[Federal Register Volume 60, Number 156 (Monday, August 14, 1995)]
[Rules and Regulations]
[Pages 41805-41811]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-19975]
=======================================================================
-----------------------------------------------------------------------
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
29 CFR Part 2200
Rules of Procedure
AGENCY: Occupational Safety and Health Review Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Occupational Safety and Health Review Commission has
determined that it is in the public interest to adopt procedures that
will permit the small employer who challenges an OSHA citation before
the Commission to do so with minimal complexity and cost. Accordingly,
it has decided to initiate a pilot E-Z Trial program for a one year
period, beginning October 1, 1995. After the test period, the
Commission will evaluate the results and determine whether it should
continue the E-Z Trial program and, if so, what modifications should be
made. The evaluation will involve surveying employers and employer
representatives regarding their satisfaction with the fairness and
efficiency of the process and analyzing data on the rate at which E-Z
Trial cases go to a hearing, the length and cost of hearings and the
cycle times of these cases as compared to those of conventional cases.
We will also gather information from our Judges and the Solicitor of
Labor and OSHA personnel regarding how well the process is working and
how it might be changed or improved.
As the name implies, E-Z Trial is designed to simplify and
accelerate adjudication for cases that warrant a less formal, less
costly process. To ensure that the program is used sufficiently to
enable the Commission to determine its success or failure, as well as
its strengths and weaknesses, cases will be assigned to E-Z Trial by
the Chief Administrative Law Judge. The Commission will also include
explanatory materials on E-Z Trial in its Notice of Docketing to
employers to make sure that (1) employers are well aware of the
availability of the E-Z Trial option early in the process and (2)
employers are clear on how they can apply for E-Z Trial. Together these
mechanisms should encourage the use of E-Z Trial whenever appropriate.
Parties who believe that an assigned case is inappropriate for E-Z
Trial can present their reasons to the presiding Judge who, upon
consultation with the Chief Judge, may order the case to proceed under
conventional proceedings. In addition, a Judge assigned to a case could
unilaterally direct that case to be tried under E-Z Trial proceedings.
The Commission has also adopted certain rules and procedures designed
to shorten the length of the proceedings. For example, the parties are
required to disclose certain information to each other. Discovery,
while not prohibited, is allowed only under the terms set by the
presiding Judge, Interlocutory appeals are prohibited and, where
practicable, the Judge is encouraged to render his or her decision from
the bench. Any party dissatisfied with the disposition of the case may
seek review of that decision as in conventional proceedings.
[[Page 41806]]
DATES: These revised rules will take effect on October 1, 1995. After
September 30, 1996, Sec. 2200.203(a) will no longer be in effect unless
extended by the Commission by publication of a final rule in the
Federal Register.
FOR FURTHER INFORMATION CONTACT:
Earl R. Ohman, Jr., General Counsel, One Lafayette Centre, 1120 20th
St., N.W., 9th Floor, Washington, DC 20036-3419 Phone (202) 606-5410.
SUPPLEMENTARY INFORMATION:
Development of the Final Rules
On May 1, 1995, the Occupational Safety and Health Review
Commission published in the Federal Register a proposal to revise its
rules governing simplified proceedings and to institute a pilot E-Z
Trial program (60 FR 21058). The notice explained the procedures
followed by the Commission in developing its proposal and the basis and
purpose of the proposed rules. The notice included a request for public
comment.
In response, a number or organizations who would be affected by the
revised rules filed comments with the E-Z Commission. The Office of the
Solicitor of Labor, which represents the Secretary of Labor in all
adjudicative proceedings before the Commission, filed comments on
behalf of the Secretary of Labor. The following organizations, listed
alphabetically, presented comments on the proposed revision to the
rules: the Administrative Conference of the United States; the American
Dental Association; Bell Atlantic Network Services, Inc.; General
Building Contractors Association, Inc.; Gibson, Dunn & Crutcher;
Jackson, Murdo, Grant & McFarland, P.C.; McDermott, Will & Emery;
Morgan, Lewis & Bockius; the National Funeral Directors Association;
the National Stone Association; Rader, Campbell, Fisher & Pyke; and
Schottenstein, Zox & Dunn. The Commission gratefully acknowledges
receipt of these comments and assures all commentators that their
concerns about the proposed changes were fully considered, even though
some are not specifically discussed here.
In developing the final rules set forth in this document, the
Commission considered not only the concerns of the commentators, but
also those of other interested parties. The Chairman and
representatives of the Commission met with AFL-CIO affiliate unions on
March 16, 1995, with members of the Solicitor's office on May 16, 1995,
and on May 18, 1995, conducted two focus group sessions in
Philadelphia, Pennsylvania, with attorneys, non-attorney
representatives, and employers.
After careful consideration of all comments received, the
Commission issues these E-Z Trial rules, amending its rules for
simplified proceedings in order to promote more effective and efficient
proceedings before the Commission's Judges while maintaining fairness
to all its participants.
Eligibility for E-Z Trial
The Commission received several suggestions addressing
Sec. 2200.202, which sets forth which cases should be eligible for E-Z
Trial. Several commentators noted that the importance and complexity of
a case are often dependent on the required abatement, not the proposed
penalty. One commentator suggested raising the $7500 penalty
limitation, and including only those cases where the employer agrees
that the cost of abatement would be $7500 or less. The Commission found
this suggestion interesting because, as these commentators suggested,
the higher the cost of abatement, the more complicated the issues in
the case are likely to be. After considering the issue, however, the
Commission has determined that the suggestion is not viable. While it
is sometimes clear from the nature of the citation that the cost of
abatement would be either substantial or relatively minor, the effect
of the cost of abatement on the complexity of the case usually cannot
be determined at the outset of the proceeding when the case file
contains little more than the citation and notice of contest.
Therefore, an instruction to the Chief Judge to exclude abatement over
a certain dollar value would not be practicable. Similarly, it would be
difficult to carry out one commentator's suggestion that only cases
involving factual issues and not legal issues be directed for E-Z
Trial. Certainly such cases would be most suitable for E-Z Trial.
However, the Commission believes that such a separation of cases would
be difficult, if not impossible, to perform, given the potential for
legal issues arising in any case. We would expect that in most cases
where the Chief Judge determines that the abatement called for in the
citation would be expensive or the legal issues presented in the case
are difficult, he would determine that the case is too complex to be a
candidate for E-Z Trial.
The Commission has concluded that the $7500 limit originally
proposed is too low. Upon examination of the Commission's case load, we
are unable to discern a significant difference in complexity between
cases with proposed penalties ranging from $7500 to $10,000. By
considering cases for E-Z Trial with proposed penalties of not more
than $10,000, the Chief Judge would have an expanded number of cases to
choose from during this pilot project. Therefore, the Commission will
instruct the Chief Judge to consider cases for E-Z Trial where the
proposed penalties do not exceed $10,000 rather than $7500.
The Secretary suggested that the criteria used for Simplified
Proceedings be adopted for E-Z Trial and that any case involving air
contaminants (Subpart Z of Part 1910) be disqualified. The Secretary
also suggested that cases which would appear to involve affirmative
defenses should not be eligible for E-Z Trial because such cases
usually require discovery and often become complicated. A commentator
suggested that the specific requirements for E-Z Trial eligibility be
set forth in the rule. The Commission agrees that the eligibility
criteria be included in the rule. The Commission continues to believe,
however, that during this pilot project, it should maintain the
flexibility to apply broad eligibility criteria. Accordingly, the
Commission expects that cases appropriate for E-Z Trial would 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 $10,000, (3) no allegation of willfulness, (4) a hearing that
is expected to take less than two days, or (5) a small employer whether
appearing pro se or represented by counsel.
Procedures for Commencing and Discontinuing E-Z Trial
Many commentators objected to the language in Sec. 2200.203(a)
authorizing the Chief Judge to assign cases to E-Z Trial without either
party's request or consent. Similarly, there was widespread belief that
once selected for E-Z Trial, it would be very difficult to return the
case to conventional proceedings. Generally, these commentators
expressed concern over being forced into a proceeding that limited the
availability of certain procedures, particularly discovery. One
commentator even suggested that there be a ``presumption of
correctness'' for employers wanting to opt out of E-Z Trial, and that
the Judge be required to find ``overwhelming and compelling reasons why
the case should be simplified.''
As we note, infra, the concern over the loss of discovery is
overstated. Our paramount concern is always the conduct of a fair
proceeding. The Commission does not intend to eliminate discovery. The
rules
[[Page 41807]]
specifically grant authority to the presiding Judge to allow whatever
discovery he finds appropriate.
Thus, where the Judge determines that extensive discovery is
necessary, or finds some other reason for discontinuing E-Z Trial,
Sec. 2200.204(a) authorizes him to do so after consultation with the
Chief Judge. The Commission does not foresee this consultation process
as significantly restricting the presiding Judge from appropriately
removing a case from E-Z Trial.
It is the Commission's view that making it too easy for the parties
to opt out of E-Z Trial would run counter to the purpose of the
program. Nonetheless, where a party believes that its case has been
inappropriately assigned to E-Z Trial, Sec. 2200.204(b) allows that
party to move for the Judge to return the matter to conventional
proceedings. The Commission expects that, upon a showing of good cause,
most requests for returning a case to conventional proceedings will be
granted. Joint motions to return a case to conventional proceedings
shall be granted by the Judge and do not require a showing of good
cause.
While the Commission recognizes the concern expressed by many
commentators over the assignment of cases to E-Z Trial without the
consent of the parties, it believes that such a mechanism is necessary.
As the Commission stated in the preamble to the proposed E-Z Trial
rules, the previous rules for Simplified Proceedings, which would take
effect only upon a party's request, were rarely used. When Simplified
Proceedings were requested by a party, the other party often filed and
objection that was granted by the presiding judge. It is the
Commission's goal that these E-Z Trial rules will increase the number
of cases that use simplified proceedings to a significant level. The
Commission hopes that after some experience with this process,
litigants and their representatives will find it to be a useful
alternative to our conventional trial process. Therefore, the
Commission has set forth a sunset provision at Sec. 2200.201(b). Under
this provision, Sec. 2200.203(a), which allows the Chief Judge to
assign cases for E-Z Trial, will no longer be in effect after the
conclusion of the plot program unless otherwise extended by the
Commission.
Disclosure and Discovery
Most of the Commentators expressed reservations concerning the
restrictions on discovery set for at Sec. 2200.207. These commentators
feared that the loss of discovery would severely curtail their ability
to develop their case. A recurrent theme was that, without discovery,
employers would be open to ``trial by ambush''and that the Secretary,
by virtue of his inspection of the worksite, already had, in effect
extensive discovery. Similarly, the Secretary of Labor was concerned
that restrictions on discovery would prevent him from rebutting
affirmative defenses raised by employers. Accordingly, the Secretary
suggested that the rule be relaxed to allow discovery upon a showing of
need.
We believe that these commentators have interpreted the intent of
the rule. We are aware that E-Z Trial proceedings must be structured
fairly. The proposed rule was designed to have the Judge take a more
active role in the discovery process to ensure that it is limited to
that which is necessary. By doing so, the Commission hoped to minimize
delay and attendant costs. It appears that the role of discovery was
too narrowly described in Sec. 2200.200(b)(3) as being generally not
permitted. We have modified this rule to more accurately reflect the
intent of the Commission.
Because it is the intent of the Commission that E-Z Trial will
enable the small employer to represent himself better, it is especially
important that the Judge be involved in the discovery process. Few
things could be more intimidating or confusing to a pro se employer
than to receive a long list of interrogatories, requests for admission,
or requests for production of documents or to have to partake in
depositions. When such requests are made, the Commission expects that
its Judges will restrict discovery that appears to be of marginal
value.
It is the Commission's expectation that, as a result of reasonable
restrictions on discover, the adjudicatory process will be
substantially accelerated with significant cost savings being realized
by both employers and the Secretary. The Commission expects that having
the Judge take a more active role will expedite the case.
Several commentators observed that if discovery were to be
restricted, the Secretary should be required to turn over his
investigatory file to the employer early enough in the proceeding to
enable the employer to evaluate the case against him and prepare a
defense. We find this suggestion to be well-taken and have included a
new Sec. 2200.206 to require that the Secretary disclose to the
employer certain information early in the proceeding. We note that it
is already a general practice amongst some of the Commission's Judges
to require the Secretary to turn over all or part of the investigatory
file. In many other cases, the file is routinely turned over to the
employer's counsel upon request. However, most pro se employers would
not know that they have the right to request information contained in
the investigative file. Therefore, by requiring that certain
information in the file be turned over early in the proceeding, the
employer would, in all cases, be given the basic documents necessary
for the preparation of its defense.
The Secretary expressed the concern that requiring him to turn over
the entire investigatory file in all cases would impose a substantial
burden. Not only would the Secretary be required in every case to
duplicate numerous documents, but he would also have to individually
review each document to edit out any protected information. While we
find these concerns to be well-founded, we note that mandatory pre-
discovery disclosure is the trend in many jurisdictions, including the
Federal Courts. For example, Federal Rule of Civil Procedure 26(a)
requires the disclosure of certain basic information needed by parties
to prepare for trial or make an informed decision about settlement.
For E-Z Trial, Sec. 2200.206 sets forth the minimum disclosure
requirements necessary for the parties to evaluate their case. The
Commission has attempted to balance the employer's need for certain
information necessary to its case against the burden it would impose on
the Secretary to require the entire investigatory file to be turned
over in every case. Therefore, the Commission has determined that it
will require that two essential OSHA forms be turned over to the
employer early in the proceeding: the compliance officer's narrative
(Form OSHA-1A) and the worksheet (Form OSHA 1-B) or their equivalents.
As part of his or her control over the discovery process, the presiding
Judge would retain the authority to order that other materials be made
available to the employer.
Simarily, the Commission believes that where an employer raises
affirmative defenses, the Judge should require it to submit certain
authenticating documents to the Secretary. For example, if an employer
argues that a violation was the result of unpreventable employee
misconduct, the Judge should, at a minimum, require it to submit to the
Secretary a copy of the relevant portions of its safety manual and
documentation establishing the scope and nature of employee discipline.
The Commission has
[[Page 41808]]
codified this requirement at Sec. 2200.206(b).
All rules after Sec. 2200.206 have been renumbered to reflect the
addition of the new rule Sec. 2200.206, requiring the parties to
disclose certain information.
Pre-Hearing Conference
Because the Commission will require the Secretary to provide
certain information to the employer early in the proceeding,
Sec. 2200.207(a) has been modified to require that the pre-hearing
conference be held only after the employer has had sufficient time to
review the documents. Under Sec. 2200.206(b), where affirmative
defenses are raised, either before or at the pre-hearing conference,
the Secretary will have the right, outside of discovery, to obtain
certain authenticating documents from the employer. The Commission
expects that, in the usual case, at the pre-hearing conference the
Judge will be in the best position to determine what, if any, discovery
should be allowed.
The Secretary of Labor suggested that a binding statement of all
issues in dispute, including any affirmative defenses, be made part of
a written conference order. The Secretary of Labor also requested that
a rule be included requiring that a hearing date be set at the pre-
hearing conference, and that the conference be held sufficiently in
advance of the hearing date to allow the parties time to plan the
presentation of the case.
It is the Commission's view that its Judges functions best when
they have the flexibility to manage their cases in a manner that allows
them to consider the requirements and idiosyncracies of the individual
cases. However, the Secretary's suggestion that the rules specify that
the pre-hearing conference be held sufficiently in advance of the
hearing to allow the parties to prepare their case is well-taken. While
we do not adopt a rule requiring when a hearing date be set, wherever
practicable, the Judge should set a hearing date before the pre-hearing
conference takes place. Accordingly, the Commission has modified
Sec. 2200.209(a) to clarify that the hearing be held ``as soon as
practicable after the conclusion of the pre-hearing conference.'' Any
agreements reached in the pre-hearing conference should be memorialized
in a pre-hearing order.
Hearing
This proposed rule, now numbered Sec. 2200.209, engendered comments
in three areas.
Three commentators expressed reservations over Sec. 2200.209(c),
which makes the Federal Rules of Evidence inapplicable to E-Z Trial.
These commentators suggested that elimination of the Federal Rules of
Evidence would place the pro se employer at a disadvantage vis-a-vis
the trained lawyers representing the Secretary; would result in the
creation of a second, duplicative, system of evidentiary rules; and
would allow the Secretary of Labor to introduce hearsay evidence that,
when combined with the restrictions on discovery, the employer would be
unable to refute.
The Commission adheres to its view that the efficacy of E-Z Trial
will be enhanced, especially for the pro se employer, by not requiring
the Judge to strictly adhere to the Federal Rules of Evidence. The
Commission is confident that its Judges are fully able to deal with
issues of the reliability and probative value of evidence. On the other
hand, contrary to the contentions of the commentators, it seems obvious
that pro se employers, with no legal training, would be at a
substantial disadvantage in presenting their case if they were required
to strictly adhere to the Federal Rules of Evidence.
Several commentators also objected to the prohibition on
interlocutory appeals. One commentator noted that, because they are
rarely used, the prohibition was probably unnecessary. Another
commentator objected to the prohibition because the parties would have
no immediate appeal should the Judge improperly force the case to
continue under E-Z Trial. This latter comment underscores the reason
why the Commission has concluded it is necessary to prohibit
interlocutory appeals. Because of the unfamiliarity with these new
procedures, we expect that some parties will try to opt out even when
they are unable to show good cause why the case should not continue
under E-Z Trial. To allow these parties to seek interlocutory review of
the Judge's order, or to challenge other orders issued by the Judge,
such as discovery orders, would gravely slow down the process and
undermine the basic goal of E-Z Trial. We note that, despite the
prohibition on interlocutory review, the parties retain the right,
under Sec. 2200.211, to petition the Commission to review the Judge's
disposition.
Two commentators also specifically objected to Sec. 2200.209(f)
which encourages Judges to issue decisions from the bench. They
contended that without a written opinion, the rationale for the Judge's
decision would be incomplete, making it difficult both for other
parties to rely on the decision and for review of the decision on
appeal. Because we never intended to allow decisions without a recorded
rationale, we have clarified the rule accordingly. All our Judges'
decisions must comply with the Administrative Procedure Act. Therefore,
the revised language explicitly requires the Judge to state his or her
findings of fact and conclusions of law for the record. Moreover, the
Judge will be required to reduce his or her order to writing and to
include in his or her order all paragraphs from the transcript that
contain findings of fact and conclusions of law that support the
decision. This written order will serve as the official decision for
purposes of appeal.
Commission Review
Several comments suggested a misunderstanding as to when a case
would be considered for Commission review. In the preamble to these
proposed rules, the Commission stated that the decision to place a case
under E-Z Trial would only be reviewed when the losing party can show
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 the E-Z Trial
procedure were raised in a timely fashion to the Judge. This limitation
is intended to apply strictly to those instances where a party seeks
review of the decision to place the case under E-Z Trial and, in no
way, is intended to limit the availability of Commission review for any
other allegation of error.
Other Issues
1. Effect of E-Z Trial on Settlement
The Secretary expressed the serious concern that the availability
of E-Z Trial may have the unintended consequence of reducing the
percentage of cases that settle before hearing. The Secretary pointed
out that requiring parties to examine the merits of their case when
responding to pleadings, and the very requirement that responses be
filed often serve as inducements to settlement. By eliminating
pleadings, the Secretary suggests that it will become easier for
employers to simply let their cases drift toward a hearing. According
to the Secretary, many of the benefits sought by E-Z Trial could be
achieved through the simple expedient of extending the deadline for the
filing of the complaint. This, he argues, would allow the parties more
time for settlement negotiations and the drafting, execution and
submission of settlement documents.
The Commission shares the Secretary's concern. The Commission
[[Page 41809]]
always has sought to encourage the amicable settlement of its cases. In
no way do we desire to undermine this goal. It is the Commission's hope
that by directing the Judge to take an active role in narrowing and
defining the issues at the pre-hearing conference, parties will be more
likely, not less likely, to determine that settling their cases rather
than going to a hearing is in their best interest. The Commission would
also stress to pro se employers, and would expect its Judges to
transmit this point during the pre-hearing conference, that E-Z Trial
only cuts out some procedural red tape and does not imply that it will
be easier for employers to prevail in their contests. Nonetheless, we
are acutely aware that a reduction in settlements may be an unintended
consequence of E-Z Trial. This is a major reason for the pilot nature
of this project. We will be watching this issue closely for the
duration of the pilot project.
2. Convert into Mini-Trial Pilot
The Secretary suggested that the Commission convert E-Z Trial into
a mini-trial pilot where a party could request a de novo proceeding
under conventional rules before the Judge. The Secretary opines that
this would give the small employer an opportunity to state its case to
the Judge while protecting the interests of the litigants when they
believe that their case could only be adequately presented under
conventional proceedings.
The Commission finds no merit in this proposal. It is the
Commission's opinion that in most cases the Secretary's proposal would
amount to little more than giving the parties a ``second bite of the
apple,'' and would further strain the Commission's limited resources.
In some cases, the parties can invoke the Commission's settlement Judge
rule, Sec. 2200.101, to accomplish the same result. The purpose of E-Z
Trial is to streamline and shorten the adjudicatory process; not to
lengthen the process by giving every losing party an opportunity to
retry their case.
The Secretary also suggested that, given the streamlining of the
adjudicatory process, Judges' decisions rendered after E-Z Trial should
have no precedential value. However, unreviewed opinions of Judges do
not presently constitute precedent binding on the Review Commission. An
unreviewed Judge's decision issued after an E-Z Trial would likewise
not be binding on the Commission. Conversely, a Commission decision
would have precedential value whether it resulted from E-Z Trial
proceedings or regular proceedings. Additionally, if on review the
Commission is of the view that due process had not been adequately
provided, the case could be remanded to the Judge.
3. Grandfather Clause
One commentator suggested exempting those who currently practice
before the Commission from having their cases assigned to E-Z Trial. We
find no purpose to be served by granting an exemption to anyone who has
previously represented parties before the Commission. E-Z Trial is
designed to benefit parties, not their representatives. It would
countermand the purpose of E-Z Trial to force a party to have a
conventional proceeding for no reason other than its choice of legal
representative.
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 amends Title 29, Chapter XX, Part 2200 of
the Code of Federal Regulations as follows:
PART 2200--RULES OF PROCEDURE
1. The authority citation 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 Trial
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 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.
Subpart M--E-Z Trial
Sec. 2200.200 Purpose.
(a) The purpose of the E-Z Trial 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) 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
Administrative Law Judge.
(5) Interlocutory appeals are not permitted.
(6) 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 or her decision from the bench.
Sec. 2200.201 Application.
(a) The rules in this subpart will govern proceedings before a
Judge in a case chosen for E-Z Trial under Sec. 2200.203.
(b) Sunset Provision. Section 2200.203(a), which permits the Chief
Administrative Law Judge to assign a case for E-Z Trial, will no longer
be effective after September 30, 1996 unless the rule is extended by
the Commission by publication of a final rule in the Federal Register.
After September 30, 1996, a case will only be assigned to E-Z Trial if
the assignment is requested by a party.
Sec. 2200.202 Eligibility for E-Z Trial.
Those cases selected for E-Z Trial will be those that do not
involve complex issues of law or fact. Cases appropriate for E-Z Trial
would generally include those with one or more of the following
characteristics:
(a) relatively few citation items,
(b) an aggregate proposed penalty of not more than $10,000,
(c) no allegation of willfulness,
(d) a hearing that is expected to take less than two days, or
(e) a small employer whether appearing pro se or represented by
counsel.
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.
[[Page 41810]]
(b) Party request. Within twenty days of the notice of docketing,
any party may request that the case be assigned 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 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. Joint motions
to return a case to conventional proceedings shall be granted by the
Judge and do not require a showing of good cause.
(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 Disclosure of Information.
(a) Disclosure to employer. Within 12 working days after a case is
designated for E-Z Trial, 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 the equivalent. The Judge shall act
expeditiously on any claim by the employer that the Secretary
improperly withheld or redacted any portion of the documents on the
grounds of confidentiality or privilege.
(b) Disclosure to the Secretary. Where the employer raises an
affirmative defense, the presiding 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), 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 and will specify in the order 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 Secs. 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 practicable, the Judge will render his
or her decision from the bench. In rendering his or her decision from
the bench, the Judge shall state the issues in the case and make clear
both his or her findings of fact and conclusions of law on the record.
The Judge shall reduce his or her order in the matter to writing and
transmit it to the parties as soon as practicable, but no later than 45
days after the hearing. All relevant transcript paragraphs and pages
shall be excerpted and included in the decision. 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 is required.
(g) Filing of Judge's decision with the Executive Secretary. When
the Judge issues a written decision, it shall be filed simultaneously
with the Commission and the parties. Once the Judge's order is
transmitted to the Executive Secretary, Sec. 2200.90(b) applies, with
the exception of the 21 day period provided for in rule
Sec. 2200.90(b)(2).
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 or order, the parties may pursue the case following
the rules in Subpart F.
[[Page 41811]]
Sec. 2200.211 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: August 8, 1995.
Earl R. Ohman, Jr.,
General Counsel.
[FR Doc. 95-19975 Filed 8-11-95; 8:45 am]
BILLING CODE 7600-01-M
