[Federal Register Volume 60, Number 83 (Monday, May 1, 1995)]
[Proposed Rules]
[Pages 21058-21061]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-10604]
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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: Notice of proposed rulemaking.
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SUMMARY: The Occupational Safety and Health Review Commission proposes
to revise its rules governing simplified proceedings and to institute a
pilot E-Z Trial program. This program would be instituted on a limited
basis for a one year trial period. After the trial period, the
Commission would evaluate the results and determine whether it should
continue the E-Z Trial program and, if so, what modifications should be
made. As the name implies, E-Z Trial would simplify and accelerate the
adjudicative process for cases that warrant a less formal, less
expensive process. The most significant change to the rules would
strengthen the role of Commission judges in determining whether a case
is tried under simplified proceedings. The Commission has concluded
that the current underutilization of simplified proceedings could be
remedied through a mechanism by which the Chief Administrative Law
Judge or the judge assigned to an individual case could unilaterally
direct that a case be tried under simplified proceedings. Thus, under
the E-Z Trial program, the Commission's Chief Judge would have the
authority to determine whether a case would proceed by either
conventional proceedings or the E-Z Trial program. This should result
in greater use of simplified proceedings while preserving the use of
conventional proceedings where needed. E-Z Trial should reduce the time
and expense of litigation in such cases. However, the presiding judge
may discontinue E-Z Trial proceedings and reinstate conventional
procedures if the [[Page 21059]] case no longer is appropriate for the
simplified rules. In this way, the Commission can provide efficient,
user-friendly adjudication, while assuring insofar as possible in all
cases that due process is met and a hearing is conducted that meets the
requirements of the Administrative Procedure Act, 5 U.S.C. 554, 556
(``APA''). At any time, any party may request that conventional rather
than E-Z Trial proceedings be used. Discontinuance of E-Z Trial is at
the discretion of the judge after consultation with the Chief Judge. At
the conclusion of an E-Z Trial proceeding, a party may file a petition
for discretionary review under Sec. 2200.91 if they can establish that
they have been materially prejudiced either by the use of E-Z Trial
rather than conventional proceedings or by a lack of due process during
those proceedings, provided objections to use of the E-Z Trial
procedure were raised in a timely fashion to the judge.
DATES: Comments must be received by May 31, 1995.
ADDRESSES: All comments concerning these proposed rules should be
addressed to Earl R. Ohman, Jr., General Counsel, One Lafayette Centre,
1120 20th St., NW.--9th Floor, Washington, DC 20036-3419.
FOR FURTHER INFORMATION CONTACT:
Earl R. Ohman, Jr., General Counsel, (202) 606-5410.
SUPPLEMENTARY INFORMATION:
Development of the Proposed Rules
Adjudications by the Occupational Safety and Health Review
Commission and its Administrative Law Judges are governed by the
regulations published at 29 CFR part 2200--Rules of Procedure.
Conventional proceedings are governed by subparts A through G of Part
2200. Simplified proceedings are governed by subpart M. Simplified
proceedings differ from conventional proceedings primarily in the
following ways: (1) Pleadings generally are not required in simplified
proceedings; (2) discovery is generally not permitted; (3) the Federal
Rules of Evidence do not apply, as they do in conventional proceedings;
and (4) interlocutory appeals are not permitted.
The proposed E-Z Trial program is designed to see that certain
cases of lesser magnitude before the Commission are handled in a simple
way, to reduce formality and bring down the cost and time demanded of
parties in pursuing a case, while protecting due process rights with an
``on the record'' hearing conducted in accordance with the APA. Cases
would be processed promptly. The proposed project would draw in part
from the Commission's current rules for simplified proceedings. As
under the current simplified proceedings, required documentation would
be minimized and pleadings and discovery would be eliminated completely
in most cases. Cases will be reviewed for eligibility for E-Z Trial as
soon as possible in order to avoid the filing of pleadings wherever
practicable. Under the E-Z Trial program, informal discussions between
the parties and the judge would be held to narrow areas of dispute and
encourage settlement. If the case is not resolved in a pre-hearing
conference, the hearing itself would be comparatively informal in
nature, with the format of the hearing being prescribed by the
presiding judge. Written briefs would in most cases be replaced by oral
argument. Judges would issue bench decisions when appropriate and
otherwise would typically issue written decisions within 45 days of the
completion of the trial.
Purpose of Subpart M
Under the proposed rule, Sec. 2200.200(b)(1), complaints and
answers would not be required for the E-Z Trial process. Section
2200.200(b)(2) would note that, prior to the hearing, discussions among
the parties and the judge would be required to narrow and define the
issues between the parties. This should encourage case settlement, and
accordingly this discussion would be scheduled as soon as possible.
Section 2200.200(b)(3) would not allow discovery to be conducted except
on the order of the judge. The current rule prohibiting interlocutory
appeals, Sec. 2200.211, is incorporated into the proposed rule as
Sec. 2200.200(b)(4). Section 2200.200(b)(5) would stress that the
hearing is less formal.
Application
Under the proposed rule, Sec. 2200.201 would only note that the
rules in Subpart M would apply to proceedings before a judge if an E-Z
Trial case is commenced under the rules proposed in Sec. 2200.203.
Eligibility for E-Z Trial
The current eligibility rule, Sec. 2200.202, specifically excludes
cases from being tried under simplified proceedings if they involve the
merits of an alleged violation of specified standards.\1\ Under the
proposed rule, Sec. 2200.202 would not specifically exclude cases that
involve any particular standards. The proposed rule does not detail the
circumstances in which these procedural rules should be utilized. It
anticipates that experience gathered through the E-Z Trial program is
the best way to refine the circumstances for which the procedures are
suited. Nevertheless, in order to provide some guidance in the initial
application of these rule changes, the Commission suggests that cases
that might be appropriate for E-Z Trial would generally include those
with (1) relatively few citation items, (2) an aggregate proposed
penalty not more than $7500, (3) no allegation of willfulness, (4) a
hearing that is expected to take less than two days, or (5) a pro se
respondent. These criteria are neither rigid nor exhaustive. E-Z Trial
should not be selected for technically complex cases requiring
discovery or extensive expert testimony.
\1\Those standards are: 29 CFR 1910.94, 1910.95, 1910.96,
1910.97, 1910.1000 through 1910.1101, 1926.52, 1926.53, 1926.54,
1926.55, 1926.57, 1926.800(c), and any occupational health standard
that may be added to subpart Z of part 1910.
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Procedures for Commencing E-Z Trial
The current rule for simplified proceedings, Sec. 2200.203, allows
any party to request simplified proceedings. Under the proposed rule,
Sec. 2200.203(a), the Chief Judge can assign an appropriate case for E-
Z Trial at his discretion either on his own motion or at the request of
a party. In addition, the proposed rule would eliminate the more
complex filing requirements found under the current rule which mandates
that the request for simplified proceedings be filed with the Executive
Secretary and served on all of the following: (i) The employer, (ii)
the Secretary of Labor, (iii) any authorized employee representatives
and (iv) posted for the benefit of any unrepresented affected
employees. Because E-Z Trial can be commenced by the Chief Judge on his
own motion, it is not necessary to require complex filing procedures.
Procedures for Discontinuing E-Z Trial
Section 2200.204 sets forth the procedures for discontinuing
simplified proceedings after the judge has ordered them implemented.
The Commission purposes several changes to this section, which largely
parallel the changes proposed in the rule on commencing E-Z Trial. The
proposed rule, Sec. 2200.204(a), would require that the judge assigned
to the case consult with the Chief Judge prior to discontinuing E-Z
Trial. Unlike the current rule, the proposed rule would not necessarily
discontinue E-Z Trial even if all parties consent to discontinuance.
The current rule's prohibition of interlocutory review (a limited
appeal before conclusion of the trial) of simplified
[[Page 21060]] proceedings is covered in proposed rule
Sec. 2200.200(b)(4)'s prohibition of interlocutory appeals for E-Z
Trial proceedings.
Filing of Pleadings
E-Z Trial is intended to provide parties with a less formal
adjudicative process. Once a case is designated for E-Z Trial, under
the proposed rule, Sec. 2200.205(a), the Secretary would not have to
file a complaint as required under current rule Sec. 2200.34(a), a
response to a petition for modification of the abatement period under
current rule Sec. 2200.37(d)(5), or a response to an employee contest
to the abatement period under current rule Sec. 2200.38(a). In
addition, under proposed rule Sec. 2200.205(b), a motion would not be
viewed favorably if the subject of the motion has not been first
discussed among the parties. The Commission is not presently amending
the time limits for filing pleadings. Instead, the Commission intends
to process cases as promptly as practicable in order to avoid the
filing of pleadings.
Pre-hearing Conference
Under the proposed rule, Sec. 2200.206(a) requires that as early as
practicable, the presiding judge would conduct a pre-hearing
conference. The judge has the discretion to determine the format of the
pre-hearing conference. The pre-hearing conference would be ``live,''
and can be conducted in person or by such electronic means as telephone
or video conferences. It cannot be conducted by such devices as fax
machines. In addition, the current rule does not require that
affirmative defenses such as ``unpreventable employee misconduct,''
``infeasibility,'' and ``greater hazard,'' be raised prior to the
hearing. Proposed rule Sec. 2200.206(b) requires that affirmative
defenses would be raised at the pre-hearing conference, and that
affirmative defenses cannot otherwise be raised in later proceedings
except under extraordinary circumstances. The judge would issue an
order setting forth any agreements reached by the parties during the
pre-hearing conference.
Discovery
No substantive change is proposed to the current rule on discovery,
Sec. 2200.210. Parties may request discovery, but no discovery would be
conducted except on order of the judge.
Hearing
It is expected that the E-Z Trial hearing would be conducted in the
format decided by the hearing judge. Witnesses, however, would be sworn
and the proceedings would be reported. The requirement for a reporter
and transcript, currently found in Sec. 2200.208, would become part of
the new rule Sec. 2200.208(d). Typically, oral argument would be
presented at the close of the hearing. However, the judge has the
discretion to permit the parties to file written briefs instead. If
appropriate, the judge has the option of announcing his decision from
the bench on the record. If not announced from the bench, a written
decision would be issued within 45 days, unless an extension was
granted by the Chief Judge.
Review of Judge's Decision
Unlike the current rule, this proposed rule does not require the
judge to prepare a written decision, but would instead permit him to
issue a decision from the bench. In that event, that portion of the
transcript containing the judge's bench decision will be considered the
written decision and will be included in the judge's order.
Applicability of the Commission's Conventional Rules
Included in the list of rules that do not apply to E-Z Trials is
Sec. 2200.74, which covers the filing of briefs and proposed findings
of fact with the judge, as well as oral arguments at the hearing. No
other substantive change is proposed to the current rule,
Sec. 2200.212.
List of Subjects in 29 CFR Part 2200
Administrative practice and procedure, Hearing and appeal
procedures.
For the reasons set forth in the preamble, the Occupational Safety
and Health Review Commission proposes to amend title 29, chapter XX,
part 2200, subpart M of the Code of Federal Regulations as follows:
PART 2200--RULES OF PROCEDURE
1. The authority citation for part 2200 continues to read as
follows:
Authority: 29 U.S.C. 661(g).
2. Subpart M is revised to read as follows:
Subpart M--E-Z Trials
Sec.
2200.200 Purpose.
2200.201 Application.
2200.202 Eligibility for E-Z Trial.
2200.203 Commencing E-Z Trial.
2200.204 Discontinuance of E-Z Trial.
2200.205 Filing of pleadings.
2200.206 Pre-hearing conference.
2200.207 Discovery.
2200.208 Hearing.
2200.209 Review of Judge's decision.
2200.210 Applicability of Subparts A through G.
Subpart M--E-Z Trials
Sec. 2200.200 Purpose.
(a) The purpose of the E-Z Trials 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 Administrative Law Judge are required to narrow and
define the disputes between the parties.
(3) Discovery is generally not permitted.
(4) Interlocutory appeals are not permitted.
(5) Hearings are less formal. The Federal Rules of Evidence do not
apply. Instead of briefs, the parties will argue their case orally
before the Judge at the conclusion of the hearing. In many instances,
the Judge will render his decision from the bench.
Sec. 2200.201 Application.
The rules in this subpart will govern proceedings before a Judge in
a case chosen for E-Z Trial under Sec. 2200.203.
Sec. 2200.202 Eligiblity for E-Z Trial.
All cases with a low aggregate penalty are eligible for E-Z Trial.
Those cases selected for E-Z Trial will be those that also do not
involve complex issues of law or fact.
Sec. 2200.203 Commencing E-Z Trial.
(a) Selection. Upon receipt of a Notice of Contest, the Chief
Administrative Law Judge may, at his or her discretion, assign an
appropriate case for E-Z Trial.
(b) Party request. Within twenty days of the notice of docketing,
any party may request the Chief Judge or the Judge assigned to the case
to assign the case for E-Z Trial. The request must be in writing. For
example, ``I request an
E-Z Trial'' 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 Judge or the Judge
assigned to the [[Page 21061]] case may grant a party's request and
assign a case for E-Z Trial at his or her discretion. Such request
shall be acted upon within fifteen days of its receipt by the Judge.
(d) Time for filing complaint or answer under Sec. 2200.34. If a
party has requested E-Z Trial or the Judge has assigned the case for E-
Z Trial, the times for filing a complaint or answer will not run. If a
request for E-Z Trial is denied, the period for filing a complaint or
answer will begin to run upon issuance of the notice denying
E-Z Trial.
Sec. 2200.204 Discontinuance of E-Z Trial.
(a) Procedure. If it becomes apparent at any time that a case is
not appropriate for E-Z Trial, the Judge assigned to the case may, upon
motion by any party or upon the Judge's own motion, discontinue E-Z
Trial and order the case to continue under conventional rules. Before
discontinuing E-Z Trial, the Judge will consult with the Chief Judge.
(b) Party Motion. At any time during the proceedings any party may
request that the E-Z Trial be discontinued and that the matter continue
under conventional procedures. A motion to discontinue must be in
writing and explain why the case is inappropriate for E-Z Trial. All
other parties will have seven days from the filing of the motion to
state their agreement or disagreement and their reasons.
(c) Ruling. If E-Z Trial is 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 E-Z Trial,
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 E-Z Trial has been ordered, no response to
these documents will be required.
(b) Motions. A primary purpose of
E-Z Trials is to eliminate, as much as possible, motions and similar
documents. A motion will not be viewed favorably if the subject of the
motion has not been first discussed among the parties.
Sec. 2200.206 Pre-hearing conference.
(a) When held. As early as practicable, the presiding Judge will
order and conduct a pre-hearing conference. At the discretion of the
Judge, the pre-hearing conference may be held in person, or by
telephone or electronic means.
(b) Content. At the pre-hearing conference, the parties will
discuss the following: settlement of the case; the narrowing of issues;
an agreed statement of issues and facts; defenses; 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 setting forth any
agreements reached by the parties.
Sec. 2200.207 Discovery.
Discovery, including requests for admissions, will only be allowed
under the conditions and time limits set by the Judge.
Sec. 2200.208 Hearing.
(a) Procedures. The Judge will hold a hearing on any issue that
remains in dispute at the conclusion of the pre-hearing conference. The
hearing will be in accordance with subpart E of these rules, except for
Secs. 2200.71, 2200.73 and 2200.74 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. 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. The Federal Rules of
Evidence do not apply.
(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 oral argument
at the close of the hearing. Post-hearing briefs will not be allowed
except by order of the Judge.
(f) Judge's decision. Where possible, the Judge will render his
decision from the bench. Alternatively, within 45 days of the hearing,
the Judge will issue a written decision. The decision will be in
accordance with Sec. 2200.90. If additional time is needed, approval of
the Chief Judge is required.
Sec. 2200.209 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 or order, the parties may pursue the case following
the rules in Subpart F.
Sec. 2200.210 Applicability of Subparts A through G.
The provisions of subpart D (except for Sec. 2200.57) and
Secs. 2200.34, 2200.37(d)(5), 2200.38, 2200.71, 2200.73 and 2200.74
will not apply to E-Z Trials. 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 E-Z Trials.
Dated: April 25, 1995.
Ray H. Darling, Jr.,
Executive Secretary.
[FR Doc. 95-10604 Filed 4-28-95; 8:45 am]
BILLING CODE 7600-01-M
