Rules of Procedure

 
CONTENT
Federal Register, Volume 84 Issue 69 (Wednesday, April 10, 2019)
[Federal Register Volume 84, Number 69 (Wednesday, April 10, 2019)]
[Rules and Regulations]
[Pages 14554-14579]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-06581]
[[Page 14553]]
Vol. 84
Wednesday,
No. 69
April 10, 2019
Part III
 Occupational Safety and Health Review Commission
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29 CFR Part 2200
 Rules of Procedure; Final Rule
Federal Register / Vol. 84 , No. 69 / Wednesday, April 10, 2019 /
Rules and Regulations
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OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
29 CFR Part 2200
Rules of Procedure
AGENCY: Occupational Safety and Health Review Commission.
ACTION: Final rule.
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SUMMARY: The Occupational Safety and Health Review Commission
(``OSHRC'' or ``Commission'') is making comprehensive revisions to the
procedural rules governing practice before the Occupational Safety and
Health Review Commission.
DATES: These revised rules will take effect on June 10, 2019. They
apply to all cases docketed on or after that date. They also apply to
proceedings in cases pending on that date, except to the extent that
their application would be infeasible or would work an injustice, in
which event the present rules apply.
FOR FURTHER INFORMATION CONTACT: Ron Bailey, via telephone at 202-606-
5410, or via email at [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
    On September 7, 2018, the Commission published in the Federal
Register an Advanced Notice of Proposed Rulemaking (ANPR). 83 FR 45366
(September 7, 2018). In that notice the Commission announced that it
was considering comprehensive revisions to its procedural rules in
light of technological advances, including implementation of the
Commission's electronic-filing system, and the evolution of practice
before the Commission since the last comprehensive revision of its
rules of procedure in 2005. The Commission expressed interest in
recommended changes to any rule and announced that it was especially
interested in whether: Rules on the computation of time should be
simplified; electronic filing and service should be mandatory and, if
so, what exceptions, if any, should be allowed; the definition of
``affected employee'' should be broadened; citing to Commission
decisions as posted on the agency's website should be allowed; the rule
on the staying of a final order is not needed and should be eliminated;
the requirement for agency approval of settlements should be narrowed
or eliminated; the grounds for obtaining Commission review of
interlocutory orders issued by its administrative law judges should be
revised; protection of sensitive personal information should be
broadened; and whether the threshold amount for cases referred for
mandatory settlement proceedings should be increased. The Commission
thanks those who responded to the ANPR for their time and interest; the
submitted comments were helpful and aided the Commission in formulating
a number of these rule changes.
II. Revisions to Rules
    Following an internal review of the rules and having considered all
the comments submitted in response to the ANPR, the Commission has made
comprehensive revisions to the procedural rules governing practice
before the Commission. To aid the public in identifying the numerous
revisions, the Commission will also publish on its website a
``redline'' version of the rules that will show the changes. Some of
these revisions are technical and clarifying in nature. For example,
cross-references to rules have been added throughout; all references to
``mail,'' ``United States Mail,'' and ``U.S. Mail'' have been changed
to ``U.S. Mail'' for clarity and consistency; all references to
``paper'' have been changed to ``document'' to include both
electronically-filed and conventionally-filed documents; and, in the
interest of plain language, sentences have been rewritten to eliminate
words such as ``herein,'' ``therein,'' and ``thereafter,'' among
others. In addition, gender-neutral language is now used throughout the
rules. To that end, gender-specific pronouns have been eliminated where
possible. Finally, references to ``unrepresented parties'' have been
changed to ``self-represented parties'' to recognize parties (excluding
the Secretary) that are represented in Commission proceedings by one of
their officers or managers.
    Other changes have been made to make the rules easier to read and
understand, particularly for self-represented parties. For example,
Rule 52(f) has been broken into two subparts. In another example, a
phrase in Rule 60 formerly read, ``notice of the time, place, and
nature of the first hearing shall be given to the parties and
intervenors,'' while the revised version reads, ``when a hearing is
first set, the Judge shall give the parties and intervenors notice of
the time, place, and nature of the hearing.''
Subpart A--General Provisions
    In the definition section, the definition of ``authorized employee
representative'' has been revised to specify that it means a labor
organization that represents affected employees who are members of the
collective bargaining unit. This conforms the definition's language
with Rule 22(b).
    The Commission has amended Rule 4, Computing time, to facilitate
and clarify practice before the Commission. Previously, time periods of
11 days or more were calculated based on calendar days, but time
periods of less than 11 days were calculated based on working days.
This bifurcated approach to calculating time periods, which was
reported as confusing and problematic, particularly for self-
represented parties, has been eliminated. Most time periods are now
based on calendar days--referred to simply as ``days''--and have been
adjusted so that the actual amount of time provided is either the same
as, or more than, before. Some periods, however, remain specified in
``working days'' when that is how the corresponding period is expressed
in specific sections of the Occupational Safety and Health Act of 1970
(``Act''), 29 U.S.C. 651 et seq.
    The elimination of the ``less than 11 days'' method of computing
time is consistent with a 2009 change to Federal Rule of Civil
Procedure 6, Computing and Extending Time; Time for Motion Papers, that
eliminated a similar provision. As part of that revision, most 10-day
periods in the Federal Rules of Civil Procedure were expanded to 14
(calendar) days. Similarly, throughout the revised rules of procedure,
the Commission has expanded most, but not all, of the existing time
periods of less than 11 days. Ogletree Deakins Nash Smoak & Stewart,
P.C. (``Ogletree'') recommended further adopting the 2009 changes to
the federal rules by changing all 10- and 20-day periods to periods
measured in weeks, specifically 14 and 21 days. Ogletree pointed out
that whole-week periods provide the advantage that the final day will
always fall on the same day of the week as the event that triggered the
period, so deadlines will always fall on weekdays. Where practicable
and not otherwise governed by statute, the periods in the Commission
rules have been similarly revised.
    To further facilitate time calculation and practice before the
Commission, the Commission has revised Rule 7, Service, notice, and
posting, to use plain language to explain service methods and when
service is deemed accomplished. For clarity and consistency, the rules
have been revised throughout to begin stated time periods based on
``service,'' rather than on ``receipt'' or ``transmission.'' In certain
rules, however, ``receipt'' was retained as the beginning of a time
period where ``receipt'' is stated in the corresponding section of the
Act. The Commission has also consolidated all requirements for
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the service of show cause orders in new paragraph (o), to which cross-
references have been added throughout the rules.
    The Commission requested comment on whether it should make
electronic filing mandatory. Four commenters (Ogletree; the
Occupational Safety & Health Law Project (``OSH Law Project''); Conn
Maciel Carey LLP; and the Occupational Safety and Health Division,
Office of the Solicitor, U.S. Department of Labor (``SOL''))
recommended that it be mandatory. Three of those commenters (Ogletree,
Conn Maciel Carey, and SOL) suggested creating an exception for self-
represented parties and one (Ogletree) requested an exception for
privileged materials or materials filed under seal. One commenter
(James Sassaman) recommended keeping the current non-mandatory filing
system, noting that the Commission cannot assist e-filing parties and
not every practitioner has an information technology department at the
ready.
    The Commission has decided to make e-filing mandatory for parties
represented by attorneys or non-attorney representatives. Self-
represented parties have the option of using the Commission's E-File
System or filing documents by conventional means. Once e-filing has
been elected, the party must continue to file all documents
electronically, but, because the Commission cannot guarantee the
confidentiality of documents filed in the E-File System, confidential
and privileged documents cannot be filed electronically. Conforming
revisions have been made throughout where necessary, particularly to
Rule 6, Record address, Rule 7, Service, notice, and posting, and Rule
8, Filing.
    The Commission also requested comment on whether to permit citation
to Commission decisions that are posted on the agency's website. Four
commenters (James Sassaman, the OSH Law Project, Ogletree, and Conn
Maciel Carey) suggested that this be allowed. Rule 12, References to
cases, has been revised to allow citations to the website and specifies
the citation format that should be followed, depending on whether the
PDF version (which shows page numbers) or the HTML version (which does
not show page numbers) of the case is being cited. Specifically,
because the HTML version does not show page numbers, when citing that
version the party must identify the paragraph number (or numbers) of
the cited text.
Subpart B--Parties and Representatives
    The Commission has amended Rule 20, Party status, to specify that
an individual who, at the time of the violation, met the definition of
``affected employee'' set forth in Rule 1(e) and was employed by the
cited employer, but who, as the case progresses, is no longer employed
by the cited employer, is permitted to elect party status. This
revision to the rule is in conformity with the Commission's decision in
S. Scrap Materials Co., 23 BNA OSHC 1596, 1613 n.15 (No. 94-3393, 2011)
(``[Rule 20(a)] does not preclude participation in OSHA proceedings by
employees who, at the time of the hearing, are no longer employed by
the cited employer.'').
    In response to comments the Commission received on whether the
definition of ``affected employee'' should be broadened, the Commission
has revised Rule 21, Intervention; Appearance by non-parties. The OSH
Law Project asked that the Commission broaden the definition of
``affected employee'' to include temporary or contract employees as
well as workers who may be affected by exposures created or controlled
by a cited employer, even if they are not directly employed by the
cited employer. Four commenters (the Chamber of Commerce of the United
States and the Associated General Contractors (``Chamber/AGC''), the
Coalition of Workplace Safety (``CWS''), Ogletree, and Conn Maciel
Carey) recommended that the Commission not broaden the definition. Conn
Maciel Carey asserted that non-employees and those not working in areas
affected by the citations could not reasonably provide better value to
the litigation process than those employees actually exposed to the
hazard. The other three commenters asserted that the employees referred
to by the OSH Law Project could instead participate as intervenors,
pursuant to Rule 21.
    As the OSH Law Project pointed out, under the current definition of
``affected employee'' a worker not employed by the cited employer and
not exposed to or without access to the cited hazard is unable to elect
party status under Rule 20. In addition, although it seems clear that
employees of a non-cited employer working on the worksite and/or
exposed to hazards substantially similar to the cited hazard would be
eligible to participate in the proceedings as intervenors in accordance
with Rule 21--in that they would have an interest in the proceeding and
would be able to assist in the determination of the issues in
question--the rules did not require intervenor status to be granted.
    The Commission has decided to retain the current definition of
``affected employee'' in Rule 1 and revise Rule 21 to clarify how an
exposed employee can meet the criteria set forth in that rule. The
revision also requires intervenor status to be granted when the
specified criteria are met.
    The OSH Law Project also suggested that the Commission clarify in
Rule 22, Representation of parties and intervenors, that employees may
designate any person to represent their interests before the
Commission. The Commission has revised the language to state that any
party or intervenor may appear in person, through an attorney, or
through any non-attorney representative.
    Rule 23(b), Withdrawal of counsel, has been revised to require
counsel or representatives of record who are withdrawing their
appearance to provide current contact information for the client. This
revision was made to ensure that clients continue to receive important
communications from the Judge and the Commission.
Subpart C--Pleadings and Motions
    In an effort to assist self-represented parties, the Commission has
added a note to Rule 33, Notices of contest, to explain that, in
extraordinary circumstances, an employer that fails to meet the 15-
working day statutory deadline to file a notice of contest may seek
relief from the resulting final order pursuant to Federal Rule of Civil
Procedure 60, Relief from a Judgment or Order. The Commission has also
reorganized the text of Rule 33 for clarity.
    The Commission has made a number of revisions to Rule 40, Motions
and requests, to clarify the requirements for how and when to make a
motion and specify the form and content of motions. For example, the
requirement that moving parties confer or make reasonable efforts to
confer with all other parties before filing a motion in the existing
rules has now been highlighted in a separate provision. Also, in light
of SOL's comment suggesting that the Commission incorporate Federal
Rule of Civil Procedure 56, Summary Judgment, into its rules, guidance
specifying that the provisions of Federal Rule of Civil Procedure 56
apply to motions for summary judgment before the Commission has been
moved from Rule 61 to new paragraph (j) for clarity and consistency.
Subpart D--Prehearing Procedures and Discovery
    Ogletree commented that paragraph (a)(1) of Rule 52, General
provisions governing discovery, which specifies that the provisions of
Federal Rule of Civil Procedure 26(a) do not apply to
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Commission proceedings, has generated considerable confusion.
Specifically, Ogletree asserts that there have been inconsistent
rulings among the Commission's Judges regarding whether initial
disclosures, written expert reports, and pretrial disclosures may be
exchanged. The Commission has added language explaining that Judges may
use scheduling orders to direct prehearing disclosures, including
disclosure of expert testimony and written reports. In addition, new
paragraph (a)(4) has been added to allow parties to make stipulations
about discovery procedures. This paragraph mirrors the language in
Federal Rule of Civil Procedure 29, Stipulations about Discovery
Procedure.
    SOL suggested that the Commission clarify whether the
proportionality requirements for discovery specified in Federal Rule of
Civil Procedure 26(b) apply to proceedings before the Commission. To
improve clarity, paragraphs (b) and (c) of Rule 52 have been revised to
conform the Commission's rules to the 2015 amendments to the Federal
Rules of Civil Procedure.
    Both SOL and Ogletree suggested that Rule 54, Request for
admissions, be revised to be consistent with the analogous Federal Rule
of Civil Procedure 36(a). The Commission has revised Rule 54 to be
consistent with Federal Rule of Civil Procedure 36(a), as tailored to
Commission practice.
    The Commission received comments from Conn Maciel Carey suggesting
an increase in the permitted number of requests for admissions and
interrogatories for cases involving numerous citation items. In the
experience of the Commission's Judges, the parties are generally able
to agree to more requested admissions or interrogatories as
appropriate. Rule 54 and Rule 55, Interrogatories, have been revised to
clarify that the number of requested admissions or interrogatories can
exceed 25 upon agreement of the parties or by order of the Commission
or the Judge.
    For clarity, the Commission has streamlined Rule 56, Depositions.
Edits have also been made for consistency with Federal Civil Rule of
Procedure 30(b)(3). In addition, guidance regarding depositions
formerly located in Rule 65 (Subpart E) has been relocated to Rule 56
for clarity and organizational consistency. The Commission has also
made several revisions to clarify that parties cannot introduce audio
or audiovisual depositions without a transcript of the introduced
portion of the deposition.
    Finally, the Commission has combined the subpoena provisions
formerly set forth in Rule 57 with the subpoena provisions set forth in
Rule 65 so that all subpoena practice provisions will be in one rule.
This results in the deletion of former Rule 57.
Subpart E--Hearings
    The Commission has revised Rule 64, Failure to appear, to clarify
the consequences of failing to appear at a hearing. If the Secretary
fails to appear, the Judge will consider the Secretary to have
abandoned the case. If the Respondent fails to appear, the Judge will
deem the Respondent to have admitted the facts alleged and consented to
the relief sought by the Secretary.
    In addition to revising Rule 65 to include the subpoena provisions
formerly set forth in Rule 57, the Commission has made clarifying edits
throughout this section to explain the process of issuing, serving,
revoking, or modifying a subpoena, as well as the consequences of
failing to comply with a subpoena. SOL suggested that the Commission
clarify that nationwide service of Commission subpoenas is permissible.
Language has been added to paragraph (b) stating that a subpoena may be
served anywhere in the United States or its territories and may command
the production of documents or tangible things, and a person to attend,
from any place in the United States or its territories.
    Rule 68, Recusal of the Judge, formerly referred to the
``disqualification'' of the Judge. The Commission has revised this
section to instead refer to the ``recusal'' of the Judge to reflect
current parlance and remove any negative connotation suggested by the
word ``disqualification.'' The Commission has also added guidelines to
clarify which situations may require the recusal of a Judge.
    The Commission has added a provision to Rule 72, Objections, to
conform the Commission's rules with language in Federal Rule of
Evidence 103, Rulings on Evidence, specifying the circumstances in
which a party need not continuously renew an objection or offer of
proof.
    Two commenters responded to the Commission's request for
recommendations on revisions to Rule 73, Interlocutory review. Ogletree
recommended deleting the phrase ``and that immediate review of the
ruling may materially expedite the final disposition of the
proceedings,'' asserting that the phrase required the Commission to
attempt to predict the effect of interlocutory review on future
litigation in the proceedings. SOL recommended leaving the rule
unchanged. Based on the Commission's experience with interlocutory
matters, the Commission has revised the requirements for granting
interlocutory review. Most significantly, the Commission has deleted
the phrase ``about which there is substantial ground for difference of
opinion'' because under that language, cases in which the error is
obvious may be construed as not meeting the criteria for interlocutory
review. The rule has also been revised to make clear that the important
question presented must control the outcome of the case for the
Commission to review it on an interlocutory basis. Rather than delete
the phrase ``may materially expedite the final disposition of the
proceedings,'' the Commission has instead revised it to replace ``may''
with ``will.'' Finally, based on language in the Model Adjudication
Rules adopted by the Administrative Conference of the United States in
October 2018, the Commission has also added an alternative
consideration to the ``materially expedite'' phrase: that subsequent
review by the Commission may provide an inadequate remedy.
Subpart F--Posthearing Procedures
    Revisions to Rule 90, Decisions and reports of Judges, clarify that
after a Judge's decision has become a final order of the Commission,
the Commission or the Judge may correct a clerical mistake or a mistake
arising from oversight or omission under Federal Rule of Civil
Procedure 60(a).
    In Rule 91, Discretionary review, the Commission has sought to
eliminate confusion regarding where to file petitions for discretionary
review by revoking the part of the rule that allowed such petitions to
be filed with the Judge during the 10-day period specified in Rule
90(b)(2). Under the revised rule, petitions can only be filed with the
Executive Secretary. The Commission has also revised paragraph (f) to
clarify that filing a petition for review with the Commission is
required before seeking review of a Judge's decision in a U.S. Circuit
Court of Appeals.
    The Commission has revised Rule 92, Review by the Commission, in
two ways. Revisions to paragraph (a) clarify that the Commission has
complete discretion to decide which issues to consider on review. The
Commission deleted the list of issues that are normally considered to
avoid implying that there is any constraint on the Commissioners when
deciding which cases or particular issues to review. Furthermore, the
Commission ordinarily specifies which issues are to be
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considered in a briefing notice, not in the direction for review. The
language in paragraph (b) is rephrased to reflect that the Act does not
restrict which cases the Commission can direct for review on a
Commissioner's own motion and to explain what factors Commissioners
typically consider when directing review on their own motion.
    Revisions have been made to Rule 93, Briefs before the Commission,
with respect to the sequence in which briefs are to be filed. These
edits are made in the interest of fairness and track Federal Rule of
Appellate Procedure 28.1.
    Rule 94, Stay of final order, has been deleted because the
Commission's jurisdiction under the Act terminates once there is a
final order. See section 10(c) of the Act, 29 U.SC. 659(c).
Accordingly, the Commission cannot act on any motions for a stay of a
final order.
    The Commission has revised paragraph (d)(3) of Rule 95, Oral
argument before the Commission, to reflect the Commission's practice of
generally allowing counsel time for rebuttal. Counsel may use rebuttal
time only to respond to the opposing counsel and are not permitted to
reserve points of substance for presentation during rebuttal. Rules for
allocating time to amicus curiae seeking to participate in the oral
argument have been added to paragraph (k)(1) and specify that amicus
curiae must generally share time with the party in whose interest the
amicus curiae seeks to participate.
Subpart G--Miscellaneous Provisions
    The Commission requested comment on whether the requirement for
agency approval of settlements in Rule 100, Settlement, should be
narrowed or eliminated. Ogletree suggested a series of revisions to
clarify that the Commission does not approve the contents of settlement
agreements but only hears procedural objections to them. The OSH Law
Project asked that the Commission insist that the Secretary comply with
section 6(e) of the Act, 29 U.S.C. 655(e), which requires the Secretary
to publish a statement of reasons for settling a penalty in the Federal
Register. SOL asked the Commission to clarify the length of time a
settlement must be posted.
    Rule 100 has been extensively revised to reflect that the
Commission has no authority to approve the contents of settlement
agreements. Under the revised rule, settlement agreements will not be
submitted to the Commission or the Judge. Instead, in a joint
submission, the parties will notify the Judge that a settlement has
been reached and will specify certain information as required by the
revised rule. Although the Commission has never approved the contents
of settlement agreements, this change to the rule should eliminate the
past practice of parties requesting that the Commission correct errors
in settlement agreements that had been ``approved'' by the Judge, often
after the settlement had become a final order of the Commission. The
revised rule clarifies that the parties can correct a mistake in the
agreement themselves without having to ask the Commission to alter the
record or take any other action. Once the parties correct the agreement
themselves, the revised rule requires the employer to follow the
posting rules so that employees are properly notified. As suggested by
SOL, the revised rule also specifies the amount of time a settlement
must be posted (14 days). Only if the employer fails to follow the
posting rules, or if there is an objection by an employee, would the
Secretary (or affected employee or authorized employee representative)
need to seek relief from the Commission (under Federal Rule of
Procedure 60, if the final order date has passed).
    The only scenario in this regard in which there would be a need to
request Commission action on a settled case is if the parties
mistakenly notify the Judge that the case has been completely settled
when in fact one or more citation items have not been settled. If the
final order date has passed, requesting relief under Federal Rule of
Civil Procedure 60 would be required to litigate the remaining
unsettled items. In an attempt to prevent such errors, the revised rule
requires parties to include in the notification of settlement a list of
the contested items that have been settled as well as a list of any
items that remain to be decided.
    The revisions also specify that if party status has been elected
under Rule 20, certification is required that the party was afforded an
opportunity to provide input on all matters pertaining to the
settlement before the agreement was finalized. This revision is in
accordance with the Commission's decision in Boise Cascade Corp. that
employees must have an ``opportunity to provide input on all matters
pertaining to the settlement before the agreement is finalized.'' 14
BNA OSHC 1993, 1997 (No. 89-3087, 1991).
    The revisions made to Rule 100 are in accordance with federal
practice. The Federal Rules of Civil Procedure require parties who have
settled a matter to file settlement agreements only in limited
circumstances (such as class actions, shareholder derivative actions,
unincorporated association class member actions, and receiver actions).
Federal Rule of Civil Procedure 41(a), Voluntary Dismissal of Actions,
allows the plaintiff or stipulating parties to dismiss an action
without a court order. Federal district courts only retain jurisdiction
to enforce a settlement agreement if a court order of dismissal
contains a provision that the court retains jurisdiction or if the
terms of the settlement agreement are incorporated in the order. See
Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375 (1994).
    The Commission has revised paragraph (c) of Rule 103, Expedited
proceeding, to delete the clause allowing Judges to order daily
transcripts because doing so is financially burdensome and because
Judges have discretion to make the appropriate rulings necessary to
expedite proceedings.
    Finally, the Commission has revised Rule 106, Amendment to rules,
to allow the public, including stakeholders, to email suggestions for
revisions to the rules of procedure.
Subpart H--Settlement Part
    The Commission specifically requested comment on whether the
threshold amount for cases referred for mandatory settlement
proceedings in Rule 120, Settlement procedure, should be increased. Two
commenters, Ogletree and Conn Maciel Carey, asked that the threshold
amount not be increased. They explained that mandatory settlement
proceedings have been a great success and recommended against making
fewer cases eligible for the program. SOL proposed increasing the
threshold amount to account for recent and future changes in the
statutory maximum for OSHA penalties. It recommended increasing the
amount to $185,000 and proportionately increasing that amount every
three years to maintain the same or similar ratio to the maximum
penalty for willful or repeat violations.
    In light of the increasing statutory maximum penalty amounts for
willful and repeat violations required by the Inflation Adjustment Act
of 2015, the Commission has determined that it would be an inefficient
use of resources to maintain the current threshold amount for cases
referred for mandatory settlement proceedings. As the maximum penalty
amounts increase, a single willful or repeat violation would make a
case eligible for mandatory settlement. This would result in too many
cases being assigned to mandatory settlement, taking too much time away
from other cases and increasing travel expenses for the Commission's
Judges. Regarding the comments submitted by
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Ogletree and Conn Maciel Carey, the Commission points out that parties
can always ask to participate in voluntary settlement proceedings in
the event that their case no longer meets the eligibility requirements
for mandatory settlement.
    Accordingly, paragraph (b)(1) has been revised to set the threshold
amount to $185,000. The rule also specifies that this threshold amount
will be periodically and proportionately adjusted upon consideration of
the penalty increases required by the Inflation Adjustment Act. Rather
than revise the rules every time the threshold amount is increased, the
rule directs parties to the Commission website to find the adjusted
threshold penalty amount.
    The Commission has also revised the rules governing mandatory
settlement proceedings in paragraph (b)(3) to reflect current practice.
The paragraph describes the varied methods and broad discretion of the
Settlement Judge when conducting a settlement conference. The
confidentiality of settlement discussions will be strictly maintained;
the only exception is the rare circumstance in which disclosure is
required by applicable law or public policy, and the revised rules
reflect that limited exception. The OSH Law Project commented that the
Commission's current confidentiality rule is too broad and that factual
information disclosed during settlement discussions is treated as
confidential, a view which appears to read the rule too broadly. The
Commission has added language to paragraph (d)(3)(iv) to clarify that
factual information disclosed in the settlement proceeding may be used
in litigation if also obtained through appropriate discovery or
subpoena. Finally, the timing and duration of the settlement process is
amended to more accurately reflect current practice.
Subpart M--Simplified Proceedings
    The Commission's revisions to the rules governing Simplified
Proceedings are made largely for clarity, ease of understanding, and to
conform the rules to current Commission practice. Rule 200, Purpose,
and Rule 209(e), Oral and written argument at the hearing, have been
revised to specify that the Judge may either allow or require post-
hearing briefs. Rule 204, Discontinuance of Simplified Proceedings, has
been revised to specify that the Judge may deny a motion to discontinue
simplified proceedings filed less than 30 days before a scheduled
hearing date. Rule 209(c), Evidence, has been revised to allow parties
to stipulate that the Federal Rules of Evidence will apply in whole or
in part, though generally the Federal Rules of Evidence do not control
the admission of evidence in simplified proceedings. Finally Rule
209(f), Judge's decision, has been revised to give Judges 60 days to
issue a written decision.
III. Statutory and Executive Order Reviews
    Executive Orders 12866, 13132, 13563, and the Unfunded Mandates
Reform Act of 1995: OSHRC is an independent regulatory agency and, as
such, is not subject to the requirements of E.O. 12866, E.O. 13132, E.O
13563 or the Unfunded Mandates Reform Act, 2 U.S.C. 1501 et seq.
    Regulatory Flexibility Act: Pursuant to 5 U.S.C. 605(a), a
regulatory flexibility analysis is not required because these rules
concern ``interpretative rules, general statements of policy, or rules
of agency organization, procedure, or practice'' under 5 U.S.C. 553(b).
    Paperwork Reduction Act of 1995: OSHRC has determined that the
Paperwork Reduction Act, 44 U.S.C. 3501 et seq., does not apply because
these rules do not contain any information collection requirements that
require the approval of OMB.
    Congressional Review Act: These revisions do not constitute a
``rule,'' as defined by the Congressional Review Act, 5 U.S.C.
804(3)(C), because they involve changes to ``agency organization,
procedure, or practice'' that do not ``substantially affect the rights
or obligations of non-agency parties.''
List of Subjects in 29 CFR Part 2200
    Administrative practice and procedure, Hearing and appeal
procedures.
    Dated: March 28, 2019.
Heather L. MacDougall,
Chairman.
Cynthia L. Attwood,
Commissioner.
James J. Sullivan,
Commissioner.
0
For the reasons discussed in the preamble, the Occupational Safety and
Health Review Commission revises 29 CFR part 2200 to read as follows:
PART 2200--RULES OF PROCEDURE
Subpart A--General Provisions
Sec.
2200.1 Definitions.
2200.2 Scope of rules; applicability of Federal Rules of Civil
Procedure; construction.
2200.3 Use of gender and number.
2200.4 Computing time.
2200.5 Extension of time.
2200.6 Record address.
2200.7 Service, notice, and posting.
2200.8 Filing.
2200.9 Consolidation.
2200.10 Severance.
2200.11 [Reserved]
2200.12 References to cases.
Subpart B--Parties and Representatives
2200.20 Party status.
2200.21 Intervention; appearance by non-parties.
2200.22 Representation of parties and intervenors.
2200.23 Appearances and withdrawals.
2200.24 Brief of an amicus curiae.
Subpart C--Pleadings and Motions
2200.30 General rules.
2200.31 Caption; titles of cases.
2200.32 Signing of pleadings and motions.
2200.33 Notices of contest.
2200.34 Employer contests.
2200.35 Disclosure of corporate parents, subsidiaries, and
affiliates.
2200.36 [Reserved]
2200.37 Petitions for modification of the abatement period.
2200.38 Employee contests.
2200.39 Statement of position.
2200.40 Motions and requests.
2200.41 [Reserved]
Subpart D--Prehearing Procedures and Discovery
2200.50 [Reserved]
2200.51 Prehearing conferences and orders.
2200.52 General provisions governing discovery.
2200.53 Production of documents and things.
2200.54 Request for admissions.
2200.55 Interrogatories.
2200.56 Depositions.
2200.57 [Reserved]
Subpart E--Hearings
2200.60 Notice of hearing; location.
2200.61 Submission without hearing.
2200.62 Postponement of hearing.
2200.63 Stay of proceedings.
2200.64 Failure to appear.
2200.65 Issuance of subpoenas; petitions to revoke or modify
subpoenas; payment of witness fees and mileage; right to inspect or
copy data.
2200.66 Transcript of testimony.
2200.67 Duties and powers of judges.
2200.68 Recusal of the judge.
2200.69 Examination of witnesses.
2200.70 Exhibits.
2200.71 Rules of evidence.
2200.72 Objections.
2200.73 Interlocutory review.
2200.74 Filing of briefs and proposed findings with the Judge; oral
argument at the hearing.
Subpart F--Posthearing Procedures
2200.90 Decisions and reports of judges.
2200.91 Discretionary review; petitions for discretionary review;
statements in opposition to petitions.
2200.92 Review by the Commission.
2200.93 Briefs before the Commission.
2200.94 [Reserved]
2200.95 Oral argument before the Commission.
[[Page 14559]]
2200.96 Commission receipt of copies of petitions for judicial
review of Commission orders when petitions for review are filed in
two or more courts of appeals with respect to the same order.
Subpart G--Miscellaneous Provisions
2200.100 Settlement.
2200.101 Failure to obey rules.
2200.102 Withdrawal.
2200.103 Expedited proceeding.
2200.104 Standards of conduct.
2200.105 Ex parte communication.
2200.106 Amendment to rules.
2200.107 Special circumstances; waiver of rules.
2200.108 Official Seal of the Occupational Safety and Health Review
Commission.
Subpart H--Settlement Part
2200.120 Settlement procedure.
Subparts I-L [Reserved]
Subpart M--Simplified Proceedings
2200.200 Purpose.
2200.201 Application.
2200.202 Eligibility for Simplified Proceedings.
2200.203 Commencing Simplified Proceedings.
2200.204 Discontinuance of Simplified Proceedings.
2200.205 Filing of pleadings.
2200.206 Disclosure of information.
2200.207 Pre-hearing conference.
2200.208 Discovery.
2200.209 Hearing.
2200.210 Review of Judge's decision.
2200.211 Applicability of subparts A through G.
    Authority:  29 U.S.C. 661(g), unless otherwise noted.
    Section 2200.96 is also issued under 28 U.S.C. 2112(a).
Subpart A--General Provisions
Sec.  2200.1  Definitions.
    As used in this part:
    (a) Act means the Occupational Safety and Health Act of 1970, 29
U.S.C. 651-678.
    (b) Commission, person, employer, and employee have the meanings
set forth in section 3 of the Act, 29 U.S.C. 652.
    (c) Secretary means the Secretary of Labor or the Secretary's duly
authorized representative.
    (d) Executive Secretary means the Executive Secretary of the
Commission.
    (e) Affected employee means an employee of a cited employer who is
exposed to or has access to the hazard arising out of the allegedly
violative circumstances, conditions, practices, or operations.
    (f) Judge means an Administrative Law Judge appointed by the
Chairman of the Commission pursuant to section 12(j) of the Act, 29
U.S.C. 661(j), as amended by Public Law 95-251, 92 Stat. 183, 184
(1978).
    (g) Authorized employee representative means a labor organization
that has a collective bargaining relationship with the cited employer
and that represents affected employees who are members of the
collective bargaining unit.
    (h) Representative means any person, including an authorized
employee representative, authorized by a party or intervenor to
represent it in a proceeding.
    (i) Citation means a written communication issued by the Secretary
to an employer pursuant to section 9(a) of the Act, 29 U.S.C. 658(a).
    (j) Notification of proposed penalty means a written communication
issued by the Secretary to an employer pursuant to section 10(a) or (b)
of the Act, 29 U.S.C. 659(a) or (b).
    (k) Day means a calendar day.
    (l) Working day means all days except Saturdays, Sundays, or
Federal holidays.
    (m) Proceeding means any proceeding before the Commission or before
a Judge.
    (n) Pleadings are complaints and answers filed under Sec.  2200.34,
statements of reasons and employers' responses filed under Sec.
2200.38, and petitions for modification of abatement and objecting
parties' responses filed under Sec.  2200.37. A motion is not a
pleading within the meaning of these rules.
Sec.  2200.2  Scope of rules; applicability of Federal Rules of Civil
Procedure; construction.
    (a) Scope. These rules shall govern all proceedings before the
Commission and its Judges.
    (b) Applicability of Federal Rules of Civil Procedure. In the
absence of a specific provision, procedure shall be in accordance with
the Federal Rules of Civil Procedure.
    (c) Construction. These rules shall be construed to secure an
expeditious, just, and inexpensive determination of every case.
Sec.  2200.3  Use of gender and number.
    (a) Number. Words importing the singular number may extend and be
applied to the plural and vice versa.
    (b) Gender. Words importing the masculine or feminine gender apply
equally to all genders.
Sec.  2200.4  Computing time.
    (a) Computation. The following rules apply in computing any time
period specified in these rules or by any order that does not specify a
method of computing time.
    (1) Period stated in days or longer unit. When the period is stated
in days or a longer unit of time:
    (i) Exclude the day of the event that triggers the period;
    (ii) Count every day, including intermediate Saturdays, Sundays,
and Federal holidays; and
    (iii) Include the last day of the period, but if the last day is a
Saturday, Sunday, or Federal holiday, the period continues to run until
the end of the next day that is not a Saturday, Sunday, or Federal
holiday.
    (2) Period stated in working days. When the period is stated in
working days, count every day except intermediate Saturdays, Sundays,
and Federal holidays.
    (3) Operating status of receiving Commission office. Unless the
Commission or the Judge orders otherwise, if the receiving Commission
office is closed on the last day for filing due to inclement weather or
other circumstance, then the time for filing is extended to the first
day the office is open that is not a Saturday, Sunday, or Federal
holiday.
    (4) ``Last day'' defined. Unless a different time is set by a rule
or order, the last day ends:
    (i) For documents filed electronically in the Commission's E-File
System, at 11:59 p.m. in the time zone of the receiving Commission
office; and
    (ii) For filing by other means, when the receiving Commission
office is scheduled to close.
    (5) ``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.
    (6) ``Federal holiday'' defined. ``Federal holiday'' means:
    (i) 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,
    (ii) Any day declared a holiday by the President or Congress.
    (b) Additional time after service by U.S. Mail. When a party may or
must act within a specified time after service and service is made by
U.S. Mail under Sec.  2200.7, 3 days are added after the period would
otherwise expire under Sec.  2200.4(a). Provided, however, that this
provision does not apply to computing the time for filing a petition
for discretionary review under Sec.  2200.91(b).
Sec.  2200.5  Extension of time.
    The Commission or the Judge on their own initiative or, upon motion
of a
[[Page 14560]]
party, for good cause shown, may enlarge or shorten any time prescribed
by these rules or prescribed by an order. All such motions shall be in
writing and shall conform with Sec.  2200.40, but, in exigent
circumstances in a case pending before a Judge, an oral request may be
made and shall be followed by a written motion filed with the Judge
within such time as the Judge prescribes. A request for an extension of
time should be received in advance of the date on which the pleading or
document is due to be filed. However, in exigent circumstances, an
extension of time may be granted even though the request was filed
after the designated time for filing has expired. In such
circumstances, the party requesting the extension must show, in
writing, the reasons for the party's failure to make the request before
the time prescribed for the filing had expired. The motion may be acted
upon before the time for response has expired.
Sec.  2200.6  Record address.
    (a) Every pleading or document filed by any party or intervenor
shall contain the name, current address, telephone number, and email
address of the party or intervenor's representative or, if there is no
representative, the party or intervenor's own name, current address,
telephone number, and email address. Any change in such information
shall be communicated promptly in writing to the Judge, or the
Executive Secretary if no Judge has been assigned, and to all other
parties and intervenors. A party or intervenor who fails to furnish
such information shall be deemed to have waived its right to notice and
service under these rules.
    (b) Representatives, parties, and intervenors who file case
documents electronically in the Commission's E-File System pursuant to
Sec.  2200.8(c) are responsible for both maintaining a valid email
address associated with the registered account and regularly monitoring
that email address.
Sec.  2200.7  Service, notice, and posting.
    (a) When service is required. At the time of filing pleadings or
other documents, the filer shall serve a copy on every other party or
intervenor. Every document relating to discovery required to be served
on a party shall be served on all parties and intervenors. Every order
required by its terms to be served shall be served on all parties and
intervenors.
    (b) Service on represented parties or intervenors. Service upon a
party or intervenor who has appeared through a representative shall be
made only upon such representative unless the Judge orders service on
the party or intervenor.
    (c) How accomplished. Unless otherwise ordered, service may be
accomplished by the following methods:
    (1) Commission's E-File System. For electronically-filed documents,
service shall be deemed accomplished by the simultaneous service of the
document by email on all other parties and intervenors in the case,
together with proof of service pursuant to paragraph (d) of this
section.
    (2) U.S. Mail. Service shall be deemed accomplished upon depositing
the item in the U.S. Mail with first-class or higher class (such as
priority mail) postage pre-paid addressed to the recipient's record
address provided pursuant to Sec.  2200.6.
    (3) Commercial or other personal delivery. Service shall be deemed
accomplished upon delivery to the recipient's record address provided
pursuant to Sec.  2200.6.
    (4) Facsimile transmission. Service by facsimile transmission shall
be deemed accomplished upon delivery to the receiving facsimile
machine. The party serving a document by facsimile is responsible for
the successful transmission and legibility of documents intended to be
served.
    (d) Proof of service. Service shall be documented by a written
certificate of service setting forth the date and manner of service.
The certificate of service shall be filed with the pleading or
document.
    (e) Proof of posting. Where service is accomplished by posting,
proof of such posting shall be filed not later than the first working
day following the posting.
    (f) Service on represented employees. Service and notice to
employees represented by an authorized employee representative shall be
deemed accomplished by serving the representative in a manner
prescribed in paragraph (c) of this section.
    (g) Service on unrepresented employees. In the event there are
affected employees who are not represented by an authorized employee
representative, the employer shall post, immediately upon receipt, the
docketing notice for the notice of contest or petition for modification
of the abatement period. The posting shall be at or near where the
citation is required to be posted pursuant to section 9(b) of the
Occupational Safety and Health Act of 1970, 29 U.S.C. 658(b), and 29
CFR 1903.16. The employer shall post:
    (1) A copy of the notice of contest or petition for modification of
the abatement period;
    (2) A notice informing the affected employees of their right to
party status; and
    (3) A notice informing the affected employees of the availability
of all pleadings for inspection and copying at reasonable times.
    (4)(i) A notice in the following form shall be deemed to comply
with this paragraph:
(Name of employer)
    Your employer has been cited by the Secretary of Labor for
violation of the Occupational Safety and Health Act of 1970. The
citation has been contested and will be the subject of a hearing
before the OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION.
Affected employees are entitled to participate in this hearing as
parties under terms and conditions established by the OCCUPATIONAL
SAFETY AND HEALTH REVIEW COMMISSION in its Rules of Procedure.
Notice of intent to participate must be filed no later than 14 days
before the hearing. Any notice of intent to participate should be
sent to: Occupational Safety and Health Review Commission, Office of
the Executive Secretary, One Lafayette Centre, 1120 20th Street, NW,
Suite 980, Washington, DC 20036-3457. All pleadings relevant to this
matter may be inspected at: (Place reasonably convenient to
employees, preferably at or near workplace.)
    (ii) Where appropriate, the second sentence of the above notice
will be deleted and the following sentence will be substituted:
    The reasonableness of the period prescribed by the Secretary of
Labor for abatement of the violation has been contested and will be
the subject of a hearing before the OCCUPATIONAL SAFETY AND HEALTH
REVIEW COMMISSION.
    (h) Special service requirements; authorized employee
representatives. The authorized employee representative, if any, shall
be served with the notice set forth in paragraph (g) of this section
and with a copy of the notice of contest or petition for modification
of the abatement period.
    (i) Notice of hearing to unrepresented employees. Immediately upon
receipt, a copy of the notice of the hearing to be held before the
Judge shall be served by the employer on affected employees who are not
represented by an authorized employee representative by posting a copy
of the notice of such hearing at or near the place where the citation
is required to be posted pursuant to section 9(b) of the Occupational
Safety and Health Act of 1970, 29 U.S.C. 658(b), and 29 CFR 1903.16.
    (j) Notice of hearing to represented employees. Immediately upon
receipt of the notice of the hearing to be held before the Judge, the
employer shall
[[Page 14561]]
serve a copy of the notice on the authorized employee representative of
affected employees in the manner prescribed in paragraph (c) of this
section. The employer need not serve the notice of hearing, as stated
above, if on or before the date the hearing notice is received, the
authorized employee representative has entered an appearance in
conformance with Sec. Sec.  2200.22 and 2200.23.
    (k) Employee contest; service on other employees. (1) Where a
notice of contest with respect to the reasonableness of the abatement
period is filed under Sec.  2200.38 by an affected employee who is not
represented by an authorized employee representative and there are
other affected employees who are represented by an authorized employee
representative, the unrepresented affected employee shall serve the
following documents on the authorized employee representative:
    (i) The notice of contest with respect to the reasonableness of the
abatement period; and
    (ii) A copy of the Secretary's statement of reasons, filed in
conformance with Sec.  2200.38(b).
    (2) Service on the authorized employee representative shall be in
the manner prescribed in paragraph (c) of this section. The
unrepresented affected employee shall file proof of such service.
    (l) Employee contest; Service on employer. Where a notice of
contest with respect to the reasonableness of the abatement period is
filed by an affected employee or an authorized employee representative,
a copy of the notice of contest and response filed in support of the
notice of contest shall be provided to the employer for posting in the
manner prescribed in paragraph (g) of this section.
    (m) Employee contest; Service on other authorized employee
representatives. An authorized employee representative who files a
notice of contest with respect to the reasonableness of the abatement
period shall be responsible for serving any other authorized employee
representative whose members are affected employees in the manner
prescribed in paragraph (c) of this section.
    (n) Duration of posting. Where posting is required by this section,
such posting shall be maintained until the commencement of the hearing
or until earlier disposition.
    (o) Service of show cause orders--(1) Service on parties and
intervenors using Commission's E-File System. Service of show cause
orders shall be deemed completed by service through the Commission's E-
File System on a representative who has entered an appearance for a
party or intervenor under Sec.  2200.23 or on a self-represented party
or intervenor who has elected service through the Commission's E-File
System. See also Sec.  2200.101(a).
    (2) Service on self-represented parties or intervenors not using
the Commission's E-File System. In addition to the service methods
permitted by Sec.  2200.7(c), the Commission or the Judge shall serve a
show cause order on a party or intervenor who is self-represented and
is not using the Commission's E-File System by certified mail or by any
other method (including commercial delivery service) that provides
confirmation of delivery to the addressee's record address provided
under Sec.  2200.6.
Sec.  2200.8  Filing.
    (a) What to file--(1) General. All documents required to be served
on a party or intervenor shall be filed either before service or within
a reasonable time after service.
    (2) Discovery documents. Discovery documents generated pursuant to
Sec. Sec.  2200.52 through 2200.56 shall not be filed with the
Commission or the Judge. Filing and retention of such discovery
documents shall comply with Sec.  2200.52(i) and (j).
    (b) Where to file. Prior to assignment of a case to a Judge, all
documents shall be filed electronically in the Commission's E-File
System or with the Executive Secretary at One Lafayette Centre, 1120
20th Street NW, Suite 980, Washington, DC 20036-3457. After the
assignment of the case to a Judge, all documents shall be filed
electronically in the Commission's E-File System or with the Judge at
the address given in the notice of assignment. After the docketing of
the Judge's report, all documents shall be filed with the Executive
Secretary, except as provided in Sec.  2200.90(b)(4).
    (c) Electronic filing with the Commission--(1) Mandatory e-filing.
Parties and intervenors who are represented by an attorney or non-
attorney representative, as provided in Sec.  2200.22, must file
documents electronically in the Commission's E-File System by following
the instructions on the Commission's website (www.oshrc.gov), unless
the documents are exempt from e-filing under paragraph (c)(5) of this
section.
    (2) Non-mandatory e-filing. (i) Self-represented parties or
intervenors, as provided in Sec.  2200.22, may file documents
electronically in the Commission's E-File System by following the
instructions on the Commission's website (www.oshrc.gov). Self-
represented parties or intervenors who elect e-filing must file all
documents electronically, unless excused by the Commission or the Judge
or the documents are exempt from e-filing under paragraph (c)(5) of
this section.
    (ii) Self- represented parties or intervenors who do not elect e-
filing must file documents by postage-prepaid first class or higher
class U.S. Mail, commercial delivery service, personal delivery, or
facsimile transmission as described in paragraph (d) of this section.
    (3) If technical difficulties prevent the successful submission of
electronically filed documents, the e-filer should refer to the
instructions for electronic filing on the Commission's website
(www.oshrc.gov).
    (4) Documents filed electronically in the Commission's E-File
System may contain an electronic signature of the filer which will have
the same legal effect, validity, and enforceability as if signed
manually. The term ``electronic signature'' means an electronic symbol
or process attached to or logically associated with a contact or other
record and executed or adopted by a person with the intent to sign the
document.
    (5) Confidential and privileged documents. The following documents
must not be filed electronically in the Commission's E-File System:
    (i) Documents that may not be released to the public because the
information is covered by a protective order or has been placed ``under
seal'' pursuant to Sec.  2200.52(d) and (e).
    (ii) Documents submitted for in camera inspection by the Commission
or the Judge, including material for which a privilege is claimed.
Claims regarding privileged information must comply with Sec.
2200.52(d).
    (iii) Confidential settlement documents filed with the Judge
pursuant to settlement procedures pursuant to Sec.  2200.120.
    (iv) Applications for subpoenas made ex parte pursuant to Sec.
2200.65.
    (6) Sensitive information. Unless the Commission or the Judge
orders otherwise, all sensitive information in documents filed
electronically in the Commission's E-File System must be redacted
pursuant to paragraph (d)(5) of this section.
    (7) Date of filing. The date of filing for documents filed
electronically is the day that the complete document is successfully
submitted in the Commission's E-File System pursuant to Rule
4(a)(4)(i). Electronic filing shall be completed by following the
instructions
[[Page 14562]]
on the Commission's website (www.oshrc.gov).
    (8) Timeliness. Representatives and self-represented parties and
intervenors bear the sole responsibility for ensuring that a filing is
timely made.
    (9) Certificate of service. Proof of service shall accompany each
document filed in the Commission's E-File System. The certificate of
service shall certify simultaneous service of the document by email on
all other parties and intervenors in the case. It is the responsibility
of the filing party to retain records showing the date of transmission,
including receipts.
    (d) Documents that are not filed in the Commission's E-File System;
alternative filing methods--(1) How to file. Documents may be filed by
postage-prepaid first class or higher class U.S. Mail, commercial
delivery service, personal delivery, electronic transmission, or
facsimile transmission.
    (2) Number of copies. Unless otherwise ordered or stated in this
part, only the original of a document shall be filed.
    (3) Filing date. (i) Except for the documents listed in paragraph
(d)(3)(ii) of this section, if filing is by U.S. first class mail (or
higher class mail, such as priority mail), then filing is deemed
completed upon depositing the material in the U.S. Mail. If filing is
by any other means (e.g., personal delivery, commercial delivery
service, or facsimile transmission) then filing is deemed completed
upon receipt by the Commission.
    (ii) Filing is completed upon receipt by the Commission for
petitions for interlocutory review (Sec.  2200.73), petitions for
discretionary review (Sec.  2200.91), and EAJA applications (Sec.
2204.301).
    (iii) Representatives and self-represented parties and intervenors
bear the sole responsibility for ensuring that a filing is timely made.
    (4) Certificate of service. A certificate of service shall
accompany each document filed. The certificate shall set forth the
dates and manner of filing and service.
    (5) Sensitive information. Unless the Commission or the Judge
orders otherwise, in any filing with the Commission, information that
is sensitive (e.g., Social Security numbers, driver's license numbers,
passport numbers, taxpayer-identification numbers, birthdates, mother's
maiden names, names of minors, an individual's physical personal
address, financial account numbers) but not privileged shall be
redacted. Parties shall exercise caution when filing medical records,
medical treatment records, medical diagnosis records, employment
history, and individual financial information, and shall redact or
exclude materials unnecessary to the case.
    (6) Privileged information. Claims regarding privileged information
shall comply with Sec.  2200.52(d).
Sec.  2200.9  Consolidation.
    Cases may be consolidated on the motion of any party conforming to
Sec.  2200.40, on the Judge's own motion, or on the Commission's own
motion, where there exist common parties, common questions of law or
fact or in such other circumstances as justice or the administration of
the Act require.
Sec.  2200.10  Severance.
    Upon its own motion, or upon motion of any party or intervenor
conforming to Sec.  2200.40, where a showing of good cause has been
made by the party or intervenor, the Commission or the Judge may order
any proceeding severed with respect to some or all claims or parties.
Sec.  2200.11  [Reserved]
Sec.  2200.12  References to cases.
    (a) Citing decisions by Commission and Judges--(1) Generally.
Parties citing decisions by the Commission should include in the
citation the name of the employer, the OSHRC docket number, the year of
the decision, and a citation to a print or electronic reference source.
Citations to Commission and ALJ decisions published on the Commission's
website (www.oshrc.gov) are also accepted. For example,
    (i) Print:
    (A) Hackensack Steel Corp., 20 BNA OSHC 1387, 1388 (No. 97-0755,
2003).
    (B) Hackensack Steel Corp., 2002-2004 CCH OSHD ] 32,690, p. 51,558
(No. 97-0755, 2003).
    (ii) Electronic:
    (A) Hackensack Steel Corp., No. 97-0755, 2003 WL 22232017, at *4
(OSHRC Sept. 25, 2003).
    (B) Hackensack Steel Corp., No. 97-0755, 2003 LEXIS 450392, at *2
(OSHRC Sept. 25, 2003).
    (iii) Commission website (www.oshrc.gov):
    (A) PDF versions of cases should be cited as follows and identify
the relevant page number: Jacobs Field Servs. N. Am., No. 10-2659, at 5
(OSHRC 2015).
    (B) HTML versions of cases should be cited as follows and identify
the relevant paragraph number: Jacobs Field Servs. N. Am., No. 10-2659,
at ] 9 (OSHRC 2015).
    (2) Parenthetical statements. When citing the decision of a Judge,
the digest of an opinion, or the opinion of a single Commissioner, a
parenthetical statement identifying that the decision is non-
precedential (e.g. ``ALJ'') must be included. For example, Rust
Engineering Co., 1984 CCH OSHD ] 27,023 (No.79-2090, 1984) (view of
Chairman ___), vacating direction for review of 1980 CCH OSHD ] 24,269
(1980) (ALJ) (digest).
    (b) References to court decisions. (1) Citation to court decisions
should be to the official reporter whenever possible. For example:
    (i) W.G. Yates & Sons Constr. Co. v. OSHRC, 459 F.3d 604, 608-09
(5th Cir. 2006).
    (ii) Martin v. OSHRC (CF & I Steel Corp.), 499 U.S. 144, 150-51
(1991).
    (2) Name of employer to be indicated. When a court decision is
cited in which the first-listed party on each side is either the
Secretary of Labor (or the name of a particular Secretary of Labor),
the Commission, or a labor union, the citation should include in
parenthesis the name of the employer in the Commission proceeding. For
example, Donovan v. Allied Industrial Workers (Archer Daniels Midland
Co.), 760 F.2d 783 (7th Cir. 1985); Donovan v. OSHRC (Mobil Oil Corp.),
713 F. 2d 918 (2d Cir. 1983).
Subpart B--Parties and Representatives
Sec.  2200.20  Party status.
    (a) Affected employees. (1) Affected employees and authorized
employee representatives may elect party status concerning any matter
in which the Act confers a right to participate. The election shall be
accomplished by filing a written notice of election at least 14 days
before the hearing. A notice of election filed less than 14 days prior
to the hearing is ineffective unless good cause is shown for not timely
filing the notice.
    (2) A notice of election shall be served on all other parties in
accordance with Sec.  2200.7.
    (b) Employees no longer employed by cited employer. An employee of
a cited employer who was exposed to or had access to the hazard arising
out of the allegedly violative circumstances, conditions, practices, or
operations and who is no longer employed by the cited employer is
permitted to participate as a party.
    (c) Employee contest. (1) Where a notice of contest is filed by an
employee or by an authorized employee representative with respect to
the reasonableness of the period for abatement of a violation, the
employer charged with the responsibility of abating the violation may
elect party
[[Page 14563]]
status by a notice filed at least 14 days before the hearing.
    (2) A notice of election shall be served on all other parties in
accordance with Sec.  2200.7.
Sec.  2200.21  Intervention; appearance by non-parties.
    (a) When allowed. A petition for leave to intervene may be filed at
any time prior to 14 days before commencement of the hearing. A
petition filed less than 14 days prior to the commencement of the
hearing will be denied unless good cause is shown for not timely filing
the petition. A petition shall be served on all parties in accordance
with Sec.  2200.7.
    (b) Requirements of petition. (1) The petition shall set forth the
interest of the petitioner in the proceeding and show that the
participation of the petitioner will assist in the determination of the
issues in question and that the intervention will not unduly delay the
proceeding.
    (2) If the petitioner is an employee who is not employed by the
cited employer but who performed work at the cited worksite, the
petition, in addition to the requirements of paragraph (b)(1) of this
section, shall set forth material facts sufficient to demonstrate that
the petitioner was exposed to or has access to the hazard arising out
of the allegedly violative circumstances, conditions, practices, or
operations.
    (c) Ruling on petition. (1) For petitions filed by an employee, as
defined in paragraph (b)(2) of this section, the Commission or the
Judge shall grant the petition for intervention.
    (2) For all other petitions, the Commission or the Judge may grant
a petition for intervention that meets the requirements of paragraph
(b)(1) of this section.
    (3) An order granting a petition shall specify the extent and terms
of an intervenor's participation in the proceedings.
Sec.  2200.22  Representation of parties and intervenors.
    (a) Representation. Any party or intervenor may appear in person,
through an attorney, or through any non-attorney representative. A
representative must file an appearance in accordance with Sec.
2200.23. In the absence of an appearance by a representative, a party
or intervenor will be deemed to appear for itself. A corporation or
unincorporated association may be represented by an authorized officer
or agent.
    (b) Affected employees in collective bargaining unit. Where an
authorized employee representative (see Sec.  2200.1(g)) elects to
participate as a party, affected employees who are members of the
collective bargaining unit may not separately elect party status. If
the authorized employee representative does not elect party status,
affected employees who are members of the collective bargaining unit
may elect party status in the same manner as affected employees who are
not members of the collective bargaining unit. See paragraph (c) of
this section.
    (c) Affected employees not in collective bargaining unit. Affected
employees who are not members of a collective bargaining unit may elect
party status under Sec.  2200.20(a). If more than one employee so
elects, the Judge shall provide for them to be treated as one party.
    (d) Control of proceeding. A representative of a party or
intervenor shall be deemed to control all matters respecting the
interest of such party or intervenor in the proceeding.
Sec.  2200.23  Appearances and withdrawals.
    (a) Entry of appearance--(1) General. A representative of a party
or intervenor shall enter an appearance by signing the first document
filed on behalf of the party or intervenor in accordance with paragraph
(a)(2) of this section or subsequently by filing an entry of appearance
in accordance with paragraph (a)(3) of this section.
    (2) Appearance in first document or pleading. If the first document
filed on behalf of a party or intervenor is signed by a representative,
the representative shall be recognized as representing that party. No
separate entry of appearance by the representative is necessary,
provided the document contains the information required by Sec.
2200.6.
    (3) Subsequent appearance. Where a representative has not
previously appeared on behalf of a party or intervenor, the
representative shall file an entry of appearance with the Executive
Secretary, or Judge if the case has been assigned. The entry of
appearance shall be signed by the representative and contain the
information required by Sec.  2200.6.
    (b) Withdrawal of counsel. Any counsel or representatives of record
desiring to withdraw their appearance, or any parties desiring to
withdraw the appearance of their counsel or representatives of record,
must file a motion conforming with Sec.  2200.40 with the Commission or
the Judge requesting leave to withdraw, showing that prior notice of
the motion has been given by the counsel or representative or party to
the client or counsel or representative, as the case may be, and
providing current contact information for the client, including street
address, email address, and phone number. The motion of counsel to
withdraw may, in the discretion of the Commission or the Judge, be
denied where it is necessary to avoid undue delay or prejudice to the
rights of a party or intervenor.
Sec.  2200.24  Brief of an amicus curiae.
    The brief of an amicus curiae may be filed only by leave of the
Commission or the Judge. The brief may be conditionally filed with the
motion for leave conforming to Sec.  2200.40. A motion for leave shall
identify the interest of the applicant and shall state the reasons why
a brief of an amicus curiae is desirable. Any amicus curiae shall file
its brief within the time allowed the party whose position the amicus
will support unless the Commission or the Judge, for good cause shown,
grants leave for later filing. In that event, the Commission or the
Judge may specify within what period an opposing party may answer. The
brief of an amicus curiae shall conform to Sec.  2200.74 or Sec.
2200.93.
Subpart C--Pleadings and Motions
Sec.  2200.30  General rules.
    (a) Format. Pleadings and other documents (other than exhibits)
shall be typewritten, double spaced, with typeface of text being no
smaller than 12-point and typeface of footnotes being no smaller than
11-point, on letter size opaque paper (8\1/2\ inches by 11 inches). All
margins shall be 1\1/2\ inches. Pleadings and other documents shall be
fastened without the use of staples at the upper left corner.
    (b) Clarity. Each allegation or response of a pleading or motion
shall be simple, concise, and direct.
    (c) Separation claims. Each allegation or response shall be made in
separate numbered paragraphs. Each paragraph shall be limited as far as
practicable to a statement of a single set of circumstances.
    (d) Adoption by reference. Statements in a pleading may be adopted
by reference in a different part of the same pleading or in another
pleading or in any motion. A copy of any written instrument which is an
exhibit to a pleading is a part of the pleading for all purposes.
    (e) Alternative pleading. A party may set forth two or more
statements of a claim or defense alternatively or hypothetically. When
two or more statements are made in the alternative and one of them
would be sufficient if made independently, the pleading is not made
insufficient by the insufficiency of one or more of the alternative
[[Page 14564]]
statements. A party may state as many separate claims or defenses as it
has regardless of consistency. All statements shall be made subject to
the signature requirements of Sec.  2200.32.
    (f) Form of pleadings, motions, and other documents. Any pleading,
motion, or other document shall contain a caption complying with Sec.
2200.31 and a signature complying with Sec.  2200.32. The form and
content of motions shall conform with Sec.  2200.40.
    (g) Burden of persuasion. The rules of pleading established by this
subpart are not determinative in deciding which party bears the burden
of persuasion on an issue. By pleading a matter affirmatively, a party
does not waive its right to argue that the burden of persuasion on the
matter is on another party.
    (h) Enforcement of pleading rules. The Commission or the Judge may
refuse for filing any pleading or motion that does not comply with the
requirements of this subpart.
Sec.  2200.31  Caption; titles of cases.
    (a) Notice of contest cases. Cases initiated by a notice of contest
shall be titled:
Secretary of Labor,
Complainant,
v.
(Name of Employer),
Respondent.
    (b) Petitions for modification of abatement period. Cases initiated
by a petition for modification of the abatement period shall be titled:
(Name of employer),
Petitioner,
v.
Secretary of Labor,
Respondent.
    (c) Location of title. The titles listed in paragraphs (a) and (b)
of this section shall appear at the left upper portion of the initial
page of any pleading or document (other than exhibits) filed.
    (d) Docket number. The initial page of any pleading or document
(other than exhibits) shall show, at the upper right of the page,
opposite the title, the docket number, if known, assigned by the
Commission.
Sec.  2200.32  Signing of pleadings and motions.
    Pleadings and motions shall be signed by the filing party or by the
party's representative. The signature of a representative constitutes a
representation by the representative that the representative is
authorized to represent the party or parties on whose behalf the
pleading is filed. The signature of a representative or party also
constitutes a certificate by the representative that the representative
has read the pleading, motion, or other document, that to the best of
the representative's knowledge, information, and belief, formed after
reasonable inquiry, it is well grounded in fact and is warranted by
existing law or a good faith argument for the extension, modification,
or reversal of existing law, and that it is not included for any
improper purpose, such as to harass or to cause unnecessary delay or
needless increase in the cost of litigation. If a pleading, motion, or
other document is signed in violation of this rule, such signing party
or its representative shall be subject to the sanctions set forth in
Sec.  2200.101 or Sec.  2200.104. A signature by a party representative
constitutes a representation by the representative that the
representative understands that the rules and orders of the Commission
and its Judges apply equally to attorney and non-attorney
representatives.
Sec.  2200.33  Notices of contest.
    Within 15 working days after receipt of any of the following
notices, the Secretary shall notify the Commission of the receipt in
writing and shall promptly furnish to the Executive Secretary of the
Commission the original of any documents or records filed by the
contesting party and copies of all other documents or records relevant
to the contest:
    (a) Notification that the employer intends to contest a citation or
proposed penalty under section 10(a) of the Act, 29 U.S.C. 659(a); or
    (b) Notification that the employer wishes to contest a notice of a
failure to abate or a proposed penalty under section 10(b) of the Act,
29 U.S.C. 659(b); or
    (c) A notice of contest filed by an employee or representative of
employees with respect to the reasonableness of the abatement period
under section 10(c) of the Act, 29 U.S.C. 659(c).
     Note 1 to Sec.  2200.33:  Failure to meet the 15-working day
deadline to file a notice of contest results in the citation or
notification of failure to abate becoming a final order of the
Commission. Under extraordinary circumstances, the cited employer,
an affected employee, or an authorized employee representative may
seek relief from the final order pursuant to Federal Rule of Civil
Procedure 60, by promptly filing a request for such relief with the
Commission's Executive Secretary, One Lafayette Centre, 1120 20th
Street NW, Suite 980, Washington, DC 20036-3457. See Brancifort
Builders, Inc., 9 BNA OSHC 2113, 2116-17 (1981).
Sec.  2200.34  Employer contests.
    (a) Complaint. (1) The Secretary shall file a complaint with the
Commission no later than 21 days after receipt of the notice of
contest.
    (2) The complaint shall set forth all alleged violations and
proposed penalties which are contested, stating with particularity:
    (i) The basis for jurisdiction;
    (ii) The time, location, place, and circumstances of each such
alleged violation; and
    (iii) The considerations upon which the period for abatement and
the proposed penalty of each such alleged violation are based.
    (3) Where the Secretary seeks in the complaint to amend the
citation or proposed penalty, the Secretary shall set forth the reasons
for amendment and shall state with particularity the change sought.
    (b) Answer. (1) Within 21 days after service of the complaint, the
party against whom the complaint was issued shall file an answer with
the Commission.
    (2) The answer shall contain a short and plain statement denying
those allegations in the complaint which the party intends to contest.
Any allegation not denied shall be deemed admitted.
    (3) The answer shall include all affirmative defenses being
asserted. Such affirmative defenses include, but are not limited to,
``infeasibility,'' ``unpreventable employee misconduct,'' and ``greater
hazard.''
    (4) The failure to raise an affirmative defense in the answer may
result in the party being prohibited from raising the defense at a
later stage in the proceeding, unless the Judge finds that the party
has asserted the defense as soon as practicable.
    (c) Motions filed in lieu of an answer. A motion filed in lieu of
an answer pursuant to this subpart shall be filed no later than 21 days
after service of the complaint. The form and content of the motion
shall comply with Sec.  2200.40.
Sec.  2200.35  Disclosure of corporate parents, subsidiaries, and
affiliates.
    (a) General. All answers, petitions for modification of abatement
period, or other initial pleadings filed under these rules by a
corporation shall be accompanied by a separate declaration listing all
parents, subsidiaries, and affiliates of that corporation or stating
that the corporation has no parents, subsidiaries, or affiliates,
whichever is applicable.
    (b) Failure to disclose. The Commission or the Judge in its
discretion may refuse to accept for filing an answer or other initial
pleading that
[[Page 14565]]
lacks the disclosure declaration required by this paragraph. A party
that fails to file an adequate declaration may be held in default after
being given an opportunity to show cause why it should not be held in
default. All show cause orders issued by the Commission or the Judge
shall be served in a manner prescribed in Sec.  2200.7(o).
    (c) Continuing duty to disclose. A party subject to the disclosure
requirement of this paragraph has a continuing duty to notify the
Commission or the Judge of any change in the information on the
disclosure declaration until the Commission issues a final order
disposing of the proceeding.
Sec.  2200.36  [Reserved]
Sec.  2200.37  Petitions for modification of the abatement period.
    (a) Grounds for modifying abatement date. An employer may file a
petition for modification of abatement date when such employer has made
a good faith effort to comply with the abatement requirements of a
citation, but such abatement has not been completed because of factors
beyond the employer's reasonable control.
    (b) Contents of petition. A petition for modification of abatement
date shall be in writing and shall include the following information:
    (1) All steps taken by the employer, and the dates of such action,
in an effort to achieve compliance during the prescribed abatement
period.
    (2) The specific additional abatement time necessary in order to
achieve compliance.
    (3) The reasons such additional time is necessary, including the
unavailability of professional or technical personnel or of materials
and equipment, or because necessary construction or alteration of
facilities cannot be completed by the original abatement date.
    (4) All available interim steps being taken to safeguard the
employees against the cited hazard during the abatement period.
    (c) When and where filed; posting requirement; responses to
petition. A petition for modification of abatement date shall be filed
with the Area Director of the United States Department of Labor who
issued the citation no later than the close of the next working day
following the date on which abatement was originally required. A later-
filed petition shall be accompanied by the employer's statement of
exceptional circumstances explaining the delay.
    (1) A copy of such petition shall be posted in a conspicuous place
where all affected employees will have notice of the petition or near
each location where the violation occurred. The petition shall remain
posted for a period of 10 working days.
    (2) Affected employees or the representatives may file an objection
in writing to such petition with the aforesaid Area Director. Failure
to file such objection within 10 working days of the date of posting of
such petition shall constitute a waiver of any further right to object
to said petition.
    (3) The Secretary or the Secretary's duly authorized agent shall
have the authority to approve any uncontested petition for modification
of abatement date filed pursuant to paragraphs (b) and (c) of this
section. Such uncontested petitions shall become final orders pursuant
to sections 10(a) and (c) of the Act, 29 U.S.C. 659(a) and (c).
    (4) The Secretary or the Secretary's authorized representative
shall not exercise the Secretary's approval power until the expiration
of 15 working days from the date the petition was posted pursuant to
paragraphs (c)(1) and (2) of this section by the employer.
    (d) Contested petitions. Where any petition is objected to by the
Secretary or affected employees, such petition shall be processed as
follows:
    (1) The Secretary shall forward the petition, citation, and any
objections to the Commission within 10 working days after the
expiration of the 15 working day period set out in paragraph (c)(4) of
this section.
    (2) The Commission shall docket and process such petitions as
expedited proceedings as provided for in Sec.  2200.103 of this Part.
    (3) An employer petitioning for a modification of the abatement
period shall have the burden of proving in accordance with the
requirements of section 10(c) of the Act, 29 U.S.C. 659(c), that such
employer has made a good faith effort to comply with the abatement
requirements of the citation and that abatement has not been completed
because of factors beyond the employer's control.
    (4) Where the petitioner is a corporation, it shall file a separate
declaration listing all parents, subsidiaries, and affiliates of that
corporation or stating that the corporation has no parents,
subsidiaries, or affiliates, whichever is applicable, within 10 working
days after service of the Commission docketing notice of the petition
for modification of the abatement date. Service of the filed
declaration on the other parties and intervenors shall be accomplished
in a manner prescribed in Sec.  2200.7(c). The requirements set forth
in Sec.  2200.35(b) through (d) shall apply.
    (5) Each objecting party shall file a response setting forth the
reasons for opposing the abatement date requested in the petition,
within 10 working days after service of the Commission docketing notice
of the petition for modification of the abatement date. Service of the
response on the other parties and intervenors shall be accomplished in
a manner prescribed in Sec.  2200.7(c).
Sec.  2200.38  Employee contests.
    (a) Secretary's statement of reasons. Where an affected employee or
authorized employee representative files a notice of contest with
respect to the abatement period, the Secretary shall, within 14 days
from receipt of the notice of contest, file a clear and concise
statement of the reasons the abatement period prescribed by the
Secretary is not unreasonable.
    (b) Response to Secretary's statement. Not later than 14 days after
service of the Secretary's statement, referred to in paragraph (a) of
this section, the contesting affected employee or authorized employee
representative shall file a response. Service of the filed statement on
the other parties and intervenors shall be accomplished in a manner
prescribed in Sec.  2200.7(c).
    (c) Expedited proceedings. All contests under this section shall be
handled as expedited proceedings as provided for in Sec.  2200.103.
Sec.  2200.39  Statement of position.
    At any time prior to the commencement of the hearing before the
Judge, any person entitled to appear as a party, or any person who has
been granted leave to intervene, may file a statement of position with
respect to any or all issues to be heard. The Judge may order the
filing of a statement of position.
Sec.  2200.40  Motions and requests.
    (a) How to make. An application or request for an order must be
made by written motion. A motion shall not be included in another
pleading or document, such as a brief or petition for discretionary
review, but shall be made in a separate document. In exigent
circumstances in cases pending before a Judge, an oral motion may be
made during an off-the-record telephone conference if the motion is
subsequently reduced to writing and filed within such time as the judge
prescribes.
    (b) Form of motions. All motions shall contain a caption complying
with Sec.  2200.31 and a signature complying with Sec.  2200.32.
Requests for orders that
[[Page 14566]]
are presented in any other form, such as by a business letter or by an
email, shall not be considered or granted.
    (c) Content of motions. A motion shall contain a clear and plain
statement of the relief sought and state with particularity the grounds
for seeking the order. Written memoranda, briefs, affidavits, or other
relevant material or documents may be filed in support of the motion or
a response.
    (d) Duty to confer. Prior to filing a motion, the moving party
shall confer or make reasonable efforts to confer with all other
parties and shall state in the motion the efforts undertaken to confer.
The motion shall also state if any other party opposes or does not
oppose the motion.
    (e) Proposed order for procedural motions. All procedural motions
shall be accompanied by a proposed order that would grant the relief
requested in the motion. A procedural motion may be ruled upon prior to
the expiration of the time for response.
    (f) Oral motions. Oral motions may be made during a hearing and
shall be included in the transcript, if a transcript is being made.
    (g) When to make. (1) A motion filed in lieu of an answer pursuant
to Sec.  2200.34(c) shall be filed no later than 21 days after service
of the complaint.
    (2) Motions shall be made as soon as the grounds for the motion are
known. A party is not required to raise by motion any matter that the
party has previously included in any pleading as defined in Sec.
2200.1(n), unless the party seeks a ruling on the previously pleaded
matter prior to the hearing on the merits.
    (3) A motion to postpone a hearing shall comply with Sec.  2200.62.
    (h) Responses. Any party or intervenor upon whom a motion has been
served shall file a response within 14 days from service of the motion.
    (i) Reconsideration. A party adversely affected by a ruling on any
motion may file a motion for reconsideration within 7 days of service
of the ruling.
    (j) Summary judgment motions. The provisions of Federal Rule of
Civil Procedure 56 apply to motions for summary judgment.
Sec.  2200.41  [Reserved]
Subpart D--Prehearing Procedures and Discovery
Sec.  2200.50  [Reserved]
Sec.  2200.51  Prehearing conferences and orders.
    (a) Scheduling conference. (1) The Judge may, upon the Judge's
discretion, consult with the attorneys, non-attorney party
representatives, and any self-represented parties, by a scheduling
conference, telephone, mail, or other suitable means, and within 30
days after the filing of the answer, enter a scheduling order that
limits the time:
    (i) To join other parties and to amend the pleadings;
    (ii) To file and hear motions; and
    (iii) To complete discovery.
    (2) The scheduling order also may include:
    (i) The date or dates for conferences before hearing, a final
prehearing conference, and hearing; and
    (ii) Any other matters appropriate to the circumstances of the
case.
    (b) Prehearing conference. In addition to the prehearing procedures
set forth in Federal Rule of Civil Procedure 16, the Judge may, upon
the Judge's own initiative or on the motion of a party, direct the
parties to confer among themselves to consider settlement, stipulation
of facts, or any other matter that may expedite the hearing.
    (c) Compliance. Parties must fully prepare for a useful discussion
of all procedural and substantive issues involved in prehearing
conferences and shall participate in such conferences in good faith.
Parties failing to do so may be subject to sanctions under Sec. Sec.
2200.101 and 2200.104.
Sec.  2200.52   General provisions governing discovery.
    (a) General--(1) Methods and limitations. In conformity with these
rules, any party may, without leave of the Commission or the Judge,
obtain discovery by one or more of the following methods:
    (i) Production of documents or things or permission to enter upon
land or other property for inspection and other purposes to the extent
provided in Sec.  2200.53;
    (ii) Requests for admission to the extent provided in Sec.
2200.54; and
    (iii) Interrogatories to the extent provided in Sec.  2200.55.
    (iv) Discovery is not available under these rules through
depositions except to the extent provided in Sec.  2200.56.
    (v) In the absence of a specific provision, discovery procedures
shall be in accordance with the Federal Rules of Civil Procedure,
except that the provisions of Federal Rule of Civil Procedure 26(a) do
not apply to Commission proceedings. This exception does not preclude
any prehearing disclosures (including disclosure of expert testimony
and written reports) directed in a scheduling order entered under Sec.
2200.51.
    (2) Time for discovery. A party may initiate all forms of discovery
in conformity with these Rules at any time after the filing of the
first responsive pleading or motion that delays the filing of an
answer, such as a motion to dismiss. Discovery shall be initiated early
enough to permit completion of discovery no later than 14 days prior to
the date set for hearing, unless the Judge orders otherwise.
    (3) Service of discovery documents. Every document relating to
discovery required to be served on a party shall be served on all
parties.
    (4) Stipulations about discovery procedures. Unless the Commission
or the Judge orders otherwise, the parties may stipulate that:
    (i) 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
    (ii) Other procedures governing or limiting discovery may be
modified--but a stipulation extending the time for any form of
discovery must be approved by the Commission or the Judge if it would
interfere with the time set forth for completing discovery, for hearing
a motion, or for hearing.
    (b) Scope of discovery. The information or response sought through
discovery may concern any matter that is not privileged and that is
relevant to the subject matter involved in the pending case and
proportional to the needs of the case, considering the importance of
the issues at stake, the parties' relative access to relevant
information, the parties' resources, the importance of the discovery in
resolving the issues, and whether the burden or expense of the proposed
discovery outweighs its likely benefit. Information within this scope
of discovery need not be admissible in evidence to be discoverable.
    (c) Limitations. The frequency or extent of the discovery methods
provided by these rules may be limited by the Commission or the Judge
if it is determined that:
    (1) The discovery sought is unreasonably cumulative or duplicative,
or it is obtainable from some other source that is more convenient,
less burdensome, or less expensive;
    (2) The party seeking discovery has had ample opportunity to obtain
the information sought by discovery in the action; or
    (3) The proposed discovery is outside the scope permitted by
paragraph (b) of this section.
    (d) Privilege--(1) Claims of privilege. The initial claim of
privilege shall specify the privilege claimed and the general nature of
the material for which the privilege is claimed. In response to
[[Page 14567]]
an order from the Commission or the Judge, or in response to a motion
to compel, the claim shall: Identify the information that would be
disclosed; set forth the privilege that is claimed; and allege the
facts showing that the information is privileged. The claim shall be
supported by affidavits, depositions, or testimony and shall specify
the relief sought. The claim may be accompanied by a motion for a
protective order or by a motion that the allegedly privileged
information be received and the claim ruled upon in camera, that is,
with the record and hearing room closed to the public, or ex parte,
that is, without the participation of parties and their
representatives. The Judge may enter an order and impose terms and
conditions on the Judge's examination of the claim as justice may
require, including an order designed to ensure that the allegedly
privileged information not be disclosed until after the examination is
completed.
    (2) Upholding or rejecting claims of privilege. If the Judge
upholds the claim of privilege, the Judge may order and impose terms
and conditions as justice may require, including a protective order. If
the Judge overrules the claim, the person claiming the privilege may
obtain as of right an order sealing from the public those portions of
the record containing the allegedly privileged information pending
interlocutory or final review of the ruling, or final disposition of
the case, by the Commission. Interlocutory review of such an order
shall be given priority consideration by the Commission.
    (3) Resolving claims of privilege outside of discovery proceedings.
A Judge may utilize the procedures set forth in paragraphs (d) and (e)
of this section outside of discovery proceedings, including during the
hearing.
    (e) Protective orders. In connection with any discovery procedures
and where a showing of good cause has been made, the Commission or the
Judge may make any order including, but not limited to, one or more of
the following:
    (1) That the discovery not be had;
    (2) That the discovery may be had only on specified terms and
conditions, including a designation of the time or place;
    (3) That the discovery may be had only by a method of discovery
other than that selected by the party seeking discovery;
    (4) That certain matters not be inquired into, or that the scope of
the discovery be limited to certain matters;
    (5) That discovery be conducted with no one present except persons
designated by the Commission or the Judge;
    (6) That a deposition after being sealed be opened only by order of
the Commission or the Judge;
    (7) That a trade secret or other confidential research,
development, or commercial information not be disclosed or be disclosed
only in a designated way;
    (8) That the parties simultaneously file specified documents or
information enclosed in sealed envelopes to be opened as directed by
the Commission or the Judge.
    (f) Failure to cooperate; motions to compel; sanctions--(1) Motions
to compel discovery. A party may file a motion conforming to Sec.
2200.40 for an order compelling discovery when another party refuses or
obstructs discovery. In considering a motion to compel, the Judge shall
treat an evasive or incomplete answer as a failure to answer.
    (2) Sanctions. If a party fails to comply with an order compelling
discovery, the Judge may enter an order to redress the failure. Such
order may issue upon the initiative of a Judge, after affording an
opportunity to show cause why the order should not be entered, or upon
the motion of a party conforming to Sec.  2200.40. The order may
include any sanction stated in Federal Rule of Civil Procedure 37,
including the following:
    (i) An order that designated facts shall be taken to be established
for purposes of the case in accordance with the claim of the party
obtaining that order;
    (ii) An order refusing to permit the disobedient party to support
or to oppose designated claims or defenses or prohibiting it from
introducing designated matters in evidence;
    (iii) An order striking pleadings or parts of pleadings or staying
further proceedings until the order is obeyed; and
    (iv) An order dismissing the action or proceeding or any part of
the action or proceeding or rendering a judgment by default against the
disobedient party.
    (g) Unreasonable delays. None of the discovery procedures set forth
in these rules shall be used in a manner or at a time which shall delay
or impede the progress of the case toward hearing status or the hearing
of the case on the date for which it is scheduled, unless, in the
interests of justice, the Judge shall order otherwise. Unreasonable
delays in utilizing discovery procedures may result in termination of
the party's right to conduct discovery.
    (h) Show cause orders. All show cause orders issued by the
Commission or the Judge under paragraph (f) of this section shall be
served in a manner prescribed in Sec.  2200.7(o).
    (i) Supplementation of responses. A party that has responded to a
request for discovery with a response that was complete when made is
under no duty to supplement the response to include information
subsequently acquired, except as follows:
    (1) A party is under a duty to promptly supplement the response
with respect to any question directly addressed to:
    (i) The identity and location of persons having knowledge of
discoverable matters; and
    (ii) The identity of each person expected to be called as an expert
witness at the hearing, the subject matter on which the person is
expected to testify, and the substance of the person's testimony.
    (2) A party is under a duty to promptly amend a prior response if
the party obtains information upon the basis of which:
    (i) The party knows that the response was incorrect when made; or
    (ii) The party knows that the response though correct when made is
no longer true and the circumstances are such that a failure to amend
the response is in substance a knowing concealment.
    (3) A duty to supplement responses may be imposed by order of the
court, agreement of the parties, or at any time prior to the hearing
through new requests for supplementation of prior responses.
    (j) Filing of discovery. Requests for production or inspection
under Sec.  2200.53, requests for admission under Sec.  2200.54 and
responses to requests for admission, interrogatories under Sec.
2200.55 and the answers to interrogatories, and depositions under Sec.
2200.56 shall be served upon other counsel or parties, but shall not be
filed with the Commission or the Judge. The party responsible for
service of the discovery material shall retain the original and become
the custodian.
    (k) Relief from discovery requests. If relief is sought under Sec.
2200.101 or Sec.  2200.52(e), (f), or (g) concerning any
interrogatories, requests for production or inspection, requests for
admissions, answers to interrogatories, or responses to requests for
admissions, copies of the portions of the interrogatories, requests,
answers, or responses in dispute shall be filed with the Commission or
the Judge contemporaneously with any motion filed under Sec.  2200.101
or Sec.  2200.52(e), (f), or (g).
    (l) Use at hearing. If interrogatories, requests, answers,
responses, or depositions are to be used at the hearing or are
necessary to a prehearing motion
[[Page 14568]]
which might result in a final order on any claim, the portions to be
used shall be filed with the Commission or the Judge at the outset of
the hearing or at the filing of the motion insofar as their use can be
reasonably anticipated. Section 2200.56(f) prescribes additional
procedures pertaining to the use of depositions at a hearing.
    (m) Use on review or appeal. When documentation of discovery not
previously in the record is needed for review or appeal purposes, upon
an application and order of the Commission or the Judge, the necessary
discovery documents shall be filed with the Executive Secretary of the
Commission.
Sec.  2200.53  Production of documents and things.
    (a) Scope. At any time after the filing of the first responsive
pleading or motion that delays the filing of an answer, such as a
motion to dismiss, any party may serve on any other party a request to:
    (1) Produce and permit the party making the request, or a person
acting on the party's behalf, to inspect and copy any designated
documents, or to inspect and copy, test, or sample any tangible things
which are in the possession, custody, or control of the party upon whom
the request is served;
    (2) Permit entry upon designated land or other property in the
possession or control of the party upon whom the request is served for
the purpose of inspection and measuring, surveying, photographing,
testing, or sampling the property or any designated object or operation
on the property.
    (b) Procedure. The request shall set forth the items to be
inspected, either by individual item or by category, and describe each
item and category with reasonable particularity. It shall specify a
reasonable time, place, and manner of making the inspection and
performing related acts. The party upon whom the request is served
shall serve a written response within 30 days after service of the
request, unless the requesting party allows a longer time. The
Commission or the Judge may allow a shorter time or a longer time,
should the requesting party deny an extension. The response shall
state, with respect to each item or category, that inspection and
related activities will be permitted as requested, unless the request
is objected to in whole or in part, in which event the reasons for
objection shall be stated. If objection is made to part of an item or
category, that part shall be specified. To obtain a ruling on an
objection by the responding party, the requesting party shall file a
motion conforming to Sec.  2200.40 with the Judge and shall annex its
request to the motion, together with the response and objections, if
any.
Sec.  2200.54  Request for admissions.
    (a) Scope and procedure--(1) Scope. Any time after the filing of
the first responsive pleading or motion that delays the filing of an
answer, such as a motion to dismiss, 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.  2200.52(b)
relating to:
    (i) Facts, the application of law to fact, or opinions about
either; and
    (ii) The genuineness of any described documents.
    (2) Form; copy of a document. Each matter must be separately
stated. The number of requested admissions shall not exceed 25,
including subparts, except upon the agreement of the parties or by
order of the Commission or the Judge. 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
representative. A shorter or longer time for responding may be provided
by written stipulation of the parties or by order of the Commission or
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 an objection is sustained, the Commission or the
Judge must order that an answer be served. On finding that an answer
does not comply with this rule, the Commission or the Judge may order
either that the matter is admitted or that an amended answer be served.
The Commission or the Judge may defer the final decision until a
prehearing conference or a specified time before hearing.
    (b) Effect of admission; withdrawal or modification. A matter
admitted under paragraph (a) of this section is conclusively
established unless the Commission or the Judge on motion permits the
admission to be withdrawn or amended. The Commission or the Judge may
permit withdrawal or modification if it would promote the presentation
of the merits of the case and if the Commission or the Judge is not
persuaded that it would prejudice the requesting party in maintaining
or defending the case on the merits. An admission under paragraph (a)
of this section is not an admission for any other purpose and cannot be
used against the party in any other proceeding.
Sec.  2200.55  Interrogatories.
    (a) General. At any time after the filing of the first responsive
pleading or motion that delays the filing of an answer, such as a
motion to dismiss, any party may serve interrogatories upon any other
party. The number of interrogatories shall not exceed 25 questions,
including subparts, except upon the agreement of the parties or by
order of the Commission or the Judge. The party seeking to serve more
than 25 questions, including subparts, shall have the burden of
persuasion to establish that the complexity of the case or the number
of citation items necessitates a greater number of interrogatories.
    (b) Answers. All answers shall be made in good faith and as
completely as the answering party's information will permit. The
answering party is required to make reasonable inquiry and ascertain
readily obtainable information. An answering party may not give lack of
information or knowledge as an answer or as a reason for failure to
answer, unless the answering party states that it has made reasonable
inquiry and that information known or readily obtainable by it is
insufficient to enable it to answer the substance of the interrogatory.
    (c) Procedure. Each interrogatory shall be answered separately and
fully under oath or affirmation. If the interrogatory is objected to,
the objection shall be stated in lieu of the answer. The answers are to
be signed by the person
[[Page 14569]]
making them and the objections shall be signed by the party or its
counsel. The party on whom the interrogatories have been served shall
serve a copy of its answers or objections upon the propounding party
within 30 days after the service of the interrogatories. The Judge may
allow a shorter or longer time. The burden shall be on the party
submitting the interrogatories to file a motion conforming to Sec.
2200.40 for an order with respect to any objection or other failure to
answer an interrogatory.
Sec.  2200.56  Depositions.
    (a) General. Depositions of parties, intervenors, or witnesses
shall be allowed only by agreement of all the parties or on order of
the Commission or the Judge following the filing of a motion of a party
stating good and just reasons. All depositions shall be before an
officer authorized to administer oaths and affirmations at the place of
examination. The deposition shall be taken in accordance with the
Federal Rules of Civil Procedure, particularly Federal Rule of Civil
Procedure 30.
    (b) When to file. A motion to take depositions may be filed after
the filing of the first responsive pleading or motion that delays the
filing of an answer, such as a motion to dismiss.
    (c) Notice of taking. Any depositions allowed by the Commission or
the Judge may be taken after 14 days' written notice to the other party
or parties. The 14-day notice requirement may be waived by the parties
pursuant to Sec.  2200.52(a)(4)(i).
    (d) Method of recording and expenses. The party that notices the
deposition must state in the notice the method for recording the
testimony. Unless the Commission or the Judge orders otherwise,
testimony may be recorded by audio, audiovisual, or stenographic means.
Witnesses whose depositions are taken and the person recording the
deposition shall each be paid the same fees that are paid for like
services in the federal courts. Any party may arrange to transcribe a
deposition. The party noticing the deposition shall pay the recording
costs, any witness fees, and mileage expense. Deposition subpoenas
shall comply with Sec.  2200.65.
    (e) Use of depositions. Depositions taken under this rule may be
used for discovery, to contradict or impeach the testimony of a
deponent as a witness, or for any other purpose permitted by the
Federal Rules of Evidence and the Federal Rules of Civil Procedure,
particularly Federal Rule of Civil Procedure 32. An audio or
audiovisual deposition offered into evidence in whole or in part must
be accompanied by a transcription of the deposition. All transcription
costs must be borne by the party offering the deposition into evidence.
    (f) Excerpts from depositions to be offered at hearing. Except when
used for purposes of impeachment, at least 7 days prior to the hearing,
the parties or counsel shall furnish to the Judge and all opposing
parties or counsel the transcribed excerpts from depositions (by page
and line number) which they expect to introduce at the hearing. Four
working days later, the adverse party or counsel for the adverse party
shall furnish to the Judge and all opposing parties or counsel
additional transcribed excerpts from the depositions (by page and line
number) which they expect to be read pursuant to Federal Rules of Civil
Procedure 32(a)(4), as well as any objections (by page and line number)
to opposing party's or counsel's depositions. With reasonable notice to
the Judge and all parties or counsel, other excerpts may be read.
Sec.  2200.57  [Reserved]
Subpart E--Hearings
Sec.  2200.60  Notice of hearing; location.
    Except by agreement of the parties, or in an expedited proceeding
under Sec.  2200.103, when a hearing is first set, the Judge shall give
the parties and intervenors notice of the time, place, and nature of
the hearing at least 30 days in advance of the hearing. If a hearing is
being rescheduled, or if exigent circumstances are present, at least 10
days' notice shall be given. The Judge will designate a place and time
of hearing that involves as little inconvenience and expense to the
parties as is practicable.
Sec.  2200.61  Submission without hearing.
    (a) A case may be fully stipulated by the parties and submitted to
the Commission or the Judge for a decision at any time. The stipulation
of facts shall be in writing and signed by the parties or their
representatives. The submission of a case under this rule does not
alter the burden of proof, the requirements otherwise applicable with
respect to adducing proof, or the effect of failure of proof.
    (b) Motions for summary judgment are governed by Sec.  2200.40(j).
Sec.  2200.62  Postponement of hearing.
    (a) Motion to postpone. A hearing may be postponed by the Judge on
the Judge's own initiative or for good cause shown upon the motion of a
party. A motion for postponement shall state the position of the other
parties, either by a joint motion or by a representation of the moving
party. The filing of a motion for postponement does not automatically
postpone a hearing. The form and content of such motions shall comply
with Sec.  2200.40.
    (b) Grounds for postponement. A motion for postponement grounded on
conflicting engagements of counsel or employment of new counsel shall
be promptly filed.
    (c) When motion must be received. A motion to postpone a hearing
must be received at least 10 days prior to the hearing. A motion for
postponement received less than 10 days prior to the hearing will
generally be denied unless good cause is shown for late filing.
    (d) Postponement in excess of 60 days. No postponement in excess of
60 days shall be granted without the concurrence of the Chief
Administrative Law Judge. The original of any motion seeking a
postponement in excess of 60 days shall be filed with the Judge and a
copy sent to the Chief Administrative Law Judge.
Sec.  2200.63  Stay of proceedings.
    (a) Motion for stay. Stays are not favored. A party seeking a stay
of a case assigned to a Judge shall file a motion for stay conforming
to Sec.  2200.40 with the Judge and send a copy to the Chief
Administrative Law Judge. A motion for a stay shall state the position
of the other parties, either by a joint motion or by the representation
of the moving party. The motion shall set forth the reasons a stay is
sought and the length of the stay requested.
    (b) Ruling on motion to stay. The Judge, with the concurrence of
the Chief Administrative Law Judge, may grant any motion for stay for
the period requested or for such period as is deemed appropriate.
    (c) Periodic reports required. The parties in a stayed proceeding
shall be required to submit periodic reports on such terms and
conditions as the Judge may direct. The length of time between the
reports shall be no longer than 90 days unless the Judge otherwise
orders.
Sec.  2200.64  Failure to appear.
    (a) Attendance at hearing. The failure of a party to appear in
person or by a duly authorized representative at the hearing
constitutes a waiver of the right to a hearing. A failure of the
Secretary to appear constitutes abandonment of the case. A failure of
the Respondent to appear is deemed an admission of the facts alleged
and consent to the relief sought in the Complaint (or, in Simplified
Proceedings, the citation and notification of proposed penalty). The
Judge may default the non-appearing party without further proceeding or
notice.
[[Page 14570]]
    (b) Requests for reinstatement. Requests for reinstatement must be
made, in the absence of extraordinary circumstances, within 7 days
after the scheduled hearing date. See Sec.  2200.90(b)(3).
    (c) Rescheduling hearing. The Commission or the Judge, upon a
showing of good cause, may excuse such failure to appear. In such
event, the hearing will be rescheduled as expeditiously as possible
from the issuance of the Judge's order.
Sec.  2200.65  Issuance of subpoenas; petitions to revoke or modify
subpoenas; payment of witness fees and mileage; right to inspect or
copy data.
    (a) Issuance of subpoenas. On behalf of the Commission or any
Commission member, the Judge shall, on the application of any party,
issue to the applying party subpoenas requiring the attendance and
testimony of witnesses and/or the production of any evidence,
including, but not limited to, relevant books, records, correspondence,
or documents, in the witness' possession or under the witness' control,
at a deposition or at a hearing before the Commission or the Judge. The
party to whom the subpoena is issued shall be responsible for its
service. Applications for subpoenas, if filed prior to the assignment
of the case to a Judge, shall be filed with the Executive Secretary at
One Lafayette Centre, 1120 20th Street NW, Suite 980, Washington, DC
20036-3457. After the case has been assigned to a Judge, applications
shall be filed with the Judge. Applications for subpoena(s) may be made
ex parte. The subpoena shall show on its face the name and address of
the party at whose request the subpoena was issued.
    (b) Service of subpoenas. A subpoena may be served by any person
who is not a party and is not less than 18 years of age. Service of a
subpoena upon the person it names may be made by service on the person
named, by certified mail return receipt requested, or by leaving a copy
at the person's principal place of business or at the person's
residence with a person of suitable age and discretion who resides
there. A subpoena may be served at any place in the United States or
any Territory or possession of the United States. A subpoena may
command a person to attend and produce documents or tangible things,
from any place in the United States or any Territory or possession of
the United States, at any designated place of hearing or deposition.
    (c) Revocation or modification of subpoenas. Any person served with
a subpoena, whether requiring attendance and testimony (ad
testificandum) or for the production of evidence (duces tecum), shall,
within 5 days after the date of service of the subpoena, move in
writing to revoke or modify the subpoena if the person does not intend
to comply. All motions to revoke or modify shall be served on the party
at whose request the subpoena was issued. The Commission or the Judge
shall revoke or modify the subpoena if in its opinion the evidence
whose production is required does not relate to any matter under
investigation or in question in the proceedings or the subpoena does
not describe with sufficient particularity the evidence to be produced,
or if for any other reason sufficient in law the subpoena is otherwise
invalid. The Commission or the Judge shall make a simple statement of
procedural or other grounds for the ruling on the motion to revoke,
modify, or affirm. The motion to revoke or modify, any answer filed,
and any ruling on the motion shall become part of the record.
    (d) Rights of persons compelled to submit data or other information
in documents. Persons compelled to submit data or other information at
a public proceeding are entitled to retain documents they submitted
that contain the data or information, or to procure a copy of such
documents upon their payment of lawfully prescribed costs. If such
persons submit the data or other information by testimony, they are
entitled to a copy of the transcript of their testimony upon their
payment of the lawfully prescribed costs.
    (e) Witness fees and mileage. Witnesses summoned to appear for a
deposition or to appear before the Commission or the Judge shall be
paid the same witness fees and mileage expense that are paid witnesses
in the federal courts. Witness fees and mileage expense shall be paid
by the party at whose instance the witness appears.
    (f) Failure to comply with subpoena. Upon the failure of any person
to comply with the subpoena issued upon the request of a party, the
Commission by its counsel shall recommend to the U.S. Department of
Justice that proceedings be initiated in the appropriate district court
for the enforcement of the subpoena, if in the Commission's judgment
the enforcement of the subpoena would be consistent with law and with
policies of the Act. In such instances, neither the Commission nor its
counsel shall be deemed to have assumed responsibility for the
effective prosecution of the subpoena before the court.
Sec.  2200.66  Transcript of testimony.
    (a) Hearings. Hearings shall be transcribed verbatim. A copy of the
transcript of testimony taken at the hearing, duly certified by the
reporter, shall be filed with the Judge before whom the matter was
heard.
    (b) Payment for transcript. The Commission shall bear all expenses
for court reporters' fees and for copies of the hearing transcript
received by it. Each party is responsible for securing and paying for
its copy of the transcript.
    (c) Correction of errors. Error in the transcript of the hearing
may be corrected by the Judge on the Judge's own motion, on joint
motion by the parties, or on motion by any party. The motion shall
conform to Sec.  2200.40 and shall state the error in the transcript
and the correction to be made. The official transcript shall reflect
the corrections.
Sec.  2200.67  Duties and powers of Judges.
    It shall be the duty of the Judge to conduct a fair and impartial
hearing, to assure that the facts are fully elicited, to adjudicate all
issues and avoid delay. The Judge shall have authority with respect to
cases assigned to the Judge, between the time the Judge is designated
and the time the Judge issues a decision, subject to the rules and
regulations of the Commission, to:
    (a) Administer oaths and affirmations;
    (b) Issue authorized subpoenas and rule on petitions to modify,
remove, or affirm, in accordance with Sec.  2200.65;
    (c) Rule on claims of privilege and claims that information is
protected and issue protective orders, in accordance with Sec.
2200.52(d) and (e).
    (d) Rule upon offers of proof and receive relevant evidence;
    (e) Take or cause depositions to be taken whenever the needs of
justice would be served;
    (f) Regulate the course of the hearing and, if appropriate or
necessary, exclude persons or counsel from the hearing for contemptuous
conduct and strike all related testimony of witnesses refusing to
answer any proper questions;
    (g) Hold conferences for the settlement or simplification of the
issues;
    (h) Dispose of procedural requests or similar matters, including
motions referred to the Judge by the Commission and motions to amend
pleadings; also to dismiss complaints, or portions of complaints, and
to order hearings reopened or, upon motion, consolidated prior to
issuance of a decision;
    (i) Make decisions that conform to 5 U.S.C. 557 of the
Administrative Procedure Act;
[[Page 14571]]
    (j) Call and examine witnesses and to introduce into the record
documentary or other evidence;
    (k) Approve or appoint an interpreter;
    (l) Request the parties to state their respective positions
concerning any issue in the case or theory in support of their
position;
    (m) Adjourn the hearing as the needs of justice and good
administration require;
    (n) Take any other action necessary under the foregoing and
authorized by the published rules and regulations of the Commission.
Sec.  2200.68  Recusal of the Judge.
    (a) Discretionary recusal. A Judge may recuse himself or herself
from a proceeding whenever the Judge deems it appropriate.
    (b) Mandatory recusal. A Judge shall recuse himself or herself
under circumstances that would require disqualification of a federal
judge under Canon 3(C) of the Code of Conduct for United States Judges,
except that the required recusal may be set aside under the conditions
specified by Canon 3(D).
    (c) Request for recusal. Any party may request that the Judge, at
any time following the Judge's designation and before the filing of a
decision, be recused under paragraph (a) or (b) of this section or both
by filing with the Judge, promptly upon the discovery of the alleged
facts, an affidavit setting forth in detail the matters alleged to
constitute grounds for recusal.
    (d) Ruling on request. If the Judge finds that a request for
recusal has been filed with due diligence and that the material filed
in support of the request establishes that recusal either is
appropriate under paragraph (a) of this section or is required under
paragraph (b) of this section, the Judge shall recuse himself or
herself from the proceeding. If the Judge denies a request for recusal,
the Judge shall issue a ruling on the record, stating the grounds for
denying the request, and shall proceed with the hearing, or, if the
hearing has closed, proceed with the issuance of a decision under the
provisions of Sec.  2200.90.
Sec.  2200.69  Examination of witnesses.
    Witnesses shall be examined orally under oath or affirmation.
Opposing parties have the right to cross-examine any witness whose
testimony is introduced by an adverse party. All parties shall have the
right to cross-examine any witness called by the Judge pursuant to
Sec.  2200.67(j).
Sec.  2200.70  Exhibits.
    (a) Marking exhibits. All exhibits offered in evidence by a party
shall be marked for identification before or during the hearing.
Exhibits shall be marked with the case docket number, with a
designation identifying the party or intervenor offering the exhibit,
and numbered consecutively.
    (b) Removal or substitution of exhibits in evidence. Unless the
Judge finds it impractical, a copy of each exhibit shall be given to
the other parties and intervenors. A party may remove an exhibit from
the official record during the hearing or at the conclusion of the
hearing only upon permission of the Judge. The Judge, in the Judge's
discretion, may permit the substitution of a duplicate for any original
document offered into evidence.
    (c) Reasons for denial of admitting exhibit. A Judge may, in the
Judge's discretion, deny the admission of any exhibit because of its
excessive size, weight, or other characteristic that prohibits its
convenient transportation and storage. A party may offer into evidence
photographs, models, or other representations of any such exhibit.
    (d) Rejected exhibits. All exhibits offered but denied admission
into evidence, except exhibits referred to in paragraph (c) of this
section, shall be placed in a separate file designated for rejected
exhibits.
    (e) Return of physical exhibits. A party may on motion request the
return of a physical exhibit within 30 days after expiration of the
time for filing a petition for review of a Commission final order in a
United States Court of Appeals under section 11 of the Act, 29 U.S.C.
660, or within 30 days after completion of any proceedings initiated in
a Court of Appeals. The motion shall be addressed to the Executive
Secretary and provide supporting reasons. The exhibit shall be returned
if the Executive Secretary determines that it is no longer necessary
for use in any Commission proceeding.
    (f) Request for custody of physical exhibit. Any person may on
motion to the Executive Secretary request custody of a physical exhibit
for use in any court or tribunal. The motion shall state the reasons
for the request and the duration of custody requested. If the exhibit
has been admitted in a pending Commission case, the motion shall be
served on all parties to the proceeding. Any person granted custody of
an exhibit shall inform the Executive Secretary of the status every 6
months of the person's continuing need for the exhibit and return the
exhibit after completion of the proceeding.
    (g) Disposal of physical exhibit. Any physical exhibit may be
disposed of by the Commission's Executive Secretary subject to the
requirements of the National Archives and Records Administration.
Sec.  2200.71  Rules of evidence.
    The Federal Rules of Evidence are applicable.
Sec.  2200.72  Objections.
    (a) Statement of objection. Any objection with respect to the
conduct of the hearing, including any objection to the introduction of
evidence or a ruling by the Judge, may be stated orally or in writing,
accompanied by a short statement of the grounds for the objection, and
shall be included in the record. No such objection shall be deemed
waived by further participation in the hearing.
    (b) Offer of proof. Whenever evidence is excluded from the record,
the party offering such evidence may make an offer of proof, which
shall be included in the record of the proceeding.
    (c) Once the Judge rules definitively on the record--either before
or at the hearing--a party need not renew an objection or offer of
proof to preserve a claim of error for appeal.
Sec.  2200.73  Interlocutory review.
    (a) General. Interlocutory review of a Judge's ruling is
discretionary with the Commission. A petition for interlocutory review
may be granted only where the petition asserts and the Commission
finds:
    (1) That the review involves an important question of law or policy
that controls the outcome of the case, and that immediate review of the
ruling will materially expedite the final disposition of the
proceedings or subsequent review by the Commission may provide an
inadequate remedy; or
    (2) That the ruling will result in a disclosure, before the
Commission may review the Judge's report, of information that is
alleged to be privileged.
    (b) Petition for interlocutory review. Within 7 days following the
service of a Judge's ruling from which review is sought, a party may
file a petition for interlocutory review with the Commission. Responses
to the petition, if any, shall be filed within 7 days following service
of the petition. Service of the filed petition on the other parties and
intervenors shall be accomplished in a manner prescribed in Sec.
2200.7(c). A copy of the petition and responses shall be filed with the
Judge. The petition is denied unless granted within 30 days of the date
of receipt by the Commission's Executive Secretary. A corporate party
that files a petition for interlocutory review or a response to such a
petition under this section shall file with the Commission a copy of
its declaration of
[[Page 14572]]
corporate parents, subsidiaries, and affiliates previously filed with
the Judge under the requirements of Sec.  2200.35 or Sec.
2200.37(d)(4). In its discretion the Commission may refuse to accept
for filing a petition or response that fails to comply with this
disclosure requirement. A corporate party filing the declaration
required by this paragraph shall have a continuing duty to advise the
Executive Secretary of any changes to its declaration until the
petition is deemed denied or a decision is issued on the merits.
    (c) Denial without prejudice. The Commission's decision not to
grant a petition for interlocutory review shall not preclude a party
from raising an objection to the Judge's interlocutory ruling in a
petition for discretionary review.
    (d) Stay--(1) Trade secret matters. The filing of a petition for
interlocutory review of a Judge's ruling concerning an alleged trade
secret shall stay the effect of the ruling until the petition is deemed
denied or ruled upon.
    (2) Other cases. In all other cases, the filing or granting of a
petition for interlocutory review shall not stay a proceeding or the
effect of a ruling unless otherwise ordered.
    (e) Judge's comments. The Judge may be requested to provide the
Commission with written views on whether the petition is meritorious.
When the written comments are filed with the Commission, the Judge
shall serve the comments on all parties in a manner prescribed in Sec.
2200.7(c).
    (f) Briefs. Notice shall be given to the parties if the Commission
decides to request briefs on the issues raised by an interlocutory
review. See Sec.  2200.93--Briefs before the Commission.
    (g) When filing effective. A petition for interlocutory review is
deemed to be filed only when received by the Commission, as specified
in Sec.  2200.8(e)(2).
Sec.  2200.74  Filing of briefs and proposed findings with the Judge;
oral argument at the hearing.
    (a) General. A party is entitled to a reasonable period at the
close of the hearing for oral argument, which shall be included in the
transcript of the hearing. Any party shall be entitled, upon request
made before the close of hearing, to file a brief, proposed findings of
fact and conclusions of law, or both, with the Judge. In lieu of
briefs, the Judge may permit or direct the parties to file memoranda or
statements of authority.
    (b) Time. Briefs shall be filed simultaneously on a date
established by the Judge. A motion for extension of time for filing any
brief shall be made at least 3 working days prior to the due date and
shall recite that the moving party has conferred with the other parties
on the motion. Reply briefs shall not be allowed except by order of the
Judge.
    (c) Untimely briefs. Untimely briefs will not be accepted unless
accompanied by a motion setting forth good cause for the delay. The
form and content of motions shall comply with Sec.  2200.40.
Subpart F--Posthearing Procedures
Sec.  2200.90  Decisions and reports of Judges.
    (a) Judge's decision--(1) Contents of Judge's decision. The Judge
shall prepare a decision that conforms to 5 U.S.C. 557 of the
Administrative Procedure Act and constitutes the final disposition of
the proceedings. The decision shall be in writing and shall include
findings of fact, conclusions of law, and the reasons or bases for
them, on all the material issues of fact, law, or discretion presented
on the record. The decision shall include an order affirming,
modifying, or vacating each contested citation item and each proposed
penalty or directing other appropriate relief. A decision finally
disposing of a petition for modification of the abatement period shall
contain an order affirming or modifying the abatement period.
    (2) Service of the Judge's decision. The Judge shall serve a copy
of the decision on each party in a manner prescribed in Sec.
2200.7(c).
    (b) Judge's report--(1) Contents of Judge's report. The Judge's
report shall consist of the entire record, including the Judge's
decision.
    (2) Filing of Judge's report. On the eleventh day after service of
the decision on the parties, the Judge shall file the report with the
Executive Secretary for docketing.
    (3) Docketing of Judge's report by Executive Secretary. Promptly
upon filing of the Judge's report, the Executive Secretary shall docket
the report and notify all parties of the docketing date. The date of
docketing of the Judge's report is the date that the Judge's report is
made for purposes of section 12(j) of the Act, 29 U.S.C. 661(j).
    (4) Correction of errors in Judge's report. (i) Until the Judge's
report has been directed for review or, in the absence of a direction
for review, until the decision has become a final order as described in
paragraph (f) of this section, the Judge may correct clerical errors
arising through oversight or inadvertence in decisions, orders, or
other parts of the record under Federal Rule of Civil Procedure 60(a).
If a Judge's report has been directed for review, the decision may be
corrected during the pendency of review with leave of the Commission.
    (ii) After a Judge's decision has become a final order as described
in paragraph (f) of this section, the Commission or the Judge may
correct a clerical mistake or a mistake arising from oversight or
omission under Federal Rule of Civil Procedure 60(a).
    (c) Relief from default. Until the Judge's report has been docketed
by the Executive Secretary, the Judge may relieve a party of default or
grant reinstatement under Sec.  2200.101(b), Sec.  2200.52(f), or Sec.
2200.64(b).
    (d) Filing documents after the docketing date. Except for documents
filed under paragraph (b)(4)(i) of this section, which shall be filed
with the Judge, on or after the date of docketing of the Judge's report
all documents shall be filed with the Executive Secretary.
    (e) Settlement. Settlement documents shall be filed in the manner
prescribed in Sec.  2200.100(c).
    (f) Judge's decision final unless review directed. If no
Commissioner directs review of a report on or before the thirtieth day
following the date of docketing of the Judge's report, the decision of
the Judge shall become a final order of the Commission.
Sec.  2200.91  Discretionary review; petitions for discretionary
review; statements in opposition to petitions.
    (a) Review discretionary. Review by the Commission is not a right.
A Commissioner may, as a matter of discretion, direct review on the
Commissioner's own motion or on the petition of a party.
    (b) Petitions for discretionary review. A party adversely affected
or aggrieved by the decision of the Judge may seek review by the
Commission by filing a petition for discretionary review with the
Executive Secretary at any time following the service of the Judge's
decision on the parties but no later than 20 days after the date of
docketing of the Judge's report. Service of the filed petition on the
other parties and intervenors shall be accomplished in a manner
prescribed in Sec.  2200.7(c). The earlier a petition is filed, the
more consideration it can be given. A petition for discretionary review
may be conditional, and it may state that review is sought only if a
Commissioner were to direct review on the petition of an opposing
party.
    (c) Cross-petitions for discretionary review. Where a petition for
discretionary review has been filed by
[[Page 14573]]
one party, any other party adversely affected or aggrieved by the
decision of the Judge may seek review by the Commission by filing a
cross-petition for discretionary review. The cross-petition may be
conditional. See paragraph (b) of this section. A cross-petition shall
be filed directly with the Executive Secretary within 27 days after the
date of docketing of the Judge's report. The earlier a cross-petition
is filed, the more consideration it can be given.
    (d) Contents of the petition. No particular form is required for a
petition for discretionary review. A petition should state why review
should be directed, including: Whether the Judge's decision raises an
important question of law, policy, or discretion; whether review by the
Commission will resolve a question about which the Commission's Judges
have rendered differing opinions; whether the Judge's decision is
contrary to law or Commission precedent; whether a finding of material
fact is not supported by a preponderance of the evidence; whether a
prejudicial error of procedure or an abuse of discretion was committed.
A petition should concisely state the portions of the decision for
which review is sought and should refer to the citations and citation
items (for example, citation 3, item 4a) for which review is sought. A
petition shall not incorporate by reference a brief or legal
memorandum. Brevity and the inclusion of precise references to the
record and legal authorities will facilitate prompt review of the
petition.
    (e) When filing effective. A petition for discretionary review is
filed when received by the Commission, as specified in Sec.
2200.8(e)(2).
    (f) Prerequisite to judicial review; effect of filing. A petition
for review under this section is, under 5 U.S.C. 704, a prerequisite to
the seeking of judicial review of the final agency action. The effect
of filing a petition for review is to stay the decision of the Judge.
    (g) Statements in opposition to petition. Statements in opposition
to petitions for discretionary review may be filed in the manner
specified in this section for the filing of petitions for discretionary
review. Statements in opposition shall concisely state why the Judge's
decision should not be reviewed with respect to each portion of the
petition to which it is addressed.
Sec.  2200.92  Review by the Commission.
    (a) Jurisdiction of the Commission; issues on review. Unless the
Commission orders otherwise, a direction for review establishes
jurisdiction in the Commission to review the entire case. The issues to
be decided on review are within the discretion of the Commission.
    (b) Review on a Commissioner's motion; issues on review. At any
time within 30 days after the docketing date of the Judge's report, a
Commissioner may, on the Commissioner's own motion, direct that a
Judge's decision be reviewed. Factors that may be considered in
deciding whether to direct review absent a petition include, but are
not limited to, whether the case raises novel questions of law or
policy or involves a conflict between Administrative Law Judges'
decisions. When a Commissioner directs review on the Commissioner's own
motion, the issues ordinarily will be those specified in the direction
for review or any later order.
    (c) Issues not raised before Judge. The Commission will ordinarily
not review issues that the Judge did not have the opportunity to pass
upon. In exercising discretion to review issues that the Judge did not
have the opportunity to pass upon, the Commission may consider such
factors as whether there was good cause for not raising the issue
before the Judge, the degree to which the issue is factual, the degree
to which proceedings will be disrupted or delayed by raising the issue
on review, whether the ability of an adverse party to press a claim or
defense would be impaired, and whether considering the new issue would
avoid injustice or ensure that judgment will be rendered in accordance
with the law and facts.
Sec.  2200.93  Briefs before the Commission.
    (a) Requests for briefs. The Commission ordinarily will request the
parties to file briefs on issues before the Commission. After briefs
are requested, a party may, instead of filing a brief, file a letter
setting forth its arguments or a letter stating that it will rely on
its petition for discretionary review or previous brief. A party not
intending to file a brief shall notify the Commission in writing within
the applicable time for filing briefs and shall serve a copy on all
other parties. The provisions of this section apply to the filing of
briefs and letters filed in lieu of briefs.
    (b) Filing briefs. Unless the briefing notice states otherwise:
    (1) Time for filing briefs. The party required to file the first
brief shall do so within 40 days after the date of the briefing notice.
All other parties shall file their briefs within 30 days after the
first brief is served. Any reply brief permitted by these rules or by
order shall be filed within 15 days after the second brief is served.
    (2) Sequence of filing. (i) If one petition for discretionary or
interlocutory review has been filed, the petitioning party shall file
the first brief.
    (ii) If more than one petition has been filed, the party whose
petition was filed first shall file the first brief.
    (iii) If no petition has been filed, the parties shall file
simultaneous briefs.
    (3) Reply briefs. The party that filed the first brief may file a
reply brief, or, if briefs are to be filed simultaneously, both parties
may file a reply brief. Additional briefs are otherwise not allowed
except by leave of the Commission.
    (c) Motion for extension of time for filing brief. An extension of
time to file a brief will ordinarily not be granted except for good
cause shown. A motion for extension of time to file a brief shall be
filed at the Commission no later than 5 days prior to the expiration of
the time limit prescribed in paragraph (b) of this section, shall
comply with Sec.  2200.40, and shall include the following information:
when the brief is due, the number and duration of extensions of time
that have been granted to each party, the length of extension being
requested, the specific reason for the extension being requested, and
an assurance that the brief will be filed within the time extension
requested.
    (d) Consequences of failure to timely file brief. The Commission
may decline to accept a brief that is not timely filed. If a
petitioning party fails to respond to a briefing notice or expresses no
interest in review, the Commission may vacate the direction for review,
or it may decide the case without that party's brief. If the non-
petitioning party fails to respond to a briefing notice or expresses no
interest in review, the Commission may decide the case without that
party's brief. If a case was directed for review upon a Commissioner's
own motion, and any party fails to respond to the briefing notice, the
Commission may either vacate the direction for review or decide the
case without briefs.
    (e) Length of brief. Except by permission of the Commission, a main
brief, including briefs and legal memoranda it incorporates by
reference, shall contain no more than 35 pages of text. A reply brief,
including briefs and legal memoranda it incorporates by reference,
shall contain no more than 20 pages of text.
    (f) Format. Briefs shall be typewritten, double spaced, with
typeface of text being no smaller than 12-point and typeface of
footnotes being no smaller than 11-point, on letter size opaque paper
(8\1/2\ inches by 11 inches). All margins shall be 1\1/2\ inches.
[[Page 14574]]
    (g) Table of contents. A brief in excess of 15 pages shall include
a table of contents.
    (h) Failure to meet requirements. The Commission may return briefs
that do not meet the requirements of paragraphs (e) and (f) of this
section.
    (i) Brief of an amicus curiae. The Commission may allow a brief of
an amicus curiae pursuant to the criteria and time period set forth in
Sec.  2200.23. Any brief of an amicus curiae must meet the requirements
of paragraphs (b) through (h) of this section. No reply brief of an
amicus curiae will be received.
Sec.  2200.94  [Reserved]
Sec.  2200.95  Oral argument before the Commission.
    (a) When ordered. Upon motion of any party or upon its own motion,
the Commission may order oral argument. Parties requesting oral
argument must demonstrate why oral argument would facilitate resolution
of the issues before the Commission. Normally, motions for oral
argument shall not be considered until after all briefs have been
filed.
    (b) Notice of argument. The Executive Secretary shall advise all
parties whether oral argument is to be heard. Within a reasonable time
before the oral argument is scheduled, the Executive Secretary shall
inform the parties of the time and place therefor, the issues to be
heard, and the time allotted to the parties.
    (c) Postponement. (1) Except under extraordinary circumstances, a
request for postponement must be filed at least 10 days before oral
argument is scheduled.
    (2) The Executive Secretary shall notify the parties of a
postponement in a manner best calculated to avoid unnecessary travel or
inconvenience to the parties. The Executive Secretary shall inform all
parties of the new time and place for the oral argument.
    (d) Order and content of argument. (1) Counsel shall be afforded
such time for oral argument as the Commission may provide by order.
Requests for enlargement of time may be made by motion filed reasonably
in advance of the date fixed for the argument.
    (2) The petitioning party shall argue first. If the case is before
the Commission on cross-petitions, the Commission will inform the
parties in advance of the order of appearance.
    (3) Counsel may reserve a portion of the time allowed for rebuttal
but in opening argument shall present the case fairly and completely
and shall not reserve points of substance for presentation during
rebuttal.
    (4) Oral argument should undertake to emphasize and clarify the
written arguments appearing in the briefs. The Commission will look
with disfavor on any oral argument that is read from a previously filed
document.
    (5) At any time, the Commission may terminate a party's argument or
interrupt the party's presentation for questioning by the
Commissioners.
    (e) Failure to appear. Should either party fail to appear for oral
argument, the party present may be allowed to proceed with its
argument.
    (f) Consolidated cases. Where two or more consolidated cases are
scheduled for oral argument, the consolidated cases shall be considered
as one case for the purpose of allotting time to the parties unless the
Commission otherwise directs.
    (g) Multiple counsel. Where more than one counsel argues for a
party to the case or for multiple parties on the same side in the case,
it is counsels' responsibility to agree upon a fair division of the
total time allotted. In the event of a failure to agree, the Commission
will allocate the time. The Commission may, in its discretion, limit
the number of counsel heard for each party or side in the argument. No
later than 5 days prior to the date of scheduled argument, the
Commission must be notified of the names of the counsel who will argue.
    (h) Exhibits/visual aids. (1) The parties may use exhibits
introduced into evidence at the hearing. If a party wishes to use a
visual aid not part of the record, written notice of the proposed use
shall be given to opposing counsel 15 days prior to the argument.
Objections, if any, shall be in writing, served on all adverse parties,
and filed not fewer than 7 days before the argument.
    (2) No visual aid shall introduce or rely upon facts or evidence
not already part of the record.
    (3) If visual aids or exhibits other than documents are to be used
at the argument, counsel shall arrange with the Executive Secretary to
have them placed in the hearing room on the date of the argument before
the Commission convenes.
    (4) Parties using visual aids not introduced into evidence shall
have them removed from the hearing room unless the Commission directs
otherwise. If such visual aids are not reclaimed by the party within a
reasonable time after notice is given by the Executive Secretary, such
visual aids shall be disposed of at the discretion of the Executive
Secretary.
    (i) Recording oral argument. (1) Unless the Commission directs
otherwise, oral arguments shall be electronically recorded and made
part of the record. Any other sound recording in the hearing room is
prohibited. Oral arguments shall also be transcribed verbatim. A copy
of the transcript of the oral argument taken by a qualified court
reporter, shall be filed with the Commission. The Commission shall bear
all expenses for court reporters' fees and for copies of the hearing
transcript received by it.
    (2) Persons desiring to listen to the recordings shall make
appropriate arrangements with the Executive Secretary. Any party
desiring a written copy of the transcript is responsible for securing
and paying for its copy.
    (3) Error in the transcript of the oral argument may be corrected
by the Commission on its own motion, on joint motion by the parties, or
on motion by any party. The motion shall state the error in the
transcript and the correction to be made. The official transcript shall
reflect the corrections.
    (j) Failure to file brief. A party that fails to file a brief shall
not be heard at the time of oral argument except by permission of the
Commission.
    (k) Participation in oral argument by amicus curiae. (1) An amicus
curiae will not be permitted to participate in the oral argument
without leave of the Commission upon proper motion. Participation
generally will be limited to a portion of the time allotted to the
party in whose interest the amicus curiae seeks to participate. In
extraordinary circumstances, the amicus curiae may be allotted its own
time for oral argument.
    (2) A motion by amicus curiae seeking leave to participate in oral
argument shall be filed no later than 14 days prior to the date oral
argument is scheduled.
    (3) The motion of an amicus curiae for leave to participate at oral
argument shall identify the interest of the applicant and shall state
the reason(s) why its participation at oral argument is desirable.
    (4) Motions in opposition to the motion of an amicus curiae for
leave to participate in the oral argument must be filed within 10 days
of the date of the motion.
Sec.  2200.96  Commission receipt of copies of petitions for judicial
review of Commission orders when petitions for review are filed in two
or more courts of appeals with respect to the same order.
    The Commission officer and office designated to receive, pursuant
to 28 U.S.C. 2112(a)(1), copies of petitions for review of Commission
orders, from the persons instituting the review proceedings in a court
of appeals, are
[[Page 14575]]
the Executive Secretary and the Office of the Executive Secretary at
the Commission's Office, One Lafayette Centre, 1120 20th Street NW,
Suite 980, Washington, DC 20036-3457. The petition shall state that it
is being submitted to the Commission pursuant to 28 U.S.C. 2112 by the
persons or person who filed the petition in the court of appeals and
shall be stamped by the court with the date of filing. (28 U.S.C.
2112(a) contains certain applicable requirements.)
Subpart G--Miscellaneous Provisions
Sec.  2200.100  Settlement.
    (a) Policy. Settlement is permitted and encouraged by the
Commission at any stage of the proceedings.
    (b) Requirements--(1) Notification of Settlement. If the parties
have agreed to a partial or full settlement, they shall so notify the
Judge in a written joint submission (titled ``Notification of
Settlement'' or ``Notification of Partial Settlement,'' as
appropriate), in which the parties shall:
    (i) List the contested items that have been settled and, if only a
partial settlement agreement has been reached, also list the contested
items that remain to be decided;
    (ii) If posting of the settlement agreement is required by Sec.
2200.7(g), certify that the parties' settlement agreement has been
posted in the manner prescribed by that rule and certify the date of
posting;
    (iii) If party status has been elected under Sec.  2200.20, certify
that the party has been afforded an opportunity to provide input on all
matters pertaining to the settlement before the agreement is finalized;
and
    (iv) If the settlement agreement includes the withdrawal of a
notice of contest, citation, notification of proposed penalty, or
petition for modification of abatement period, state whether such
withdrawal is with prejudice.
    (2) The parties shall not incorporate the settlement agreement in,
or append it to, the joint submission required in paragraph (b)(1) of
this section or substitute the settlement agreement for the required
joint submission.
    (3) Issuance of order terminating proceeding. If the requirements
of paragraphs (b)(1) and (2) of this section have been met with respect
to all contested citation items and no affected employees who have
elected party status have raised an objection to the reasonableness of
any abatement period, the Judge shall issue an Order acknowledging that
the parties have resolved all contested citation items and agreed to
terminate the proceeding before the Commission.
    (c) Filing; service and notice. A Notification of Settlement
submitted after a Judge's report has been issued shall be filed with
the Executive Secretary. Proof of service shall be filed with the
Notification of Settlement, showing service upon all parties and
authorized employee representatives in the manner prescribed by Sec.
2200.7(c) and (d) and the posting of notice to non-party affected
employees in the manner prescribed by Sec.  2200.7(g). The parties
shall also file a draft order terminating the proceedings for adoption
by the Judge. If the time has not expired under these rules for
electing party status, an order acknowledging the termination of the
proceedings before the Commission because of the settlement shall not
be issued until at least 14 days after service or posting to consider
any affected employee's or authorized employee representative's
objection to the reasonableness of any abatement time. The affected
employee or authorized employee representative shall file any such
objection within this time. If such objection is filed, the Commission
or the Judge shall provide an opportunity for the affected employees or
authorized employee representative to be heard and present evidence on
the objection, which shall be limited to the reasonableness of the
abatement period.
Sec.  2200.101  Failure to obey rules.
    (a) Sanctions. When any party has failed to plead or otherwise
proceed as provided by these rules or as required by the Commission or
the Judge, the party may be declared to be in default either on the
initiative of the Commission or the Judge, after having been afforded
an opportunity to show cause why the party should not be declared to be
in default, or on the motion of a party. Subsequently, the Commission
or the Judge, in their discretion, may enter a decision against the
defaulting party or strike any pleading or document not filed in
accordance with these rules.
    (b) Motion to set aside sanctions. For reasons deemed sufficient by
the Commission or the Judge and upon motion conforming to Sec.  2200.40
expeditiously made, the Commission or the Judge may set aside a
sanction imposed under paragraph (a) of this section. See Sec.
2200.90(c).
    (c) Discovery sanctions and failure to appear. This section does
not apply to sanctions for failure to comply with orders compelling
discovery, which are governed by Sec.  2200.52(f), or to a default for
failure to appear, which is governed by Sec.  2200.64(a).
    (d) Show cause orders. All show cause orders issued by the
Commission or the Judge under paragraph (a) of this section shall be
served in a manner prescribed in Sec.  2200.7(o).
Sec.  2200.102  Withdrawal.
    A party may withdraw its notice of contest, citation, notification
of proposed penalty, or petition for modification of abatement period
at any stage of a proceeding. The notice of withdrawal shall be served
in accordance with Sec.  2200.7(c) upon all parties and authorized
employee representatives that are eligible to elect, but have not
elected, party status. It shall also be posted in the manner prescribed
in Sec.  2200.7(g) for the benefit of any affected employees not
represented by an authorized employee representative who are eligible
to elect, but have not elected, party status. Proof of service shall
accompany the notice of withdrawal in accordance with Sec.  2200.7(d).
Sec.  2200.103  Expedited proceeding.
    (a) When ordered. Upon application of any party or intervenor or
upon its own motion, the Commission may order an expedited proceeding.
When an expedited proceeding is ordered by the Commission, the
Executive Secretary shall notify all parties and intervenors.
    (b) Automatic expedition. Cases initiated by employee contests and
petitions for modification of abatement period shall be expedited. See
Sec. Sec.  2200.37(d)(2) and 2200.38(c).
    (c) Effect of ordering expedited proceeding. When an expedited
proceeding is required by these rules or ordered by the Commission, it
shall take precedence on the docket of the Judge to whom it is
assigned, or on the Commission's review docket, as applicable, over all
other classes of cases, and shall be set for hearing or for the
submission of briefs at the earliest practicable date.
    (d) Time sequence set by Judge. The assigned Judge shall make
rulings with respect to time for filing of pleadings and with respect
to all other matters, without reference to times set forth in these
rules, and shall do all other things appropriate to complete the
proceeding in the minimum time consistent with fairness.
Sec.  2200.104  Standards of conduct.
    (a) General. All representatives appearing before the Commission
and its Judges shall comply with the letter and spirit of the Model
Rules of Professional Conduct of the American Bar Association.
[[Page 14576]]
    (b) Misbehavior before a Judge--(1) Exclusion from a proceeding. A
Judge may exclude from participation in a proceeding any person,
including a party or its representative, who engages in disruptive
behavior, refuses to comply with orders or rules of procedure,
continuously uses dilatory tactics, refuses to adhere to standards of
orderly or ethical conduct, or fails to act in good faith. The cause
for the exclusion shall be stated in writing or may be stated in the
record if the exclusion occurs during the course of the hearing. Where
the person removed is a party's attorney or other representative, the
Judge shall suspend the proceeding for a reasonable time for the
purpose of enabling the party to obtain another attorney or other
representative.
    (2) Appeal rights if excluded. Any attorney or other representative
excluded from a proceeding by a Judge may, within 7 days of the
exclusion, appeal to the Commission for reinstatement. No proceeding
shall be delayed or suspended pending disposition of the appeal.
    (c) Disciplinary action by the Commission. If an attorney or other
representative practicing before the Commission engages in unethical or
unprofessional conduct or fails to comply with any rule or order of the
Commission or its Judges, the Commission may, after reasonable notice
and an opportunity to show cause to the contrary, and after hearing, if
requested, take any appropriate disciplinary action, including
suspension or disbarment from practice before the Commission.
    (d) Show cause orders. All show cause orders issued by the
Commission under paragraph (c) of this section shall be served in a
manner prescribed in Sec.  2200.7(o).
Sec.  2200.105  Ex parte communication.
    (a) General. Except as permitted by Sec.  2200.120 or as otherwise
authorized by law, there shall be no ex parte communication with
respect to the merits of any case not concluded, between any
Commissioner, Judge, employee, or agent of the Commission who is
employed in the decisional process and any of the parties or
intervenors, representatives, or other interested persons.
    (b) Disciplinary action. In the event an ex parte communication
occurs, the Commission or the Judge may make such orders or take such
actions as fairness requires. The exclusion of a person by a Judge from
a proceeding shall be governed by Sec.  2200.104(b). Any disciplinary
action by the Commission, including suspension or disbarment, shall be
governed by Sec.  2200.104(c).
    (c) Placement on public record. All ex parte communications in
violation of this section shall be placed on the public record of the
proceeding.
Sec.  2200.106  Amendment to rules.
    The Commission may at any time upon its own motion or initiative,
or upon written suggestion of any interested person setting forth
reasonable grounds therefor, amend or revoke any of the rules contained
in this Part. The Commission invites suggestions from interested
parties to amend or revoke rules of procedure. Such suggestions should
be sent by email to [email protected] or addressed to the
Executive Secretary of the Commission at One Lafayette Centre, 1120
20th Street NW, Suite 980, Washington, DC 20036-3457.
Sec.  2200.107  Special circumstances; waiver of rules.
    In special circumstances not contemplated by the provisions of
these rules and for good cause shown, the Commission or the Judge may,
upon application by any party or intervenor or on their own motion,
after 3 working days' notice to all parties and intervenors, waive any
rule or make such orders as justice or the administration of the Act
requires.
Sec.  2200.108  Official Seal of the Occupational Safety and Health
Review Commission.
    The seal of the Commission shall consist of: A gold eagle
outspread, head facing dexter, a shield with 13 vertical stripes
superimposed on its breast, holding an olive branch in its claws, the
whole superimposed over a plain solid white Greek cross with a green
background, encircled by a white band edged in black and inscribed
``Occupational Safety and Health Review Commission'' in black letters.
Subpart H--Settlement Part
Sec.  2200.120  Settlement procedure.
    (a) Voluntary settlement--(1) Applicability and duration. (i)
Voluntary settlement applies only to notices of contests by employers
and to applications for fees under the Equal Access to Justice Act and
29 CFR part 2204.
    (ii) Upon motion of any party conforming to Sec.  2200.40 after the
docketing of the notice of contest, or with the consent of the parties
at any time in the proceedings, the Chief Administrative Law Judge may
assign a case to a Settlement Judge for proceedings under this section.
In the event either the Secretary or the employer objects to the use of
a Settlement Judge procedure, such procedure shall not be imposed.
    (2) Length of voluntary settlement procedures. Voluntary settlement
procedures shall be for a period not to exceed 75 days, unless extended
with the concurrence of the Chief Administrative Law Judge.
    (b) Mandatory settlement--(1) Applicability. Mandatory settlement
applies only to notices of contest by employers in which the aggregate
amount of the penalties sought by the Secretary is $185,000 or greater.
Periodically, the aggregate amount of penalties for case referral to
Mandatory Settlement Proceedings may be adjusted proportionately upon
consideration of the penalty increases required by the Inflation
Adjustment Act of 2015. The adjusted aggregate penalty amount for case
referral to Mandatory Settlement will be posted on the Commission's
website (www.oshrc.gov).
    (2) Assignment of case and appointment of Settlement Judge.
Notwithstanding any other provisions of these rules, upon the docketing
of the notice of contest, the Chief Administrative Law Judge shall
assign to the Settlement Part any case which satisfies the criteria set
forth in paragraph (b)(1) of this section. The Chief Administrative Law
Judge shall appoint a Settlement Judge, who shall be a Judge other than
the one assigned to hear and decide the case, except as provided in
paragraph (f)(2) of this section.
    (3) Mandatory settlement proceedings. (i) The Settlement Judge may
consult all attorneys, non-attorney representatives, and self-
represented parties by any suitable means to schedule the Settlement
Conference and to facilitate preparation for the conference.
    (ii) The Settlement Judge may issue a preconference scheduling
order addressing procedural matters, including but not limited to,
formal pleadings, settlement status conference calls, ex parte caucus
calls, and allowing, limiting, or suspending discovery during the
settlement proceedings.
    (iii) The Settlement Conference shall be conducted as soon as
practicable, taking into consideration the case size, the complexity of
the issues, and the time needed to complete preconference preparation.
    (iv) Mandatory settlement procedures under this section shall be
for a period not to exceed 120 days, unless extended with the
concurrence of the Chief Administrative Law Judge.
[[Page 14577]]
    (v) If at the conclusion of the settlement proceedings the case has
not been settled, the Settlement Judge shall promptly inform the Chief
Administrative Law Judge in accordance with Sec.  2200.120(f)(2).
    (c) Powers and duties of Settlement Judges. (1) The Settlement
Judge shall confer with the parties regarding the whole or partial
settlement of the case and seek resolution of as many issues as is
feasible.
    (2) The Settlement Judge may require the parties to provide
statements of the issues in controversy and the factual predicate for
each party's position on each issue and may enter other orders as
appropriate to facilitate the proceedings.
    (3) The Settlement Judge may allow or suspend discovery during the
settlement proceedings.
    (4) The Settlement Judge has the discretion to engage in ex parte
communications throughout the course of settlement proceedings. The
Settlement Judge may suggest privately to each attorney or other
representative of a party what concessions the client should consider
and assess privately with each attorney or other representative the
reasonableness of the party's case or settlement position.
    (5) The Settlement Judge may, with the consent of the parties,
conduct such other settlement proceedings as may aid in the settlement
of the case.
    (d) Settlement conference--(1) General. The Settlement Judge shall
convene and preside over conferences between the parties. Settlement
conferences may be conducted telephonically or in person. The
Settlement Judge shall designate a conference place and time.
    (2) Participation in conference. The Settlement Judge may require
that any attorney or other representative who is expected to try the
case for each party be present. The Settlement Judge may also require
that the party's representative be accompanied by an official of the
party having full settlement authority on behalf of the party. The
parties and their representatives or attorneys are expected to be
completely candid with the Settlement Judge so that the Settlement
Judge may properly guide settlement discussions. The failure to be
present at a settlement conference or otherwise to comply with the
orders of the Settlement Judge or the refusal to cooperate fully within
the spirit of this rule may result in default or the imposition of
sanctions under Sec.  2200.101.
    (3) Confidentiality of settlement proceedings. (i) All statements
made and all information presented during the course of settlement
proceedings under this section shall be regarded as confidential and
shall not be divulged outside of these proceedings except with the
consent of the parties. The Settlement Judge shall issue appropriate
orders to protect the confidentiality of settlement proceedings.
    (ii) The Settlement Judge shall not divulge any statements or
information presented during private negotiations with a party or the
party's representative during settlement proceedings except with the
consent of that party.
    (iii) The following shall not be admissible in any subsequent
hearing, except by stipulation of the parties:
    (A) Evidence of statements or conduct in settlement proceedings
under this section within the scope of Federal Rule of Evidence 408,
    (B) Notes or other material prepared by or maintained by the
Settlement Judge in connection with settlement proceedings, and
    (C) Communications between the Settlement Judge and the Chief
Administrative Law Judge in connection with settlement proceedings
including the report of the Settlement Judge under paragraph (f) of
this section.
    (iv) Documents and factual information disclosed in the settlement
proceeding may not be used in litigation unless obtained through
appropriate discovery or subpoena.
    (v) With respect to the Settlement Judge's participation in
settlement proceedings, the Settlement Judge shall not discuss the
merits of the case with any other person, nor appear as a witness in
any hearing of the case.
    (vi) The requirements of paragraph (d)(3) of this section apply
unless disclosure is required by any applicable law or public policy.
    (e) Record of settlement proceedings. No material of any form
required to be held confidential under paragraph (d)(3) of this section
shall be considered part of the official case record required to be
maintained under 29 U.S.C. 661(g), nor shall any such material be open
to public inspection as required by section 661(g), unless the parties
otherwise stipulate. With the exception of an order approving the terms
of any partial settlement agreed to between the parties as set forth in
paragraph (f)(1) of this section, the Settlement Judge shall not file
or cause to be filed in the official case record any material in the
Settlement Judge's possession relating to these settlement proceedings,
including but not limited to communications with the Chief
Administrative Law Judge and the Settlement Judge's report under
paragraph (f) of this section, unless the parties otherwise stipulate.
    (f) Report of Settlement Judge. (1) The Settlement Judge shall
promptly notify the Chief Administrative Law Judge in writing of the
status of the case at the conclusion of the settlement period or such
time that the Settlement Judge determines further negotiations would be
fruitless. If the Settlement Judge has made such a determination and a
settlement agreement is not achieved within 75 days of the case being
assigned to voluntary settlement proceedings or within 120 days of
being assigned for mandatory settlement proceedings, the Settlement
Judge shall then advise the Chief Administrative Law Judge in writing.
The Chief Administrative Law Judge may then in the Chief Administrative
Law Judge's discretion allow an additional period of time, for further
proceedings under this section. If at the expiration of the period
allotted under this paragraph the Settlement Judge has not approved a
full settlement, the Settlement Judge shall furnish to the Chief
Administrative Law Judge copies of any written stipulations and orders
embodying the terms of any partial settlement the parties have reached.
    (2) At the termination of the settlement period without a full
settlement, the Chief Administrative Law Judge shall promptly assign
the case to an Administrative Law Judge other than the Settlement Judge
or Chief Administrative Law Judge for appropriate action on the
remaining issues. If all the parties, the Settlement Judge, and the
Chief Administrative Law Judge agree, the Settlement Judge may be
retained as the Hearing Judge.
    (g) Non-reviewability. Notwithstanding the provisions of Sec.
2200.73 regarding interlocutory review, any decision concerning the
assignment of any Judge and any decision by the Settlement Judge to
terminate settlement proceedings under this section is not subject to
review, appeal, or rehearing.
Subpart I-L [Reserved]
Subpart M--Simplified Proceedings
Sec.  2200.200  Purpose.
    (a) The purpose of the Simplified Proceedings subpart is to provide
simplified procedures for resolving contests under the Occupational
Safety and Health Act of 1970, so that parties before the Commission
may reduce the time and expense of litigation while being assured due
process and a hearing that meets the requirements of the Administrative
Procedure Act, 5 U.S.C.
[[Page 14578]]
554. These procedural rules will be applied to accomplish this purpose.
    (b) Procedures under this subpart are simplified in a number of
ways. The major differences between these procedures and those provided
in subparts A through G of the Commission's rules of procedure are as
follows.
    (1) Complaints and answers are not required.
    (2) Pleadings generally are not required. Early discussions among
the parties and the Judge are required to narrow and define the
disputes between the parties.
    (3) The Secretary is required to provide the employer with certain
informational documents early in the proceeding.
    (4) Discovery is not permitted except as ordered by the Judge.
    (5) Interlocutory appeals are not permitted.
    (6) Hearings are less formal. The admission of evidence is not
controlled by the Federal Rules of Evidence except as provided for in
Sec.  2200.209(c). The Judge may allow the parties to argue their case
orally at the conclusion of the hearing, and may allow or require post-
hearing briefs or statements of position. The judge may render a
decision from the bench.
Sec.  2200.201  Application.
    The rules in this subpart will govern proceedings before a Judge in
a case chosen for Simplified Proceedings under Sec.  2200.203.
Sec.  2200.202  Eligibility for Simplified Proceedings.
    (a) Those cases selected for Simplified Proceedings will be those
that do not involve complex issues of law or fact. Cases appropriate
for Simplified Proceedings will generally include those with one or
more of the following characteristics:
    (1) Relatively few citation items,
    (2) An aggregate proposed penalty of not more than $20,000,
    (3) No allegation of willfulness or a repeat violation,
    (4) Not involving a fatality,
    (5) A hearing that is expected to take less than 2 days, or
    (6) A small employer whether appearing pro se or represented by
counsel.
    (b) Those cases with an aggregate proposed penalty of more than
$20,000, but not more than $30,000, if otherwise appropriate, may be
selected for Simplified Proceedings at the discretion of the Chief
Administrative Law Judge.
Sec.  2200.203  Commencing Simplified Proceedings.
    (a) Selection. Upon receipt of a Notice of Contest, the Chief
Administrative Law Judge may, at the Chief Administrative Law Judge's
discretion, assign an appropriate case for Simplified Proceedings.
    (b) Party request. Within 21 days of the notice of docketing, any
party may request that the case be assigned for Simplified Proceedings.
The request must be in writing. For example, ``I request Simplified
Proceedings'' will suffice. The request must be sent to the Executive
Secretary. Copies must be sent to each of the other parties.
    (c) Judge's ruling on request. The Chief Administrative Law Judge
or the Judge assigned to the case may grant a party's request and
assign a case for Simplified Proceedings at the Judge's discretion.
Such request shall be acted upon within 14 days of its receipt by the
Judge.
    (d) Time for filing complaint or answer under Sec.  2200.34. If a
party has requested Simplified Proceedings or the Judge has assigned
the case for Simplified Proceedings, the times for filing a complaint
or answer will not run. If a request for Simplified Proceedings is
denied, the period for filing a complaint or answer will begin to run
upon issuance of the notice denying Simplified Proceedings.
Sec.  2200.204  Discontinuance of Simplified Proceedings.
    (a) Procedure. If it becomes apparent at any time that a case is
not appropriate for Simplified Proceedings, the Judge assigned to the
case may, upon motion by any party or upon the Judge's own motion,
discontinue Simplified Proceedings and order the case to continue under
conventional rules. Before discontinuing Simplified Proceedings, the
Judge will consult with the Chief Administrative Law Judge.
    (b) Party motion. At any time during the proceedings any party may
request that Simplified Proceedings be discontinued and that the matter
continue under conventional procedures. A motion to discontinue must
conform to Sec.  2200.40 and explain why the case is inappropriate for
Simplified Proceedings. Responses to such motions shall be filed within
the time specified by Sec.  2200.40. Joint motions to return a case to
conventional proceedings shall be granted by the Judge and do not
require a showing of good cause, except that the Judge may deny such a
motion that is filed less than 30 days before a scheduled hearing date.
    (c) Ruling. If Simplified Proceedings are discontinued, the Judge
may issue such orders as are necessary for an orderly continuation
under conventional rules.
Sec.  2200.205  Filing of pleadings.
    (a) Complaint and answer. Once a case is designated for Simplified
Proceedings, the complaint and answer requirements are suspended. If
the Secretary has filed a complaint under Sec.  2200.34(a), a response
to a petition under Sec.  2200.37(d)(5), or a response to an employee
contest under Sec.  2200.38(a), and if Simplified Proceedings has been
ordered, no response to these documents will be required.
    (b) Motions. Limited, if any, motion practice is contemplated in
Simplified Proceedings, but all motion practice shall conform with
Sec.  2200.40.
Sec.  2200.206  Disclosure of information.
    (a) Disclosure to employer. (1) Within 21 days after a case is
designated for Simplified Proceedings, the Secretary shall provide the
employer, free of charge, copies of the narrative (Form OSHA 1-A) and
the worksheet (Form OSHA 1-B) or their equivalents.
    (2) Within 30 days after a case is designated for Simplified
Proceedings, the Secretary shall provide the employer with
reproductions of any photographs or videotapes that the Secretary
anticipates using at the hearing.
    (3) Within 30 days after a case is designated for Simplified
Proceedings, the Secretary shall provide to the employer any
exculpatory evidence in the Secretary's possession.
    (4) The Judge shall act expeditiously on any claim by the employer
that the Secretary improperly withheld or redacted any portion of the
documents, photographs, or videotapes on the grounds of confidentiality
or privilege.
    (b) Disclosure to the Secretary. When the employer raises an
affirmative defense pursuant to Sec.  2200.207(b), the Judge shall
order the employer to disclose to the Secretary such documents relevant
to the affirmative defense as the Judge deems appropriate.
Sec.  2200.207  Pre-hearing conference.
    (a) When held. As early as practicable after the employer has
received the documents set forth in Sec.  2200.206(a)(1), the Judge may
conduct a pre-hearing conference, which the Judge may hold in person or
by telephone or electronic means.
    (b) Content. At the pre-hearing conference, the parties may discuss
the following: Settlement of the case; the narrowing of issues; an
agreed statement of issues and facts; all defenses;
[[Page 14579]]
witnesses and exhibits; motions; and any other pertinent matter. Except
under extraordinary circumstances, any affirmative defenses not raised
at the pre-hearing conference may not be raised later. At the
conclusion of the conference, the Judge will issue an order that may
set forth any agreements reached by the parties and that may specify
the issues to be addressed by the parties at the hearing.
Sec.  2200.208  Discovery.
    Discovery, including requests for admissions, will only be allowed
under the conditions and time limits set by the Judge.
Sec.  2200.209  Hearing.
    (a) Procedures. As soon as practicable after the conclusion of the
pre-hearing conference, the Judge will hold a hearing on any issue that
remains in dispute. The hearing will be in accordance with subpart E of
these rules, except for Sec.  2200.73 which will not apply.
    (b) Agreements. At the beginning of the hearing, the Judge will
enter into the record all agreements reached by the parties as well as
defenses raised during the pre-hearing conference. The parties and the
Judge then will attempt to resolve or narrow the remaining issues. The
Judge will enter into the record any further agreements reached by the
parties.
    (c) Evidence. Except as to matters that are protected by
evidentiary privilege, the admission of evidence is not controlled by
the Federal Rules of Evidence, but the Judge may accept a written
stipulation of the parties that the Federal Rules of Evidence shall
apply in whole or, as specified, in part. The Judge will receive oral,
physical, or documentary evidence that is not irrelevant, unduly
repetitious, or unreliable. Testimony will be given under oath or
affirmation.
    (d) Reporter. A reporter will be present at the hearing. An
official verbatim transcript of the hearing will be prepared and filed
with the Judge. Parties may purchase copies of the transcript from the
reporter.
    (e) Oral and written argument. Each party may present an oral
argument at the close of the hearing. The Judge may allow or require
post-hearing briefs or statements of position upon the request of
either party or on the Judge's own motion. The form of any post-hearing
briefs shall conform to Sec.  2200.74 unless the Judge specifies
otherwise.
    (f) Judge's decision--(1) Bench decision. The Judge may render a
decision from the bench. In rendering a decision from the bench, the
Judge shall state the issues in the case and make clear both the
Judge's findings of fact and conclusions of law on the record. The
Judge shall reduce the bench decision in the matter to writing and
serve it on the parties as soon as practicable, but no later than 45
days after the hearing. If additional time is needed, approval of the
Chief Administrative Law Judge is required. The decision shall be
prepared in accordance with Sec.  2200.90(a). The written decision
shall include, as an appendix, the bench decision as set forth in the
transcript.
    (2) Written decision. If the Judge does not render a decision from
the bench, the Judge will issue a written decision within 60 days of
the close of the record. The record will ordinarily be deemed closed
upon the latter of the filing of the hearing transcript, or the
completion of any permitted post-hearing briefing. The decision will be
in accordance with Sec.  2200.90(a). If additional time is needed,
approval of the Chief Administrative Law Judge is required.
    (g) Filing of Judge's decision with the Executive Secretary. When
the Judge issues a written decision, service, filing, and docketing of
the Judge's written decision shall be in accordance with Sec.  2200.90.
Sec.  2200.210  Review of Judge's decision.
    Any party may petition for Commission review of the Judge's
decision as provided in Sec.  2200.91. After the issuance of the
Judge's written decision, the parties may pursue the case following the
rules in Subpart F of this part.
Sec.  2200.211  Applicability of subparts A through G.
    The provisions of subpart D (Sec. Sec.  2200.50-2200.56) and
Sec. Sec.  2200.34, 2200.37(d), 2200.38, 2200.71, and 2200.73 will not
apply to Simplified Proceedings. All other rules contained in subparts
A through G of the Commission's rules of procedure will apply when
consistent with the rules in this subpart governing Simplified
Proceedings.
[FR Doc. 2019-06581 Filed 4-9-19; 8:45 am]
BILLING CODE 7600-01-P