PART 2200—RULES OF PROCEDURE Authority: 29 U.S.C. 661(g), unless otherwise noted. Section 2200.96 is also issued under 28 U.S.C. 2112(a). Source: 84 FR 14558, Apr. 10, 2019, unless otherwise noted. Subpart A—General Provisions § 2200.1 Definitions. As used in this part: (a) Act (b) Commission, person, employer, employee (c) Secretary (d) Executive Secretary (e) Affected employee (f) Judge (g) Authorized employee representative (h) Representative (i) Citation (j) Notification of proposed penalty (k) Day (l) Working day (m) Proceeding (n) Pleadings [84 FR 14558, Apr. 10, 2019; 84 FR 45654, Aug. 30, 2019] § 2200.2 Scope of rules; applicability of Federal Rules of Civil Procedure; construction. (a) Scope. (b) Applicability of Federal Rules of Civil Procedure. (c) Construction. § 2200.3 Use of number. Words importing the singular number may extend and be applied to the plural and vice versa. [87 FR 8948, Feb. 17, 2022] § 2200.4 Computing time. (a) Computation. (1) Period stated in days or longer unit. (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. (3) Operating status of receiving Commission office. (4) “Last day” defined. (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. (6) “Federal holiday” defined. (i) The day set aside by statute for observing New Year's Day, Martin Luther King Jr.'s Birthday, Washington's Birthday, Memorial Day, Juneteenth National Independence 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. (7) Computation examples. (ii) If a judge orders that a document is due 14 days before a hearing, count backwards starting the day before the hearing (day 1) until reaching day 14. If the receiving Commission office is closed on day 14 (such as on a Saturday, Sunday, or Federal holiday), the document would be due on the last day the office is open before the Saturday, Sunday, or Federal holiday. In other words, if day 14 falls on a Sunday, and the Friday before is a Federal holiday, the document would be due on Thursday, the day before the holiday. (b) Additional time after service by U.S. Mail. Provided, however, [84 FR 14558, Apr. 10, 2019, as amended at 87 FR 8948, Feb. 17, 2022] § 2200.5 Extension of time. The Commission or the Judge on their own initiative or, upon motion of a party, for good cause shown, may enlarge or shorten any time prescribed by these rules or prescribed by an order. All such motions shall be in writing and shall conform with § 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. § 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 § 2200.8(c) are responsible for both maintaining a valid email address associated with the registered account and regularly monitoring that email address. [84 FR 14558, Apr. 10, 2019, as amended at 87 FR 8948, Feb. 17, 2022] § 2200.7 Service, notice, and posting. (a) When service is required. (b) Service on represented parties or intervenors. (c) How accomplished. (1) Commission's E-File System. (2) U.S. Mail. (3) Commercial or other personal delivery. (4) Facsimile transmission. (5) Non-E-Filed Documents. (d) Proof of service. (e) Proof of posting. (f) Service on represented employees. (g) Service on unrepresented employees. (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. (i) Notice of hearing to unrepresented employees. (j) Notice of hearing to represented employees. (k) Employee contest; service on other employees. (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 § 2200.38(a). (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. (m) Employee contest; service on other authorized employee representatives. (n) Duration of posting. (o) Service of show cause orders Service on parties and intervenors using Commission's E-File System. See also (2) Service on self-represented parties or intervenors exempted from using the Commission's E-File System. [84 FR 14558, Apr. 10, 2019, as amended at 84 FR 53052, Oct. 4, 2019; 85 FR 65220, Oct. 15, 2020; 87 FR 8948, Feb. 17, 2022] § 2200.8 Filing. (a) What to file General. (2) Discovery documents. (b) Where to file. (c) Electronic filing with the Commission Mandatory e-filing. www.oshrc.gov (2) Undue burden. (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. (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 § 2200.52(d) and (e). (ii) Documents submitted for in camera (iii) Confidential settlement documents filed with the Judge pursuant to settlement procedures pursuant to § 2200.120. (iv) Applications for subpoenas made ex parte (6) Sensitive information. (7) Date of filing. www.oshrc.gov (8) Timeliness. (9) Certificate of service. (d) Documents that are not filed in the Commission's E-File System; alternative filing methods How to file. (2) Number of copies. (3) Filing date. e.g., (ii) Filing is completed upon receipt by the Commission for petitions for interlocutory review (§ 2200.73), petitions for discretionary review (§ 2200.91), and EAJA applications (§ 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. (5) Sensitive information. e.g., (6) Privileged information. [84 FR 14558, Apr. 10, 2019; 84 FR 45654, Aug. 30, 2019, as amended at 85 FR 65220, Oct. 15, 2020; 87 FR 8948, Feb. 17, 2022] § 2200.9 Consolidation. Cases may be consolidated on the motion of any party conforming to § 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. § 2200.10 Severance. Upon its own motion, or upon motion of any party or intervenor conforming to § 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. § 2200.11 [Reserved] § 2200.12 References to cases. (a) Citing decisions by Commission and Judges Generally. www.oshrc.gov (i) Print: (A) Hackensack Steel Corp., (B) Hackensack Steel Corp., (ii) Electronic: (A) Hackensack Steel Corp., (B) Hackensack Steel Corp., (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., (B) HTML versions of cases should be cited as follows and identify the relevant paragraph number: Jacobs Field Servs. N. Am., (2) Parenthetical statements. e.g. Rust Engineering Co., vacating direction for review of (b) References to court decisions. (i) W.G. Yates & Sons Constr. Co. OSHRC, (ii) Martin OSHRC (CF & I Steel Corp.), (2) Name of employer to be indicated. Donovan Allied Industrial Workers (Archer Daniels Midland Co.), Donovan OSHRC (Mobil Oil Corp.), Subpart B—Parties and Representatives § 2200.20 Party status. (a) Affected employees. (2) A notice of election shall be served on all other parties in accordance with § 2200.7. (b) Employees no longer employed by cited employer. (c) Employee contest. (2) A notice of election shall be served on all other parties in accordance with § 2200.7. § 2200.21 Intervention; appearance by non-parties. (a) When allowed. (b) Requirements of petition. (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. (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. § 2200.22 Representation of parties and intervenors. (a) Representation. (b) Affected employees in collective bargaining unit. (c) Affected employees not in collective bargaining unit. (d) Control of proceeding. § 2200.23 Appearances and withdrawals. (a) Entry of appearance General. (2) Appearance in first document or pleading. (3) Subsequent appearance. (b) Withdrawal of counsel. § 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 § 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 § 2200.74 or § 2200.93. Subpart C—Pleadings and Motions § 2200.30 General rules. (a) Format. 1/2 1/2 (b) Clarity. (c) Separation of claims. (d) Adoption by reference. (e) Alternative pleading. (f) Form of pleadings, motions, and other documents. (g) Burden of persuasion. (h) Enforcement of pleading rules. [84 FR 14558, Apr. 10, 2019; 84 FR 45654, Aug. 30, 2019] § 2200.31 Caption; titles of cases. (a) Notice of contest cases. Secretary of Labor, Complainant, v. (Name of Employer), Respondent. (b) Petitions for modification of abatement period. (Name of employer), Petitioner, v. Secretary of Labor, Respondent. (c) Location of title. (d) Docket number. § 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 or party that the representative or party has read the pleading, motion, or other document, that to the best of the representative's or party'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 § 2200.101 or § 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. [84 FR 14558, Apr. 10, 2019, as amended at 87 FR 8949, Feb. 17, 2022] § 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 § 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., § 2200.34 Employer contests. (a) Complaint. (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. (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. § 2200.35 Disclosure of corporate parents, subsidiaries, and affiliates. (a) General. (b) Failure to disclose. (c) Continuing duty to disclose. § 2200.36 [Reserved] § 2200.37 Petitions for modification of the abatement period. (a) Grounds for modifying abatement date. (b) Contents of petition. (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. (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. (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 § 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 reasonable 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 § 2200.7(c). The requirements set forth in § 2200.35(b) through (c) 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 § 2200.7(c). [84 FR 14558, Apr. 10, 2019; 84 FR 53053, Oct. 4, 2019; as amended at 87 FR 8949, Feb. 17, 2022] § 2200.38 Employee contests. (a) Secretary's statement of reasons. (b) Response to Secretary's statement. (c) Expedited proceedings. § 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. § 2200.40 Motions and requests. (a) How to make. (b) Form of motions. (c) Content of motions. (d) Duty to confer. (e) Proposed order for procedural motions. (f) Oral motions. (g) When to make. (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 § 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 § 2200.62. (h) Responses. (i) Reconsideration. (j) Summary judgment motions. § 2200.41 [Reserved] Subpart D—Prehearing Procedures and Discovery § 2200.50 [Reserved] § 2200.51 Prehearing conferences and orders. (a) Scheduling conference. (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. (c) Compliance. § 2200.52 General provisions governing discovery. (a) General Methods and limitations. (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 § 2200.53; (ii) Requests for admission to the extent provided in § 2200.54; and (iii) Interrogatories to the extent provided in § 2200.55. (iv) Discovery is not available under these rules through depositions except to the extent provided in § 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 § 2200.51. (2) Time for discovery. (3) Service of discovery documents. (4) Stipulations about discovery procedures. (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. (c) Limitations. (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 Claims of privilege. (2) Upholding or rejecting claims of privilege. (3) Resolving claims of privilege outside of discovery proceedings. (e) Protective orders. (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 Motions to compel discovery. (2) Sanctions. (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. (h) Show cause orders. (i) Supplementation of responses. (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. (k) Relief from discovery requests. (l) Use at hearing. (m) Use on review or appeal. § 2200.53 Production of documents and things. (a) Scope. (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. § 2200.54 Request for admissions. (a) Scope and procedure Scope. (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. (3) Time to respond; effect of not responding. (4) Answer. (5) Objections. (6) Motion regarding the sufficiency of an answer or objection. (b) Effect of admission; withdrawal or modification. § 2200.55 Interrogatories. (a) General. (b) Answers. (c) Procedure. § 2200.56 Depositions. (a) General. (b) When to file. (c) Notice of taking. (d) Method of recording and expenses. (e) Use of depositions. (f) Excerpts from depositions to be offered at hearing. § 2200.57 [Reserved] Subpart E—Hearings § 2200.60 Notice of hearing; location. Except by agreement of the parties, or in an expedited proceeding under § 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. § 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 § 2200.40(j). § 2200.62 Postponement of hearing. (a) Motion to postpone. (b) Grounds for postponement. (c) When motion must be received. (d) Postponement in excess of 60 days. § 2200.63 Stay of proceedings. (a) Motion for stay. (b) Ruling on motion to stay. (c) Periodic reports required. § 2200.64 Failure to appear. (a) Attendance at hearing. (b) Requests for reinstatement. (c) Rescheduling hearing. [84 FR 14558, Apr. 10, 2019; 84 FR 53053, Oct. 4, 2019] § 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. (b) Service of subpoenas. (c) Revocation or modification of subpoenas. (d) Rights of persons compelled to submit data or other information in documents. (e) Witness fees and mileage. (f) Failure to comply with subpoena. § 2200.66 Transcript of testimony. (a) Hearings. (b) Payment for transcript. (c) Correction of errors. § 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, revoke, or affirm, in accordance with § 2200.65; (c) Rule on claims of privilege and claims that information is protected and issue protective orders, in accordance with § 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; (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. [84 FR 14558, Apr. 10, 2019; 84 FR 45654, Aug. 30, 2019] § 2200.68 Recusal of the Judge. (a) Discretionary recusal. (b) Mandatory recusal. (c) Request for recusal. (d) Ruling on request. [84 FR 14558, Apr. 10, 2019, as amended at 87 FR 8949, Feb. 17, 2022] § 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 § 2200.67(j). § 2200.70 Exhibits. (a) Marking exhibits. (b) Removal or substitution of exhibits in evidence. (c) Reasons for denial of admitting exhibit. (d) Rejected exhibits. (e) Return of physical exhibits. (f) Request for custody of physical exhibit. e.g., (g) Disposal of physical exhibit. [84 FR 14558, Apr. 10, 2019, as amended at 87 FR 8949, Feb. 17, 2022] § 2200.71 Rules of evidence. The Federal Rules of Evidence are applicable. § 2200.72 Objections. (a) Statement of objection. (b) Offer of proof. (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. § 2200.73 Interlocutory review. (a) General. (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. (c) Denial without prejudice. (d) Stay Trade secret matters. (2) Other cases. (e) Judge's comments. (f) Briefs. (g) When filing effective. [84 FR 14558, Apr. 10, 2019; 84 FR 53053, Oct. 4, 2019] § 2200.74 Filing of briefs and proposed findings with the Judge; oral argument at the hearing. (a) General. (b) Time. (c) Untimely briefs. Subpart F—Posthearing Procedures § 2200.90 Decisions and reports of Judges. (a) Judge's decision Contents of Judge's decision. (2) Service of the Judge's decision. (b) Judge's report Contents of Judge's report. (2) Filing of Judge's report. (3) Docketing of Judge's report by Executive Secretary. (4) Correction of errors in Judge's report. (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. (d) Filing documents after the docketing date. (e) Settlement. (f) Judge's decision final unless review directed. [84 FR 14558, Apr. 10, 2019; 84 FR 53053, Oct. 4, 2019] § 2200.91 Discretionary review; petitions for discretionary review; statements in opposition to petitions. (a) Review discretionary. (b) Petitions for discretionary review. (c) Cross-petitions for discretionary review. (d) Contents of the petition. (e) When filing effective. (f) Prerequisite to judicial review; effect of filing. (g) Statements in opposition to petition. [84 FR 14558, Apr. 10, 2019; 84 FR 53053, Oct. 4, 2019] § 2200.92 Review by the Commission. (a) Jurisdiction of the Commission; issues on review. (b) Review on a Commissioner's motion; issues on review. (c) Issues not raised before Judge. § 2200.93 Briefs before the Commission. (a) Requests for briefs. (b) Filing briefs. (1) Time for filing briefs. (2) Sequence of filing. (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. (c) Motion for extension of time for filing brief. (d) Consequences of failure to timely file brief. (e) Length of brief. (f) Format. 1/2 1/2 (g) Table of contents. (h) Failure to meet requirements. (i) Brief of an amicus curiae. [84 FR 14558, Apr. 10, 2019; 84 FR 53053, Oct. 4, 2019] § 2200.94 [Reserved] § 2200.95 Oral argument before the Commission. (a) When ordered. (b) Notice of argument. (c) Postponement. (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. (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. (f) Consolidated cases. (g) Multiple counsel. (h) Exhibits/visual aids. (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. (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. (k) Participation in oral argument by amicus curiae. (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. § 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 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 § 2200.100 Settlement. (a) Policy. (b) Requirements Notification of Settlement. (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 § 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 § 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. (c) Filing; service and notice. [84 FR 14558, Apr. 10, 2019, as amended at 85 FR 65220, Oct. 15, 2020] § 2200.101 Failure to obey rules. (a) Sanctions. (b) Motion to set aside sanctions. (c) Discovery sanctions and failure to appear. (d) Show cause orders. § 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 § 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 § 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 § 2200.7(d). § 2200.103 Expedited proceeding. (a) When ordered. (b) Automatic expedition. (c) Effect of ordering expedited proceeding. (d) Time sequence set by Judge. § 2200.104 Standards of conduct. (a) General. (b) Misbehavior before a Judge Exclusion from a proceeding. (2) Appeal rights if excluded. (c) Disciplinary action by the Commission. (d) Show cause orders. § 2200.105 Ex parte communication. (a) General. (b) Disciplinary action. (c) Placement on public record. § 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] § 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. § 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 § 2200.120 Settlement procedure. (a) Voluntary settlement Applicability and duration. (ii) Upon motion of any party conforming to § 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. (b) Mandatory settlement Applicability. www.oshrc.gov (2) Assignment of case and appointment of Settlement Judge. (3) Mandatory settlement proceedings. (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. (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 § 2200.120(f)(2). (c) Powers and duties of Settlement Judges. (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 General. (2) Participation in conference. (3) 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. (f) Report of Settlement Judge. (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. [84 FR 14558, Apr. 10, 2019, as amended at 87 FR 8949, Feb. 17, 2022] Subparts I-L [Reserved] Subpart M—Simplified Proceedings § 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. 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 § 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. § 2200.201 Application. The rules in this subpart will govern proceedings before a Judge in a case chosen for Simplified Proceedings under § 2200.203. § 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 self-represented 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. [84 FR 14558, Apr. 10, 2019; 84 FR 45655, Aug. 30, 2019] § 2200.203 Commencing Simplified Proceedings. (a) Selection. (b) Party request. (c) Judge's ruling on request. (d) Time for filing complaint or answer under § 2200.34. § 2200.204 Discontinuance of Simplified Proceedings. (a) Procedure. (b) Party motion. (c) Ruling. § 2200.205 Filing of pleadings. (a) Complaint and answer. (b) Motions. § 2200.206 Disclosure of information. (a) Disclosure to employer. (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. § 2200.207 Pre-hearing conference. (a) When held. (b) Content. § 2200.208 Discovery. Discovery, including requests for admissions, will only be allowed under the conditions and time limits set by the Judge. § 2200.209 Hearing. (a) Procedures. (b) Agreements. (c) Evidence. (d) Reporter. (e) Oral and written argument. (f) Judge's decision Bench decision. (2) Written decision. (g) Filing of Judge's decision with the Executive Secretary. § 2200.210 Review of Judge's decision. Any party may petition for Commission review of the Judge's decision as provided in § 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. § 2200.211 Applicability of subparts A through G. The provisions of subpart D (§§ 2200.50-2200.57) and §§ 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. [84 FR 14558, Apr. 10, 2019; 84 FR 53053, Oct. 4, 2019]