 
own, the judge may limit the introduction of material into the record 
or issue orders to protect against undue disclosure of privileged 
communications, or sensitive or classified matters. The judge may admit 
into the record a summary or extract that omits the privileged, 
sensitive or classified material.
    (b) Sealing the record.
    (1) On motion of any interested person or the judge's own, the 
judge may order any material that is in the record to be sealed from 
public access. The motion must propose the fewest redactions possible 
that will protect the interest offered as the basis for the motion. A 
redacted copy or summary of any material sealed must be made part of 
the public record unless the necessary redactions would be so extensive 
that the public version would be meaningless, or making even a redacted 
version or summary available would defeat the reason the original is 
sealed.
    (2) An order that seals material must state findings and explain 
why the reasons to seal adjudicatory records outweigh the presumption 
of public access. Sealed materials must be placed in a clearly marked, 
separate part of the record. Notwithstanding the judge's order, all 
parts of the record remain subject to statutes and regulations 
pertaining to public access to agency records.


Sec.  18.86  Hearing room conduct.

    Participants must conduct themselves in an orderly manner. The 
consumption of food or beverage, and rearranging courtroom furniture 
are prohibited, unless specifically authorized by the judge. Electronic 
devices must be silenced and must not disrupt the proceedings. Parties, 
witnesses and spectators are prohibited from using video or audio 
recording devices to record hearings.


Sec.  18.87  Standards of conduct.

    (a) In general. All persons appearing in proceedings must act with 
integrity and in an ethical manner.
    (b) Exclusion for misconduct. During the course of a proceeding, 
the judge may exclude any person--including a party or a party's 
attorney or non-attorney representative--for contumacious conduct such 
as refusal to comply with directions, continued use of dilatory 
tactics, refusal to adhere to reasonable standards of orderly or 
ethical conduct, failure to act in good faith, or violation of the 
prohibition against ex parte communications. The judge must state the 
basis for the exclusion.
    (c) Review of representative's exclusion. Any representative 
excluded from a proceeding may appeal to the Chief Judge for 
reinstatement within 7 days of the exclusion. The exclusion order is 
reviewed for abuse of discretion. The proceeding from which the 
representative was excluded will not be delayed or suspended pending 
review by the Chief Judge, except for a reasonable delay to enable the 
party to obtain another representative.


Sec.  18.88  Transcript of proceedings.

    (a) Hearing transcript. All hearings must be recorded and 
transcribed. The parties and the public may obtain copies of the 
transcript from the official reporter at rates not to exceed the 
applicable rates fixed by the contract with the reporter.
    (b) Corrections to the transcript. A party may file a motion to 
correct the official transcript. Motions for correction must be filed 
within 14 days of the receipt of the transcript unless the judge 
permits additional time. The judge may grant the motion in whole or 
part if the corrections involve substantive errors. At any time before 
issuing a decision and upon notice to the parties, the judge may 
correct errors in the transcript.

Post Hearing


Sec.  18.90  Closing the record; subsequent motions.

    (a) In general. The record of a hearing closes when the hearing 
concludes, unless the judge directs otherwise. If any party waives a 
hearing, the record closes on the date the judge sets for the filing of 
the parties' submissions.
    (b) Motion to reopen the record.
    (1) A motion to reopen the record must be made promptly after the 
additional evidence is discovered. No additional evidence may be 
admitted unless the offering party shows that new and material evidence 
has become available that could not have been discovered with 
reasonable diligence before the record closed. Each new item must be 
designated as an exhibit under Sec.  18.82(a) and accompanied by proof 
that copies have been served on all parties.
    (2) If the record is reopened, the other parties must have an 
opportunity to offer responsive evidence, and a new evidentiary hearing 
may be set.
    (c) Motions after the decision. After the decision and order is 
issued, the judge retains jurisdiction to dispose of appropriate 
motions, such as a motion to award attorney's fees and expenses, a 
motion to correct the transcript, or a motion for reconsideration.


Sec.  18.91  Post-hearing brief.

    The judge may grant a party time to file a post-hearing brief with 
proposed findings of fact, conclusions of law, and the specific relief 
sought. The brief must refer to all portions of the record and 
authorities relied upon in support of each assertion.


Sec.  18.92  Decision and order.

    At the conclusion of the proceeding, the judge must issue a written 
decision and order.


Sec.  18.93  Motion for reconsideration.

    A motion for reconsideration of a decision and order must be filed 
no later than 10 days after service of the decision on the moving 
party.


Sec.  18.94  Indicative ruling on a motion for relief that is barred by 
a pending petition for review.

    (a) Relief pending review. If a timely motion is made for relief 
that the judge lacks authority to grant because a petition for review 
has been docketed and is pending, the judge may:
    (1) defer considering the motion;
    (2) deny the motion; or
    (3) state either that the judge would grant the motion if the 
reviewing body remands for that purpose or that the motion raises a 
substantial issue.
    (b) Notice to reviewing body. The movant must promptly notify the 
clerk of the reviewing body if the judge states that he or she would 
grant the motion or that the motion raises a substantial issue.
    (c) Remand. The judge may decide the motion if the reviewing body 
remands for that purpose.

[[Page 72193]]

Sec.  18.95  Review of decision.

    The statute or regulation that conferred hearing jurisdiction 
provides the procedure for review of a judge's decision. If the statute 
or regulation does not provide a procedure, the judge's decision 
becomes the Secretary's final administrative decision.

[FR Doc. 2012-28516 Filed 12-3-12; 8:45 am]
BILLING CODE 4510-20-P