Vol. 77 Tuesday, 

No. 233 December 4, 2012 

Part IV 

Department of Labor 

Office of the Secretary 

29 CFR Part 18 

Rules of Practice and Procedure for Hearings Before the Office of 

Administrative Law Judges; Proposed Rule 


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72142 Federal Register / Vol. 77, No. 233 / Tuesday, December 4, 2012 / Proposed Rules 

1Staff of H. Comm. on the Judiciary, 111th Cong., 

Federal Rules of Civil Procedure with Forms at vii 

(Comm. Print 2010), www.uscourts.gov/uscourts/ 

RulesAndPolicies/rules/2010%20Rules/ 

Civil%20Procedure.pdf. 

DEPARTMENT OF LABOR 

Office of the Secretary 

29 CFR Part 18 

RIN 1290–AA26 

Rules of Practice and Procedure for 

Hearings Before the Office of 

Administrative Law Judges 

AGENCY: Office of the Secretary, Labor. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Department of Labor 

proposes to revise and reorganize the 

Rules of Practice and Procedure for 

Administrative Hearings Before the 

Office of Administrative Law Judges, 

from our regulations, which provide 

procedural guidance to administrative 

law judges, claimants, employers, and 

Department of Labor representatives 

seeking to resolve disputes under a 

variety of employment and labor laws. 

The Office of Administrative Law 

Judges promulgated these regulations in 

1983. The regulations were modeled on 

the Federal Rules of Civil Procedure 

(FRCP) and have proved extraordinarily 

helpful in providing litigants with 

familiar rules governing hearing 

procedure. 

Since 1983, the FRCP have been 

amended many times. Moreover, in 

2007 the FRCP were given a complete 

revision to improve style and clarity. 

The nature of litigation has also changed 

in the past 28 years, particularly in the 

areas of discovery and electronic 

records. Thus, OALJ has revised its 

regulations to make the rules more 

accessible and useful to parties, and to 

harmonize administrative hearing 

procedures with the current FRCP. The 

goal in amending the regulations is to 

provide clarity through the use of 

consistent terminology, structure and 

formatting so that parties have clear 

direction when pursuing or defending 

against a claim. 

In addition to revising the regulations 

to conform to modern legal procedure, 

the rules need to be modified to reflect 

the types of claims now heard by OALJ. 

When the rules were promulgated in 

1983, OALJ primarily adjudicated 

occupational disease and injury cases. 

Presently, and looking ahead to the 

future, OALJ is and will be increasingly 

tasked with hearing whistleblower and 

other workplace retaliation claims, in 

addition to the occupational disease and 

injury cases. These types of cases 

require more structured management 

and oversight by the presiding 

administrative law judge and more 

sophisticated motions and discovery 

procedures than the current regulations 

provide. In order to best manage the 

complexities of whistleblower and 

discrimination claims, OALJ needs to 

update its rules to address the 

procedural questions that arise in these 

cases. 

DATES: Submit comments on or before 

February 4, 2013. 

ADDRESSES: You may submit comments 

by any of the following methods: 

Electronically: You may submit your 

comments and attachments 

electronically at www.regulations.gov. 

Mail, hand delivery, express mail, 

messenger or courier service: You may 

submit your comments and attachments 

to the U.S. Department of Labor, Office 

of Administrative Law Judges, 800 K 

Street NW., Suite 400-North, 

Washington, DC 20001–8002; telephone 

(202) 693–7300. Deliveries (hand, 

express mail, messenger, and courier 

service) are accepted during the Office 

of Administrative Law Judges’ normal 

business hours, 8:00 a.m.–4:30 p.m., e.t. 

Instruction for submitting comments: 

Please submit only one copy of your 

comments via any of the methods noted 

in this section. All submissions received 

must include the agency name, as well 

as RIN 1290–AA26. Also, please note 

that due to security concerns, postal 

mail delivery in Washington, DC may be 

delayed. Therefore, in order to ensure 

that comments are received on time, the 

Department encourages the public to 

submit comments electronically as 

indicated above. For further information 

on submitting comments, plus 

additional information on the 

rulemaking process, see the ‘‘Public 

Participation’’ heading in the 

SUPPLEMENTARY INFORMATION section of 

this notice. 

FOR FURTHER INFORMATION CONTACT: 

Todd Smyth at the U.S. Department of 

Labor, Office of Administrative Law 

Judges, 800 K Street NW Suite 400- 

North, Washington, DC 20001–8002; 

telephone (202) 693–7300. 

SUPPLEMENTARY INFORMATION: 

I. Background 

Administrative law judges at the 

Office of Administrative Law Judges 

(OALJ), United States Department of 

Labor (Department), conduct formal 

hearings under the Administrative 

Procedure Act, 5 U.S.C. 554 through 

557. An administrative law judge 

manages hearings that mirror federal 

civil litigation, is bound by applicable 

rules of evidence and procedure, and is 

insulated from political influence. See 

Tennessee v. U.S. Dep’t of Transp., 326 

F.3d 729, 735–36 (6th Cir. 2003). An 

administrative law judge acts as the 

functional equivalent of a trial judge. 

See Fed. Mar. Comm’n v. S.C. State 

Ports Auth., 535 U.S. 743, 756–57 

(2002). The types of cases heard by 

administrative law judges involve a full 

range of complexity, from simple 

administrative review of an existing 

administrative record to de novo, trialtype litigation. Consequently, rules of 

practice and procedure are essential to 

a just, speedy, and inexpensive 

determination of every proceeding. 

The current Rules of Practice and 

Procedure for Administrative Hearings 

before the Office of Administrative Law 

Judges, 29 CFR part 18, subpart A (Part 

18, Subpart A), were published on July 

15, 1983. See 48 FR 32538, 32538, July 

15, 1983. Rarely have they been altered. 

Some rules relating to discovery were 

amended in 1994. See 59 FR 41874, 

41876, Aug. 15, 1994. The most recent 

amendment, made in August 1999, 

permitted the appointment of settlement 

judges in cases arising under the 

Longshore and Harbor Workers’ 

Compensation Act (Longshore Act), 33 

U.S.C. 901 et seq., and associated 

statutes. See 64 FR 47088, 47089, Aug. 

27, 1999. Since its original publication, 

Part 18, Subpart A has never been 

comprehensively revised to keep abreast 

of ongoing changes to the procedures 

that govern civil litigation in federal 

trial courts. 

The OALJ rules of practice and 

procedure are analogous to the Federal 

Rules of Civil Procedure used in the 

United States District Courts. Congress 

authorized the Supreme Court to 

prescribe rules for the United States 

District Courts in 1934, under the Rules 

Enabling Act, 28 U.S.C. 2072. The 

original version of those rules became 

effective on September 16, 1938.1 Since 

1938, thirty-three sessions of Congress 

have approved changes to the FRCP, 

from 1941 through the most recent 

amendments that took effect on 

December 1, 2010. Significant 

amendments became effective in 1948, 

1963, 1966, 1970, 1980, 1983, 1987, 

1993, 2000, 2006, 2007, 2009, and 2010. 

Id. The procedural rules for OALJ have 

not kept pace with the eight groups of 

changes to the FRCP since the early 

1980s. 

The disputes that comprise the docket 

at OALJ have also changed with time. 

When the rules of practice and 

procedure were first published, OALJ’s 

judges mainly (but not exclusively) were 

devoting their efforts to deciding benefit 

claims under two broad statutory 

categories: 


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2 Judges at OALJ continue to hear a very few 

claims under another Longshore Act extension, the 

District of Columbia Workmen’s Compensation Act 

of 1928, 36 DC Code § 501 et seq., despite the 

District’s adoption of its own workers’ 

compensation law. For claims that involve an injury 

suffered before the District’s own law took effect in 

mid-1982, judges at OALJ continue to hear them. 

Keener v. Wash. Metro. Transit Auth., 800 F.2d 

1173, 1175 (D.C. Cir. 1986). 

• The Black Lung Benefits Act, 

subchapter 4 of the Federal Coal Mine 

Health and Safety Act of 1969, as 

amended, 30 U.S.C. 901 et seq. (1969); 

and 

• The Longshore Act and its 

extensions, which included the 

Nonappropriated Fund 

Instrumentalities Act, 5 U.S.C. 8171 

(1927); the Outer Continental Shelf 

Lands Act, 43 U.S.C. 1333 (1953); and 

the Defense Base Act, as amended, 42 

U.S.C. 1651 (1941).2

Over the last nearly two decades, 

Congress charged the Department of 

Labor (and consequently the OALJ) with 

the responsibility to hear and decide 

matters under many new statutes. Most 

relate to complaints by employees who 

assert their employers retaliated against 

them after they engaged in 

whistleblower activity. Some of these 

statutes for example are: 

• Section 110 of the Comprehensive 

Environmental Response, Compensation 

and Liability Act, 42 U.S.C. 9610, Public 

Law 96–510, 94 Stat. 2787, enacted on 

December 11, 1980; 

• Section 405 of the Surface 

Transportation Assistance Act of 1982 

(STAA), 49 U.S.C. 31105, Public Law 

97–424, 96 Stat. 2097, 2157–58, first 

enacted on January 6, 1983 (and 

originally codified as 49 U.S.C. 2301 et 

seq.), and last amended by sec. 1536 of 

the Implementing Recommendations of 

the 9/11 Commission Act of 2007, 

Public Law 110–53, 121 Stat. 464, 

enacted on August 3, 2007; 

• Section 212(n)(2)(C)(iv) of the 

Immigration and Nationality Act, 8 

U.S.C. 1182(n)(2)(C)(iv), as amended by 

the American Competitiveness and 

Workforce Improvement Act of 1998, 

which was part of the Omnibus 

Consolidated and Emergency 

Supplemental Appropriations Act of 

1998, Public Law 105–277, div. C, tit. 

IV, sec. 411(a), 112 Stat. 2681–641 to 

2681–657, enacted on October 21,1998; 

• Section 519 of the Wendell H. Ford 

Aviation Investment and Reform Act for 

the 21st Century (AIR21), 49 U.S.C. 

42121, Public Law 106–181, 114 Stat. 

145, enacted on April 5, 2000; 

• Section 6(a) of the Pipeline Safety 

Improvement Act of 2002, 49 U.S.C. 

60129, Public Law 107–355, 116 Stat. 

2989, enacted on December 17, 2002; 

• Section 806 of the Corporate and 

Criminal Fraud Accountability Act of 

2002 (the Sarbanes-Oxley Act), 18 

U.S.C. 1514A, Public Law 107–204, 116 

Stat. 802, first enacted on July 30, 2002, 

and last amended by sec. 929A of the 

Dodd-Frank Wall Street Reform and 

Consumer Protection Act, Public Law 

111–203, 124 Stat. 1848, 1852, enacted 

on July 21, 2010; 

• Section 1413 of the Implementing 

Recommendations of the 9/11 

Commission Act of 2007, 6 U.S.C. 1142, 

Public Law 100–53, 121 Stat. 414, that 

amended the National Transit Systems 

Security Act on August 3, 2007; and 

• Section 1521 of the Implementing 

Recommendations of the 9/11 

Commission Act of 2007, 49 U.S.C. 

20109, Public Law 100–53, 121 Stat. 

444, that amended the Federal Railroad 

Safety Act on August 3, 2007. 

Congress remains active in the area of 

whistleblower protection. On July 21, 

2010, Congress created and expanded 

whistleblower protection for employees 

in the financial services industry under 

the Dodd-Frank Wall Street Reform and 

Consumer Protection Act, Public Law 

111–203. On October 15, 2010, it 

amended another employment 

protection program that includes the 

opportunity for a hearing before an 

administrative law judge at the OALJ. 

See the amendment to the Seaman’s 

Protection Act in sec. 611 of the Coast 

Guard Authorization Act of 2010, 46 

U.S.C. 2114, Public Law 111–281, 124 

Stat. 2969. This year Congress 

established an additional right to an 

administrative hearing for 

whistleblowing employees in sec. 402 of 

the FDA Food Safety Modernization 

Act, 21 U.S.C. 399d, Public Law 111– 

353, 124 Stat. 3968, enacted January 4, 

2011. 

The substantive program regulations 

the Department has published to 

implement many of the statutes that 

grant workers and employers formal 

hearings on claims of workplace 

retaliation offer limited guidance about 

the procedures those adjudications 

should follow. Regulations often 

incorporate instead the procedural rules 

of Part 18, Subpart A. See, e.g., 29 CFR 

1978.107(a), 1979.107(a), 1980.107(a) 

(2011) (STAA, AIR21, and SarbanesOxley regulations, respectively). In 

adopting program regulations, the 

Department has acknowledged it was 

leaving matters like the ‘‘place of 

hearing, right to counsel, procedures, 

evidence and record of hearing, oral 

arguments and briefs, and dismissal for 

cause’’ to the Part 18, Subpart A rules 

precisely ‘‘because the Office of 

Administrative Law Judges has adopted 

its own rules of practice that cover these 

matters.’’ 76 FR 2808, 2814, Jan. 18, 

2011 (amending the 29 CFR part 24 

regulations that cover whistleblowers in 

the nuclear power and environmental 

industries). 

The growth in whistleblower 

jurisdiction has led OALJ to search for 

ways to manage those proceedings 

efficiently. Implementing procedures 

the federal district courts have 

developed or refined since 1983 will 

improve the current Part 18, Subpart A 

rules. 

For example, several regulations that 

govern whistleblower claims explicitly 

grant the presiding judge ‘‘broad 

discretion to limit discovery’’ as a way 

to ‘‘expedite the hearing.’’ 29 CFR 

1979.107(b), 1980.107(b), 1981.107(b). 

The Department’s discussion when it 

published the final rules on SarbanesOxley matters offered as an illustration 

that the judge may ‘‘limit the number of 

interrogatories, requests for production 

of documents or depositions allowed.’’ 

69 FR 52104, 52110, Aug. 24, 2004. 

Other program regulations, such as 

those that govern disputes under the 

Energy Reorganization Act and six 

environmental statutes that cover 

whistleblowers in the nuclear and 

environmental industries published at 

29 CFR part 24, incorporate the Part 18, 

Subpart A regulations without an 

explicit reference to a judge’s authority 

to control discovery. See 29 CFR 

24.107(a). The Preface to those Part 24 

regulations nonetheless recognizes that 

the current Part 18, Subpart A 

regulations invest a judge with broad 

authority ‘‘to limit discovery in 

appropriate circumstances.’’ 76 FR at 

2815. Whether a program regulation 

specifically recognizes a judge’s 

authority to limit or manage discovery, 

or implicitly does so by adopting the 

Part 18, Subpart A regulations, the judge 

will consider the parties’ views on the 

discovery appropriate to develop the 

facts for hearing before limiting it. As 

detailed below, the early initial 

disclosures the federal courts now 

require parties to exchange under Fed. 

R. Civ. P. 26(a)(1) obviates the need for 

some formal discovery. The discovery 

plan that parties craft under Fed. R. Civ. 

P. 26(f) after they confer at the outset of 

the litigation offers a ready way to tailor 

discovery to the proceeding. 

A 2010 study surveyed lawyers who 

were the attorneys of record in federal 

civil cases that terminated in the last 

quarter of 2008 about their satisfaction 

with the current FRCP. Lawyers from 

the Litigation Section of the American 

Bar Association and from the National 

Employment Lawyers Association were 

sampled too. The survey instrument had 

been developed jointly by the American 


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College of Trial Lawyers and the 

Institute for the Advancement of the 

American Legal System. A majority of 

lawyers across all the groups responded 

that active case management by judges 

offered a useful way to limit or avoid 

abusive, frivolous, or unnecessary 

discovery. Emery G. Lee & Thomas E. 

Willging, Attorney Satisfaction with the 

Federal Rules of Civil Procedure: Report 

to the Judicial Conference Advisory 

Committee on Civil Rules 3, 9 (2010). 

These survey results mesh comfortably 

with comments the Department received 

as the 29 CFR part 24 regulations were 

amended. Some lawyers who 

commented there urged the Department, 

among other things, to require parties to 

those whistleblower claims to exchange 

the initial disclosures now mandated by 

Fed. R. Civ. P. 26(a)(1). 76 FR at 2815. 

Updating the Part 18, Subpart A 

regulations has value beyond 

whistleblower litigation. Regulations for 

the Longshore and Harbor Workers’ 

Compensation Act published at 20 CFR 

702.331 through 702.351 predate Part 

18, Subpart A. They sketch out only 

broad outlines of how hearings should 

proceed, so the parties and judges fall 

back on the Part 18, Subpart A rules in 

cases brought under the Longshore Act 

and its extensions. Workers, their 

employers, and insurance carriers also 

will profit from updated procedures that 

avoid the need to serve discovery to 

learn basic information, and allow more 

focused case management. 

The Department believes that in many 

instances the current Part 18, Subpart A 

rules provide limited guidance. Judges 

have addressed the current rules’ 

limitations by managing procedural 

matters through orders, often directing 

parties to follow aspects of the various 

updates to the FRCP. The consequent 

variety in approaches to case 

management has troubled some lawyers, 

especially those with nationwide client 

bases who routinely practice before 

different judges throughout the nation. 

Lastly, the Department recognizes that 

the current Part 18, Subpart A rules can 

be stated more clearly, something the 

2007 style amendments to the FRCP 

highlight. The style amendments were 

the first comprehensive overhaul since 

the FRCP were adopted in 1938. Taking 

more than four years to complete, they 

aspired to simplify and clarify federal 

procedure. The more austere sentence 

structure used throughout the restyled 

FRCP made them shorter, easier to read 

and more clearly articulated. The 

amendments proposed to Part 18, 

Subpart A emulate those improvements. 

The Department’s principal goals in 

revising Part 18, Subpart A were to: 

• Bring the rules into closer 

alignment with the current FRCP; 

• Revise the rules to aid the 

development of facts germane to 

additional sorts of adjudications the 

Department’s judges handle; 

• Enhance procedural uniformity, 

while allowing judges to manage cases 

flexibly, because (a) An administrative 

proceeding is meant to be less formal 

than a jury trial; (b) local trial practice 

in different regions of the country 

should be accommodated when doing 

so does not affect substantive rights; and 

(c) governing statutes and substantive 

regulations may impose their own 

specific procedural requirements; and 

• Make the rules clearer and easier to 

understand through the use of 

consistent terminology, structure, and 

formatting. 

II. Alignment With the Federal Rules of 

Civil Procedure 

The decisions and orders that judges 

enter to resolve cases under sec. 556 and 

557 of the Administrative Procedure Act 

resemble findings of fact and 

conclusions of law federal district and 

magistrate judges enter in non-jury cases 

under Fed. R. Civ. P. 52. Matters 

proceed before OALJ much the way 

non-jury cases move through the federal 

courts. 

Using language similar or identical to 

the applicable FRCP gains the advantage 

of the broad experience of the federal 

courts and the well-developed 

precedent they have created to guide 

litigants, judges, and reviewing 

authorities within the Department on 

procedure. Parties and judges obtain the 

additional advantage of focusing 

primarily on the substance of the 

administrative disputes, spending less 

time on the distraction of litigating 

about procedure. 

Part 18, Subpart A currently provides 

that the ‘‘Rules of Civil Procedure for 

the District Courts of the United States 

shall be applied in any situation not 

provided for or controlled by these 

rules, or by any statute, executive order 

or regulation.’’ 29 CFR 18.1(a). 

Experienced practitioners know to 

consult the FRCP for guidance in 

circumstances the current Part 18, 

Subpart A rules do not explicitly cover. 

Given the developments in the FRCP 

since 1983, parties and judges switch 

back and forth between two different 

sources of procedure (the Part 18, 

Subpart A rules and the FRCP). This is 

a less than ideal situation. The proposed 

revision continues the current practice 

of looking to the federal civil rules to 

resolve procedural questions that the 

revised Part 18, Subpart A rules do not 

explicitly cover, a principle that 

§ 18.1(a) has embodied for over twentyfive years. 

Pretrial procedures under the FRCP 

have significantly changed since Part 

18, Subpart A was published in 1983. 

Some of the most significant changes 

have encompassed: 

• The scope of pretrial discovery; 

• How time is computed under the 

FRCP; 

• The innovation of early mandatory 

disclosures about documentary proof 

and lay and expert witness testimony 

that were unknown to litigation practice 

in 1983, the related discovery plans the 

parties now negotiate, and the ongoing 

duty parties now bear to supplement 

their mandatory disclosures and 

discovery responses; 

• Alterations to the rule on pretrial 

conferences to encourage judges to 

manage cases, and give them the tools 

to do so; 

• Imposing presumptive limitations 

on aspects of discovery; 

• Adding rules on the discovery of 

electronically stored information, a rare 

source of information in the early 1980’s 

that has become ubiquitous today; and 

• The procedure, but not the 

standard, for granting summary 

judgment under Fed. R. Civ. P. 56 that 

was substantially revised in 2010. 

The 2007 style amendments to the 

FRCP in some instances altered the 

original numbering of provisions that 

first came into being after 1983. The 

current rule numbers from the 2010 

edition of the FRCP are used in the 

following discussion of significant 

changes in litigation practice since 

1983. 

A. Scope of Discovery 

The scope of discovery has changed. 

The formulation used in current Part 18, 

Subpart A at § 18.14 extends discovery 

to ‘‘any matter, not privileged, which is 

relevant to the subject matter involved 

in the proceeding.’’ The FRCP now 

permits parties the somewhat narrower 

opportunity to learn about unprivileged 

matters ‘‘relevant to a party’s claim or 

defense.’’ Advisory Committee Notes to 

the 2000 Amendments to Fed. R. Civ. P. 

26(b)(1); Jeffery W. Stemple & David F. 

Herr, Applying Amended Rule 26(b)(1) 

in Litigation: The New Scope of 

Discovery, 199 F.R.D. 396, 398 (2001). 

B. Time Computation 

Litigation requires timely filings and 

actions. The way time is calculated 

under Fed. R. Civ. P. 6 changed in 2009. 

In the Department’s view, the Part 18, 

Subpart A rules should be harmonized 

with the FRCP so parties and their 

lawyers use the simpler, clearer, and 

more consistent way federal courts now 


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Federal Register / Vol. 77, No. 233 / Tuesday, December 4, 2012 / Proposed Rules 72145 

calculate time. Part 18, Subpart A 

presently excludes weekends and legal 

holidays when computing some 

deadlines but not others. See current 29 

CFR 18.4(a). Fed. R. Civ. P. 6 now 

counts intervening weekends and 

holidays for all time periods. Most short 

periods found throughout the FRCP 

were extended to offset the shift in the 

time-computation rules and to ensure 

that each period is reasonable. Five-day 

periods became 7-day periods and 10- 

day periods became 14-day periods, in 

effect maintaining the status quo. 

Time periods in the FRCP shorter 

than 30 days also were revised to 

multiples of 7 days, to reduce the 

likelihood of ending on weekends. 

Other changes to the FRCP timecomputation rules affect how to tell 

when the last day of a period ends, and 

how to compute backward-counted 

periods that end on a weekend or 

holiday. 

C. Mandatory Disclosures, Their 

Supplements, and Discovery Plans 

The Department believes that the 

success the federal courts have had with 

requiring parties to exchange 

elementary information early in the 

dispute, without the need for a formal 

discovery demand, should be 

incorporated into OALJ’s procedures for 

most cases. The same is true for the way 

the federal courts require parties to 

disclose the opinions of experts, and to 

supplement disclosures and discovery 

responses. 

Disclosures of information relevant to 

the claims or defenses a party may raise 

in the litigation were required in the 

1993 amendments to the FRCP. See 

David D. Siegel, The Recent (Dec. 1, 

1993) Changes in the Federal Rules of 

Civil Procedure: Background, the 

Question of Retroactivity, and a Word 

about Mandatory Disclosure, 151 F.R.D. 

147 (1993). Although originally subject 

to variation by local rule of a district 

court, by 2000 the disclosures became 

mandatory and nationally uniform 

(although the federal courts exempted a 

narrow group of cases that were 

unlikely to benefit from required 

disclosures). 

The disclosure obligation was 

narrowed in 2000 to embrace only 

information the party would use to 

support its claims or defenses at a 

pretrial conference, to support a motion, 

to question a witness during a discovery 

deposition, or at trial. Advisory 

Committee Notes to the 2000 

Amendments to Fed. R. Civ. P. 26(a). 

These mandatory disclosures cover 

basic information needed to prepare 

most cases for trial or to make an 

informed decision about settlement. 

Advisory Committee Notes to the 1993 

Amendments to Fed. R. Civ. P. 26(a). 

They must be exchanged at the outset of 

the proceeding, even before the 

opponent issues any discovery request, 

and for the most part there is a 

moratorium on discovery until the 

automatic disclosures are made. Fed. R. 

Civ. P. 26(d)(1). Few excuses for failing 

to make timely disclosures are 

countenanced. Fed. R. Civ. P. 

26(a)(1)(E). These prompt initial 

disclosures lead to an early conference 

where the parties discuss whether the 

case can be settled and negotiate a 

proposed discovery schedule they 

report to the judge. Fed. R. Civ. P. 

26(f)(2). 

Other amendments enhanced the 

pretrial disclosure of the opinions of an 

expert witness. A party now is required 

to: 

• Provide a detailed written report, 

signed by an expert who is retained or 

specially employed to give expert 

testimony, under Fed. R. Civ. P. 

26(a)(2)(B); 

• Deliver the report before the expert 

is deposed, under Fed. R. Civ. P. 

26(b)(4); and 

• Prepare and serve a disclosure of 

the expert’s testimony if the expert was 

not retained or specially employed to 

testify (and so not required to write and 

sign a report), under Fed. R. Civ. P. 

26(a)(2)(C). 

By signing and serving a required 

disclosure (or any discovery response), 

the lawyer attests that it is complete and 

correct; consistent with the rules; not 

interposed for an improper purpose; and 

not unreasonable nor unduly 

burdensome or expensive, given the 

needs and prior discovery in the case, 

the amount in controversy, and the 

importance of the issues at stake. Fed. 

R. Civ. P. 26(g). 

A required disclosure that turns out to 

have been incomplete or incorrect in 

some material respect must be 

supplemented ‘‘in a timely manner.’’ 

Fed. R. Civ. P. 26(e). The duty to 

supplement extends to a required report 

or disclosure about expert witness 

testimony and to a discovery response. 

Id. 

D. Case Management Through Pretrial 

Conferences and Orders 

The amendments to Fed. R. Civ. P. 16 

made in 1993 enhanced a judge’s 

authority to manage litigation with the 

goal of achieving the just, speedy, and 

inexpensive determination of a matter 

through the use of scheduling orders 

under Fed. R. Civ. P. 16(b) and pretrial 

conferences under Fed. R. Civ. P. 16(c). 

Those revisions to Fed. R. Civ. P. 16 

expanded the judge’s authority to ‘‘take 

appropriate action’’ in a civil case. 

Charles R. Ritchey, Rule 16 Revised, and 

Related Rules: Analysis of Recent 

Developments for the Benefit of the 

Bench and Bar, 157 F.R.D. 69, 75 (1994). 

A pretrial conference offers the 

opportunity to appropriately control the 

extent and timing of discovery. At a 

conference the parties and judge may 

consider ways to avoid unnecessary 

proof and cumulative evidence at trial 

(including expert testimony) under what 

is now Fed. R. Civ. P. 16(c)(2)(D). 

Determining whether a motion for 

summary adjudication is even 

appropriate, and setting the time to file 

it, may be discussed under Fed. R. Civ. 

P. 16(b)(3)(A), (c)(2)(E). See generally D. 

Brock Hornby, Summary Judgment 

Without Illusions, 13 Green Bag 2d 273, 

284–85 (2010) (explaining the 

complexity of the summary judgment 

process). Controlling discovery and 

setting deadlines for initial, expert, and 

pretrial disclosures under Fed. R. Civ. P. 

26; for stipulations under Fed. R. Civ. P. 

29; and dealing with failures to make 

disclosures or to cooperate in discovery 

under Fed. R. Civ. P. 37, all may be 

considered at a pretrial conference 

under Fed. R. Civ. P. 16(c)(2)(F). A 

pretrial order that limits the length of 

trial under Fed. R. Civ. P. 16(c)(2)(O) 

offers the parties a better opportunity to 

determine their priorities and be 

selective in presenting their evidence 

than if limits are imposed only at the 

time of trial. Limits on trial time must 

be reasonable in the circumstances and 

ordinarily imposed only after the parties 

are given the opportunity to outline the 

nature of the testimony they expect to 

offer through various witnesses and the 

time they expect to need for direct and 

cross-examination. See Advisory 

Committee Note to the 1993 

Amendments to Fed. R. Civ. P. 

16(c)(15). Exploring settlement and the 

use of alternative dispute resolution 

procedures can be considered under 

Fed. R. Civ. P. 16(c)(2)(I). Separate trials 

may be set for potentially dispositive 

issues under Fed. R. Civ. P. 16(c)(2)(M). 

E. Presumptive Limitations on Discovery 

Discovery practice in federal court 

litigation has been altered since 1983 in 

a number of ways. The amendments 

were not meant to block needed 

discovery, but to provide judicial 

supervision to curtail excessive 

discovery. Advisory Committee Note to 

the 1993 Amendments to Fed. R. Civ. P. 

33(a). The FRCP now presumptively 

limit the number of interrogatories a 

party may serve, including ‘‘all discrete 

subparts;’’ the number of depositions 

taken by oral examination or on written 

questions; taking the deposition of a 


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witness more than once; and restricting 

the deposition of a witness to one day 

of no more than seven hours. Fed. R. 

Civ. P. 33(a); Fed. R. Civ. P. 

30(a)(2)(A)(i), (ii), (d)(1); and Fed. R. 

Civ. P. 31(a)(2)(A)(i). 

These presumptive limitations are 

adjusted as a case requires, often 

through the scheduling order the judge 

enters on the discovery plan the parties 

propose after their initial conference. 

Fed. R. Civ. P. 26(b)(2)(A), (f)(3)(E); see 

also, Advisory Committee Notes to the 

2000 Amendments to Fed. R. Civ. P. 

26(b)(2). 

Parties also must seek to resolve 

discovery disputes informally before 

filing a motion. Fed. R. Civ. P. 26(c)(1); 

see also, Advisory Committee Notes to 

the 1993 Amendments to Fed. R. Civ. P. 

26(a) (concerning what was then the 

new subparagraph (B)). 

F. Discovery of Electronically Stored 

Information 

E-discovery provisions that recognize 

how pervasive digital information has 

become were incorporated into the 

FRCP in 2006. Richard L. Marcus, EDiscovery & Beyond: Toward Brave New 

World or 1984?, 236 F.R.D. 598, 604– 

605 (2006). The amendments recognize 

the integral role digital data such as 

email, instant messaging, and web-based 

information play in contemporary life 

and in discovery; they introduced into 

the FRCP the concept of ‘‘electronically 

stored information.’’ As with changes to 

the presumptive limits on various 

discovery methods, the discovery plan 

the parties develop is expected to 

address any issues about disclosure or 

discovery of electronically stored 

information, including the form in 

which it should be produced. Fed. R. 

Civ. P. 26(f)(3)(C); Fed. R. Civ. P. 

34(b)(2)(D), (E); see also Advisory 

Committee Notes to the 2006 

Amendments to Fed. R. Civ. P. 26(f); 

Advisory Committee Notes to the 2006 

Amendments to Fed. R. Civ. P. 34(b); 

Hopson v. Mayor & City Council of Balt., 

232 F.R.D. 228, 245 (D. Md. 2006). 

Digital information is so omnipresent 

that federal courts now deride as 

‘‘frankly ludicrous’’ arguments that a 

trial lawyer who claims to be ‘‘computer 

illiterate’’ should be excused from 

fulfilling the rules’ e-discovery 

obligations. Martin v. Nw. Mut. Life Ins. 

Co., No. 804CV2328T23MAP, 2006 WL 

148991, at *2 (M.D. Fla. Jan. 19, 2006) 

(unpublished). Today a lawyer bears an 

affirmative duty not just to ask a client 

to locate and gather paper and 

electronic documents, but to search out 

sources of electronic information. 

Phoenix Four, Inc. v. Strategic Res. 

Corp., No. 05 Civ. 4837(HB), 2006 WL 

2135798, at *5 (S.D.N.Y. Aug. 1, 2006) 

(unpublished); In re A & M Fla. Prop. II, 

LLC, No. 09–15173, 2010 WL 1418861, 

at *6 (Bankr. S.D.N.Y. Apr. 7, 2010) 

(unpublished). Those efforts must, 

however, be proportional to what is at 

stake in the litigation. Fed. R. Civ. P. 

26(b)(2)(C)(iii); see also, The Sedona 

Principles: Second Edition, Best 

Practices Recommendations & 

Principles for Addressing Electronic 

Document Production, Principle 2, cmt. 

2.b., at 17 (2007) (‘‘Electronic discovery 

burdens should be proportional to the 

amount in controversy and the nature of 

the case. Otherwise, transaction costs 

due to electronic discovery will 

overwhelm the ability to resolve 

disputes fairly in litigation.’’); cf., 

Pension Comm. of the Univ. of Montreal 

Pension Plan v. Banc of Am. Sec., LLC, 

685 F.Supp.2d 456, 464–65 (S.D.N.Y. 

2010) (describing significant discovery 

burdens that were reasonable in a $550 

million claim arising from the 

liquidation of hedge funds; but those 

burdens may be inappropriate in 

litigation where much less is at stake). 

In addition, the parties should discuss 

and agree at the initial conference on 

how to handle inadvertent disclosure of 

digital information that otherwise 

would enjoy attorney-client privilege or 

work product protection. Fed. R. Civ. P. 

26(f)(3)(D). Their agreement plays a 

pivotal role under recently enacted Fed. 

R. Evid. 502(b), (d), and (e). They avoid 

a waiver of privilege or work product 

protection when their agreement is 

incorporated into a scheduling order or 

another order. See Advisory Committee 

Notes to the 2006 amendments to Fed. 

R. Civ. P. 26(f). 

The current FRCP not only guide the 

resolution of discovery disputes, but 

also set standards for allocating the 

potentially high cost of discovery among 

the parties when the sources of digital 

data are not readily accessible. Advisory 

Committee Notes to 2006 Amendments 

to Fed. R. Civ. P. 26(b)(2) (‘‘The 

conditions [the judge imposes] may also 

include payment by the requesting party 

of part or all of the reasonable costs of 

obtaining information from sources that 

are not reasonably accessible.’’) 

G. Summary Decision 

A motion for summary adjudication 

carries the potential to dispose of an 

entire claim or portions of it with 

finality but without a trial, so it plays a 

key role in litigation. The procedure 

ought to be the same at the OALJ as in 

U.S. district courts; any divergence 

creates an incentive for a party to prefer 

the forum with the summary decision 

re ́gime most favorable to its position. 

This matters because under many 

statutes whistleblower litigation begins 

at OALJ, but the complainant may 

proceed in U.S. district court if a final 

order has not been entered within a 

relatively short time after the claim is 

first brought to the attention of the 

Department. See, e.g., 18 U.S.C. 

1514A(b)(1)(B) (2010) (Sarbanes-Oxley 

Act); 42 U.S.C. 5841(b)(4) (2010) (Energy 

Reorganization Act); 46 U.S.C. 2114(b) 

(2010) (Seaman’s Protection Act); 49 

U.S.C. 31105(c) (2010) (Surface 

Transportation Assistance Act). 

Federal Rule of Civil Procedure 56 

was recently revised effective December 

1, 2010. It now instructs the judge to 

state a reason for granting or denying 

the motion, usually by identifying the 

central issues, which can help the 

parties focus any further proceedings. 

Advisory Committee Notes to 2010 

Amendments to Fed. R. Civ. P. 56(a). 

The judge is not obliged to search the 

record independently to determine 

whether there is a factual dispute for 

trial, but nonetheless may consider 

record materials the parties never called 

to the judge’s attention. Advisory 

Committee Notes to 2010 Amendments 

to Fed. R. Civ. P. 56(c)(3). A formal 

affidavit is not required to support the 

motion; an unsworn declaration signed 

under penalty of perjury suffices, 

recognizing the status 28 U.S.C. 1746 

gives to those statements. Fed. R. Civ. P. 

56(c)(4). Even if the motion is not 

granted, or granted only in part, the 

judge may find that certain facts are 

undisputed and treat them as 

established. Fed. R. Civ. P. 56(g). 

Invoking this authority demands care, 

however. To limit litigation expenses, a 

nonmovant who feels confident a 

genuine dispute as to one or a few facts 

will defeat the motion may choose not 

to file a detailed response to all facts the 

movant stated. That choice should not 

expose the party to the risk that the 

additional facts will be treated as 

established under subdivision (g). 

Advisory Committee Notes to 2010 

Amendments to Fed. R. Civ. P. 56(h). 

The judge may sanction a party who 

submits an affidavit or declaration with 

its motion papers in bad faith or solely 

for delay. Fed. R. Civ. P. 56(h). 

H. Additional Matters 

Other portions of the FRCP have also 

undergone significant changes, 

including rules on the subjects of: 

• Sanctions under Fed. R. Civ. P. 11 

in 1993, see Edward D. Cavanagh, Rule 

11 of The Federal Rules of Civil 

Procedure: The Case Against Turning 

Back the Clock, 162 F.R.D. 383, 396 

(1995); and 

• Subpoenas under Fed. R. Civ. P. 45 

in 1991, see David D. Siegel, Federal 


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3OALJ also conducts administrative review in a 

large number of immigration-related appeals 

involving both permanent and temporary labor 

certification applications. Many of these reviews do 

not require an evidentiary hearing because the 

review is on the existing record. 

Subpoena Practice Under the New Rule 

45 of The Federal Rules of Civil 

Procedure, 139 F.R.D. 197, 197 (1992). 

The proposed revisions to Part 18, 

Subpart A reflect the general tenor of 

these amendments. 

III. Evolution in Types of Cases 

Congress has vested the Department 

(and therefore OALJ) with the 

responsibility to conduct formal 

hearings pursuant to more than 60 laws, 

including at least 19 that protect 

employees from retaliation for 

whistleblowing. 

The bulk of hearings conducted by 

OALJ involve longshore workers’ 

compensation and black lung benefits 

claims. This was true when OALJ’s rules 

of practice were published in 1983 and 

is still true today.3 These cases have 

benefited from having established rules 

of practice and procedure modeled on 

the FRCP. The evolution in the types of 

cases heard by OALJ, however, has 

resulted in a significant increase in 

hearings that are the functional 

equivalent of a civil trial in federal or 

state court, absent only the jury. In 

particular, whistleblower cases now 

account for a significant portion of 

OALJ’s workload, disproportionate to 

their percentage of the overall docket. 

As noted above, many of the statutes 

creating the responsibility for 

whistleblower adjudication by the 

Department of Labor were promulgated 

after the Part 18, Subpart A rules were 

published in 1983. Nine whistleblower 

laws with the potential for ALJ hearings 

within the Department of Labor were 

enacted after the year 2000. Hearings 

arising under these statutes often 

involve complex fact patterns and novel 

legal issues. Overall, whistleblower 

litigation typically requires more 

extensive discovery, case management, 

motion work, summary decision 

practice, and time in trial than many of 

the other types of cases heard by OALJ. 

Moreover, intensive litigation is 

typical in cases arising under the 

Defense Base Act. Although the Defense 

Base Act has been in existence since 

World War II, increasing use of contract 

services by the military and other parts 

of the federal government has resulted 

in significantly more hearings 

conducted by OALJ under that law in 

recent years. These cases tend not to 

settle, and therefore require more case 

management by judges as compared 

with other workers’ compensation cases 

adjudicated by OALJ. OALJ also now 

conducts hearings involving labor 

condition applications of employers 

who employ H–1B nonimmigrant 

workers. OALJ’s experience is that many 

of these cases do not settle; they also 

involve extensive procedural motions 

and multi-day hearings. 

Thus, the change in the case mix 

before OALJ has heightened the need for 

procedural rules that are clearly written, 

permit improved and more consistent 

case management by judges, and are 

familiar to the national legal community 

under current federal court practice. 

IV. Flexibility/Uniformity 

Notwithstanding the variety of 

statutes and regulations that generate 

disputes at OALJ, the provisions of the 

Administrative Procedure Act at 5 

U.S.C. 556 offer broad guidance to 

administrative law judges about how to 

conduct proceedings. Flexibility in 

applying procedural rules is desirable, 

so that judges manage litigation 

according to the needs of an individual 

case. The Department’s opportunity to 

review the decision of its administrative 

law judges under 5 U.S.C. 557(b) 

safeguards a party from an abuse of that 

discretion. 

Some cases by their nature need 

special management. For example, 

applying a general rule that sets the time 

to respond to formal discovery demands 

may be inappropriate in a case that 

demands expedited handling. A striking 

illustration of an expedited proceeding 

is one to review a denial of an 

employer’s application to the Office of 

Foreign Labor Certification under 20 

CFR 655.103 to certify the use of nonimmigrant workers in temporary 

agricultural employment under the H– 

2A visa program of the Immigration & 

Nationality Act, 8 U.S.C. 

1101(a)(15)(H)(ii)(a), 1188(e). In such 

cases, the employer only has five 

business days to seek review of an 

application’s denial under 20 CFR 

655.141(b)(4) and 655.142(c). Where the 

employer requests administrative 

review, the judge has only five business 

days after receipt of the administrative 

file from the Office of Foreign Labor 

Certification to render a decision. 20 

CFR 655.171(a) (2011). Where the 

employer requests de novo review, the 

Part 18, Subpart A rules apply, but the 

hearing must be convened within five 

business days after the administrative 

law judge receives the administrative 

file, and the decision must follow 

within ten calendar days. 20 CFR 

655.171(b). Additionally, for some types 

of cases—for example, those adjudicated 

under the Longshore and Harbor 

Workers’ Compensation Act, 33 U.S.C. 

901 et seq., and its extensions such as 

the Defense Base Act, 42 U.S.C. 1651, et 

seq., and the Black Lung Benefits Act, 

30 U.S.C. 901 et seq.—the Department’s 

substantive regulations also include 

procedural provisions. See 20 CFR parts 

702 (Longshore) and 725 (Black Lung). 

The proposed rules have been drafted 

to authorize a judge to tailor procedures 

to the case, through a prehearing order. 

A judge may take a broad range of 

actions under proposed § 18.50(b)(2) 

and (3). Parties may be ordered to confer 

about settlement early in the case, 

required to make prehearing disclosures 

without any formal discovery demand 

from the other party, and directed to 

draft a discovery plan. Yet the judge 

also may relieve the parties from the 

obligation to make initial disclosures, 

and alter the general limitations on the 

number of interrogatories and the 

number and length of depositions. This 

flexibility permits a judge to address, in 

an individualized way, the needs of any 

specific case. The judge also may 

address any regional differences in 

litigation practices that may require 

direction or clarification. 

V. Clarity/Re-Organization 

The FRCP underwent a complete 

revision that culminated in 2007 to 

improve their style and clarity. Restyled 

Federal Rules of Appellate Procedure 

took effect in 1998, as the restyled 

Federal Rules of Criminal Procedure did 

in 2002. Sources that guided drafting, 

usage, and style for all three revisions 

included the Guidelines for Drafting 

and Editing Court Rules, which the 

Standing Committee on Federal Rules of 

Practice and Procedure of the Judicial 

Conference of the United States 

published at 169 F.R.D. 171 (1997), and 

Bryan A. Garner’s A Dictionary of 

Modern Legal Usage (2d ed. 1995). The 

purpose of the style revisions was 

twofold: to make the rules easier to 

understand, and to make style and 

terminology consistent throughout the 

rules. See Advisory Committee’s Notes 

to the 2007 Amendments to Fed. R. Civ. 

P. 1. The restyled federal civil rules 

reduced the use of inconsistent, 

ambiguous, redundant, repetitive, or 

archaic words. For example, the restyled 

rules replaced ‘‘shall’’ with ‘‘must,’’ 

‘‘may,’’ or ‘‘should,’’ as appropriate, 

based on which one the context and the 

established interpretation made correct. 

Id. The sole exception was the highly 

controversial restoration of the ‘‘shall’’ 

in Fed. R. Civ. P. 56(a) on summary 

judgment when it was amended in 2010. 

Advisory Committee’s Notes to the 2010 

Amendments to Fed. R. Civ. P. 56(a). 

The drafting guidelines the authors of 

the 2007 style amendments used to 


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4This guide is available at http:// 

www.regulations.gov/exchange/sites/default/files/ 

doc_files/ 

20101130_eRule_Best_Practices_Document_rev.pdf. 

enhance the clarity and readability of 

the FRCP also were used as the 

Department revised Part 18, Subpart A. 

Proposed revisions typically are based 

on the text of the restyled federal civil 

rule for the corresponding subject, 

unless there was a reason to deviate 

from the federal rule’s language. As one 

example, the word ‘‘court’’ is replaced 

throughout with the word ‘‘judge,’’ 

because administrative adjudications do 

not take place in a court. Where 

substantive deviations from the FRCP 

were made, the reason for the deviation 

is noted in the portion of the Notice of 

Proposed Rulemaking pertaining to the 

specific proposed rule. Where there is 

no corresponding federal civil rule, the 

Department used the FRCP drafting 

guidelines to revise the existing Part 18, 

Subpart A rules, to improve their clarity 

and internal consistency. The ordering 

of some rules was altered to improve the 

overall clarity of the Part 18, Subpart A 

regulations. A conversion table that 

shows the current Part 18, Subpart A 

rules and their corresponding proposed 

rule appears at the end of this Preface. 

In drafting the text of the proposed 

rules, the Department also took into 

account two Executive Orders: 

• Executive Order 12866 (1993), 

which requires that regulations be 

‘‘simple and easy to understand, with 

the goal of minimizing uncertainty and 

litigation * * * ’’ 58 FR 51735, sec. 

1(b)(12), Sept. 30, 1993 (amended 2002 

& 2007); and 

• Executive Order 12988 (1996), 

which requires that regulations be 

written in ‘‘clear language.’’ 61 FR 4729, 

sec. 3(b)(2) (Feb. 5, 1996). 

The Plain Writing Act of 2010, 5 

U.S.C. 301, Public Law 111–274, 124 

Stat. 2861 (2010), while not directly 

applicable to regulations, recognizes the 

value of plain writing in government 

documents by requiring clear, concise, 

and well-organized publications. The 

Office of Management and Budget has 

published a ‘‘Best Practices Guide for 

Regulations’’ available on the internet.4

These proposed rules follow the 

guidance these sources offer. 

Section 6(a) of Executive Order 13,563 

(dated January 18, 2011), states: ‘‘To 

facilitate the periodic review of existing 

significant regulations, agencies shall 

consider how best to promote 

retrospective analysis of rules that may 

be outmoded, ineffective, insufficient, 

or excessively burdensome, and to 

modify, streamline, expand, or repeal 

them in accordance with what has been 

learned.’’ 76 FR at 3821. The Executive 

Order also requires each agency to 

prepare a plan for reviewing its 

regulations. Although the revision of 

Part 18, Subpart A began well before 

this recent Executive Order, the 

proposed revisions meet the Order’s 

requirements, by replacing outmoded 

rules with a more-readily 

understandable version. 

VI. Regulatory Review 

A. Executive Order 12866 (Regulatory 

Planning and Review) 

This proposed rule has been drafted 

and reviewed in accordance with 

Executive Order 12866. The Department 

of Labor, in coordination with the Office 

of Management and Budget (OMB), has 

determined that this proposed rule is 

not a ‘‘significant regulatory action’’ 

under Executive Order 12866, section 

3(f) because rule because the rule will 

not have an annual effect on the 

economy of $100 million or more; nor 

create a serious inconsistency or 

otherwise interfere with an action taken 

or planned by another agency; nor 

materially alter the budgetary impact of 

entitlements, grants, user fees, or loan 

programs or the rights and obligations of 

recipients thereof. Furthermore, the rule 

does not raise a novel legal or policy 

issue arising out of legal mandates, the 

President’s priorities or the principles 

set forth in this Executive Order. 

Accordingly, the proposed rule has not 

been reviewed by OMB. 

B. Regulatory Flexibility Act/Small 

Business Regulatory Enforcement 

Fairness Act 

The Department concludes that the 

Regulatory Flexibility Act, 5 U.S.C. 601 

et. seq. does not apply since the changes 

proposed here consist of amendments to 

rules of agency organization, procedure 

and practice, and consequently are 

exempt from the notice and public 

comment requirements of the 

Administrative Procedure Act, see 5 

U.S.C. 553(b)(3)(A). 

C. Executive Order 12291 (Federal 

Regulation) 

The Department has reviewed this 

rule in accordance with Executive Order 

12291 and determined it is not a ‘‘major 

rule’’ under Executive Order 12291 

because it is not likely to result in (1) 

An annual effect on the economy of 

$100 million or more; (2) a major 

increase in costs or prices for 

consumers, individual industries, 

Federal, State, or local government 

agencies, or geographic regions; or (3) 

significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or on the 

ability of United States-based 

enterprises to compete with foreignbased enterprises in domestic or export 

markets. Accordingly, no regulatory 

impact analysis is required. 

D. Unfunded Mandates Reform Act of 

1995 and the Executive Order 13132 

(Federalism) 

The Department has reviewed this 

proposed rule in accordance with the 

requirements of the Unfunded Mandates 

Reform Act of 1995, 2 U.S.C. 1531 et 

seq., and Executive Order 13132. The 

Department concludes that the 

requirements of these provisions do not 

apply to the proposed rule, because the 

proposed rule does not place any 

mandate on State, local, or tribal 

governments. 

E. Paperwork Reduction Act 

The Department certifies that this 

proposed rule has been assessed in 

accordance with the requirements of the 

Paperwork Reduction Act, 44 U.S.C. 

3501 et seq. (1995)(PRA). The 

Department concludes that the 

requirements of the PRA do not apply 

to this rulemaking because this 

regulation does not contain any 

information collection requirements that 

require the approval of the Office of 

Management and Budget. 

F. The National Environmental Policy 

Act of 1969 (Environmental Impact 

Assessment) 

The Department has reviewed the 

proposed rule in accordance with the 

requirements of the National 

Environmental Policy Act (NEPA) of 

1969, as amended (42 U.S.C. 4321 et 

seq.) and the Department of Labor’s 

NEPA procedures (29 CFR part 11). The 

Department concludes that the 

requirements of the NEPA do not apply 

to this rulemaking as there are no 

requirements or provisions contained in 

this proposed rule that involve assuring 

the maintenance of a healthful 

environment and there are no 

provisions impacting the 

responsibilities to preserve and enhance 

that environment contained herein and, 

thus, has not conducted an 

environmental assessment or an 

environmental impact statement. 

G. The Privacy Act of 1974, 5 U.S.C. 

552a, as Amended 

The Department has reviewed this 

proposed rule in accordance with the 

Privacy Act of 1974, as amended (5 

U.S.C. 552a). This rulemaking would 

not require any new process, filing or 

collection of any new information in the 

proceedings before the Office of 


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Administrative Law Judges and 

therefore, the Department has 

determined this proposed rule would 

not result in a new or revised Privacy 

Act System of Records. 

H. Federal Regulations and Policies on 

Families 

The Department has reviewed this 

proposed rule in accordance with the 

requirements of the Federal Regulations 

and Policies on Families, Section 654 of 

the Treasury and General Government 

Appropriations Act of 1999. These 

proposed regulations were not found to 

have a potential negative effect on 

family well-being as it is defined there 

under. 

I. Executive Order 13045 (Protection of 

Children From Environmental Health 

Risks and Safety Risks) 

The Department certifies that this 

proposed rule has been assessed 

regarding environmental health risks 

and safety risks that may 

disproportionately affect children. 

These proposed regulations were not 

found to have a potential negative effect 

on the health or safety of children. 

J. Executive Order 12630 (Governmental 

Actions and Interference With 

Constitutionally Protected Property 

Rights) 

The Department has reviewed this 

proposed rule in accordance with E.O. 

12630 and has determined that it does 

not contain any ‘‘policies that have 

takings implications’’ in regard to the 

‘‘licensing, permitting, or other 

condition requirements or limitations 

on private property use, or that require 

dedications or exactions from owners of 

private property.’’ 

K. Executive Order 13175 (Consultation 

and Coordination with Indian Tribal 

Governments) 

The Department has reviewed this 

proposed rule in accordance with E.O. 

13175 and has determined that it does 

not have ‘‘tribal implications.’’ The 

proposed rule does not ‘‘have 

substantial direct effects on one or more 

Indian tribes, on the relationship 

between the Federal government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal government and Indian tribes.’’ 

L. Executive Order 12988 (Civil Justice 

Reform) 

This regulation has been drafted and 

reviewed in accordance with Executive 

Order 12988, Civil Justice Reform, and 

will not unduly burden the Federal 

court system. The regulation has been 

written so as to minimize litigation and 

provide a clear legal standard for 

affected conduct, and has been reviewed 

carefully to eliminate drafting errors and 

ambiguities. 

M. Executive Order 13211 (Actions 

Concerning Regulations that 

Significantly Affect Energy Supply, 

Distribution, or Use) 

The Department has reviewed this 

proposed regulation in accordance with 

Executive Order 13211 and determined 

that the proposed rule is not subject to 

Executive Order 13211 because it is not 

a significant regulatory action under 

Executive Order 12866, will not have a 

significant adverse effect on the supply, 

distribution, or use of energy, and has 

not been designated by the 

Administrator of the Office of 

Information and Regulatory Affairs as a 

significant energy action. 

VII. Public Participation 

A. APA Requirements for Notice and 

Comment 

The changes proposed here consist of 

amendments to rules of agency 

organization, procedure and practice, 

and consequently are exempt from the 

notice and public comment 

requirements of the Administrative 

Procedure Act, see 5 U.S.C. 553(b)(3)(A). 

However, the Department wishes to 

provide the public with an opportunity 

to submit comments on any aspect of 

the entire proposed rule. 

B. Publication of Comments 

Please be advised that the Department 

will post all comments without making 

any change to the comments, including 

any personal information provided. The 

www.regulations.gov Web site is the 

Federal e-rulemaking portal and all 

comments received electronically or by 

mail, hand delivery, express mail, 

messenger or courier service are 

available and accessible to the public on 

this Web site. Therefore, the Department 

recommends that commenters safeguard 

their personal information by not 

including social security numbers, 

personal addresses, telephone numbers, 

and email addresses in comments. It is 

the responsibility of the commenter to 

safeguard his or her information. 

C. Access to Docket 

In addition to all comments received 

by the Department being accessible on 

www.regulations.gov, the Department 

will make all the comments available for 

public inspection during normal 

business hours at the above address. If 

you need assistance to review the 

comments, the Department will provide 

you with appropriate aids such as 

readers or print magnifiers. The 

Department will make copies of the 

proposed rule available, upon request, 

in large print or electronic file on 

computer disc. The Department will 

consider providing the proposed rule in 

other formats upon request. To schedule 

an appointment to review the comments 

and/or obtain the proposed rule in an 

alternate format, contact Todd Smyth at 

the U.S. Department of Labor, Office of 

Administrative Law Judges, 800 K Street 

NW., Suite 400-North, Washington, DC 

20001–8002; telephone (202) 693–7300. 

PART 18, SUBPART A—CROSS REFERENCING CHART

New 

section New section title Old section Old section title Federal rule of civil procedure 

GENERAL PROVISIONS 

18.10 ........ Scope and purpose ............................. 18.1/18.26 Scope of rules and conduct of hearings.Fed. R. Civ. P. 1 

18.11 ........ Definitions ............................................ 18.2 Definitions ............................................

18.12 ........ Proceedings before administrative law 

judge.

18.25/18.29(a) Proceedings before administrative law 

judge/authority of the administrative 

law judge.

18.13 ........ Settlement judge procedure ................ 18.9 Consent order or settlement; settlement judge procedure.

18.14 ........ Ex parte communication ...................... 18.38 Ex parte communications ....................

18.15 ........ Substitution of administrative law 

judge.

18.30 Unavailability of administrative law 

judge.

Fed. R. Civ. P. 63 

18.16 ........ Disqualification ..................................... 18.31 Disqualification .....................................


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72150 Federal Register / Vol. 77, No. 233 / Tuesday, December 4, 2012 / Proposed Rules 

PART 18, SUBPART A—CROSS REFERENCING CHART—Continued 

New 

section New section title Old section Old section title Federal rule of civil procedure 

18.17 ........ Legal assistance .................................. 18.35 Legal assistance ..................................

PARTIES AND REPRESENTATIVES 

18.20 ........ Parties to a proceeding ....................... 18.10 Parties, how designated ......................

18.21 ........ Party appearance and participation ..... 18.39/18.34(a) 18.39, Waiver of right to appear and 

failure to participate or to appear— 

text was incorporated into proposed 

‘‘participation’’ rule.

18.22 ........ Representatives ................................... 18.34 Representatives ...................................

18.23 ........ Disqualification and discipline of representatives............................... ..............................................................

18.24 ........ Briefs from amicus curiae .................... 18.12 Amicus curiae ......................................

SERVICE, FORMAT AND TIMING OF FILINGS AND OTHER PAPERS 

18.30 ........ Service and filing ................................. 18.3 Service and filing ................................. Fed. R. Civ. P. 5 

18.31 ........ Privacy protection for filings and exhibits............................... .............................................................. Fed. R. Civ. P. 5.2 

18.32 ........ Computing and extending time ............ 18.4 Time computations .............................. Fed. R. Civ. P. 6 

18.33 ........ Motions and other papers .................... 18.6 Motions and requests .......................... Fed. R. Civ. P. 7(b) & 43(c) 

18.34 ........ Format of papers filed ......................... .............................. ..............................................................

18.35 ........ Signing motions and other papers; 

representations to the judge; sanctions.

.............................. .............................................................. Fed. R. Civ. P. 11 

18.36 ........ Amendments after referral to the Office of Administrative Law Judges.18.5 Responsive pleadings—answer and 

request for hearings.

PREHEARING PROCEDURE 

18.40 ........ Notice of hearing ................................. 18.27 Notice of hearing .................................

18.41 ........ Continuances and changes in place of 

hearing.

18.28 Continuances .......................................

18.42 ........ Expedited proceedings ........................ 18.42 Expedited proceedings ........................

18.43 ........ Consolidation; separate hearings ........ 18.11 Consolidation of hearings .................... Fed. R. Civ. P. 42 

18.44 ........ Prehearing conference ........................ 18.8 Prehearing conferences ....................... Fed. R. Civ. P. 16 

DISCLOSURE AND DISCOVERY 

18.50 ........ General provisions governing disclosure and discovery............................... .............................................................. Fed. R. Civ. P. 26(a), (d), 

(f), (g) 

18.51 ........ Discovery scope and limits .................. 18.14 Scope of discovery .............................. Fed. R. Civ. P. 26(b) 

18.52 ........ Protective orders .................................. 18.15 Protective orders .................................. Fed. R. Civ. P. 26(c) 

18.53 ........ Supplementing disclosures and responses.18.16 Supplementation of responses ............ Fed. R. Civ. P. 26(e) 

18.54 ........ Stipulations about discovery and procedure.18.17 Stipulations regarding discovery .......... Fed. R. Civ. P. 29 

18.55 ........ Using depositions at hearings ............. 18.23 Use of depositions at hearings ............ Fed. R. Civ. P. 32 

18.56 ........ Subpoena ............................................. 18.24 Subpoenas ........................................... Fed. R. Civ. P. 45 

18.57 ........ Failure to make disclosures or to cooperate in discovery; sanctions.18.21 Motion to compel discovery ................. Fed. R. Civ. P. 37 

TYPES OF DISCOVERY 

18.60 ........ Interrogatories to parties ...................... 18.18 Written interrogatories to parties/ ........ Fed. R. Civ. P. 33 

18.61 ........ Producing documents, electronically 

stored information, and tangible 

things, or entering onto land, for inspection and other purposes..

18.19 Production of documents and other 

evidence; entry upon land for inspection and other purposes; and 

physical and mental examination.

Fed. R. Civ. P. 34 

18.62 ........ Physical and mental examinations ...... 18.19 Production of documents and other 

evidence; entry upon land for inspection and other purposes; and 

physical and mental examination.

Fed. R. Civ. P. 35 

18.63 ........ Requests for admission ....................... 18.20 Admissions ........................................... Fed. R. Civ. P. 36 

18.64 ........ Depositions by oral examination ......... 18.22 Depositions by oral examinations ........ Fed. R. Civ. P. 30 

18.65 ........ Depositions by written questions ......... .............................. .............................................................. Fed. R. Civ. P. 31 

DISPOSITION WITHOUT HEARING 

18.70 ........ Motions for dispositive action .............. .............................. ..............................................................

18.71 ........ Approval of settlement and consent 

findings.

18.9 ..............................................................


srobinson on DSK4SPTVN1PROD with 
Federal Register / Vol. 77, No. 233 / Tuesday, December 4, 2012 / Proposed Rules 72151 

PART 18, SUBPART A—CROSS REFERENCING CHART—Continued 

New 

section New section title Old section Old section title Federal rule of civil procedure 

18.72 ........ Summary decision ............................... 18.40/18.41 18.40, Motion for summary decision 

merged with 18.41, Summary decision.

Fed. R. Civ. P. 56 

HEARING 

18.80 ........ Prehearing statement .......................... 18.7 Prehearing statements .........................

18.81 ........ Formal hearing ..................................... 18.43 Formal hearings ................................... Fed. R. Civ. P. 43(a) 

18.82 ........ Exhibits ................................................ 18.47/18.48 18.49/ 

18.50 

Exhibits/records in other proceedings/ 

designation of parts of documents/ 

authenticity.

18.83 ........ Stipulations .......................................... 18.51 Stipulations ..........................................

18.84 ........ Official notice ....................................... 18.45 Official notice .......................................

18.85 ........ Privileged, sensitive, or classified materials.18.46/18.56 In camera and protective orders/restricted access.

18.86 ........ Hearing room conduct ......................... 18.37 Hearing room conduct .........................

18.87 ........ Standards of conduct ........................... 18.36 Standards of conduct ...........................

18.88 ........ Transcript of proceedings .................... 18.52 Record of hearings ..............................

POST HEARING 

18.90 ........ Closing the record; additional evidence.18.54/18.55 Closing the record/receipt of documents after hearing.

18.91 ........ Post-hearing brief ................................ 18.57 Decision of the administrative law 

judge and post-hearing briefs.

18.92 ........ Decision and order .............................. 18.57 Decision of the administrative law 

judge and post-hearing briefs.

18.93 ........ Motion for reconsideration ................... .............................. .............................................................. Fed. R. Civ. P. 59(e) 

18.94 ........ Indicative ruling on a motion for relief 

that is barred by a pending petition 

for review.

.............................. .............................................................. Fed. R. Civ. P. 62.1 

18.95 ........ Review of Decision .............................. 18.58 Appeals ................................................

DELETED SECTIONS 

Deleted ................................................. 18.13 Discovery methods ..............................

Deleted ................................................. 18.32 Separation of functions ........................

Deleted ................................................. 18.33 Expedition ............................................

Deleted ................................................. 18.53 Closing of hearings ..............................

Deleted ................................................. 18.59 Certification of official record ...............

General Provisions 

§ 18.10 Scope and purpose. 

The Department proposes to remove 

the current § 18.1 and add § 18.10. The 

proposed § 18.10 is modeled after Fed. 

R. Civ. P. 1. 

As in the current rule, the proposed 

rule states that in the event the 

procedures in Part 18, Subpart A are 

inconsistent with a governing statute, 

regulation, or executive order, the latter 

controls. The Department recognizes 

that specific procedural regulations 

have already been promulgated for some 

statutes under which administrative law 

judges adjudicate cases, and that these 

regulations may prescribe procedures 

inconsistent with these proposed rules. 

The Department has found that the 

phrase ‘‘rule of special application’’ has 

not clearly conveyed the intent of this 

sentence. Thus, proposed § 18.10 

rephrases this sentence as follows: ‘‘To 

the extent that these rules may be 

inconsistent with a governing statute, 

regulation, or executive order, the latter 

controls. If a specific Department of 

Labor regulation governs a proceeding, 

the provisions of that regulation apply, 

and these rules apply to situations not 

addressed in the governing regulation.’’ 

Subdivision (a) recognizes that some 

of the Department’s regulations 

involving proceedings before OALJ 

include extremely detailed procedures 

and requirements. These rules do not 

address requirements that are specific to 

certain types of cases. For example, the 

regulations for Black Lung 

compensation benefits proceedings, at 

20 CFR parts 718 and 725, include 

specific evidentiary limitations (see 20 

CFR 725.414). Similarly, the regulations 

in both Black Lung and Longshore 

compensation cases require that 

hearings be held within 75 miles of the 

claimants residence if possible. See 20 

CFR 725.454(a), 702.337(a). 

Additionally, the Department 

recognizes that the provisions of a 

specific regulation may be inconsistent 

with these rules. In such event, the 

specific regulation—and not these 

rules—applies. For example, in a case 

arising under the Black Lung Benefits 

Act, there is inconsistency between the 

regulation at proposed § 18.93, Motion 

for reconsideration, which provides 

parties 10 days after service of the 

judge’s decision and order to file a 

motion for reconsideration, and the 

black lung regulation at 20 CFR 

725.479(b), which provides 30 days after 

the filing of the judge’s decision and 

order to file a motion for 

reconsideration. Because the regulations 

at 20 CFR part 725 govern proceedings 

arising under the Black Lung Benefits 

Act, the regulation at sec. 725.479(b) 

would control. 

The Department proposes to relocate 

the language from current § 18.26 to 

proposed § 18.10 because it is more 

properly located with the other general 

guiding principles. The Department 

proposes to clarify the meaning of 


srobinson on DSK4SPTVN1PROD with 
72152 Federal Register / Vol. 77, No. 233 / Tuesday, December 4, 2012 / Proposed Rules 

current § 18.26 under subdivision (b). 

First, current § 18.26 only references 

sec. 554 of the APA. However, 

Subchapter II of Chapter 5 of the APA 

determines how the entire proceeding, 

including the hearing, will be 

conducted. Accordingly, the proposed 

rule revises and expands the reference 

to include all of Subchapter II, instead 

of only referencing sec. 554. Second, 

Subchapter II instructs how the entire 

proceeding should be conducted; 

accordingly, the reference to hearings in 

the current rule was changed to 

proceedings in order to encompass the 

entire process of adjudicating a case 

before OALJ. 

The current § 18.1(b)—renumbered as 

§ 18.10(c)—is revised to improve the 

clarity of the rule. The Department does 

not propose changes to the judge’s 

ability to waive, modify, or suspend the 

rules by these revisions. 

§ 18.11 Definitions. 

The Department proposes to revise 

the current § 18.2 and renumber it as 

§ 18.11. The definitions in § 18.2 

supplement the definitions stated in sec. 

551 of the Administrative Procedure 

Act. The Department proposes to amend 

the opening sentence of this section by 

referencing the definitions provided in 

sec. 551 of the Administrative 

Procedure Act. The definitions in sec. 

551 apply to OALJ proceedings. 

The Department proposes to delete 

the following terms from the current 

§ 18.2: (a), Adjudicatory proceeding; (c), 

Administrative Procedure Act; (d), 

Complaint; (g), Party; (h), Person; (i), 

Pleading; (j), Respondent; (k), Secretary; 

(l), Complainant; (m), Petition; (n), 

Consent Agreement; (o), 

Commencement of Proceeding. Except 

for the ‘‘Administrative Procedure Act,’’ 

those terms are no longer used in the 

proposed revisions to the rules or sec. 

551 of the APA defines the term. When 

a proposed section references the 

Administrative Procedure Act, the name 

of the Act and the appropriate section 

number is stated. 

The Department proposes to define 

the following terms that are not defined 

by the APA: (a), Calendar call; (b), Chief 

Judge; (c), Docket clerk; and (h), 

Representative. The terms ‘‘calendar 

call,’’ ‘‘docket clerk’’ and 

‘‘representative’’ are used with more 

frequency in the proposed revision of 

the rules. The Department proposes to 

define ‘‘Chief Judge’’ to clarify that the 

term also includes a judge to whom the 

Chief Judge delegates authority. The 

Department proposes to define 

‘‘representative’’ to clarify that, unless 

otherwise specified, the term applies to 

all representatives who represent a 

person or party before OALJ. The 

Department proposes to define ‘‘docket 

clerk’’ to clarify current practice before 

OALJ. When a case is first filed with 

OALJ it is received by the Chief Docket 

Clerk in the national office located in 

Washington, DC. But once a case is 

assigned to a judge in a district office all 

filings should be made with the docket 

staff in that office. 

The Department proposes to amend 

the definitions of the following terms to 

improve clarity and specificity: (d), 

Hearing; (e), Judge; (f), Order; and (g), 

Proceeding. The Department proposes to 

expand the definition of ‘‘hearing’’ to 

encompass more than sessions where 

evidence is submitted. Hearings to 

determine issues of fact may rely on 

official notice rather than oral testimony 

subject to cross examination, and 

hearings to determine issues of law may 

not require the submission of evidence. 

The Department proposes to revise the 

definition of ‘‘judge’’ to eliminate the 

reference in the current rule to presiding 

officers not appointed as administrative 

law judges pursuant to 5 U.S.C. 3105. 

The Department proposes to revise 

the definition of ‘‘order’’ and delete the 

reference in the current rule to 

rulemaking. The Part 18, Subpart A 

rules and these proposed revisions 

apply to the adjudication of cases and 

not rulemaking. This reference is 

therefore superfluous. The Department 

proposes to revise the definition of 

‘‘proceeding’’ to avoid defining a term 

using the term itself; the proposed 

definition provides a more accurate 

definition, one that includes the 

creation of a record leading to an 

adjudication or order. 

§ 18.12 Proceedings before 

administrative law judge. 

The Department proposes to revise 

the current §§ 18.25 and 18.29(a) and 

combine the content into proposed 

§ 18.12. 

The proposed § 18.12 is divided into 

two subdivisions: designation and 

authority. The Department proposes to 

relocate the content of current § 18.25 to 

proposed § 18.12(a). This section 

incorporates the revised definition of 

‘‘judge’’ and ‘‘Chief Judge’’ from 

proposed § 18.11. 

The Department proposes to relocate 

the content of current § 18.29(a) to 

proposed § 18.12(b). The enumerated 

powers of the judge in the proposed 

subdivision (b) are similar to those 

listed in sec. 556 of the APA (5. U.S.C. 

556) and those listed in the current 

§ 18.29(a), except for stylistic changes. 

For example, proposed subparagraphs 

(b)(4), (b)(5) and part of (b)(2) are taken 

directly from sec. 556. Under 

subdivision (b), the Department clarifies 

that OALJ may conduct hearings as 

determined by the Secretary of Labor 

when no statute entitles a person to an 

‘‘on the record’’ hearing. The proposed 

subparagraph (b)(1) is meant to clarify 

the administrative law judge’s powers to 

regulate both formal and informal 

proceedings, including setting 

prehearing conferences, and when 

appointed as a settlement judge, to 

conduct settlement conferences. The 

current § 18.29 (a)(1) only addresses 

formal hearings. The current 

§ 18.29(a)(6) and (a)(9) has been deleted 

because these provisions are redundant 

of the proposed introductory statement. 

The difference between paragraph 

(b)(3) and (b)(4) is that the former 

applies to parties to the cause of action 

whereas the later applies to non-parties. 

Under (b)(3) judges have the authority to 

grant motions to compel a party to 

respond to a request for the production 

of documents, requests for written 

responses to interrogatories, requests for 

admission, and attendance at a 

proceeding. Issuing subpoenas 

authorized by law is the only way a 

judge can exercise control over nonparties. 

The Department proposes to delete 

current § 18.29(b), because its content is 

addressed in the applicable statutes 

(e.g., 33 U.S.C. 927(b)(Longshore and 

Harbor Workers’ Compensation Act). 

§ 18.13 Settlement judge procedure. 

The Department proposes to revise 

the current § 18.9 and renumber it as 

proposed § 18.13. 

There are three topics addressed in 

the current § 18.9: (1) Motions for 

consent findings and order; (2) approval 

of settlement agreements; and (3) the 

settlement judge procedure. Motions for 

approval of a settlement agreement and 

for a consent finding and order (current 

§ 18.9 (a)–(d)) are now addressed in the 

proposed § 18.71, Approval of 

settlement or consent findings). 

Proposed § 18.13 provides the 

procedures for parties wishing to use 

the settlement judge process. The 

revisions to the previous subdivision (e) 

are largely structural and stylistic. 

Under proposed subdivision (c) the 

Department proposes to extend the 

number of days for the settlement 

proceeding from 30 to 60 days. Based on 

OALJ’s experience related to Longshore 

and Harbor Worker’s Compensation Act 

cases, 30 calendar days is not enough 

time to complete a settlement 

agreement. For example, parties may 

need more than 30 days in cases dealing 

with location issues, or Medicare set 

asides, or in international negotiations 

under the Defense Base Act. 


srobinson on DSK4SPTVN1PROD with 
Federal Register / Vol. 77, No. 233 / Tuesday, December 4, 2012 / Proposed Rules 72153 

The Department proposes to delete 

the cross-referencing clause in current 

subdivision (d) because it is inherent 

within the rule that a settlement judge’s 

powers terminate immediately if 

settlement negotiations are terminated. 

Under proposed subdivision (f) the 

Department proposes to provide the 

settlement judge the option of 

conducting the settlement conference in 

the manner he or she considers most 

appropriate, giving the settlement judge 

wider discretion over the mode of the 

settlement conference. The current 

§ 18.9 requires the settlement judge to 

conduct the settlement conference by 

telephone, except in specific situations. 

The Department determined that 

telephone conferences have not been the 

most expedient way to conduct 

settlement conferences; therefore the 

proposed change expands the judge’s 

authority to determine what process the 

parties want to use and to best utilize 

changing technology. 

Under the proposed subdivision (g) 

the Department proposes to delete the 

language in current § 18.9(e)(8) 

regarding the inadmissibility of 

settlement statements and conduct 

because the confidentiality of dispute 

resolution communications is now 

extensively addressed by the 

Administrative Dispute Resolution Act. 

See 5 U.S.C. 574. 

The Department proposes to delete 

the current § 18.9(e)(9) because the 

requirements for a consent order or 

settlement agreement are generally 

covered by the governing statute or 

implementing regulation. This language 

is possibly misleading because it 

implies that all settlements must have 

the elements of consent findings. There 

are also additional requirements found 

in specific regulations. See, e.g., Clean 

Air Act 29 CFR 1979.11(d)(2) and 

Longshore and Harbor Worker’s 

Compensation Act 20 CFR 702.242 and 

702.243. 

The language from the current 

§ 18.9(e)(10) is relocated to proposed 

subdivision (h). The Department is 

extending the period of time parties 

have to submit the required settlement 

documents to the presiding judge from 

7 days to 14 days. This will allow 

parties additional time to draft the 

settlement documents and will decrease 

the number of requests for an extension 

of time. 

§ 18.14 Ex parte communication. 

The Department proposes to revise 

the current § 18.38 and renumber it as 

proposed § 18.14. 

The Department proposes stylistic 

changes to the current § 18.38, 

specifically subdivision (a). The 

language in the proposed rule clarifies 

that the prohibition against ex parte 

communication applies to the parties, 

their representatives, and other 

interested persons, as well as the judge. 

The Department proposes to change 

‘‘any person’’ to ‘‘interested persons’’ to 

be consisted with the Administrative 

Procedure Act. See 5 U.S.C. 

557(d)(1)(A). 

The Department proposes to delete 

the description of ex parte 

communication; however, this change is 

not intended to change the definition of 

ex parte communication. The 

notification of procedural request 

requirement is now covered by 

proposed §§ 18.33, Motions and other 

papers, and 18.41, Continuances and 

changes in place of hearing. 

The Department deleted the current 

subdivision (b), Sanctions, because 

sanctions are covered in applicable 

statutes. In particular, the 

Administrative Procedure Act provides 

an option of imposing sanctions 

following ex parte communications if 

sufficient grounds exist. See 5 U.S.C. 

556(d)(2000); 5 U.S.C. 557(d)(1). Section 

5 U.S.C. 557(d)(1)(D) gives the 

administrative law judge broad 

authority to sanction any knowing 

violation of the APA’s prohibition on ex 

parte contacts. Accordingly, it is 

unnecessary to repeat the statute in 

these regulations. 

§ 18.15 Substitution of administrative 

law judge. 

The Department proposes to revise 

the current § 18.30 and renumber it as 

proposed § 18.15. 

The Department proposes to change 

the title of this section to ‘‘Substitution 

of administrative law judge’’ to more 

accurately reflect the procedure 

provided by the rule—how a substitute 

judge is appointed when the presiding 

judge becomes unavailable. 

The Department proposes a revision 

to the current subdivision (a) modeled 

after Fed. R. Civ. P. 63. The Department 

proposes to require the successor judge 

to certify that he or she is familiar with 

the record before continuing with the 

presentation of the evidence. Included 

in this subpart is a reference to 

proposed § 18.12, the section that 

defines the procedure for appointing a 

judge to a case. 

Under the proposed subdivision (b), 

the Department proposes to codify the 

longstanding Department of Labor 

policy, based on Strantz v. Director, 

OWCP, 3 B.L.R. 1–431 (1981), of 

notifying the parties that the original 

judge is no longer available, allowing 

them to object to the successor judge 

issuing a decision based on the existing 

record, and ordering supplemental 

proceedings upon a showing of good 

cause. 

Finally, administrative need within 

OALJ routinely requires that cases be 

reassigned among judges prior to the 

submission of evidence, such as where 

a case is continued prior to a scheduled 

docket. The proposed § 18.15 does not 

affect those reassignments. 

§ 18.16 Disqualification. 

The Department proposes to revise 

the current § 18.31 and renumber it as 

proposed § 18.16. The proposed 

revisions are largely stylistic. 

Under subdivision (a), the Department 

proposes to delete the current notice 

requirement; however, this is not a 

procedural change. Parties will be 

notified when a presiding judge has 

disqualified himself or herself in due 

course with the appointment of a new 

judge. 

The current § 18.31 requires a motion 

to disqualify to be accompanied by a 

supporting affidavit. The Department 

proposes to clarify in § 18.16(b) that as 

an alternative or addition to a 

supporting affidavit a motion to 

disqualify may be accompanied by 

supporting declarations or other 

documents. A presiding judge who 

receives a motion to disqualify must 

rule on the motion in a written order 

that states the grounds for the ruling. 

The Department proposes to delete 

the current subdivision (c), which 

provides that the Chief Judge will 

appoint a new presiding judge if a judge 

recuses himself or herself. This 

procedure is covered by the substitution 

provisions of proposed § 18.15 and, 

therefore, is superfluous here. 

§ 18.17 Legal assistance. 

The Department proposes to revise 

the current § 18.35 and renumber it as 

proposed § 18.17. The Department 

proposes largely stylistic revisions to 

this section. The rule continues to be 

that OALJ does not appoint 

representatives or refer parties to 

representatives. In addition, the 

Department proposes to revise this 

section to expressly state that OALJ does 

not provide legal assistance to parties. 

The Department proposes to change the 

reference to ‘‘counsel’’ to 

‘‘representative’’ because the former is 

too narrow and does not include nonattorney representatives. 

Parties and Representatives 

§ 18.20 Parties to a proceeding. 

The Department proposes to revise 

the current § 18.10 and renumber it as 

proposed § 18.20. 


srobinson on DSK4SPTVN1PROD with 
72154 Federal Register / Vol. 77, No. 233 / Tuesday, December 4, 2012 / Proposed Rules 

The Department proposes to delete 

the definition of ‘‘party’’ in the current 

subdivision (a) because this definition is 

provided in the APA. See 5 U.S.C. 

551(3). 

The current § 18.10 includes 

provisions regarding how a party may 

intervene in a case. The Department 

proposes to delete subdivisions (b)–(d) 

because impleading and intervention 

are rare circumstances before OALJ. If 

circumstances require, then the parties 

or judge may refer to the Fed. R. Civ. P. 

19, Required joinder of parties, Fed. R. 

Civ. P. 20, Permissive joinder of parties, 

and Fed. R. Civ. P. 24, Intervention. As 

set forth in proposed § 18.10(a) the rules 

of civil procedure will apply to 

circumstances not covered by the 

Department’s rules. 

§ 18.21 Party appearance and 

participation. 

The Department proposes to revise 

and combine the current §§ 18.34(a) and 

18.39 into proposed § 18.21, Party 

appearance and participation, because 

both address a party’s right to appear. 

The Department proposes to relocate 

the content from the current § 18.34(a) 

to proposed § 18.21(a). This subpart 

states that a party has a right to appear 

and participate in a proceeding in 

person or through a representative. The 

enumeration of the rights currently 

included in § 18.34(a) is summarized by 

the words ‘‘appear and participate in the 

proceeding.’’ The current § 18.34(a) 

addresses the possible actions a party 

may take during the course of a 

proceeding as provided by the rules. 

The Department proposes to delete this 

language because these actions are 

covered by other sections within the 

Rules, most specifically within Title III: 

Filings, Title V: Discovery, and Title 

VIII: Hearings. 

The proposed subdivisions (b) and (c) 

are based on the current § 18.39(a) and 

(b), respectively. The Department has 

removed the 10-day timeframe with the 

intention that the presiding judge will 

set an appropriate time for response. 

§ 18.22 Representatives. 

The Department proposes to revise 

the current § 18.34 and renumber it as 

proposed § 18.22. 

The Department proposes to narrow 

the scope of proposed § 18.22 so that it 

functions as a list of qualifications and 

duties for attorneys and non-attorney 

representatives who represent parties 

before OALJ. The content from the 

current subdivision (a) is not included 

in proposed § 18.22, as explained in the 

note to the proposed § 18.21, Party 

appearance and participation. 

The Department proposes not to 

include the content from current 

subdivisions (c) through (f) in proposed 

§ 18.22 because the substantive rights of 

parties and subpoenaed witnesses are 

delineated by other regulations under 

Part 18, Subpart A. 

The Department proposes to relocate 

the current subdivision (b) to 

subdivision (a), Notice of appearance. 

Under the proposed subdivision (a), the 

Department clarifies that each 

representative must file a ‘‘notice of 

appearance’’ when first making an 

appearance and that the notice is to 

include the statements and 

documentation required for admission 

to appear as either an attorney or nonattorney representative. This provision 

codifies current practice and clarifies 

the timing of when the ‘‘notice of 

appearance’’ must be filed. 

The Department proposes to relocate 

the current subdivision (g) to proposed 

subdivision (b), Categories of 

representation; admission standard. 

Under proposed paragraph (b)(1), the 

Department defines the terms 

‘‘attorney’’ and ‘‘attorney 

representative’’ under the proposed 

rules. The current § 18.34(g) uses the 

phrase ‘‘attorney at law’’ to describe 

whose appearance is governed by 

current subsections (g)(1) and (g)(2); 

however, the Department proposes to 

delete this phrase from the proposed 

rules because it is ambiguous. As in the 

current § 18.34, an attorney who is in 

good standing in his or her licensing 

jurisdiction may represent a party or 

subpoenaed witness. An attorney’s own 

representation of good standing is 

sufficient proof thereof, unless 

otherwise directed by the judge. Under 

new subparagraph (b)(1)(B), an attorney 

who is not in good standing in his or her 

licensing jurisdiction will not be 

permitted to appear before OALJ unless 

that attorney establishes in writing why 

the failure to maintain good standing is 

not disqualifying. 

The Department proposes to add a 

new provision under subparagraph, 

(b)(1)(C) Disclosure of discipline, that 

places the duty on an attorney to 

promptly disclose to the judge any 

current action suspending, enjoining, 

restraining, disbarring, or otherwise 

restricting him or her in the practice of 

law. 

Under the proposed paragraph (b)(2), 

the Department clarifies that an 

individual who is not an attorney may 

represent a party or a subpoenaed 

witness upon the judge’s approval. The 

Department proposes to clarify what 

information must be included in a 

written request to serve as a nonattorney representative and provides the 

standard the judge will use to determine 

whether the non-attorney representative 

has the qualifications or ability to 

render assistance. The judge may deny 

a person’s request to serve as a nonattorney representative only after 

providing the party or subpoenaed 

witness with notice and an opportunity 

to be heard. 

The Department proposes to add 

subdivisions (c), Duties, (d), Prohibited 

actions, and (e), Withdrawal of 

appearance, to proposed § 18.22. In 

subdivision (c), the Department 

determined that the best approach to 

determining the governing code of 

conduct is to require attorneys to adhere 

to the rules of conduct of their licensing 

jurisdiction. Under subdivision (d), the 

Department proposes to state specific 

actions a representative is prohibited 

from taking while representing a party 

before OALJ. The proposed subdivision 

(e) provides the procedure for a 

representative of record to withdraw as 

a representative before OALJ and 

codifies current practice. 

§ 18.23 Disqualification and discipline 

of representatives. 

The Department determined that a 

separate rule identifying the grounds 

and creating procedures for 

disqualification of a representative was 

appropriate. The proposed § 18.22, 

Representatives, addresses a 

representative’s qualifications and 

duties. The proposed § 18.87, Standards 

of conduct, creates a procedure for 

excluding a party or representative for 

poor behavior during the course of a 

particular proceeding. The Department 

determined that the grounds and 

procedures for disqualifying a 

representative are distinct and separate 

from the concepts addressed in the 

current §§ 18.34 and 18.36, and, 

accordingly, proposes § 18.23. 

The proposed § 18.23 deals with both 

the disqualification of lawyers from 

practicing before the Department 

because professional discipline has been 

imposed on them in other jurisdictions, 

and discipline the Department itself 

may impose on lawyers or other 

representatives who misbehave during 

administrative litigation. 

Lawyers traditionally have been 

regulated under a state-centered regime 

of professional self-regulation, in which 

federal administrative agencies played 

no role. State supreme courts, the 

admitting and disciplinary authority for 

their states’ lawyers, often delegate to 

the state bar association the regulatory 

task of writing advisory ethics opinions; 

they also rely heavily on the American 

Bar Association to develop model ethics 


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rules and to suggest how to structure 

their systems of lawyer discipline. 

Administrative agencies may 

discipline lawyers who represent clients 

before them. Before the advent of the 

Administrative Procedure Act, the U.S. 

Supreme Court recognized that quasijudicial agencies empowered to adopt 

rules of procedure could set admission 

requirements. Goldsmith v. U.S. Bd. of 

Tax Appeals, 270 U.S. 117, 122 (1926). 

The legislative history of sec. 6(a) of the 

federal Administrative Procedure Act 

‘‘leaves no doubt that Congress intended 

to keep unchanged the agencies’ 

existing powers to regulate practice 

before them.’’ 5 U.S.C. 555(b); Attorney 

General’s Manual on the Administrative 

Procedure Act (U.S. Dep’t of Justice 

1947) (hereinafter Attorney General’s 

Manual), at 65. 

Congress later abolished nearly all 

agency requirements for admission to 

practice with the Agency Practice Act of 

1965. 5 U.S.C. 500(b), first enacted in 

Public Law 89332, 79 Stat. 1281, later 

incorporated into the U.S. Code by 

Public Law 9083, 81 Stat. 195 (Sept. 11, 

1967) (with minor stylistic changes). See 

also the Report to Accompany S. 1758, 

House Committee on the Judiciary, H.R. 

Rep. No. 1141, 89th Cong., 1st 

Sess.(1965), reprinted in 1965 U.S. Code 

Cong. & Admin. News, 89th Cong., 1st 

Sess at 4170. Any lawyer who is a 

member in good standing of a state bar 

could practice before federal agencies, 

unless an agency is authorized to 

impose additional requirements, 

something Congress did for the Patent 

and Trademark Office. 5 U.S.C. 

500(d)(4). The Agency Practice Act is 

neutral on the authority of agencies to 

discipline representatives, including 

lawyers. 5 U.S.C. 500(d)(2) (stating that 

the Agency Practice Act does not 

‘‘authorize or limit the discipline, 

including disbarment, of individuals 

who appear in a representative capacity 

before an agency.’’). The courts of 

appeals read the authority to adopt rules 

of practice and procedure as power to 

discipline the wayward, to protect the 

integrity of the agency’s procedures and 

the public generally. Polydorff v. ICC, 

773 F.2d 372 (DC Cir. 1985) (upholding 

the authority of the ICC to discipline an 

attorney); Touche Ross & Co. v. SEC, 

609 F.2d 570, 581–582 (2d Cir. 1979) 

(upholding the authority of the SEC to 

discipline accountants who practice 

before it); Koden v. U.S. Dep’t of Justice, 

564 F.2d 228 (7th Cir. 1977) (upholding 

the authority of the Immigration and 

Naturalization Service to discipline 

attorneys who appeared before it). 

According to the Reporter for the 

American Bar Association Special 

Committee on Evaluation of Ethical 

Standards, who drafted the Model Code 

of Professional Responsibility a 

generation ago, the ABA has long stated 

that its ethical standards apply to the 

conduct of lawyers before all 

adjudicatory entities. Michael P. Cox, 

Regulation of Attorneys Practicing 

Before Federal Agencies, 34 Case W. 

Res. L. Rev 173, 202 & n. 132 (1982). 

The ABA Model Rules of Professional 

Conduct were adopted by the ABA 

House of Delegates in 1983, and have 

been amended several times thereafter. 

They serve as models for the legal ethics 

rules of most states. The current ABA 

Model Code of Professional Conduct 

(2010) imposes many obligations on 

trial lawyers. Among them are duties to 

exhibit candor; to follow procedural 

rules; to deal fairly with opposing 

parties and their lawyers, including the 

obligation to turn over evidence in 

discovery and refrain from altering 

evidence; and to avoid disruptive 

behavior. See Model Rules 3.3; 8.4 (c) 

and (d); 3.4(a) and (c); and 3.5(d). All 

apply to lawyers who practice before 

‘‘tribunals,’’ a term that specifically 

embraces administrative agencies as 

well as courts. See Model Rule 1.0(m). 

The Department proposes to divide 

§ 18.23 into four subdivisions: (a), 

Disqualification, (b), Discipline, (c), 

Notification, and (d), Reinstatement. 

Under subdivision (a), the Department 

proposes to regulate lawyers who gained 

the right to practice before the 

Department through admission to the 

bar of the highest court of a State or 

similar governmental unit, but lost it or 

had the right to practice limited due to 

a criminal conviction or proven 

professional misconduct. The 

Department proposes that 

representatives qualified under 

proposed § 18.22 may be disqualified 

upon conviction of any of the serious 

crimes described in subparts (a)(1)(A) 

and (B). 

A lawyer may also become 

disqualified under subparts (a)(1)(C) and 

(D), as reciprocal discipline when 

another jurisdiction finds the lawyer 

guilty of professional misconduct, or the 

lawyer consents to disbarment, 

suspension, or resigns while an 

investigation into allegations of 

misconduct is pending. Federal courts 

routinely enforce reciprocally any 

limitations on practice state courts have 

imposed, after satisfying themselves that 

those disciplinary proceedings met the 

substantive requirements the U.S. 

Supreme Court set nearly a century ago 

in Selling v. Radford, 243 U.S. 46 

(1917). The Department has relied on 

this rule, and given reciprocal effect to 

discipline state courts imposed on 

lawyers who have appeared before the 

Department’s administrative law judges. 

In The Matter of the Qualifications of 

Edward A. Slavin, Jr., ARB Case No. 05– 

003, OALJ Case No. 2004–MIS–5 (Nov. 

30, 2005), also available at 2005 WL 

3263825 (DOL Adm.Rev.Bd). 

Lawyers who litigate before the 

Department are expected to adhere to 

the rules of conduct promulgated by the 

jurisdiction(s) where they are admitted 

to practice, which typically are founded 

on the American Bar Association’s 

Model Rules of Professional Conduct. 

Contumacious behavior, the violation of 

the rules of practice the Department has 

adopted, or failure to follow the 

procedural dictates of a governing 

statute, program regulation or of a 

judge’s order also opens the lawyer to 

discipline by the Department. See 

proposed § 18.23 (b)(1). State supreme 

courts have disciplined lawyers for 

misconduct in litigation before the 

Department. 

Under paragraph (a)(2), the Chief 

Judge must provide notice and an 

opportunity to be heard as to why the 

representative should not be 

disqualified from practice before the 

Office of Administrative Law Judges. 

The Chief Judge’s determination must 

be based on the ‘‘reliable, probative and 

substantial evidence of record, 

including the notice and response.’’ 

Under subdivision (b), the 

Department proposes the procedure for 

disciplinary proceedings initiated 

because of a representative’s conduct 

before OALJ. The disciplinary 

procedure is structured so that the 

representative’s conduct and defense 

will be reviewed by a presiding judge, 

who applies the APA’s review standard 

of reliable, probative, and substantial 

evidence of record. The representative 

may appeal the presiding judge’s 

decision to the Chief Judge who reviews 

the decision under the substantial 

evidence standard. The Chief Judge’s 

decision is not subject to review within 

the Department of Labor. The proposed 

§ 18.95, Review of Decision, provides 

that the statute or regulation that 

conferred hearing jurisdiction provides 

the procedure for review of a judge’s 

decision. If the statute or regulation 

does not provide a procedure, the 

judge’s decision becomes the Secretary’s 

final administrative decision. 

Under subdivision (c), the Department 

proposes to provide notice that when an 

attorney representative is suspended or 

disqualified by OALJ, the Chief Judge 

will alert the attorney’s licensing 

jurisdiction(s) and the National Lawyer 

Regulatory Data Bank by providing a 

copy of the decision and order. The 

National Lawyer Regulatory Data Bank 

is the national clearing house of 


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disciplinary information, maintained by 

the American Bar Association Standing 

Committee on Professional Discipline. 

All states and the District of Columbia, 

as well as many federal courts and some 

agencies, provide disciplinary 

information to the Data Bank. See 

http://www.americanbar.org/groups/ 

professional_responsibility/services/ 

databank.html. 

Under subdivision (d), the 

Department proposes the procedure a 

representative suspended or 

disqualified under this section must 

follow to request reinstatement to 

practice before OALJ. 

§ 18.24 Briefs from amicus curiae. 

The Department proposes to delete 

the current § 18.12 and replace it with 

proposed § 18.24. 

The title of § 18.24 was drafted to 

emphasize that an amicus curiae may 

participate in a proceeding only by 

filing a brief. The final statement that an 

amicus curiae brief must be filed by the 

close of the hearing was added to 

provide a timeframe for filing. If an 

amicus curiae wishes to participate in 

the formal hearing, then the person or 

organization must petition the judge to 

participate as an intervenor. 

Service, Format and Timing of Filings 

and Other Papers 

§ 18.30 Service and filing. 

The Department proposes to revise 

the current § 18.3 and renumber it as 

proposed § 18.30. The proposed § 18.30 

is modeled after Fed. R. Civ. P. 5. In the 

current Part 18, Subpart A rules service 

and filing requirements are listed under 

several sections. The Department 

proposes to delete those references and 

have this section address all the general 

service and filing procedures. 

Similar to Fed. R. Civ. P. 5, the 

Department proposes to restructure the 

current § 18.3 into two subparts: (a), 

Service on parties and (b), Filing with 

Office of Administrative Law Judges. 

Portions of the current subdivision (a) 

and subdivision (e) that address the 

actual form of filings are not included 

in proposed § 18.30 and are instead 

addressed in proposed § 18.34, Format 

of papers filed. For example, current 

subdivision (a) states: ‘‘All documents 

should clearly designate the docket 

number, if any, and short title of the 

matter.’’ This language is included in 

proposed § 18.34. 

The Department proposes to 

incorporate the content from the current 

subdivision (d) into proposed 

subdivision (a) because the service 

process is the same for all papers, 

including complaints. 

Under subdivision (a), the Department 

proposes to provide general guidance on 

how parties are served. The Department 

proposes to add a certificate of service 

requirement under subparagraph (a)(3). 

The current Part 18, Subpart A does not 

define a certificate of service, so 

including the definition in the service 

and filing section clarifies the 

requirements of certifying that a paper 

was served on another party. In the past, 

pro se parties before OALJ have failed 

to provide certificates of service, 

requiring judges to follow up with the 

other parties to the case to verify that a 

paper was served. 

In order to distinguish between a 

clerk employed at a party’s place of 

business and the OALJ clerk who 

receives documents for the Office, the 

Department proposes to amend item 

(a)(2)(B)(iv) and paragraph (b)(2) by 

adding the term ‘‘docket clerk.’’ Docket 

clerk is defined in proposed § 18.2, 

Definitions, to clarify that the docket 

clerk is the Chief Docket Clerk at the 

Office of Administrative Law Judges in 

Washington, DC or, once a case is 

assigned to a judge in a district office, 

the docket staff in that office. 

Under proposed subdivision (b), the 

Department specifies the procedure for 

filing papers with OALJ. Under 

subparagraph (b)(1), parties are required 

to file within a reasonable time papers 

served on other parties or participants. 

However, like the current rule, parties 

are not required to file discovery 

documents, unless the judge orders or 

the party uses them in the proceeding. 

The required filing provision also 

extends to any required disclosures 

ordered by the judge under § 18.50, 

General provisions governing discovery 

and disclosure. 

The Department proposes to provide 

the procedure for filing by facsimile in 

proposed subparagraph (b)(3)(A)— 

currently subdivision (f). In recognition 

of OALJ’s nationwide jurisdiction and 

circumstances requiring last-minute 

filings, the Department proposes to 

clarify that parties may file by facsimile 

only as directed or permitted by the 

judge. 

The Department proposes to relocate 

the content from the current 

subdivisions (f)(6) and (g) to proposed 

subdivision (b) because theses 

subdivisions address those parts of the 

filing process. 

The Department proposes to delete 

the current (f)(3) because paragraph 

(a)(3) will apply in all cases. The 

proposed section adds a specific 

mechanism by which the parties can 

establish that the fax was sent and 

received and puts the burden on the 

party to maintain the original document. 

The Department proposes to delete 

the current (f)(7) to limit the use of fax 

submissions to times when ordered by 

the Judge. 

§ 18.31 Privacy protection for filings 

and exhibits. 

Proceedings before OALJ are open to 

the public. The current Part 18, Subpart 

A does not include a privacy 

requirement that parties redact personal 

data identifiers from filings. OALJ has a 

policy statement encouraging such 

redaction, but the notice is advisory, not 

mandatory. See www.oalj.dol.gov/ 

ACCESS_TO_COURT_RECORDS.HTM/. 

The 2007 revision of the FRCP 

included the addition of Fed. R. Civ. P. 

5.2 in response to the E-Government Act 

of 2002, 44 U.S.C. 3501. The Advisory 

Committee Note addressing Fed. R. Civ. 

P. 5.2 states that the privacy and 

security concern addressed by this rule 

is the electronic availability of filed 

documents. The scope of Fed. R. Civ. P. 

5.2 is limited to filings with the court, 

and extends to trial exhibits when they 

are filed with the court. 

The Department proposes a privacy 

protection rule based on Fed. R. Civ. P. 

5.2 which will serve two agency-specific 

purposes. Like Fed. R. Civ. P. 5.2, 

proposed § 18.31 will reach any 

electronic filings with OALJ. In 

addition, § 18.31 will clarify the job of 

the Freedom of Information Act officer 

who reviews files in the case of a FOIA 

request. As a result of the broader 

purpose of OALJ’s privacy protection 

rule, the § 18.31 extends to filings and 

exhibits. The majority of personal 

information to be redacted by the FOIA 

officer is contained in the exhibits, not 

the filings. 

The proposed subdivision (a) lists the 

personal data identifiers that parties 

must redact from filings submitted to 

OALJ, unless the judge orders 

otherwise. The Department also lists 

filings that are exempted from the 

redaction requirement under proposed 

subdivision (b). Under subdivision (b), 

OALJ has exempted the record of 

administrative proceedings and exhibits 

filed within the Department of Labor 

and submitted to OALJ. 

Under subdivision (c), the Department 

proposes to provide parties with the 

option to file a reference list of redacted 

information. The term ‘‘redacted’’ is 

intended to govern a filing that is 

prepared with abbreviated or blockedout identifiers in the first instance, as 

well as a filing in which a personal 

identifier is edited after its preparation. 

Under subdivision (d), the 

Department proposes to allow a person 

to waive the protections of the rule as 

to that person’s own personal 


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Federal Register / Vol. 77, No. 233 / Tuesday, December 4, 2012 / Proposed Rules 72157 

information by filing it unsealed and in 

unredacted form. One may wish to 

waive the protection if it is determined 

that the costs of redaction outweigh the 

benefits to privacy. If a person files an 

unredacted identifier by mistake, that 

person may seek relief from the judge. 

The proposed subdivision (d) 

provides that a judge may, for good 

cause, require more extensive protection 

of material than otherwise required by 

this section. The Department does not 

intend for this subdivision to affect the 

limitations on sealing that are otherwise 

applicable to the judge. See § 18.85, 

Privileged, sensitive and classified 

material. 

§ 18.32 Computing and extending 

time. 

The Department proposes to delete 

the current § 18.4 and replace it with 

proposed § 18.32. The proposed § 18.32 

is modeled after Fed. R. Civ. P. 6. 

References to service and filing in the 

current § 18.4 are now addressed in 

proposed § 18.30, Service and filing. 

The Department proposes to increase 

the scope of the computation provisions 

in current § 18.4(a) to apply to time 

periods set out in ‘‘these rules, [the] 

judge’s order, or in any statute, 

regulation, or executive order that does 

not specify a method for computing 

time.’’ The expanded scope creates 

consistency in cases that fall under 

statutes and regulations that do not have 

time computation provisions. The 

revisions do not supplant a computation 

scheme from another agency or rule. 

Under proposed subdivision (a), the 

Department proposes to add the 

definitions of ‘‘last day,’’ ‘‘next day,’’ 

and ‘‘legal holiday.’’ The current 

subdivision (a) includes a sentence 

explaining the computation of time for 

periods less than 7 days. The 

Department proposes to delete this 

sentence from the proposed rule to be 

consistent with the Department’s 

general revision to provide at least 14 

days to respond or file. 

Subdivision (b) provides the criteria 

judges will use when responding to a 

request for an extension of time. The 

Department proposes this subdivision to 

provide litigants with fair notice as to 

the applicable standard of review. 

The Department proposes to delete 

the current § 18.4(c)(1) and (3), which 

permit the addition of 5 days for filing 

by mail and when a party is served by 

mail. Some litigants have found this 

time-calculation provision confusing. 

To replace these provisions, the 

Department proposes to add subdivision 

(c) to function like Fed. R. Civ. P. 6(d). 

Three days are added after particular 

types of service listed in proposed 

§ 18.30(a)(2)(B)(iii) or (iv). The decrease 

in the number of days for responding is 

offset by the extension of time to 

respond from 10 days to 14 days. Days 

are no longer added to the date of filing 

when filing by mail. The Department 

proposes this change to make the 

practice before OALJ more uniform and 

consistent with the procedure in the 

district courts. 

§ 18.33 Motions and other papers. 

The Department proposes to revise 

current § 18.6 and renumber it as 

proposed § 18.33. Proposed § 18.33 is 

modeled after Fed. R. Civ. P. 7(b) and 

Fed. R. Civ. P. 43(c). 

Under § 18.33, the Department 

proposes to clarify the filing 

requirements for motions and other 

papers and add the language from Fed. 

R. Civ. P. 7(b) to proposed § 18.33 (a) 

and (b). Under proposed subdivision (a) 

‘‘[a] request for an order must be made 

by motion.’’ This applies to any requests 

made to a judge. A motion must: (1) Be 

in writing, unless made during a 

hearing; (2) state with particularity the 

grounds for seeking the order; (3) state 

the relief sought; and (4) unless the 

relief sought has been agreed to by all 

parties, be accompanied by affidavits, 

declarations, or other evidence, and (5) 

if required by subsection (C)(4), include 

a memorandum of the points and 

authorities supporting the movant’s 

position. 

The proposed subdivision (b) 

provides that ‘‘the rules governing 

captions and other matters of form 

apply to motions and other requests.’’ 

Under subdivision (c), the Department 

proposes to add that written motions 

before a hearing must be served with 

supporting papers at least 21 days prior 

to hearing. A written motion served 

within 21 days before the hearing must 

state why the motion was not made 

earlier. The current version of this 

section does not set a timeframe for 

serving and filing motions prior to the 

hearing. The Department proposes to 

add this timeframe to provide judges 

sufficient time to rule on pre-hearing 

motions. This may narrow the issues for 

the hearing and save witness travel time 

and expenses. The exceptions to this 

regulation include: (A) When the 

motion may be heard ex parte; (B) when 

these rules or an appropriate statute, 

regulation, or executive order set a 

different time; or (C) when an order sets 

a different time. 

The proposed subdivision (d) requires 

that a response to a motion be filed 

within 14 days after the motion is 

served. The Department proposes to 

increase the amount of time a party has 

to respond from the 10 days in the 

current version of the rule to 14 days. 

The change to 14 days comports with 

the general revision to set time periods 

based on multiples of 7. 

Under paragraph (c)(3), the 

Department proposes to add the 

requirement that counsel for the moving 

party confer or attempt to confer with 

opposing counsel in a good faith effort 

to resolve the subject matter of the 

motion, except when a party is 

unrepresented or for particular types of 

motions listed under subparagraphs 

(c)(3)(A) through (c)(3)(C). This 

provision is consistent with the FRCP 

and the Department anticipates that this 

will reduce the number of motions by 

encouraging the parties to resolve issues 

amongst themselves. Paragraph (c)(4) 

clarifies that unless the motion is 

unopposed, the supporting papers for 

the motion must include affidavits, 

declarations or other proof to establish 

the factual basis for the relief. For a 

dispositive motion and a motion 

relating to discovery, a memorandum of 

points and authorities must also be 

submitted. A judge may direct the 

parties file additional documents in 

support of any motion. 

The Department proposes to delete 

the language in current § 18.6(d) from 

this section and address motions to 

compel in §§ 18.35, Signing motions 

and other papers; representations to the 

judge; sanctions, 18.56, Subpoena, and 

18.57, Failure to make disclosures or to 

cooperate in discovery; Sanctions. 

Cases may be reassigned to different 

judges based on the administrative 

needs of the Office of Administrative 

Law Judges. Therefore, the Department 

proposes to add subdivision (f) to 

address renewed or repeated motions 

made to a different judge than the judge 

who previously ruled on the motion. 

§ 18.34 Format of papers filed. 

The Department proposes to add a 

new § 18.34, Format of papers filed, to 

provide the format a party should use 

when filing papers with OALJ. This 

proposed section expands the current 

document filing requirements located 

under current § 18.3(a) to provide 

litigants with more specific formatting 

requirements. The current § 18.3(a) 

provides that ‘‘all documents should 

clearly designate the docket number, if 

any, and short title of the matter’’ and 

‘‘each document filed shall be clear and 

legible.’’ The proposed § 18.34 states 

that every paper filed must be printed 

in black ink on 8.5 x 11-inch opaque 

white paper. The Department proposes 

the black ink requirement because 

litigants sometimes file handwritten 

papers with colored ink that can be 

difficult to read. 


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72158 Federal Register / Vol. 77, No. 233 / Tuesday, December 4, 2012 / Proposed Rules 

The current caption requirements are 

located under current § 18.3(e). Under 

proposed § 18.34, the Department 

clarifies that filed papers must begin 

with a caption that includes: (a) the 

parties’ names, (b) a title that describes 

the paper’s purpose, and (c) the docket 

number assigned by the Office of 

Administrative Law Judges. If the case 

number is an individual’s Social 

Security number then only the last four 

digits may be used. See 18.31(a)(1). If 

OALJ has not assigned a docket number, 

the paper must bear the case number 

assigned by the Department of Labor 

agency where the matter originated. The 

Department proposes to relocate the 

address and telephone number 

requirement in the current § 18.3(e) to 

proposed § 18.35(a). 

§ 18.35 Signing motions and other 

papers; representations to the judge; 

sanctions. 

The Department proposes to add a 

new § 18.35 modeled after Fed. R. Civ. 

P. 11. This section establishes the 

standards attorneys and parties must 

meet when filing motions or other 

documents with OALJ. It also regulates 

the circumstances in which sanctions 

may be imposed if the standards of 

§ 18.35 are not met. 

Under subdivision (a), every written 

motion and other paper filed with OALJ 

must be dated and signed by a 

representative of record or by a party 

personally if the party is unrepresented. 

The paper must state the signer’s 

address, telephone number, facsimile 

number and email address, if any. If a 

document subject to § 18.35 is not 

signed, the judge has the power to strike 

the document unless the proponent 

signs it promptly upon notification of 

the missing signature. 

Under subdivision (b), the 

Department sets the standards that 

motions and other papers regulated by 

§ 18.35 must meet. It also specifically 

provides that the standards are 

applicable to later advocacy of such 

documents, as well as to the initial 

submission of the documents. 

The Department proposes to regulate 

who may be sanctioned for violations of 

§ 18.35(b), as well as how the sanctions 

process may be initiated under 

subdivision (a). This subdivision also 

governs the extent and limitations of the 

judge’s sanctioning power. 

Sections 18.50 through 18.65, 

governing the discovery process, control 

the circumstances when sanctions may 

be imposed for inappropriate behavior 

in discovery. For that reason, § 18.35(d) 

clarifies that § 18.35(a), (b) and (c) have 

no applicability to discovery issues. 

§ 18.36 Amendments after referral to 

the Office of Administrative Law Judges. 

The Department proposes to revise 

the current § 18.5 and renumber it as 

proposed § 18.36. 

Proceedings before the Office of 

Administrative Law Judges are rarely 

initiated by a complaint and answer. 

Accordingly, the Department proposes 

to delete subdivisions (a)–(d) in current 

§ 18.5. However, a judge may still 

require the parties to file a complaint 

and answer in certain cases for the 

purpose of clarifying the issues in the 

proceeding. 

Amendments and supplemental 

pleadings are an infrequent occurrence 

because proceedings are rarely initiated 

before OALJ with a complaint and 

answer. If amended or supplemental 

complaints and answers are required, 

then the judge may apply Fed. R. Civ. 

P. 15. Accordingly, current § 18.5(e) is 

deleted and the proposed § 18.36 

provides the judge discretion to allow 

parties to amend and supplement their 

filings. 

Prehearing Procedure 

§ 18.40 Notice of hearing. 

The Department proposes to revise 

the current § 18.27 and renumber it as 

proposed § 18.40. 

The current subdivision (a) makes 

reference to notice of prehearing 

conferences. Notice of prehearing 

conferences is controlled by proposed 

§ 18.44, Prehearing conferences, so the 

Department deleted this reference in 

proposed § 18.40. In proposed § 18.40 

(a), the number of days for timely notice 

is changed from 15 days to 14 days. The 

change comports with the general 

revision to set time periods based on 

multiples of 7. 

The current subdivision (b) addresses 

the judge’s ability to change the date, 

time, or place for a hearing and the 

number of days notice required for a 

change. The Department determined 

that this provision is appropriately 

grouped with continuances, instead of 

with the notice of hearing requirements. 

The Department proposes to relocate a 

revised version of this subpart to 

proposed § 18.41(a), Continuances and 

changes in place of hearing. 

The current subdivision (c)—now 

proposed subdivision (b)—is edited to 

not only address how the judge will 

determine the location for the hearing, 

but also the date and time of the 

hearing. This proposed subdivision also 

includes a consideration of the 

‘‘necessity of the parties and witnesses 

in selecting the date, time and place of 

the hearing.’’ This requirement is 

expressed in sec. 554 of the APA and 

more accurately reflects the 

considerations a judge must make when 

determining the date, time, and place 

for the hearing. 

§ 18.41 Continuances and changes in 

place of hearing. 

The Department proposes to revise 

the current § 18.28 and renumber it as 

proposed § 18.41. 

The Department proposes to clarify in 

this section when a judge may continue 

a hearing. This procedure in part is 

located under current § 18.27(b); 

however, the Department determined 

that the procedure of a judge continuing 

a case is more appropriately grouped in 

this continuance rule. Under § 18.41(a), 

the Department proposes to require that 

the judge provide reasonable notice to 

the parties of a change in date, time or 

place of the hearing. The proposed 

change permits the judge to inform the 

parties of the changes within a 

reasonable time based on the 

circumstances of the continuance. This 

flexibility permits the judge to adjust 

the hearing schedule as needed without 

having to comport with a 14-day notice 

requirement. However, the reasonable 

notice still protects a party’s due 

process rights to have notice of the 

hearing. 

The Department proposes to revise 

the current subdivision (b) to address a 

party’s request to continue or change the 

place of a hearing. The current 

regulation requires a party to file a 

motion for a continuance at least 14 

days before the date set for hearing. The 

Department proposes to eliminate the 

14-day filing requirement. Instead, the 

proposed regulation requires that a 

party ‘‘promptly’’ file a motion after 

becoming aware of the circumstances 

supporting a continuance. If a party is 

immediately aware of the conflict upon 

receipt of the notice of hearing, the 

party should file a motion to continue 

at once. 

Under subdivision (b), the 

Department proposes to permit a party 

to orally move to continue a hearing, but 

only in exceptional circumstances. The 

proposed § 18.33, Motions and other 

papers, requires that motions be made 

in writing; this section, however, 

provides a limited exception. For the 

reasons discussed above, the time limit 

for an oral motion if the request is made 

10 days before the hearing is not 

included. Under proposed paragraph 

(b)(1), if a party makes an oral motion 

for a continuance it must immediately 

notice the other parties of the request. 

The final sentence of the current 

subdivision (b) addresses oral motions 

for a continuance at a calendar call or 

hearing. The Department proposes to 


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address oral motions at a hearing in 

proposed § 18.33(e). Therefore, the 

Department proposes to omit this 

reference from proposed subdivision (b). 

The Department proposes to add a 

regulation under § 18.41 (b)(2). Under 

this paragraph, a party may move to 

change the location of the hearing. This 

proposed provision permits the parties 

to inform the judge when a more 

suitable hearing location is available. 

§ 18.42 Expedited proceedings. 

The Department proposes to delete 

the current § 18.42 and replace it with 

proposed § 18.42. 

The Department proposes to delete 

the references to expedited proceedings 

that are required by statute or regulation 

in current subdivisions (a)-(d) and (f). 

Expedited hearings are controlled by the 

statute or regulation requiring the 

accelerated proceedings and do not 

require either party to file a motion 

requesting an expediting proceeding. 

The timing of the hearing and decision 

in cases expedited by statute or 

regulation is determined by the 

governing statute or law. For example, 

under 20 CFR 655.171(a), Temporary 

Employment of Foreign Workers in the 

United States, when an employer 

requests administrative review an ALJ 

must issue a decision within 5 business 

days of receipt of the administrative file. 

See also 20 CFR 655.33(f). The 

Department proposes not to include the 

current subdivision (f) in its entirety 

because it is unnecessary and may be in 

conflict with the governing law. 

The proposed § 18.33, Motions and 

other papers, provides the requirements 

for filing a written motion, including a 

motion for an expedited proceeding. 

The Department proposes to delete the 

provisions in existing paragraphs (b)(1), 

(b)(2), and (b)(4) because a motion filed 

in accordance with proposed § 18.33 

must be in writing and describe with 

particularity the circumstances for 

seeking relief. The time for responding 

to a motion under proposed § 18.33(d) is 

14 days, an addition of 4 days to the 10 

days required in existing § 18.42(d). 

This change to 14 days comports with 

the general revision to set time periods 

based on multiples of 7. 

The Department proposes not to 

include the current subdivision (c) 

because service is addressed by 

proposed § 18.30, Service and filing. 

The Department proposes to omit the 

provision in current subdivision (e) that 

provides for advanced pleading 

schedules, prehearing conferences, and 

hearings. The Department proposes to 

delete this regulation because setting the 

date for conferences is within the 

judge’s general powers set forth in 

proposed §§ 18.44, Prehearing 

conferences, and 18.12, Proceedings 

before administrative law judge. The 5- 

day limitation on advancing the hearing 

is extended to 7 days. The change to 7 

days comports with the general revision 

to set time periods based on multiples 

of 7. 

§ 18.43 Consolidation; separate 

hearings. 

The Department proposes to delete 

the current § 18.11 and replace it with 

the proposed § 18.43. The proposed 

§ 18.43 is modeled after Fed. R. Civ. P. 

42, Consolidation; separate trials. 

The Department proposes to revise 

this section to more accurately reflect 

the practice before OALJ. The current 

§ 18.11 describes the process of 

consolidating hearings, whereas the 

proposed § 18.43 addresses the judge’s 

power to order consolidated and 

separate hearings. The proposed 

subdivision (a) clarifies that an 

administrative law judge may join for 

hearing any or all matters at issue in the 

proceedings or may issue any other 

order to avoid unnecessary cost or 

delay. The proposed subdivision (b) 

clarifies that for convenience, to avoid 

prejudice, or to expedite and 

economize, the judge may order a 

separate hearing on one or more issues. 

§ 18.44 Prehearing conference. 

The Department proposes to delete 

the current § 18.8 and replace it with 

proposed § 18.44. The proposed § 18.44 

is modeled in part after Fed. R. Civ. P. 

16. 

The current § 18.8 states that the 

purpose of a prehearing conference is to 

‘‘expedite’’ the proceedings. The 

Department proposes to expand the 

purpose for a prehearing conference in 

proposed subdivision (a) to include: 

establishing early and continuing 

control so that the case will not be 

protracted because of lack of 

management; discouraging wasteful 

prehearing activities; improving the 

quality of the hearing through more 

thorough preparation; and facilitating 

settlement. This revision more 

accurately reflects the purpose of 

prehearing conferences before OALJ. 

The Department proposes subdivision 

(b) to provide guidance on the 

scheduling and notice of the prehearing 

conference. This procedure is currently 

located in § 18.8(a). 

The Department proposes subdivision 

(c) to require parties to participate in the 

conference as directed by the judge. 

This requirement is currently located in 

§ 18.8(a). In this subpart, the 

Department proposes to clarify that if a 

party is represented by an attorney or 

non-attorney representative, the 

representative must have authority to 

make stipulations and admissions and, 

to settle. 

The Department proposes subdivision 

(d) to expand the current subparagraph 

(a)(2) to include additional matters for 

consideration that the judge can take 

action on during prehearing 

conferences. This revision is modeled 

after Fed. R. Civ. P. 16(c)(2) and 

accurately reflects the breadth of issues 

addressed in prehearing conferences 

before OALJ. 

The Department proposes to combine 

the current subdivisions (b) and (c) into 

subdivision (e). Under this subdivision, 

the Department proposes to change the 

default by stating that judges may direct 

that the prehearing conference be 

recorded and transcribed. The current 

§ 18.8 requires stenographic recording 

and transcription, unless otherwise 

directed by the judge. This change 

reflects the routine practice of 

unrecorded prehearing conferences. 

Typically there is no testimony taken 

during prehearing conferences so 

unrecorded conferences are more costefficient. In certain cases, such as those 

involving unrepresented parties, judges 

may continue to order recorded 

prehearing conferences. 

Disclosure and Discovery 

§ 18.50 General provisions governing 

disclosure and discovery. 

The Department proposes to adopt a 

new section to govern discovery and 

disclosure, incorporating portions of 

Fed. R. Civ. P. 26 not already addressed 

by specific Part 18, Subpart A 

regulations. The current Part18A 

provides limited guidance regarding 

discovery and disclosure. The 

Department, therefore, is establishing 

better guidance in proposed § 18.50. The 

proposed subdivisions (a), (c), and (d) 

apply to all cases, except as specified, 

while subdivision (b) is invoked by a 

judge’s order. 

Under subdivision (a), a party may 

seek discovery at any time after a judge 

issues an initial notice or order. The 

rule creates a possibility that a party 

may seek discovery prior to the judge 

issuing an order requiring the parties to 

confer under § 18.50(b). Instead of 

providing for that situation in this 

section, the Department anticipates that 

the judge’s initial notice or order would 

address discovery sought before the 

conference, or that a party may file an 

appropriate motion requesting relief or 

instruction. 

Unless, on motion, the judge orders 

otherwise for the parties’ and witnesses’ 

convenience and in the interests of 


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justice, the methods of discovery may be 

used in any sequence and discovery by 

one party does not require any other 

party to delay its discovery. There is 

also no requirement that a party conduct 

discovery in a manner like that used by 

other parties; each party is free to 

conduct any authorized discovery in 

any sequence regardless of the discovery 

conducted by other parties. 

Under subdivision (b), a judge may 

order parties to confer and develop a 

proposed discovery plan, to be 

submitted in writing, addressing the 

discovery schedule and any 

modifications to the limits or scope of 

discovery. The discovery plan should 

indicate the parties’ positions or 

proposals concerning: Automatic 

discovery; discovery scope and 

schedule; electronic information; 

privilege issues; discovery limits; and 

other discovery orders. Section 18.50(b) 

places a joint obligation on the 

representatives (and on unrepresented 

parties) to schedule the discovery 

conference and to attempt in good faith 

to agree on a proposed discovery plan 

and a report outlining the plan. 

The results of the discovery 

conference may be reported to the judge 

using Form 52 of the Appendix of 

Forms that is incorporated into the 

FRCP through Fed. R. Civ. P. 84. The 

judge uses that information to craft a 

scheduling order that controls the 

development of the case. 

Under subdivision (c), parties are 

required to disclose certain information 

automatically, without the need for 

discovery requests, at two points during 

the litigation. First, at the 

commencement of a proceeding before 

OALJ, each party must automatically 

provide to the other parties the identity 

of individuals (including experts) likely 

to have discoverable information, a 

description of documents by category 

and location, and a computation of each 

category of damages. Under proposed 

subparagraph (c)(1)(B), five categories of 

proceedings are excluded from this 

initial disclosure, because in these 

proceedings discovery is generally not 

applicable, or is limited due to the 

nature of the proceeding. Second, later 

in the case litigants must serve written 

reports of experts they retained to 

testify; an expert not retained or 

specially employed to provide expert 

testimony—a treating physician often 

falls into this category—need not write 

a report, but the party must serve an 

equivalent disclosure about that expert’s 

opinions and their bases. 

Under proposed subparagraph 

(c)(1)(C), representatives of the 

Department’s Office of Workers’ 

Compensation Programs are exempted 

from the requirement to provide initial 

disclosure, except under specified 

circumstances. Under the governing 

regulation for Black Lung cases, the 

District Director is required to provide 

a complete copy of the administrative 

record to all parties. 20 CFR 725.421(b). 

In Longshore cases, the District Director 

provides a copy of the pre-hearing 

statements to the Office of 

Administrative Law Judges, but under 

the regulation is prohibited from 

transmitting the administrative record. 

20 CFR 702.319. The proposed 

subparagraph also recognizes that under 

certain situations the Department’s 

representative actively litigates (e.g., 

when representing the Black Lung 

Disability Trust Fund in a case in which 

no responsible operator has been 

identified, see 20 CFR 725.497(d); or 

when an employer in a Longshore case 

has made a claim under 33 U.S.C. 908(f) 

for reimbursement by the ‘‘special 

fund.’’) Then the Department’s 

representative must make the initial 

disclosures. 

Expert opinions ultimately are 

disclosed in one of two ways. Each 

witness retained to provide expert 

testimony must produce a report. Each 

expert report must be in writing, signed 

by the expert, and must contain the 

specific information listed under 

subparagraph (c)(2)(B). Under 

subparagraph (c)(2)(A), judges have the 

discretion to set the time for this 

disclosure by prehearing order. For 

witnesses who are not required to 

provide a written report, under 

subparagraph (c)(2)(C) a party must state 

the subject matter on which the witness 

is expected to present expert opinion 

evidence and provide a summary of the 

facts and opinions to which the witness 

is expected to testify. For example, 

under 20 CFR 725.414(c) in Black Lung 

cases an expert may testify in lieu of a 

report and is not required to submit a 

written report. Such expert witnesses in 

Black Lung cases are commonly treating 

physicians who do not prepare written 

expert reports in the course of business. 

This provision drawn from Fed. R. Civ. 

P. 26(a)(2)(C) provides the mechanism 

to get the equivalent information. Under 

subparagraph (c)(2)(D), parties must 

supplement expert disclosures when 

required under proposed § 18.53, 

Supplementing disclosures and 

responses. 

Under paragraph (c)(3), in addition to 

required disclosures, a party must 

provide to the other parties and 

promptly file the prehearing disclosures 

described in proposed § 18.80, 

Prehearing statements. 

Under paragraph (c)(4) unless the 

judge orders otherwise, all disclosures 

under this section must be in writing, 

signed, and served. 

Under subdivision (d), every 

disclosure under § 18.50(c) and every 

discovery request, response, or objection 

must be signed by at least one of the 

party’s representatives in the 

representative’s own name, or by the 

party personally if unrepresented. The 

document must also contain the signer’s 

address and telephone number. The 

signature constitutes a certification that 

the document is complete and correct to 

the best of the signer’s knowledge, 

information, and belief, and it is being 

served for proper purposes within the 

rules. Under paragraph (d)(2), parties 

have no duty to act on an unsigned 

disclosure, request, response, or 

objection until it is signed and the judge 

must strike it unless a signature is 

promptly supplied after the omission is 

called to the representative’s or party’s 

attention. If a certification violates this 

regulation without substantial 

justification, judges have the authority 

to impose an appropriate sanction, 

either on motion or on his or her own, 

under paragraph (d)(3). 

§ 18.51 Discovery scope and limits. 

The Department proposes to delete 

the current § 18.14 and replace it with 

proposed § 18.51. The proposed § 18.51 

is modeled after Fed. R. Civ. P. 26(b), 

Discovery scope and limits. 

The Department proposes to revise 

the scope of discovery in current 

§ 18.14(a) based on a 2000 amendment 

to Fed. R. Civ. P. 26(b)(1) which 

narrowed the scope of discovery. The 

current subdivision (a) permits parties 

to seek ‘‘discovery regarding any matter, 

not privileged, which is relevant to the 

subject matter involved in the 

proceeding * * *’’ In the proposed 

§ 18.51, the parties are instructed to 

confine requests to ‘‘any nonprivileged 

matter that is relevant to any party’s 

claim or defense * * *’’ The 

Department proposes to incorporate this 

amendment to control discovery costs 

without interfering with the fair 

resolution of the case. The parties are 

permitted to seek discovery related to 

the claims or defenses and, if needed, 

the judge may permit a party to seek 

discovery of any matter related to the 

case’s subject matter. 

The Department proposes to relocate 

the limitations in current § 18.14(b) 

regarding objections to discovery to the 

third sentence of proposed § 18.51(a). 

The Department proposes to clarify that 

a party may seek discovery of relevant 

information, even if the information 

would not be admissible at the hearing, 

as long as the discovery ‘‘appears 


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reasonably calculated to lead to the 

discovery of admissible evidence.’’ 

In § 18.51(b), the Department 

proposes additional limitations on the 

frequency and extent of discovery not 

contained in the current § 18.14. The 

limitations imposed by the current 

§ 18.14 are limited to relevant 

information and information that is 

protected by a privilege. The 

Department proposes limitations on 

discovery that are designed to control 

the costs and burdens of discovery, as 

appropriate. 

The Department proposes to provide 

limitations on the frequency of using 

discovery tools in §§ 18.64, Oral 

depositions, 18.65, Written depositions, 

18.60, Interrogatories, and 18.63, 

Requests for admission. The Department 

proposes paragraph (b)(1) to provide a 

judge the discretion to alter the limits 

imposed by these regulations. 

The Department proposes paragraph 

(b)(2) to limit the discovery of 

electronically stored information (ESI). 

The existing Part 18, Subpart A rules, 

promulgated in 1983, do not mention 

ESI; the proposed changes governing 

ESI reflect the contemporary nature of 

document management and discovery 

methods. In order to control the costs 

and burdens of producing documents, 

proposed paragraph (b)(2) establishes a 

requirement that a party need not 

provide discovery of ESI if the 

information is not reasonably accessible 

because of undue burden or cost. If the 

party requesting the information files a 

motion to compel or the party holding 

the information seeks a protective order, 

the judge must consider the items in 

proposed paragraph (b)(4). 

Under paragraph (b)(3), the 

Department states that by requesting 

electronically stored information, a 

party consents to the application of 

Federal Rule of Evidence 502 with 

regard to inadvertently disclosed 

privileged or protected information. 

Because there is currently no equivalent 

to Fed. R. Evid. 502 in OALJ’s rules of 

evidence, 29 CFR part 18, subpart B, the 

Department proposes this regulation to 

inform parties that Fed. R. Evid. 502 is 

applicable to inadvertently disclosed 

privileged or protected ESI. 

The factors a judge must consider 

when determining whether to limit the 

frequency or extent of discovery under 

proposed paragraph (b)(4) involve 

balancing the need for the information 

and the costs and burdens of producing 

the information. The limitations in 

paragraph (b)(4) apply to all motions to 

limit the frequency and extent of 

discovery under subdivision (b). 

The Department proposes 

subdivisions (c) and (d) to elaborate the 

limitations on discovery of hearing 

preparation materials and experts, 

respectively. The proposed subdivision 

(c) contains the same limitations as the 

current § 18.14(c). A party may not 

discover documents and tangible things 

prepared in anticipation of litigation or 

the hearing unless the information is 

discoverable as relevant under 

subdivision (a) and the party requesting 

the information can show that there is 

a substantial need for the information 

and the party cannot obtain 

substantially equivalent information 

without undue hardship. Although 

enumerated differently in proposed 

subdivision (c), the requirements remain 

the same. Like the current subdivision 

(c), proposed paragraph (c)(2) instructs 

the judge to protect against disclosure of 

an attorney’s or other representative’s 

mental impressions, conclusion, 

opinions, or legal theories when 

ordering the production of hearing 

preparation material. 

Proposed paragraph (c)(3) permits a 

party or witness access to the person’s 

own previous statement by request. A 

party or witness may have provided a 

statement prior to retaining legal 

counsel or understanding the 

consequences of the statement regarding 

the subject matter of the litigation. The 

party or witness may obtain a copy of 

the statement by request without 

making an additional showing. 

Proposed subdivision (d) is modeled 

after Fed. R. Civ. P. 26(b)(4) and 

addresses requests for hearing 

preparation information prepared by 

experts who may testify at the hearing. 

Effective cross-examination of an expert 

requires advance preparation and 

effective rebuttal requires knowledge of 

the line of testimony of the other side. 

This regulation helps the parties narrow 

the issues and eliminates surprises 

through prehearing disclosure of expert 

opinions. 

As is the current practice before 

OALJ, proposed paragraph (d)(1) 

provides that a party may depose an 

expert whose opinions may be 

presented at the hearing. The proposed 

subpart is modeled after Fed. R. Civ. P. 

26(b)(4)(A), which requires the expert’s 

report to be provided prior to the 

deposition. However, the exchange of a 

physician’s report prior to the 

deposition has not been a common 

practice before OALJ, mostly based on 

time constraints of the testifying 

experts. Paragraph (d)(1), therefore, 

permits the parties to stipulate to taking 

a deposition before reviewing the 

expert’s report and then produce the 

report when it is available. 

Proposed paragraph (d)(2) applies if a 

judge orders the parties to exchange 

required disclosures under proposed 

§ 18.50(c)(2)(B). If the judge orders the 

disclosure of expert opinions under 

§ 18.50(c)(2)(B), then § 18.51(d)(1) 

provides that the protections in 

paragraphs (c)(1) and(c)(2) will apply. 

Proposed subdivision (e) creates a 

procedure a party must follow to claim 

a privilege or to protect hearing 

preparation materials. Paragraph (e)(1) 

explains that a party must expressly 

claim a privilege or state that the 

information is subject to hearing 

preparation protection and describe the 

material well enough that the opponent 

can adequately assess the protection 

claim. 

Proposed paragraph (e)(2) provides 

the steps a party must take if it wishes 

to claim a privilege or other protection 

for discovery already produced. This 

regulation is modeled after Fed. R. Civ. 

P. 26(b)(5)(B). The proposed subpart 

provides for in camera review by the 

judge so that such materials may be 

handled consistent with the parties’ 

expectations regarding privileged or 

other protected documents, prior to 

creation of a final administrative record. 

§ 18.52 Protective Orders. 

The Department proposes to delete 

the current § 18.15 and replace it with 

proposed § 18.52. The proposed § 18.52 

is modeled after Fed. R. Civ. P. 26(c), 

Protective orders. 

Similar to the current § 18.15, the 

Department proposes § 18.52(a) to 

provide that a party, or any person from 

whom discovery is sought, may file a 

motion for a protective order to protect 

the party from annoyance, 

embarrassment, oppression, or undue 

burden or expense. The motion can only 

be brought by the individual whose 

interests are affected. Normally, the 

motion must be filed before the 

discovery is to occur, unless there is no 

opportunity to do so. The proposed 

regulation requires that the motion 

include a certification that the movant 

conferred or attempted to confer with 

the other affected parties to resolve the 

dispute before filing the motion. This 

requirement encourages the parties to 

work together to resolve discovery 

disputes, without involving the judge. 

The Department continues to require 

that the judge find good cause for 

issuing a protective order regarding the 

discovery sought. The judge has broad 

discretion in determining what 

constitutes good cause. Proposed 

paragraphs (a)(1) through (8) provide 

examples of orders the judge may enter. 

The proposed paragraphs (a)(1) through 

(5) provide the same remedies as the 

current paragraphs (a)(1) through (5); 

however, each paragraph is revised for 


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clarity. Similarly, the current paragraph 

(a)(6) is relocated to proposed paragraph 

(a)(7). The Department proposes to add 

paragraphs (a)(6) and (8) to provide the 

same remedies a judge may impose 

under Fed. R. Civ. P. 26(c)(1). 

Respectively, the judge may order that 

a deposition be sealed and opened as 

the judge orders or the judge may order 

the parties to simultaneously file 

documents or information in sealed 

envelopes, to be opened as the judge 

orders. 

The Department proposes to clarify 

under subdivision (b) that when a judge 

denies a motion for a protective order in 

whole or in part, the judge may order 

that the party or person provide or 

permit discovery. This provision 

clarifies the control the judge exercises 

in resolving discovery disputes, as there 

is currently no regulatory guidance on 

this issue. 

§ 18.53 Supplementing disclosures 

and responses. 

The Department proposes to delete 

the current § 18.16 and replace it with 

proposed § 18.53. The proposed § 18.53 

is modeled after Fed. R. Civ. P. 26(e), 

Supplementing disclosures and 

responses. This revision improves the 

clarity of the section while retaining the 

same procedural requirements. 

§ 18.54 Stipulations about discovery 

and procedure. 

The Department proposes to delete 

the current § 18.17 and replace it with 

proposed § 18.54. The proposed § 18.54 

is modeled after Fed. R. Civ. P. 29, 

Stipulations about discovery and 

procedure. 

The revision improves the clarity of 

the section while retaining the same 

procedural requirements. The 

Department proposes to clarify in 

subdivision (b) that ‘‘a stipulation 

extending the time for any form of 

discovery must have the judge’s 

approval if it would interfere with the 

time set for completing discovery, for 

hearing a motion, or for a hearing.’’ 

§ 18.55 Using depositions at hearings. 

The Department proposes to delete 

the current § 18.23 and replace it with 

the proposed § 18.55. The proposed 

§ 18.55 is modeled after Fed. R. Civ. P. 

32. 

The Department states a new 

procedure in proposed § 18.55(a) 

modeled after Fed. R. Civ. P. 32(a)(5), 

Limitations on use. The Department 

proposes a specific provision, at 

proposed § 18.55(a)(4), regarding 

depositions of experts, treating 

physicians, or examining physicians. 

Deposition testimony from physicians is 

quite commonly used in proceedings 

before the Department’s administrative 

law judges. The provision at current 

§ 18.23(a)(2) covers expert witnesses, 

but does not address a treating 

physician (who is not necessarily an 

expert retained to testify). The proposed 

rule codifies current practice. Under 

proposed paragraph (a)(6)—the current 

§ 18.23(a)(6) is relocated to proposed 

§ 18.55(a)(8)—a deposition may be used 

against any party who had reasonable 

notice of the deposition. A deposition 

cannot be used against a party who 

received less than 14 days’ notice and 

who has filed a motion for a protective 

order that was pending at the time of the 

deposition. Likewise, a deposition 

cannot be used against a party who 

demonstrates an inability to obtain 

counsel for representation at the 

deposition despite the exercise of 

diligence. The provision in Fed. R. Civ. 

P. 32(a)(7), which reflects the impact of 

FRCP on substitution of parties, has not 

been included because the proposed 

rule does not address the issue of 

substitution of a party. In general, 

except for situations where a named 

party dies and a successor is 

substituted, there is no substitution of 

parties in matters before OALJ. 

Successors to deceased claimants in 

Black Lung and Longshore cases are not 

uncommon; these may be covered under 

specific provisions. See, e.g., 20 CFR 

725.360, 33 U.S.C. 919(f). 

The Department proposes to add 

subdivision (c) to clarify that a party 

must provide a transcript of any 

deposition testimony the party offers. 

The judge may receive testimony in 

non-transcript form as well. This 

addition codifies a current common 

procedure within OALJ. 

The Department proposes to add 

subdivision (d), Waiver of objections, 

with four new regulations. These 

regulations are modeled after Fed. R. 

Civ. P. 32 and should be familiar federal 

practice to attorneys. First, under 

paragraph (d)(1), To the notice, an 

objection to an error or irregularity in a 

deposition notice is waived unless 

promptly served in writing on the party 

giving notice. Second, paragraph (d)(2), 

To the officer’s qualification, provides 

that an objection based on 

disqualification of the officer before 

whom a deposition is to be taken is 

waived if not made before the 

deposition begins or promptly after the 

basis for disqualification becomes 

known or, with reasonable diligence, 

could have been known. The 

Department proposes this regulation to 

be consistent with the federal rule; 

however, officer disqualification rarely 

comes up in current practice. 

Third, under subparagraph (d)(3)(C), 

Objection to a written question, the 

Department proposes to clarify that an 

objection to the form of a written 

question is waived if not served in 

writing on the party which submitted 

the question within the time for serving 

a responsive question or, if the question 

is a recross-question, within 7 days after 

being served with it. The current 

regulation, located in current paragraph 

(b)(3), does not designate a set length of 

time a party has to object to a written 

question. 

Lastly, the Department proposes to 

add paragraph (d)(4), To completing and 

returning the deposition, to clarify that 

an objection to how the officer 

transcribed the testimony—or prepared, 

signed, certified, sealed, endorsed, sent, 

or otherwise dealt with the deposition— 

is waived unless a motion to suppress 

is made promptly after the error or 

irregularity becomes known or, with 

reasonable diligence, could have been 

known. This is not a procedural change 

from the current § 18.23(b)(2). 

The Department proposes to delete 

the current subdivision (c) because it 

does not align with the federal rule and 

is substantive rather than procedural. 

§ 18.56 Subpoena. 

The Department proposes to delete 

the current § 18.24 and replace it with 

proposed § 18.56. The proposed § 18.56 

is modeled after Fed. R. Civ. P 45, 

Subpoena. Judges may issue subpoenas 

only as authorized by a statute or law 

and the Department does not propose 

any procedural changes to this rule. 

Instead, the Department proposes this 

section to help litigants better 

understand the subpoena process before 

OALJ. 

The Department proposes to add form 

and content requirements for subpoenas 

under paragraph (a)(2). Under this new 

provision, every subpoena must state 

the title of the matter and, where 

applicable, show the case number 

assigned by OALJ or the Office of 

Worker’s Compensation Programs 

(OWCP). In the event that the case 

number is an individual’s Social 

Security number only the last four 

numbers may be used. See § 18.31(a)(1). 

The subpoena must bear either the 

signature of the issuing judge or the 

signature of an attorney authorized to 

issue the subpoena under proposed 

paragraph (a)(3). The subpoena must 

command each person to whom it is 

directed to do the following at a 

specified time and place: attend and 

testify; produce designated documents, 

electronically stored information, or 

tangible things in that person’s 

possession, custody, or control; or 


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permit inspection of premises. The 

subpoena must set out the text of 

proposed subdivisions (c) and (d) of this 

section. 

The Department proposes to add the 

following provisions under paragraph 

(a)(2). The proposed subparagraph 

(a)(2)(B) provides that a subpoena 

commanding attendance at a deposition 

must state the method for recording the 

testimony. The proposed subparagraph 

(a)(2)(C) provides that a command to 

produce documents or to inspect 

premises may be issued separately or 

joined with a command to appear to 

testify. Under subparagraph (a)(2)(D), 

the Department proposes to clarify that 

a subpoena can be used to obtain 

inspections, testing or samplings of the 

property, documents, or electronic data 

of a non-party. 

Under paragraph (a)(3), the 

Department proposes to permit 

subpoenas to be issued by an attorney 

representative only when authorized by 

the presiding judge. This provision 

applies only to representatives who are 

attorneys. In the authorizing document, 

the presiding judge may limit the 

parameters under which the authorized 

attorney may issue subpoenas. 

Under subdivision (b), the 

Department proposes to clarify the 

process of serving subpoenas. Under 

paragraph (b)(1), if the subpoena 

commands the production of 

documents, electronically stored 

information, or tangible things or the 

inspection of premises before the formal 

hearing, then before it is served, a notice 

must be served on each party. The 

purpose of such notice is to afford other 

parties an opportunity to object to the 

production or inspection, or to serve a 

demand for additional documents or 

things. In current practice, this notice 

requirement from Fed. R. Civ. P. 45(b)(1) 

is stated on subpoenas to produce 

documents, information or objects, or to 

permit inspection of premises. 

Additionally, the proposed § 18.56(b)(1) 

retains the provision in the current 

§ 18.24(a) which allows parties to serve 

subpoenas by certified mail. 

Under paragraph (b)(1), if the 

subpoena requires a person’s 

attendance, the fees for 1 day’s 

attendance and the mileage allowed by 

law must be tendered with the 

subpoena. This is a procedural change 

as the current § 18.24(a) requires that 

fees to be paid ‘‘in advance of the date 

of the proceeding.’’ 

Under paragraph (b)(2), the 

Department clarifies that subject to 

proposed § 18.56(c)(3)(A)(ii), a subpoena 

may be served at any place within a 

State, Commonwealth, or Territory of 

the United States, or the District of 

Columbia. Paragraph (b)(3) provides that 

28 U.S.C. 1783 governs issuing and 

serving a subpoena directed to a United 

States national or resident who is in a 

foreign country. Under paragraph (b)(4), 

if necessary, service can be proved by 

the person making service by filing with 

the judge a statement showing the date 

and manner of service and the names of 

the persons served. This statement must 

be certified by the server. This 

regulation does not establish any cutoff 

or deadline for serving subpoenas. 

However, a subpoena for a deposition or 

for the production of documents may be 

governed by the discovery deadline. 

The Department proposes to delete 

the current § 18.24(b) because under the 

proposed paragraph (c)(3) the presiding 

judge, rather than the chief judge, has 

the power to quash or modify a 

subpoena if it fails to allow a reasonable 

time to comply. 

The Department proposes to expand 

the current subdivision (c) to include 

other provisions that protect a person 

subject to a subpoena. The core concept 

of the proposed subdivision is that an 

attorney or representative responsible 

for requesting, issuing, or serving a 

subpoena has a duty not to issue a 

subpoena for improper purposes or to 

impose undue burden on the recipient 

of the subpoena. The proposed 

subdivision (c) continues to provide the 

mechanisms for recipients of subpoenas 

to challenge subpoenas. The cautionary 

language in § 18.56(c) must be reprinted 

on every subpoena. 

The Department proposes to clarify 

under paragraph (c)(1) that a party or 

representative responsible for 

requesting, issuing, or serving a 

subpoena must take reasonable steps to 

avoid imposing undue burden on a 

person subject to the subpoena. The 

judge must enforce this duty and may 

impose an appropriate sanction. 

Under subparagraph (c)(2)(A), the 

Department proposes a new regulation 

that a person subpoenaed to produce 

documents or things or to permit an 

inspection need not actually appear at 

the designated time, as long as the 

person complies with the subpoena, 

unless also commanded to appear for 

the deposition or hearing. A person 

subpoenaed to produce documents or 

things or to permit an inspection may 

serve an objection to all or part of the 

subpoena within 14 days after service of 

the subpoena (or before the time 

designated in the subpoena, if sooner). 

Once an objection has been served on 

the party issuing the subpoena, the 

subpoena recipient is not obligated to 

comply with the subpoena. Failure to 

serve timely objections may constitute a 

waiver of objections to the subpoena 

other than objections relating to service. 

Only non-parties may serve objections; 

parties must contest a subpoena by a 

motion to quash or modify. If the 

subpoena recipient timely serves an 

objection to the subpoena under 

§ 18.56(c)(2)(B), the serving party may 

file a motion to compel production or 

inspection under § 18.56(c)(2)(B)(i). This 

motion must be served on the subpoena 

recipient as well. Under 

§ 18.56(c)(2)(B)(ii), the presiding judge 

may issue an order compelling the 

subpoena recipient to comply with the 

subpoena but the order must protect a 

person who is neither a party nor a 

party’s officer from significant expense 

resulting from compliance. 

Under the proposed § 18.56, a 

subpoena recipient may still move to 

quash a subpoena under paragraph 

(c)(3). If the judge finds the subpoena 

objectionable he or she may quash it 

altogether or modify it to cure the 

objection. The Department proposes to 

delete the 10-day time period for filing 

and answering a motion and instead use 

Fed. R. Civ. P. 45(c)(3) as a model. Thus, 

under the proposed § 18.56 a motion to 

quash must be ‘‘timely’’ filed, and 

should certainly be filed before the 

subpoena’s return date. Failure to file a 

motion to quash may constitute a waiver 

of objections to the subpoena. In 

subparagraph (c)(3)(A) the Department 

proposes to list situations in which a 

subpoena will be quashed or modified. 

These situations include: (i) Failing to 

allow a reasonable time to reply; (ii) 

requiring a non-party to travel too far; 

(iii) requiring disclosure of privileged or 

protected information; and (iv) 

subjecting a person to undue burden. 

Under subparagraph (c)(3)(B), the 

Department proposes to list 

circumstances in which a subpoena will 

be quashed or modified unless the 

serving party shows a ‘‘substantial 

need’’ for the testimony, documents, or 

inspection. In such cases the judge will 

condition compliance on the serving 

party compensating the recipient. This 

subparagraph provides limited 

protection for trade secrets or other 

confidential research, development, or 

commercial information. It provides 

limited protection for unretained 

experts, so that parties cannot obtain 

their testimony without paying their 

fees. It also provides limited protection 

to nonparties who would incur 

substantial expenses to travel more than 

100 miles to attend a hearing. 

The Department proposes to add a 

new regulation under subdivision (d)— 

the current subdivision (d) is relocated 

to subdivision (e)—that provides that 

documents may be produced as they are 

normally kept or may be separated and 


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organized. When privileges are asserted, 

the privilege must be expressly 

described. The cautionary language of 

§ 18.56(d) must be reprinted on every 

subpoena. 

The Department proposes that the 

scope of production under a subpoena 

be the same as the scope of discovery 

generally under proposed § 18.51, 

Discovery scope and limits. The 

requirements also track closely those 

imposed in Fed. R. Civ. P. 45. Under 

proposed subparagraph (d)(1)(A), the 

Department proposes that the 

responding party has the option of 

allowing the serving party to inspect 

and copy the documents where they are 

normally kept or the party may collect 

the responsive documents and organize 

and label them to correspond to the 

categories in the demand. See Fed. R. 

Civ. P. 45(d)(1). The responding party 

may make copies for the requesting 

party, but is not obligated to do so. See 

Fed. R. Civ. P. 45(a)(1)(D). 

Under subparagraph (d)(1)(B), the 

Department proposes to allow, but not 

require, the requesting party to specify 

the form in which it is requesting 

electronic data (i.e., hard copy or 

electronic; if electronic, the precise 

manner of production). If the requesting 

party does not specify the form, then the 

responding person must produce it in 

the form in which it is ordinarily 

maintained in or in a form that is 

reasonably usable. In any event, under 

proposed subparagraph (d)(1)(C) a party 

need not produce electronic data in 

more than one form. See Fed. R. Civ. P. 

45(d)(1)(B) & (C). 

Under subparagraph (d)(1)(D), the 

Department proposes that if the 

responding party believes that the 

production of electronic data from 

certain sources will cause undue burden 

or cost, the person can, in lieu of 

producing the documents, identify those 

sources. If a motion to compel or quash 

is filed, the responding party will have 

the burden of showing that production 

would cause undue burden or cost. The 

burden then shifts to the requesting 

party to show good cause why the data 

should be produced nonetheless. In 

such cases, the judge may specify 

conditions for the production. See Fed. 

R. Civ. P. 45(d)(1)(D). 

Under paragraph (d)(2), the 

Department proposes that when a 

subpoena recipient seeks to withhold 

information that is privileged, the 

recipient must expressly claim the 

privilege and describe the nature of the 

documents, communications, or 

tangible things not produced in 

sufficient detail that the court and 

parties can assess the privilege. Under 

subparagraph (d)(2)(B), the Department 

proposes to establish a procedure to 

recall privileged information that has 

already been produced in response to a 

subpoena. See Fed. R. Civ. P. 45(d)(2)(A) 

& (B). 

The Department proposes to relocate 

the content from the current subdivision 

(d) to subdivision (e) with no procedural 

changes. 

§ 18.57 Failure to make disclosures or 

to cooperate in discovery; sanctions. 

The Department proposes to delete 

the current § 18.21 and replace it with 

proposed § 18.57. The proposed § 18.57 

is modeled after Fed. R. Civ. P. 37 and 

incorporates the current § 18.6(d) and 

the current § 18.15(a). 

The proposed § 18.57 provides the 

mechanisms for enforcing the 

provisions of the other discovery rules 

by imposing sanctions on parties who 

violate the discovery regulations. In 

general, sanctions are imposed in a twostep process in which a party must first 

obtain an order compelling discovery 

under proposed § 18.57(a), and then 

move for sanctions under proposed 

§ 18.57(b). If, however, the responding 

party totally fails to respond to an entire 

discovery request, the sanctions may be 

available immediately. The Department 

proposes to grant judges greater 

discretion when imposing sanctions. 

Under subdivision (a), the Department 

proposes to combine and expand the 

regulations under current §§ 18.6(d) and 

18.21(a), and 18.15(a). This subdivision 

covers motions to compel discovery and 

motions to compel disclosure. A party 

may file a motion to compel under 

§ 18.57(a)(2) after the opponent fails to 

make the automatic disclosures required 

by § 18.50(c), fails to respond to 

discovery served pursuant to the 

discovery rules, or makes an improper 

or incomplete disclosure or discovery 

response. When taking a deposition, the 

party asking a question may complete or 

adjourn the examination before moving 

for an order. Under proposed 

subdivision (a)(1), the motion to compel 

must be accompanied by a certification 

that the movant has in good faith 

conferred or attempted to confer with 

the other party or person in an effort to 

resolve the dispute without the action of 

the judge. This is a procedural change 

proposed by the Department to 

encourage litigants to resolve matters 

amongst themselves and to help reduce 

litigation expenses. In current practice, 

many judges encourage parties to confer 

before filing certain motions. 

The Department proposes to expand 

current § 18.21(c) to apply to evasive or 

incomplete disclosures in proposed 

§ 18.57(a)(3). As under the current 

§ 18.21(d), if the motion to compel is 

denied the judge may issue any 

protective order authorized under 

proposed § 18.52. 

The Department proposes to add 

§ 18.57(b), which sets forth the 

sanctions that become available if a 

party or deponent fails to obey a judge’s 

order regarding discovery. Under this 

provision, a judge has the discretion to 

impose one or more of the listed 

sanctions or any other procedural 

sanction deemed appropriate, including: 

deeming facts established; prohibiting 

evidence; striking pleadings; and 

issuing a stay, dispositive ruling, or 

default judgment. The judge is not 

limited to the sanctions listed under 

§ 18.57(b)(1) and may make any order 

that is ‘‘just.’’ 

Under proposed § 18.57(b)(2), if a 

party fails to comply with an order 

under § 18.62 to produce another for a 

mental or physical examination, the 

party is subject to the same sanctions 

under § 18.57(b)(1) that would apply if 

the party failed to appear, unless the 

party can show that the party was 

unable to produce the individual. 

The Department proposes to add 

§ 18.57(c), Failure to disclose, to 

supplement an earlier response, or to 

admit, which is a procedural change 

modeled after Fed. R. Civ. P. 37. Under 

this section, if a party: (1) Fails to make 

the automatic disclosures under 

§ 18.50(c) in a timely manner; (2) makes 

false or misleading disclosures; (3) fails 

to supplement a prior discovery 

response as required by § 18.53; or (4) 

fails to supplement a prior discovery 

request, the party will not be permitted 

to use at trial or in a motion the 

documents, information, or witnesses 

not properly disclosed, unless the party 

had ‘‘substantial justification’’ or the 

failure was harmless. Under § 18.57(c), 

in addition to or in lieu of precluding 

the evidence, upon motion and after an 

opportunity to be heard, the judge may 

impose other appropriate sanctions, 

including any of the orders listed in 

§ 18.57(b)(1). 

The sanctions under this provision 

apply to an improper statement of 

inability to admit or deny, as well as to 

improper denial. The sanctions in this 

subdivision do not apply to failure to 

respond to a request for admissions 

because such a failure is deemed an 

admission. 

The Department proposes to add 

§ 18.57(d), Party’s failure to attend its 

own deposition, serve answers to 

interrogatories, or respond to a request 

for inspection. This subdivision 

provides that upon motion sanctions are 

immediately available against a party 

who completely fails to participate in 

the discovery process. For example, 


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sanctions are available when the party 

fails to appear for the party’s deposition 

after being served with proper notice, 

fails to answer or object to properly 

served interrogatories, or fails to serve a 

written response to a properly-served 

request to inspect documents or things. 

Thus, a judge’s order is not a 

prerequisite to sanctions under this 

subdivision. While this subdivision 

does not specify when the motion for 

sanctions must be filed, it should be 

filed without ‘‘unreasonable delay’’ or 

before the entry of the decision and 

order. 

The proposed subparagraph (d)(1)(B) 

states that a motion for sanctions under 

§ 18.57(d), for failure to respond to 

interrogatories or requests for 

inspection, must include a certification 

that the movant has in good faith 

conferred or attempted to confer with 

the other party or person in an effort to 

obtain a response without court action. 

Note that this requirement does not 

apply to the failure to appear for a 

deposition. 

The proposed paragraph (d)(2) states 

that a failure described in 

§ 18.57(d)(1)(A) is not excused on the 

ground that the discovery sought was 

objectionable, unless the party failing to 

act has a pending motion for a 

protective order under § 18.52(a). Under 

proposed paragraph (d)(3), sanctions 

may include any of the orders listed in 

§ 18.57(b)(1). 

The Department proposes to add 

subdivision (e) to prohibit the 

imposition of sanctions for failure to 

produce certain types of electronically 

stored information, in the absence of 

exceptional circumstances. The 

Department recognizes that certain 

types of electronically stored 

information are lost during the regular 

operation of a computer system and 

therefore parties should not be 

sanctioned for failing to produce such 

data. An example of the type of data that 

is contemplated by this provision is the 

metadata (or data about data) that 

computers automatically store, such as 

the last time a document was opened. 

Each time the document is opened the 

information that was stored in that field 

is deleted and replaced by new data. A 

party would not likely be sanctioned for 

the loss of the data when a document 

was last opened. 

The protections in proposed § 18.57(e) 

are expressly limited to the good-faith 

operation of the computer system. Thus, 

a party cannot exploit the protections of 

this subdivision to deliberately delete 

relevant information. Under certain 

circumstances, a party wishing to 

require another party to preserve 

electronic data can write a letter to the 

party placing it on notice that the 

electronic data may be relevant and 

should be preserved, or can seek a 

preservation order from the judge. If 

either action is taken, a party must 

suspend those features of its computer 

system that result in the routine loss of 

information. 

The Department proposes subdivision 

(f) to provide the procedure a judge 

must follow in impose sanctions under 

this section. A judge may impose 

sanctions under this section upon (1) a 

separately filed motion; or (2) notice 

from the judge followed by a reasonable 

opportunity to be heard. 

The Department proposes to include 

the content from the current § 18.21(d) 

in the proposed § 18.33(a). 

Types of Discovery 

§ 18.60 Interrogatories to parties. 

The Department proposes to revise 

the current § 18.18 and renumber it as 

proposed § 18.60. The proposed § 18.60 

is modeled after Fed. R. Civ. P. 33 and 

should be read in conjunction with 

proposed § 18.51, which establishes the 

scope of all discovery rules. 

The Department proposes to change 

the current subdivision (a) to state that 

unless otherwise stipulated or ordered 

by the judge, a party may serve on any 

other party no more than 25 written 

interrogatories, including all discrete 

subparts. Leave to serve additional 

interrogatories may be granted to the 

extent consistent with proposed § 18.51. 

The Department proposes this change to 

model Fed. R. Civ. P. 33 as the current 

§ 18.18 does not set a limit on the 

number of written interrogatories a 

party may serve on another party. 

The procedure for answering 

interrogatories is relocated from the 

current subdivision (a) to proposed 

subdivision (b). The Department 

proposes to delete the service and filing 

language from this section because the 

Department is proposing § 18.30, 

Service and Filing, to cover the service 

and filing regulations before OALJ. 

The Department proposes to relocate 

the current subdivision (c) to proposed 

§ 18.60(a)(2), Scope. Under this 

proposed subpart, the scope of 

interrogatories is the broad discovery 

available under § 18.51; thus, an 

interrogatory may relate to any matter 

that may be inquired into under 

proposed § 18.51. Interrogatories may be 

served after the parties have conducted 

the discovery conference under § 18.51, 

or earlier if the judge so orders. In the 

proceedings listed in § 18.50(c)(1)(B) as 

exempted from initial disclosures, there 

is no preliminary waiting period to 

serve interrogatories. The Part 18, 

Subpart A rules do not set an outer limit 

on how late in the case interrogatories 

may be served, but the judge may set 

such a limit. 

The Department proposes subdivision 

(b), Answers and objections, to provide 

the procedural requirements parties 

must adhere to in answering and 

objecting to interrogatories. As under 

the current regulation, the responding 

party must answer interrogatories 

separately and in writing within 30 days 

after service. 

Failure to serve a response in a timely 

manner may constitute a waiver of all 

objections. Under subdivision (b) the 

Department clarifies that the time 

period to answer may be shortened or 

extended by written agreement under 

proposed § 18.54, Stipulations about 

discovery procedure. This subpart also 

clarifies that the grounds for objecting to 

an interrogatory must be stated with 

specificity. Any ground not stated in a 

timely objection is waived unless the 

judge, for good cause, excuses the 

failure. This is a procedural change 

modeled after Fed. R. Civ. P. 33. 

The Department proposes to add a 

new subdivision (c) which provides that 

an answer to an interrogatory may be 

used to the extent allowed by the 

applicable rules of evidence. This 

reflects the varying evidentiary 

requirements applicable to claims 

brought before OALJ. Interrogatory 

answers are not admissions, but 

generally may be used as though made 

in court by the party. Interrogatories 

may not be used to obtain documents. 

Rather, a document request must be 

made under proposed § 18.61, 

Producing documents, electronically 

stored information, and tangible things, 

or entering onto land, for inspection and 

other purposes. However, 

interrogatories may inquire about the 

existence of documents and the facts 

contained therein. Documents may, 

under certain circumstances, be 

produced in lieu of answering an 

interrogatory, as discussed in proposed 

subdivision (d). 

The Department proposes to add a 

new subdivision (d), Option to produce 

business records. A party may produce 

business records in lieu of answering an 

interrogatory when the burden of 

extracting the requested information 

would be substantially equal for either 

party. Only business records may be 

used in lieu of interrogatory answers; 

thus, a party cannot produce pleadings 

or deposition transcripts instead of 

answering an interrogatory. The 

responding party must specify the 

records that must be reviewed in 

sufficient detail to enable the 

interrogating party to locate and identify 


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72166 Federal Register / Vol. 77, No. 233 / Tuesday, December 4, 2012 / Proposed Rules 

them as readily as the responding party 

could. It is not sufficient to state that the 

business records may contain the 

information. The responding party must 

also give the interrogating party a 

reasonable opportunity to examine and 

audit the records and to make copies, 

compilations, abstracts, or summaries. 

§ 18.61 Producing documents, 

electronically stored information, and 

tangible things, or entering onto land, 

for inspection and other purposes. 

The Department proposes to revise 

the current § 18.19 and renumber it as 

proposed § 18.61. The proposed § 18.61 

is modeled after Fed. R. Civ. P. 34, 

Producing documents, electronically 

stored information, and tangible things, 

or entering onto land, for inspection and 

other purposes. 

The Department is proposing a 

separate section, § 18.62, for physical 

and mental examinations; therefore, the 

language regarding physical and mental 

examinations is not included in this 

proposed section. The purpose of 

proposed § 18.61 is to set forth the 

procedures for obtaining access to 

documents and things within the 

control of other parties, and for gaining 

entry upon other parties’ land for 

inspection. This proposed section 

should be read in conjunction with 

proposed § 18.51, which establishes the 

scope of all discovery rules. 

The proposed subdivision (a), like the 

current subdivision (a), generally 

addresses the scope of document 

requests. This subpart states that a party 

may serve on any party a request within 

the scope of § 18.51. Generally, any 

relevant, non-privileged document is 

discoverable unless it was prepared in 

anticipation of litigation, pertains to 

expert witnesses, or would be 

unreasonably burdensome to produce. 

‘‘Documents’’ is broadly defined to 

include all forms of recorded 

information. For clarity, the proposed 

subdivision (a) lists writings, drawings, 

graphs, charts, photographs, sound 

recordings, images, and other data or 

data compilations as discoverable 

documents. Under the proposed 

regulation, a party is generally not 

required to create documents to meet a 

document request, but only to produce 

documents already in existence. 

The Department proposes to 

incorporate current subdivisions (c) and 

(d) into proposed § 18.61(b). These 

subparts are revised to improve clarity 

but retain the same procedural 

requirements. 

Under subdivision (b), the 

Department proposes to regulate the 

form in which electronic data must be 

produced (i.e. hard copy or electronic, 

and if electronic, the precise manner of 

production). This regulation is not 

included in the current rule. It allows, 

but does not require, the requesting 

party to specify the form in which it is 

requesting electronic data. The 

responding party can then produce it in 

that form or object and specify the form 

in which it will produce the electronic 

data. If the requesting party does not 

specify the form, then the responding 

party must produce it in the form in 

which it is ordinarily maintained or in 

a form that is reasonably usable. Unless 

the responding party is producing the 

data in the form specified by the 

requesting party, the responding party 

must specify the form it intends to use 

for production in its written response to 

the document request. If the responding 

party objects to the form stated by the 

requesting party, or if the requesting 

party is not satisfied with the form 

specified by the responding party, then 

the parties must meet and confer under 

§ 18.57(a)(1). Under any of these 

scenarios, a party need not produce 

electronic data in more than one form. 

The Department proposes to add a 

new regulation under subdivision (c), 

Nonparties, as the current Part18A is 

silent on this issue. Although document 

requests or requests for inspection 

cannot be served on a non-party, 

documents or inspections can be 

obtained from a non-party by a 

subpoena under proposed § 18.56, 

Subpoenas. 

The Department proposes to delete 

the service and filing language in the 

current subdivision (f) because the 

Department is proposing § 18.30, 

Service and filing, to cover the service 

and filing regulations before OALJ. 

§ 18.62 Physical and mental 

examinations. 

The Department proposes a new 

§ 18.62 modeled after Fed. R. Civ. P. 35 

to regulate physical and mental 

examinations. Physical and mental 

examinations are currently covered by 

§ 18.19; however, due to the high 

frequency of requests for physical and 

mental examinations the Department 

determined that there is a need for a 

separate section that sets forth the 

procedure for such requests. 

The Department proposes to divide 

§ 18.62 into three subparts: 

Examinations by motion, examinations 

by notice, and examiner’s reports. This 

proposal reflects the distinction 

between examination by notice and 

examination by motion found in the 

federal rule. 

The proposed subdivision (a) clarifies 

that a party may serve upon another 

party whose mental or physical 

condition is in controversy a notice to 

attend and submit to an examination by 

a suitable licensed or certified examiner. 

This provision notifies parties they may 

serve a request to attend and submit to 

an examination on another party only if 

their mental or physical condition is in 

controversy. The examiner must be 

licensed or certified to perform the 

examination. 

The Department proposes to amend 

the content requirements of a notice to 

attend a physical or mental 

examination, currently located under 

§ 18.19(c)(4). The proposed paragraph 

(a)(2) provides that a notice must 

specify: (A) The legal basis for the 

examination; (B) the time, place, 

manner, conditions, and scope of the 

examination, as well as the person or 

persons who will perform it; and (C) 

how the reasonable transportation 

expenses were calculated. 

The Department proposes to add the 

requirement that ‘‘unless otherwise 

agreed by the parties, the notice must be 

served no fewer than 14 days before the 

examination date.’’ The Department 

determined that a 14-day notice period 

provides the person to be examined 

enough time to make arrangements to 

attend the physical or mental 

examination or file an objection. Under 

paragraph (a)(4), the person to be 

examined must serve any objection to 

the notice no later than 7 days after the 

notice is served. The objection must be 

stated with particularity. Under the 

current § 18.19, the party to be 

examined has 30 days to object after 

service of the request. The Department 

proposes to shorten the timeframe a 

party has to object in order to quickly 

resolve the objection and expedite the 

proceedings. 

Under subdivision (b), the 

Department proposes to provide the 

procedure for objecting to an 

examination. Upon objection, the 

requesting party may file a motion to 

compel a physical or mental 

examination. The motion must include 

the elements required by § 18.62(a)(2). 

The Department proposes to provide 

the procedure for examiner’s reports 

under subdivision (c) in order to delete 

the reference to Fed. R. Civ. P. 35(b) in 

the current § 18.19(c)(4). The party who 

initiated the examination must deliver a 

complete copy of the examination report 

to the party examined, together with 

like reports of all earlier examinations of 

the same condition. The examiner’s 

report must be in writing and must set 

out in detail the examiner’s findings, 

including diagnoses, conclusions, and 

the results of any tests. 


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§ 18.63 Requests for admission. 

The Department proposes to revise 

the current § 18.20 and renumber it as 

proposed § 18.63. The proposed § 18.63 

is modeled after Fed. R. Civ. P. 36. 

The Department proposes to combine 

the current subdivisions (b), (c), and (d) 

into proposed subdivision (a). Under 

subdivision (a), the Department 

proposes to establish the procedure 

whereby one party serves requests for 

admission on another party, who must 

investigate and either admit, deny with 

specificity, or object to each requested 

admission. 

The scope of requests for admission is 

the broad discovery available under 

proposed § 18.51. The proposed 

subdivision (a) clarifies that a party may 

serve on any party a written request to 

admit facts relating to facts, the 

application of law to facts, or opinions 

about either. 

Under paragraph (a)(2), Form; copy of 

a document, the Department clarifies 

that each fact or matter for which 

admission is requested should be set 

forth in a separate paragraph. All facts 

that are part of the request should be set 

forth in the request—it is improper to 

incorporate facts by reference to other 

text. 

Proposed paragraph (a)(3), Time to 

respond; effect of not responding, 

retains the same procedural 

requirements of current subdivision (b) 

and clarifies that a shorter or longer 

time for responding may be stipulated to 

under proposed § 18.54 or be ordered by 

the judge. 

Proposed paragraph (a)(4), Answer, 

retains the same procedural 

requirements of current subdivision (c) 

and clarifies that if a matter is not 

admitted the answer must specifically 

deny it or state in detail why the 

answering party cannot truthfully admit 

or deny it. A denial must fairly respond 

to the substance of the matter; and when 

good faith requires that a party qualify 

an answer or deny only a part of a 

matter, the answer must specify the part 

admitted and qualify or deny the rest. 

Under proposed paragraph (a)(5), 

Objections, the grounds for objecting to 

a request must be stated. A party must 

not object solely on the ground that the 

request presents a genuine issue for 

hearing. The proposed paragraph (a)(6) 

retains the same procedural 

requirements of current subdivision (d). 

The Department proposes to combine 

and relocate the current subdivisions (e) 

and (f) to proposed subdivision (b), 

Effect of an admission; withdrawing or 

amending it. There are no procedural 

changes to these subparts; however, the 

proposed subdivision (b) clarifies that a 

judge may permit withdrawal or 

amendment if it would promote the 

presentation of the merits of the action 

and if the judge is not persuaded that it 

would prejudice the requesting party in 

maintaining or defending the action on 

the merits. 

§ 18.64 Depositions by oral 

examination. 

The Department proposes to revise 

the current § 18.22 and renumber it as 

proposed § 18.64. The proposed § 18.64 

is modeled after Fed. R. Civ. P. 30, 

Depositions by oral examination. 

Under § 18.64 the Department 

expands the procedures for taking 

depositions by oral examination and 

this section must be considered in 

conjunction with the other discovery 

rules, in particular proposed § 18.51 

governing the scope of discovery. The 

Department’s regulations for depositions 

by written questions are located under 

proposed § 18.65. 

The Department proposes to revise 

subdivision (a) to address when a 

deposition may be taken. The language 

regarding how and by whom a 

deposition may be taken in current 

subdivision (a) is relocated to proposed 

subdivision (b). The Department 

proposes to limit the number of 

depositions that parties may take to 10 

depositions per side, absent leave of the 

judge or stipulation with the other 

parties. Depositions may be taken at any 

time after an initial notice or order is 

entered acknowledging that the 

proceeding has been docketed at OALJ. 

If the judge orders the parties to confer 

under proposed § 18.50(b), depositions 

must be taken within the time and 

sequence agreed upon by the parties. 

The Department proposes to limit the 

number of depositions to 10 to 

emphasize that representatives have an 

obligation to develop a mutually costeffective plan for discovery in the case. 

Leave to take additional depositions 

should be granted when consistent with 

the principles of proposed § 18.51(b)(2), 

and in some cases the ten-per-side limit 

should be reduced in accordance with 

those same principles. 

Under paragraph (a)(1), the 

Department clarifies that a deponent’s 

attendance may be compelled by 

subpoena under § 18.56, Subpoena. 

Leave of the judge is required to 

depose someone if the parties have not 

stipulated to the deposition and (i) The 

deposition would result in more than 10 

depositions being taken under this 

section or § 18.65 by one of the parties; 

(ii) the deponent has already been 

deposed in the case; or (iii) the party 

seeks to take the deposition before the 

time specified in § 18.50(a), unless the 

party certifies in the notice, with 

supporting facts, that the deponent is 

expected to leave the United States and 

be unavailable for examination in this 

country after that time. Leave of the 

judge must be obtained in order to take 

the deposition of a person confined to 

prison. 

The Department proposes to combine 

current subdivisions (b) and (c) into 

proposed subdivision (b), Notice of the 

deposition; other formal requirements. 

The Department proposes to change the 

timeframes under § 18.64 to be 

consistent throughout Part18A. Under 

proposed paragraph (b)(1), except as 

stipulated or otherwise ordered by the 

judge, a party who wants to depose a 

person by oral questions must give 

reasonable written notice to every other 

party of no fewer than 14 days. The 

current § 18.22(c) provides that written 

notice must not be less than 5 days 

when the deposition is to be taken in 

the continental United States and not 

less than 20 days when the deposition 

is to be taken elsewhere. Under 

paragraph (b)(1), the Department 

proposes to clarify that if the name of 

the deponent is unknown, the notice 

must provide a general description 

sufficient to identify the person or the 

particular class or group to which the 

person belongs. 

The Department proposes to delete 

the language in current subdivision (b) 

requiring that the party giving notice 

state the name of the person before 

whom the deposition is to be taken. The 

name of the person before whom the 

deposition is to be taken is not relevant 

as long as the person meets the 

requirements stated in the regulation. 

The Department proposes to delete 

the filing language in the current 

subdivision (c) because the Department 

is proposing § 18.30, Service and filing, 

to cover the service and filing 

regulations before OALJ. 

The Department proposes to add 

several regulations to proposed 

subdivision (b) that are not found in the 

current § 18.22. These provisions are 

modeled after Fed. R. Civ. P. 30(b)(2)– 

(b)(5) and come into current practice 

through the federal rule. Under 

proposed paragraph (b)(2), if a subpoena 

duces tecum is to be served on the 

deponent, the materials designated for 

production, as set out in the subpoena, 

must be listed in the notice or in an 

attachment. If the notice to a partydeponent is accompanied by a request 

for production under § 18.61, the notice 

must comply with the requirements of 

§ 18.61(b). 

The Department proposes to regulate 

the method of recording depositions 

under paragraph (b)(3). The notice of 


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deposition must specify the method of 

recording the deposition testimony. 

Unless the judge orders otherwise, 

testimony may be recorded by audio, 

audiovisual, or stenographic means. The 

noticing party bears the recording costs. 

Any party may arrange to transcribe a 

deposition. Under proposed 

subparagraph (b)(3)(B) with prior notice 

to the deponent and other parties, any 

party may designate another method for 

recording the testimony in addition to 

that specified in the original notice. The 

party bears the expense of the additional 

recording or transcript unless the judge 

orders otherwise. 

Under proposed paragraph (b)(4), the 

Department clarifies that parties may 

stipulate—or the judge may on motion 

order—that a deposition be taken by 

telephone or other remote means. For 

the purpose of this section, the 

deposition takes place where the 

deponent answers the questions. 

The Department proposes to regulate 

the officer’s duties when taking a 

deposition. Under proposed 

subparagraph (b)(5)(A), unless the 

parties stipulate otherwise, a deposition 

must be conducted before a person 

having power to administer oaths. The 

officer must begin the deposition with 

an on-the-record statement that 

includes: (i) The officer’s name and 

business address: (ii) the date, time, and 

place of the deposition; (iii) the 

deponent’s name; (iv) the officer’s 

administration of the oath or affirmation 

to the deponent; (v) the identity of all 

persons present; and (vi) the date and 

method of service of the notice of 

deposition. Specifically, (b)(5)(A)(vi) is 

in response to OALJ noticing that 

statements regarding notice are lacking 

in depositions. 

The proposed subparagraph (b)(5)(B), 

provides that if the deposition is not 

recorded stenographically, the officer 

must repeat the items in proposed 

§ 18.64(b)(5)(A)(i)–(iii) at the beginning 

of each unit of the recording medium. 

The deponent’s and attorneys’ 

appearance or demeanor must not be 

distorted through recording techniques. 

The proposed subparagraph (b)(5)(C), 

provides that at the end of a deposition, 

the officer must state on the record that 

the deposition is complete and must set 

out any stipulations made by the 

attorneys about custody of the transcript 

or recording and of the exhibits, or 

about any other pertinent matters. 

The proposed paragraph (b)(6) 

provides that in its notice or subpoena, 

a party may name as the deponent a 

public or private corporation, a 

partnership, an association, a 

governmental agency, or other entity 

and must describe with reasonable 

particularity the matters for 

examination. The named organization 

must then designate one or more 

officers, directors, or managing agents, 

or designate other persons who consent 

to testify on its behalf; and it may set 

out the matters on which each person 

designated will testify. A subpoena 

must advise a nonparty organization of 

its duty to make this designation. The 

persons designated must testify about 

information known or reasonably 

available to the organization. This 

paragraph (6) does not preclude a 

deposition by any other procedure 

allowed by these rules. 

The Department proposes to 

incorporate a revised version of current 

subdivision (d) into proposed 

subdivision (c), Examination and crossexamination; record of the examination; 

objections; written questions. Proposed 

subdivision (c) clarifies that after 

putting the deponent under oath or 

affirmation, the officer must record the 

testimony by the method designated 

under § 18.64(b)(3)(A). The testimony 

must be recorded by the officer 

personally or by a person acting in the 

presence and under the direction of the 

officer. 

Under paragraph (c)(2), Objections, 

the Department proposes to add that an 

objection at the time of the 

examination— whether to evidence, to a 

party’s conduct, to the officer’s 

qualifications, to the manner of taking 

the deposition, or to any other aspect of 

the deposition—must be noted on the 

record, but the examination still 

proceeds; the testimony is taken subject 

to any objection. An objection must be 

stated concisely in a nonargumentative 

and nonsuggestive manner. A person 

may instruct a deponent not to answer 

only when necessary to preserve a 

privilege, to enforce a limitation ordered 

by the judge, or to present a motion 

under § 18.64(d)(3). 

Under paragraph (c)(3), Participating 

through written questions, the 

Department clarifies that instead of 

participating in the oral examination, a 

party may serve written questions in a 

sealed envelope on the party noticing 

the deposition, who must deliver them 

to the officer. The officer must ask the 

deponent those questions and record the 

answers verbatim. 

The Department proposes to delete 

the language in current § 18.22(d) 

regarding use of depositions at hearing 

because the Department is proposing 

section § 18.55, Using depositions at 

hearing. 

The Department proposes to add 

subdivision (d), Duration; sanction; 

motion to terminate or limit, which 

incorporates current subdivision (e). 

The duration of depositions is not 

currently addressed by Part 18, Subpart 

A. Proposed subdivision (d), modeled 

after Fed. R. Civ. P. 30(d), provides for 

a 7-hour time limit on depositions, 

which may be extended by the judge’s 

order. This subdivision also provides 

protections from unreasonable or 

vexatious examination during a 

deposition. 

Under paragraph (d)(2) the judge may 

impose an appropriate sanction, in 

accordance with proposed § 18.57, on a 

person who impedes, delays, or 

frustrates the fair examination of the 

deponent. Under proposed 

subparagraph (d)(3)(A), the Department 

clarifies that at any time during a 

deposition, the deponent or a party may 

move to terminate or limit it on the 

ground that it is being conducted in bad 

faith or in a manner that unreasonably 

annoys, embarrasses, or oppresses the 

deponent or party. If the objecting 

deponent or party so demands, the 

deposition must be suspended for the 

time necessary to obtain an order. 

The Department proposes to relocate 

the language in the current § 18.22(e) 

regarding objections to the deposition 

conduct or proceeding to proposed 

§ 18.55(b) and (d). 

The Department proposes to add a 

new regulation under subdivision (e), 

Review by the witness; changes, 

modeled after Fed. R. Civ. P. 30(e). 

Under paragraph (e)(1), on request by 

the deponent or a party before the 

deposition is completed, the deponent 

must be allowed 30 days after being 

notified by the officer that the transcript 

or recording is available in which: (A) 

To review the transcript or recording; 

and (B) if there are changes in form or 

substance, to sign a statement listing the 

changes and the reasons for making 

them. Under paragraph (e)(2) the officer 

must note in the certificate prescribed 

by proposed § 18.64(f)(1) whether a 

review was requested and, if so, must 

attach any changes the deponent makes 

during the 30-day period. 

The Department proposes to add a 

new regulation under subdivision (f), 

Certification and delivery; exhibits; 

copies of the transcript or recording; 

filing. This subdivision provides that 

the officer must certify in writing that 

the witness was duly sworn and that the 

deposition transcript was a true record 

of the testimony given by the deponent. 

The certificate must accompany the 

record of the deposition. Unless the 

judge orders otherwise, the officer must 

seal the deposition in an envelope or 

package bearing the title of the action 

and marked ‘‘Deposition of [witness’s 

name}’’ and must promptly send it to 

the party or the party’s representative 


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Federal Register / Vol. 77, No. 233 / Tuesday, December 4, 2012 / Proposed Rules 72169 

who arranged for the transcript or 

recording. The party or the party’s 

representative must store it under 

conditions that will protect it against 

loss, destruction, tampering, or 

deterioration. 

Proposed subparagraph (f)(2)(A) 

provides that documents and tangible 

things produced for inspection during a 

deposition must, on a party’s request, be 

marked for identification and attached 

to the deposition. Any party may 

inspect and copy them. However, if the 

person who produced them wants to 

keep the originals, the person may: (i) 

Offer copies to be marked, attached to 

the deposition, and then used as 

originals—after giving all parties a fair 

opportunity to verify the copies by 

comparing them with the originals; or 

(ii) give all parties a fair opportunity to 

inspect and copy the originals after they 

are marked—in which event the 

originals may be used as if attached to 

the deposition. Any party may move for 

an order that the originals be attached 

to the deposition pending final 

deposition or the proceeding under 

proposed subparagraph (f)(2)(B). 

Proposed paragraph (f)(3) provides 

that unless otherwise stipulated or 

ordered by the judge, the officer must 

retain the stenographic notes of a 

deposition taken stenographically or a 

copy of the recording of a deposition 

taken by another method. When paid 

reasonable charges, the officer must 

furnish a copy of the transcript or 

recording to any party or the deponent. 

Proposed paragraph (f)(4) provides that 

a party who files the deposition must 

promptly notify all other parties of the 

filing. But depositions are not ordinarily 

filed. See proposed § 18.30(b)(1)(B). 

The Department proposes to add a 

new regulation under subdivision (g), 

Failure to attend a deposition or serve 

a subpoena. This provision provides for 

a judge to order sanctions, in 

accordance with § 18.57, if a party who, 

expecting a deposition to be taken, 

attends in person or by an attorney, and 

the noticing party failed to: (1) Attend 

and proceed with the deposition; or (2) 

serve a subpoena on a nonparty 

deponent, who consequently did not 

attend. This sanction is permissive. 

§ 18.65 Depositions by Written 

Questions. 

The Department proposes to add a 

new § 18.65 modeled after Fed. R. Civ. 

P. 31. The Department proposes a new 

section to provide the procedure for 

taking depositions by written questions 

because the current Part 18, Subpart A 

rules do not specifically mention 

depositions by written questions. The 

current § 18.19 addresses written 

interrogatories to a party and the current 

§ 18.22(a) states that ‘‘[d]epositions may 

be taken by oral examination or upon 

written interrogatories before any 

person having power to administer 

oaths.’’ The current § 18.22(a) also 

provides that ‘‘[d]epositions may be 

taken of any witness * * * .’’ Since 

there is a specific rule addressing 

written interrogatories to a party, the 

Department determined that the current 

§ 18.22 contemplates taking written 

depositions of any witness. 

The proposed subdivision (a) 

addresses when a deposition may be 

taken. Any party may take depositions 

by serving written questions, which are 

asked by the deposition officer 

(stenographer) and answered orally by 

the witness. A party seeking to take a 

deposition by written questions must 

serve a notice on all other parties stating 

the name and address of the deponent, 

if known, or other general description 

sufficient to identify the deponent and 

providing the name or title and address 

of the stenographer or officer before 

whom the deposition will be taken. 

The notice of written deposition may 

be served at any time after the parties 

have conducted the discovery 

conference under § 18.50(b), or earlier 

with leave of the judge. In proceedings 

listed in proposed § 18.51(c)(1)(B) as 

exempted from initial disclosures, there 

is no preliminary waiting period for 

written depositions. The latest time to 

conduct a deposition upon written 

questions will be governed by the 

judge’s scheduling order. Subpoenas 

must be used to compel non-party 

witnesses. 

The written deposition questions for 

direct examination are served upon all 

parties with the notice. Within 14 days 

of service of the notice and direct 

examination questions, any other party 

may serve cross-examination questions. 

The noticing party may then serve 

redirect examination questions within 7 

days, and the other party may serve recross examination questions within 7 

more days. The judge may shorten or 

lengthen these time periods upon 

motion and for cause shown. All 

questions must be served on all parties. 

All parties, including third-party 

respondents, are limited to 10 

depositions total, by written and/or oral 

examination. This number may be 

increased by stipulations or leave of the 

judge. Leave of the judge is required to 

depose someone a second time. If a 

deponent is in prison, leave of the judge 

is required to take a written deposition. 

The scope of the written questions is the 

same as oral questions, and is controlled 

by proposed § 18.50. Objections to the 

form of a written question must be 

served in writing upon the party 

propounding the question within the 

time for serving succeeding questions 

and within 5 days of the last questions 

authorized. 

Under proposed subdivision (b), 

unless a different procedure is ordered 

by the judge, the party who noticed the 

deposition must deliver to the officer a 

copy of all the questions served and a 

copy of the notice. The officer then 

promptly proceeds in the manner 

provided in proposed § 18.64 (c), (e), 

and (f) to take the deponent’s testimony 

in response to the questions; prepare 

and certify the deposition; and send it 

to the party, attaching a copy of the 

questions and of the notice. A transcript 

is then prepared and submitted to the 

witness as provided in § 18.64 

governing oral depositions. 

Under proposed subdivision (c), the 

party who noticed the deposition must 

notify all other parties when it is 

completed. A party who files the 

depositions must promptly notify all 

other parties of the filing. But 

depositions are not ordinarily filed. See 

proposed § 18.30(b)(1)(B). 

Disposition Without Hearing 

§ 18.70 Motions for dispositive action. 

The Department determined that Part 

18, Subpart A does not currently 

address all of the potential dispositive 

motions available to the parties. The 

Department proposes to add § 18.70, 

Motions for dispositive action, to 

provide the regulations for filing 

dispositive motions in a single section. 

This proposed section codifies current 

practice and does not model a particular 

federal rule. The Department 

determined that motions for summary 

decision should remain a separate 

section because of the multiple 

requirements for filing and deciding a 

motion for summary decision and the 

need for that section to stand out among 

the rest. 

Under proposed subdivision (a), when 

consistent with statute, regulation or 

executive order, any party may move 

under proposed § 18.33 for disposition 

of the pending proceeding. If the judge 

determines at any time that subjectmatter jurisdiction is lacking, the judge 

must dismiss the matter. 

Under proposed subdivision (b), a 

party may move to remand the matter to 

the referring agency when not precluded 

by statute or regulation. A remand order 

must include any terms or conditions 

and should state the reason for the 

remand. 

Under proposed subdivision (c), a 

party may move to dismiss part or all of 

the matter for reasons recognized under 


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controlling law, such as lack of subjectmatter jurisdiction, failure to state a 

claim upon which relief can be granted, 

or untimeliness. If the opposing party 

fails to respond, the judge may consider 

the motion unopposed. 

Under the proposed subdivision (d), 

when the parties agree that an 

evidentiary hearing is not needed, they 

may move for a decision based on 

stipulations of fact or a stipulated 

record. 

§ 18.71 Approval of settlement and 

consent findings. 

The Department proposes to revise 

the current § 18.9 and renumber it as 

proposed § 18.71. 

The current § 18.9, Settlement judge 

procedure, addresses three topics: (1) 

Motions for consent findings and order; 

(2) approval of settlement agreements; 

(3) and the settlement judge procedure. 

The Department proposes that new 

§ 18.71 provide the regulations for 

approval of settlement agreements and 

motions for consent findings and order. 

The Department proposes to address the 

settlement judge procedure in proposed 

§ 18.13, Settlement judge procedure. 

In subdivision (a) the Department 

proposes to clarify when a party must 

submit a settlement agreement for the 

judge’s review and approval. The 

Department does not propose any 

procedural changes from the current 

§ 18.9. 

In subdivision (b) the Department 

proposes to clarify when a party may 

file a motion for consent findings and 

what the order must contain. The 

Department does not propose any 

procedural changes from the current 

§ 18.9. 

§ 18.72 Summary decision. 

The current Part 18, Subpart A 

contains two sections, §§ 18.40 and 

18.41, that address summary decision. 

The Department determined these 

sections are repetitive and inadequately 

organized and, therefore, proposes 

§ 18.72, Summary decision, to address 

summary decision in a single section. 

The proposed § 18.72 is modeled after 

Fed. R. Civ. P. 56 (December 2010 

amendment). 

In addition to the significant stylistic 

changes, the Department proposes 

several procedural changes in § 18.72. 

Under subdivision (b), the Department 

proposes to change the time 

requirements for filing and responding 

to motions for summary judgment. The 

current § 18.40(a) provides that a party 

may, at least 20 days before the date 

fixed for any hearing, file a motion for 

summary judgment. It states that any 

other party may within 10 days after 

service of the motion, serve opposing 

affidavits or countermove for summary 

judgment. The Department proposes to 

increase the timeframe for filing 

motions for summary decision to 30 

days before the date fixed for the formal 

hearing. 

Parties should refer to proposed 

§ 18.33 for the procedure on responding 

to motions. Under proposed § 18.33(d), 

the Department proposes to increase the 

number of days a party has to respond 

to a motion from 10 days to within 14 

days from the date of service. Given the 

increased timeframe a party has to file 

an opposition or other response to a 

motion, the time for filing a summary 

decision motion must be extended to 

allow the judge an acceptable period of 

time to rule on the motion. If a motion 

is filed 30 days prior to the hearing date 

and the opposing party files an 

opposition or other response 14 days 

after receiving the motion, the judge 

will generally have adequate time to 

rule on the motion before the hearing 

date. 

The current § 18.40(a) permits a party 

to ‘‘move with or without supporting 

affidavits for a summary decision 

* * *.’’ Under paragraph (c)(1), the 

Department proposes to require a party 

to cite specific parts of the record to 

support or oppose the motion. This 

proposed change comports with the 

standard the judge uses to review the 

motion, ‘‘that there is no genuine 

dispute as to any material fact and the 

movant is entitled to decision as a 

matter of law.’’ 

The last sentence of the current 

§ 18.40(a) states that the administrative 

law judge may set the matter for 

argument and/or call for submission of 

briefs. The Department proposes to 

relocate this language to proposed 

§ 18.33(d). 

The current § 18.40(b) states the 

procedure for filing and serving a 

motion for summary judgment. This 

provision is not included in the 

proposed § 18.72 because the service 

and filing of papers is covered by 

proposed § 18.30, Service and filing. 

Under subdivision (c), the Department 

proposes a revised version of the current 

§ 18.40(c). This subdivision applies to 

both the moving and nonmoving party. 

Under paragraph (c)(4) the Department 

proposes to clarify that ‘‘an affidavit or 

declaration used to support or oppose a 

motion must be made on personal 

knowledge, set out facts that would be 

admissible in evidence, and show that 

the affiant or declarant is competent to 

testify on the matters stated.’’ 

Under subdivision (d), the 

Department proposes a revised version 

of current § 18.40(d). The Department 

proposes to provide the judge with more 

options when a moving party denies 

access to information during discovery. 

In addition to denying the motion for 

summary decision, the judge may 

permit more time for discovery, or issue 

any other appropriate order. 

The Department proposes to address 

three new topics under subdivisions (f), 

(g), and (h). Under subdivision (f), the 

Department proposes to clarify that after 

giving notice and a reasonable time to 

respond, the judge may: (1) Grant 

summary decision for a nonmovant; (2) 

grant the motion on grounds not raised 

by a party; or (3) consider summary 

decision on the judge’s own after 

identifying for the parties material facts 

that may not be genuinely disputed. 

Under the current regulations, a judge 

who considers summary decision on his 

or her own must reference Fed. R. Civ. 

P. 56 in order to order summary 

judgment without a motion from the 

parties. The addition of this power 

within this proposed section allows the 

judge to rely on the Department’s 

regulations. 

The Department does not propose to 

change the power a judge has to issue 

an order granting partial summary 

judgment. Under this proposed 

subdivision, the Department proposes a 

procedure that the judge and parties 

must follow in the hearing after the 

judge grants partial summary judgment. 

The judge may enter an order stating 

any material fact—including an item of 

damages or other relief—that is not 

genuinely in dispute and treat the fact 

as established in the case. 

Under proposed subdivision (h), the 

Department proposes to address the 

actions a judge may take if an affidavit 

or declaration is submitted in bad faith. 

These remedies are part of the judge’s 

power to regulate the hearing under the 

Administrative Procedure Act. 

The Department proposes to delete 

the language in the current § 18.41(a)(2) 

stating what a summary judgment 

decision must contain. The Department 

proposes § 18.92, Decision and order, to 

regulate the contents of summary 

judgment decisions. 

The Department proposes to relocate 

the language from the current § 18.41(b) 

to the proposed 18.33(g) Motion hearing. 

Hearing 

§ 18.80 Prehearing statement. 

The Department proposes to revise 

the current § 18.7 and renumber it as 

proposed § 18.80. 

Under subdivision (a), the Department 

proposes to add the requirement that a 

participating party file a prehearing 

statement at least 21 days prior to the 


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date set for hearing, unless the judge 

orders otherwise. The current § 18.7 

does not have a timeframe for filing 

prehearing statements. However, judges 

typically include a timeframe in 

prehearing orders. It is not the 

Department’s intention to require the 

applicable Department’s agency to file a 

pre-hearing statement when it is not 

actively participating in the proceeding. 

For example, in a Black Lung claim in 

which an employer has been identified 

as the responsible operator, the Office of 

Workers’ Compensation Programs, 

though a party-in-interest, does not 

normally take an active role. In such 

circumstance it is not necessary for the 

Department’s representative to file a 

pre-hearing statement. 

The Department proposes to add a 

new provision under subdivision (b) 

that requires the parties confer in good 

faith to stipulate to facts to the fullest 

extent possible and to prepare exhibit 

lists prior to filing prehearing 

statements. The Department proposes 

this change to help narrow the issues to 

be addressed at hearing and eliminate 

unnecessary travel for potential 

witnesses. 

Under subdivision (c), the Department 

proposes to provide a revised version of 

the content requirements for a 

prehearing statement from the current 

§ 18.7(b). The Department proposes to 

add that the prehearing statement must 

include a statement of the relief sought, 

a list of the party’s exhibits and the joint 

exhibits. Otherwise, the content 

requirements remain procedurally the 

same as those in the current § 18.7. 

The Department proposes to add a 

new regulation under subdivision (d) 

that permits the judge to require a joint 

prehearing statement instead of 

individual prehearing statements by the 

parties. 

The Department proposes to add a 

new regulation under subdivision (e) 

that requires a party to file objections to 

an opposing party’s proposed exhibits 

or use of deposition testimony within 14 

days of being served. A party’s failure to 

object waives the objection unless the 

judge finds good cause for the failure to 

object. 

§ 18.81 Formal hearing. 

The Department proposes to revise 

the current § 18.43 and renumber it as 

proposed § 18.81. The proposed § 18.81 

is modeled after Fed. R. Civ. P. 43. 

The Department proposes to revise 

the current subdivision (a) to more 

accurately address the situations when 

a hearing would be closed to the public. 

The current subdivision (a) states that 

hearings may be closed to the public 

when it is in the ‘‘best interests of the 

parties, a witness, the public or other 

affected persons.’’ The Department 

proposes to delete this language and 

instead state that hearings may be 

closed to the public ‘‘when authorized 

by law and only to the minimum extent 

necessary.’’ The proposed change states 

the standard a judge will apply when 

determining whether to close all or part 

of a hearing. The applicable law does 

not suggest that hearings are closed 

based on the ‘‘best interests’’ of the 

parties. Further, the presumption of 

open hearings is supported by the 

requirement that a judge close a hearing 

only to the minimum extent possible. 

The proposed subdivision (a) clarifies 

that the judge’s order closing the 

hearing must explain why the reasons 

for closure outweigh the presumption of 

public access to the hearing. The 

Department proposes to clarify that the 

judge may also close the hearing to 

anticipated witnesses. Parties would not 

be excluded, however. See Fed. R. Evid. 

615 cmt. 

The Department proposes to delete 

current subdivisions (b) and (c). The 

judge’s jurisdiction to decide all issues 

of fact and related issues of law is 

addressed by proposed § 18.12, 

Proceedings before administrative law 

judge. Amendments to conform to the 

evidence is addressed by proposed 

§ 18.36, Amendments after referral to 

the Office of Administrative Law Judges, 

and the note referring the parties to Fed. 

R. Civ. P. 15. 

The Department proposes to model a 

new subdivision (b) after Fed. R. Civ. P. 

43(a). The proposed subdivision (b) 

requires that a witness testify in an open 

hearing. However, a judge may permit 

testimony in an open hearing by 

contemporaneous transmission from a 

different location ‘‘for good cause and 

with appropriate safeguards.’’ The 

Department determined that if a witness 

needs to testify remotely, the witness or 

party must show good cause, instead of 

having to show compelling 

circumstances, which is the higher legal 

standard set forth in Fed. R. Civ. P. 

43(a). The Department’s decision to set 

a lesser standard is not intended to 

diminish the importance of presenting 

live testimony in hearings. The very 

ceremony of a hearing and the presence 

of the factfinder may exert a powerful 

force for telling the truth. However, in 

contrast to the federal courts, OALJ has 

more relaxed evidentiary standards. 

Hearings take place worldwide and are 

not constrained by the concept of 

‘‘venue.’’ Appropriate safeguards will be 

addressed by the judge in the prehearing 

order or conference and may include the 

exchange of exhibits and assurances that 

the witness will not be coached during 

the testimony. 

Similarly, the Department proposes a 

new subdivision (c) to permit a party to 

participate in an open hearing by 

contemporaneous transmission from a 

different location for good cause and 

with appropriate safeguards. This 

provision accounts for the fact that some 

cases involve parties located outside the 

United States or in other remote 

locations that are unable to attend 

hearings in person. Subdivisions (b) and 

(c) are not intended to suggest that 

contemporaneous transmission is 

routine practice. The presiding judge 

may require advance notice to 

determine whether good cause exists. 

§ 18.82 Exhibits. 

The Department proposes to revise 

the current §§ 18.47 through 18.50 as 

part of the general restyling of the Part 

18, Subpart A rules of procedure. The 

current §§ 18.47 through 18.50 are 

combined into a single section covering 

exhibits, proposed § 18.82. 

The Department proposes to relocate 

the language from the current § 18.47 to 

subdivisions (a), Identification, (b), 

Electronic data, (c), Exchange of 

exhibits, and (e), Substitution of copies 

for original exhibits, in § 18.82. In 

subdivision (a), the Department 

proposes to add a provision stating that 

the exhibits should be numbered and 

paginated as the judge directs. The 

Department determined that this 

requirement is sufficiently broad to 

cover the variety of judges’ preferences 

for organizing exhibits, so that 

references in the testimonial record to 

exhibit pages will be clear. 

The Department proposes to relocate 

the language from the current § 18.48 to 

proposed subdivision (g), Records in 

other proceedings. The Department 

proposes to revise the structure of this 

subdivision for clarity, but does not 

propose any procedural changes. 

The Department proposes to relocate 

the language from the current § 18.49 to 

proposed subdivision (f), Designation of 

parts of documents. The Department 

proposes to revise the structure of this 

subdivision and delete the redundant 

language. The Department proposes to 

revise the first sentence to emphasize 

the procedure for excluding irrelevant 

material. The second sentence is deleted 

as a matter left to each judge’s discretion 

and because other rules will apply to 

submitting evidence and marking 

exhibits. 

The Department proposes to relocate 

the language from current § 18.50 to 

proposed subdivision (d), Authenticity. 

The Department proposes to revise the 

structure of this subdivision to improve 


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clarity, but does not propose any 

procedural changes. 

Under subdivision (b), Electronic 

data, the Department proposes that ‘‘by 

order the judge may prescribe the format 

for the submission of data that is in 

electronic form.’’ 

§ 18.83 Stipulations. 

The Department proposes to revise 

the current § 18.51, renumber it as 

proposed § 18.83, and include it under 

subdivision (a). The Department does 

not propose any procedural changes to 

this subpart. 

The Department proposes to add new 

regulations under subdivisions (b) and 

(c). These provisions are based on 

current practice as stipulations typically 

result from a judge’s order. The 

proposed subdivision (b) applies to 

extensions of time not covered by 

proposed §§ 18.33, Motions and other 

papers, and 18.41, Continuances and 

changes in place of hearing. The new 

provision states that ‘‘[e]very stipulation 

that requests or requires a judge’s action 

must be written and signed by all 

affected parties or their representatives. 

Any stipulation to extend time must 

state the reason for the date change.’’ 

Under proposed subdivision (c), the 

Department proposes that ‘‘[a] proposed 

form of order may be submitted with the 

stipulation; it may consist of an 

endorsement on the stipulation of the 

words, ‘Pursuant to stipulation, it is so 

ordered’ with spaces designated for the 

date and the signature of the judge.’’ 

§ 18.84 Official notice. 

The Department proposes to revise 

the current § 18.45 and renumber it as 

proposed § 18.84. 

Under this section, the Department 

proposes to clarify the procedures a 

judge must follow when taking official 

notice. The Department proposes that 

official notice may be taken on motion 

of a party or on the judge’s own. The 

current § 18.45 states that official notice 

may be taken on ‘‘any material fact, not 

appearing in evidence in the record, 

which is among the traditional matters 

of judicial notice.’’ This proposed 

change clarifies that official notice may 

be taken of any ‘‘adjudicative fact or 

matter subject to judicial notice.’’ 

The proposed § 18.63, Request for 

admission and the current § 18.201, 

Official notice of adjudicative facts, do 

not require advance notice before the 

judge takes official notice, but rather an 

opportunity to be heard. The 

Department, therefore, decided not to 

propose an advance notice requirement 

in this section. In some situations the 

judge may take official notice of a 

noncontroversial fact that was omitted 

in the evidence without noticing the 

parties before issuing a decision and 

order. The parties have an opportunity 

to be heard after the order is issued. 

§ 18.85 Privileged, sensitive, or 

classified materials. 

The Department proposes to revise 

the current §§ 18.46 and 18.56 and 

combine them into a single section, 

proposed § 18.85, covering privileged, 

sensitive, or classified material. 

The Department proposes to relocate 

the content from the current § 18.46 to 

subdivision (a). The current § 18.46 

addresses several topics: (1) Limiting 

discovery and the introduction of 

evidence based on claims of privilege; 

(2) limiting the introduction of evidence 

based on claims of classified or sensitive 

information; (3) providing a summary or 

extracted version of a document to limit 

disclosures of classified or sensitive 

material; (4) permitting access to 

classified or sensitive matters despite 

their nature; and (5) requiring a 

representative to seek a security 

clearance in order to view the 

information. 

The proposed subdivision (a) is more 

limited in scope than the current 

§ 18.46. The procedures to limit the 

scope of discovery based on claims of 

privilege or sensitive information are 

addressed by proposed §§ 18.51, 

Discovery scope and limits, and 18.52, 

Protective orders. Accordingly, the 

references to limiting discovery in 

current subdivision (a) and paragraph 

(b)(1) are deleted. 

The references to obtaining a security 

clearance in current paragraph (b)(2) are 

also deleted. The need for a participant 

in a hearing to obtain a security 

clearance is a rare event before OALJ. 

The Part 18, Subpart A rules are 

designed to apply to the typical types of 

cases heard by OALJ; the rules do not 

address all of the exceptions or 

possibilities that may occur in specific 

cases. Further, the process for seeking a 

security clearance would be determined 

by the federal agency holding the 

classified or sensitive information. OALJ 

does not independently facilitate a 

security clearance process. For these 

reasons, the references to obtaining a 

security clearance are deleted from 

proposed § 18.85. 

The Department proposes to relocate 

the content from the current § 18.56 to 

subdivision (b). The proposed rule 

retains the option provided in current 

subdivision (a) that a party or the judge 

may move to seal a portion of the 

record. This section continues to require 

that the sealed portion of the record be 

clearly marked and maintained 

separately from other parts of the record 

in the case. 

The proposed subdivision (b) imposes 

new requirements on parties. When 

filing a motion to seal the record, a party 

must propose a redaction no broader 

than necessary for inclusion in the 

public record. If the movant finds that 

a redaction would be so extensive as to 

make the material meaningless, the 

movant must file a summary of the 

material to be included in the public 

record. The requirement of filing a 

redacted copy or summary along with 

the motion to seal the record ensures 

that the public continues to have access 

to as much information as possible 

regarding the proceedings. 

Under paragraph (b)(2), if the judge 

issues an order sealing all or part of the 

record, the judge must explain why the 

need to seal part of the record outweighs 

the presumption of public access. A 

redacted version or summary of the 

material must be included in the record 

unless the redactions make the public 

version of the material meaningless, or 

if the redacted version or summary 

defeats the reason the original is sealed. 

Notwithstanding the judge’s order, all 

parts of the record remain subject to 

statutes and regulations pertaining to 

public access to agency records. 

§ 18.86 Hearing room conduct. 

The Department proposes to revise 

the current § 18.37 and renumber it as 

proposed § 18.86. 

The first sentence of the current 

§ 18.37 states that proceedings are to be 

conducted in an orderly manner. The 

Department proposes to amend this 

sentence to directly address how 

participants must conduct themselves 

during a hearing, instead of generally 

stating how the hearing should be 

managed. The proposed change 

provides direct instructions to the 

participants. 

The Department proposes to retain the 

prohibition on food and beverage 

consumption and the rearranging of 

furniture in the hearing location. The 

Department proposes to delete the 

reference to smoking. Prohibitions on 

smoking in public places, specifically 

hearing locations, are more ubiquitous 

than in 1983 when the current Part 18, 

Subpart A was adopted. A specific 

prohibition in Part 18, Subpart A, 

therefore, is not required. 

The Department proposes to add a 

prohibition on disrupting proceedings 

with electronic devices. This addition is 

a result of changing technology since 

the current Part 18, Subpart A was 

adopted. Electronic devices and their 

use can be distracting and disruptive 

during a hearing. Accordingly, limiting 


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Federal Register / Vol. 77, No. 233 / Tuesday, December 4, 2012 / Proposed Rules 72173 

the use and noise produced by 

electronic devices facilitates the orderly 

conduct of a hearing. Parties, witnesses 

and spectators are also prohibited from 

using video or audio recording devices 

to record hearings. 

§ 18.87 Standards of conduct. 

The Department proposes to revise 

the current § 18.36 and renumber it as 

proposed § 18.87. 

The Department proposes to divide 

the current subdivision (b) into two 

subdivisions: (b), Exclusion for 

misconduct, and (c), Review of 

representative’s exclusion. Under 18.87 

(b), the Department proposes to define 

the types of conduct that may result in 

a party or the party’s representative 

being excluded from a proceeding. 

Under subdivision (c), the Department 

proposes to provide the procedure a 

party’s representative must initiate in 

order to be reinstated as a representative 

in a particular matter. The current 

§ 18.36 does not indicate a time period 

in which the representative must seek 

reinstatement. The Department proposes 

a 7-day time period for a representative 

to request reinstatement. Seven days is 

proposed so as not to create too long a 

delay in proceeding with the claim. 

§ 18.88 Transcript of proceedings. 

The Department proposes to revise 

the current § 18.52 and renumber it as 

proposed § 18.88. 

The Department proposes to limit the 

application of this section to hearing 

transcripts and corrections to the 

transcript. The Department, therefore, 

proposes to delete the second and third 

sentences of the current subdivision (a). 

The second sentence refers to the basis 

of the judge’s decision, which is 

controlled by sec. 557(b) of the APA. 

Because this current provision is 

covered by a statute, it is unnecessary to 

include the provision in the proposed 

§ 18.88. The Department propose to 

delete the references to exhibits in the 

third sentence because the 

identification, marking, and inclusion of 

exhibits in the record are addressed by 

proposed § 18.82, Exhibits. 

The Department proposes to amend 

the first sentence of the current 

subdivision (a) to require that all 

hearings be recorded and transcribed. 

The Department proposes to delete the 

methods of recording and transcription 

in recognition of the variety of 

technologies used to record and 

transcribe proceedings. The deletion, 

however, does not alter the meaning or 

application of the rule. The rule 

continues to require a transcript of a 

hearing. 

Under subdivision (b), the 

Department proposes to extend the time 

permitted to file a motion to correct a 

transcript to 14 days. The current 

subdivision (b) requires that a party file 

the motion within 10 days of receipt of 

the transcript. This change to 14 days 

comports with the general revision to 

set time periods based on multiples of 

7. 

The Department proposes to add a 

new provision under subdivision (b) to 

permit a judge to correct a transcript on 

his or her own, without a prior motion 

from a party, prior to issuing a decision. 

If a judge corrects the transcript, the 

judge must provide notice to the parties. 

Post Hearing 

§ 18.90 Closing the record; additional 

evidence. 

The Department proposes to revise 

the current §§ 18.54 and 18.55 and 

combine them into proposed § 18.90. 

The Department proposes to combine 

the current § 18.54(a) and (b) into 

proposed subdivision (a). The 

Department proposes only stylistic 

changes to the language of these current 

subdivisions. 

The Department proposes to 

incorporate the provisions contained in 

existing §§ 18.54(c) and 18.55 into 

proposed subdivision (b). The paragraph 

(b)(1) provides the standard the judge 

will apply when ruling on a motion to 

admit additional evidence. The 

proposed section retains the 

requirement that the additional 

evidence be ‘‘new and material 

evidence.’’ The proposed section 

requires that the party demonstrate that 

it could not have discovered the new 

evidence with reasonable diligence 

before the record closed. 

Under paragraph (b)(1), the 

Department proposes to require the 

party offering the additional evidence to 

file a motion promptly after discovering 

the evidence. This sentence makes 

several changes to the existing 

requirement in § 18.55. First, the 

proposed section emphasizes that a 

party must file a motion asking to 

reopen the record for filing additional 

evidence. Requiring the party to file a 

motion incorporates the requirements of 

proposed § 18.33, Motions and other 

papers, including the time to respond to 

motions. 

The Department proposes to delete 

the timeframe for filing and responding 

to additional evidence in the current 

§ 18.55. Constraining the party to filing 

new evidence 20 days after the close of 

the hearing was an unnecessarily 

restrictive time limit. If a party promptly 

files a motion seeking to reopen the 

record based on new and material 

evidence that was not available before 

the hearing, the judge will consider the 

motion based on the requirements of the 

proposed (b)(1). 

The Department proposes to clarify in 

paragraph (b)(2) that if the record is 

reopened, the other parties must have 

an opportunity to offer responsive 

evidence, and a new evidentiary hearing 

may be set. 

The Department proposes to revise 

the final sentence of the current 

§ 18.54(c) and relocate it to proposed 

subdivision (c). The Department 

proposes to revise this subdivision to 

instruct the parties that the record will 

remain open for additional appropriate 

motions; the content of the record is 

defined in proposed § 18.88. 

§ 18.91 Post-hearing brief. 

The Department proposes to revise 

the current § 18.57 and separate the 

content into two separate sections: 

§§ 18.91, Post-hearing briefs, and 18.92, 

Decisions of the administrative law 

judge. The Department proposes to 

relocate the content from the current 

§ 18.57(a) to proposed § 18.91. 

The Department proposes to eliminate 

the 20-day filing period set in the 

current § 18.57(a). The 20-day timeframe 

for filing proposed findings of fact, 

conclusions of law, and a proposed 

order is rarely used by parties before 

OALJ. Instead, the parties follow the 

schedule ordered by the judge at the 

close of the formal hearing or the judge’s 

order granting a hearing on the record. 

Accordingly, the proposed section 

permits the parties to file closing briefs 

within the time period established by 

the judge. 

The Department determined that 

parties before OALJ rarely file proposed 

findings of facts and proposed order, as 

litigants file in state or federal district 

court. Rather, parties or their 

representatives typically file posthearing briefs. Under the proposed 

§ 19.91, the Department proposes that 

judges allow a party or representative to 

file a post-hearing brief that emphasizes 

the three major items parties should 

emphasize in closing briefs: findings of 

fact, conclusions of law and the specific 

relief sought. Like the current 

regulation, the proposed section 

requires that the post-hearing briefs 

refer to all portions of the record and 

cite authorities supporting the party’s 

assertions. 

The Department proposes to delete 

the provision in the current § 18.57(a) 

that requires parties to serve posthearing filings on all parties. Under 

proposed § 18.30, Service and filing, all 

papers must be served on every party. 


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Therefore, it is unnecessary to repeat the 

requirement in this section. 

§ 18.92 Decision and order. 

The Department proposes to revise 

the current § 18.57 and separate the 

content into separate sections: §§ 18.91, 

Post hearing briefs and 18.92, Decisions 

and order. The Department proposes to 

delete the language from the current 

§ 18.57(b) and replace it with proposed 

§ 18.92. 

The Department proposes to delete 

the reference to issuing a decision and 

order within 30 days of receipt of 

proposed consent findings and order. 

Instead, the proposed section states that 

‘‘at the conclusion of the proceeding, 

the judge must issue a written decision 

and order.’’ OALJ has jurisdiction to 

decide claims under a variety of statutes 

which impose different, but specific 

timeframes for issuing a decision and 

order. When a statute or regulation does 

not specifically mention a timeframe for 

issuing a decision and order, the judge, 

as is current practice, will issue a 

decision and order within a reasonable 

time. 

The Department proposes to delete 

the last three sentences of the current 

§ 18.57. The statements repeat the 

requirements imposed by sec. 557(c) of 

the APA, therefore, the Department 

determined that it is unnecessary to 

repeat the substantive requirements of 

the judge’s decision in OALJ’s rules of 

procedure. These APA requirements 

will continue to apply to decisions and 

orders issued by OALJ judges. 

§ 18.93 Motion for reconsideration. 

The Department proposes to add a 

new § 18.93 modeled after Fed. R. Civ. 

P. 59(e), Motions to alter or amend a 

judgment. 

Under proposed § 18.93, the 

Department proposes that ‘‘a motion for 

reconsideration of a decision and order 

must be filed no later than 10 days after 

service of the decision on the moving 

party.’’ The purpose of this section is to 

make clear that judges possess the 

power to alter or amend a judgment 

after its entry. 

The Department proposes to set a 10- 

day limitation on filing a motion for 

reconsideration; however, it recognizes 

that governing statutes, regulations, and 

executive orders, such as the Black Lung 

regulations, may provide a different 

time for filing motions for 

reconsideration. In those circumstances, 

the rule of special application will 

apply. 

§ 18.94 Indicative ruling on a motion 

for relief that is barred by a pending 

petition for review. 

The Department proposes to add a 

new § 18.94 modeled after Fed. R. Civ. 

P. 62.1 (December 1, 2009). The current 

Part 18, Subpart A does not specifically 

mention indicative rulings on a motion 

for relief that is barred by a pending 

appeal or petition for review. The 

proposed § 18.94 applies to motions 

made before a judge after an appeal has 

been docketed with an appellate board, 

and the judge no longer has jurisdiction 

over the merits of the case. At OALJ 

parties occasionally file post-appeal 

motions, so the Department determined 

that it is helpful to have a section that 

informs the judge and the appellate 

board how the motion should be 

addressed. Inclusion of this section is 

consistent with the Department’s 

approach to include provisions from the 

FRCP unless the rule is inapplicable to 

OALJ proceedings. 

The proposed § 18.94 does not 

attempt to define the circumstances in 

which an appeal limits or defeats the 

judge’s authority to act in the face of a 

pending appeal. This section applies 

only when the rules that govern the 

relationship between the judge and 

appellate review boards deprive the 

judge of the authority to grant relief 

without appellate permission. If a judge 

concludes that he or she has authority 

to grant relief without appellate 

permission, he or she may act without 

falling back on the indicative ruling 

procedure. 

Often it will be appropriate for the 

judge to determine whether the judge in 

fact would grant the motion if the 

appellate review board remands for that 

purpose. But a motion may present 

complex issues that require extensive 

litigation and that may either be mooted 

or be presented in a different context by 

decision of the issues raised on appeal. 

In such circumstances the judge may 

prefer to state that the motion raises a 

substantial issue, and to state the 

reasons why the judge prefers to decide 

it only if the appellate review board 

agrees that it would be useful to decide 

the motion before decision of the 

pending appeal. The judge is not bound 

to grant the motion after stating that the 

motion raises a substantial issue; further 

proceedings on remand may show that 

the motion ought not to be granted. 

§ 18.95 Review of Decision 

The Department proposes to revise 

the current § 18.58 and renumber it as 

proposed § 18.95. As in the current rule, 

the proposed rule states that the statute 

or regulation that conferred hearing 

jurisdiction provides the procedure for 

review of a judge’s decision. If the 

statute or regulation does not provide a 

procedure, the judge’s decision becomes 

the Secretary’s final administrative 

decision. The Department does not 

propose any procedural changes to this 

rule. 

Section Deletions 

The Department proposes to delete 

the current § 18.13. The first sentence of 

the rule lists the methods of discovery 

available to a party. Prior to the 2007 

amendments, the FRCP included a 

similar provision under Fed. R. Civ. P. 

26; however, the 2007 amendments to 

the FRCP deleted this provision. The 

2007 Advisory Committee Notes to Fed. 

R. Civ. P. 26 state that ‘‘former Rule 

26(a)(5) served as an index of the 

discovery methods provided by later 

rules. It was deleted as redundant.’’ 

Similarly, the Department proposes to 

delete the first sentence of the current 

§ 18.13 just as Fed. R. Civ. P. 26(a)(5) 

was deleted. The second sentence to the 

current § 18.13 explains that, unless the 

judge orders otherwise, there are no 

limits on the frequency or sequence for 

use of the discovery methods. The 

frequency, timing, and sequence of 

discovery are addressed by proposed 

§ 18.50, General provisions governing 

disclosure and discovery. Accordingly, 

the Department proposes to delete the 

second sentence of the current § 18.13. 

The Department proposes to delete 

the current § 18.32. The text of current 

§ 18.32 is based on § 554(d) of the APA. 

This regulation repeats the statute 

without adding additional procedures or 

guidance, therefore, the Department 

proposes to delete it. 

The Department proposes to delete 

the current § 18.33. The parties’ right to 

a hearing within a reasonable time is 

encompassed in proposed § 18.10, 

Scope and purpose. The proposed 

§ 18.10(a) states that the rules of 

procedure ‘‘should be construed and 

administered to secure the just, speedy, 

and inexpensive determination of every 

proceeding.’’ The Department 

determined that repeating the statement 

of a speedy determination in current 

§ 18.33 is redundant. 

The Department proposes to delete 

the current § 18.53. The proposed 

§ 18.12, Proceedings before 

administrative law judge, which 

combines the current §§ 18.25 and 

18.29, addresses the ability of the judge 

to conduct the hearing. The contents of 

the current § 18.53 are repetitious given 

the revisions to the proposed § 18.12. 

The Department proposes to delete 

the current § 18.59. If OALJ receives a 

request for a certified copy of the record, 


srobinson on DSK4SPTVN1PROD with 
Federal Register / Vol. 77, No. 233 / Tuesday, December 4, 2012 / Proposed Rules 72175 

the request would originate with a 

reviewing body or court. The terms of 

sending the record would be controlled 

by the request or court order. Thus, it 

is not practicable to have a uniform rule 

governing the procedure for sending a 

certified copy of the record. Further, 

determining the appropriate record 

custodian and the procedures for 

certifying the record are internal matters 

within OALJ and the Department. Based 

on these facts, the Department has 

determined that the current § 18.59 

should be deleted. 

List of Subjects in 29 CFR Part 18 

Administrative practice and 

procedure, Labor. 

Signed at Washington, DC. 

Hilda L. Solis, 

U.S. Secretary of Labor. 

For the reasons set out in the 

Preamble, the Office of the Secretary, 

Labor proposes to amend 29 CFR part 18 

as set forth below. 

PART 18—RULES OF PRACTICE AND 

PROCEDURE FOR ADMINISTRATIVE 

HEARINGS BEFORE THE OFFICE OF 

ADMINISTRATIVE LAW JUDGES 

1. The authority citations for Part 18 

continue to read as follows: 

Authority: 5 U.S.C. 301; 5 U.S.C. 551–553; 

5 U.S.C. 571 note; E.O. 12778; 57 FR 7292. 

2. Revise Subpart A to read as follows: 

Subpart A—General 

Sec. 

General Provisions 

18.10 Scope and purpose. 

18.11 Definitions. 

18.12 Proceedings before administrative 

law judge. 

18.13 Settlement judge procedure. 

18.14 Ex parte communication. 

18.15 Substitution of administrative law 

judge. 

18.16 Disqualification. 

18.17 Legal assistance. 

Parties and Representatives 

18.20 Parties to a proceeding. 

18.21 Party appearance and participation. 

18.22 Representatives. 

18.23 Disqualification and discipline of 

representatives. 

18.24 Briefs from amicus curiae. 

Service, Format and Timing of Filings and 

Other Papers 

18.30 Service and filing. 

18.31 Privacy protection for filings and 

exhibits. 

18.32 Computing and extending time. 

18.33 Motions and other papers. 

18.34 Format of papers filed. 

18.35 Signing motions and other papers; 

representations to the judge; sanctions. 

18.36 Amendments after referral to the 

Office of Administrative Law Judges. 

Prehearing Procedure 

18.40 Notice of hearing. 

18.41 Continuances and changes in place 

of hearing. 

18.42 Expedited proceedings. 

18.43 Consolidation; separate hearings. 

18.44 Prehearing conference. 

Disclosure and Discovery 

18.50 General provisions governing 

disclosure and discovery. 

18.51 Discovery scope and limits. 

18.52 Protective orders. 

18.53 Supplementing disclosures and 

responses. 

18.54 Stipulations about discovery 

procedure. 

18.55 Using depositions at hearings. 

18.56 Subpoena. 

18.57 Failure to make disclosures or to 

cooperate in discovery; sanctions. 

Types of Discovery 

18.60 Interrogatories to parties. 

18.61 Producing documents, electronically 

stored information, and tangible things, 

or entering onto land, for inspection and 

other purposes. 

18.62 Physical and mental examinations. 

18.63 Requests for admission. 

18.64 Depositions by oral examination. 

18.65 Depositions by written questions. 

Disposition Without Hearing 

18.70 Motions for dispositive action. 

18.71 Approval of settlement or consent 

findings. 

18.72 Summary decision. 

Hearing 

18.80 Prehearing statement. 

18.81 Formal hearing. 

18.82 Exhibits. 

18.83 Stipulations. 

18.84 Official notice. 

18.85 Privileged, sensitive, or classified 

material. 

18.86 Hearing room conduct. 

18.87 Standards of conduct. 

18.88 Transcript of proceedings. 

Post Hearing 

18.90 Closing the record; subsequent 

motions. 

18.91 Post-hearing brief. 

18.92 Decision and order. 

18.93 Motion for reconsideration. 

18.94 Indicative ruling on a motion for 

relief that is barred by a pending petition 

for review. 

18.95 Review of Decision. 

General Provisions 

§ 18.10 Scope and purpose. 

(a) In general. These rules govern the 

procedure in proceedings before the 

United States Department of Labor, 

Office of Administrative Law Judges. 

They should be construed and 

administered to secure the just, speedy, 

and inexpensive determination of every 

proceeding. To the extent that these 

rules may be inconsistent with a 

governing statute, regulation, or 

executive order, the latter controls. If a 

specific Department of Labor regulation 

governs a proceeding, the provisions of 

that regulation apply, and these rules 

apply to situations not addressed in the 

governing regulation. The Federal Rules 

of Civil Procedure (FRCP) apply in any 

situation not provided for or controlled 

by these rules, or a governing statute, 

regulation, or executive order. 

(b) Type of proceeding. Unless the 

governing statute, regulation, or 

executive order prescribes a different 

procedure, proceedings follow the 

Administrative Procedure Act, 5 U.S.C. 

551 through 559. 

(c) Waiver, modification, and 

suspension. Upon notice to all parties, 

the presiding judge may waive, modify, 

or suspend any rule under this subpart 

when doing so will not prejudice a party 

and will serve the ends of justice. 

§ 18.11 Definitions. 

For purposes of these rules, these 

definitions supplement the definitions 

in the Administrative Procedure Act, 5 

U.S.C. 551. 

(a) Calendar call means a meeting in 

which the judge calls cases awaiting 

hearings, determines case status, and 

assigns a hearing date and time. 

(b) Chief Judge means the Chief 

Administrative Law Judge of the United 

States Department of Labor Office of 

Administrative Law Judges and judges 

to whom the Chief Judge delegates 

authority. 

(c) Docket clerk means the Chief 

Docket Clerk at the Office of 

Administrative Law Judges in 

Washington, DC. But once a case is 

assigned to a judge in a district office, 

docket clerk means the docket staff in 

that office. 

(d) Hearing means that part of a 

proceeding consisting of a session to 

decide issues of fact or law that is 

recorded and transcribed and provides 

the opportunity to present evidence or 

argument. 

(e) Judge means an administrative law 

judge appointed under the provisions of 

5 U.S.C. 3105. 

(f) Order means the judge’s 

disposition of one or more procedural or 

substantive issues, or of the entire 

matter. 

(g) Proceeding means an action before 

the Office of Administrative Law Judges 

that creates a record leading to an 

adjudication or order. 

(h) Representative means any person 

permitted to represent another in a 

proceeding before the Office of 

Administrative Law Judges. 

§ 18.12 Proceedings before administrative 

law judge. 

(a) Designation. The Chief Judge 

designates the presiding judge for all 

proceedings. 


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(b) Authority. In all proceedings 

under this Part, the judge has all powers 

necessary to conduct fair and impartial 

proceedings, including those described 

in the Administrative Procedure Act, 5 

U.S.C. 556. Among them is the power 

to: 

(1) regulate the course of proceedings 

in accordance with applicable statute, 

regulation or executive order; 

(2) administer oaths and affirmations 

and examine witnesses; 

(3) compel the production of 

documents and appearance of witnesses 

within a party’s control; 

(4) issue subpoenas authorized by 

law; 

(5) rule on offers of proof and receive 

relevant evidence; 

(6) dispose of procedural requests and 

similar matters; 

(7) terminate proceedings through 

dismissal or remand when not 

inconsistent with statute, regulation, or 

executive order; 

(8) issue decisions and orders; 

(9) exercise powers vested in the 

Secretary of Labor that relate to 

proceedings before the Office of 

Administrative Law Judges; and 

(10) take actions authorized by the 

FRCP. 

§ 18.13 Settlement judge procedure. 

(a) How initiated. The Office of 

Administrative Law Judges provides 

settlement judges to aid the parties in 

resolving the matter that is the subject 

of the controversy. Upon a joint request 

by the parties or upon referral by the 

judge when no party objects, the Chief 

Judge may appoint a settlement judge. A 

settlement judge will not be appointed 

when settlement proceedings would be 

inconsistent with a statute, regulation, 

or executive order. 

(b) Appointment. The Chief Judge has 

discretion to appoint a settlement judge, 

who must be an active or retired judge. 

The settlement judge will not be 

appointed to hear and decide the case 

or approve the settlement without the 

parties’ consent and the approval of the 

Chief Judge. 

(c) Duration of settlement proceeding. 

Unless the Chief Judge directs 

otherwise, settlement negotiations 

under this section must be completed 

within 60 days from the date of the 

settlement judge’s appointment. The 

settlement judge may request that the 

Chief Judge extend the appointment. 

The negotiations will be terminated if a 

party withdraws from participation, or if 

the settlement judge determines that 

further negotiations would be 

unproductive or inappropriate. 

(d) Powers of the settlement judge. 

The settlement judge may convene 

settlement conferences; require the 

parties or their representatives to attend 

with full authority to settle any 

disputes; and impose other reasonable 

requirements to expedite an amicable 

resolution of the case. 

(e) Stay of proceedings before 

presiding judge. The appointment of a 

settlement judge does not stay any 

aspect of the proceeding before the 

presiding judge. Any motion to stay 

must be directed to the presiding judge. 

(f) Settlement conferences. Settlement 

conferences may be conducted by 

telephone, videoconference or in person 

at the discretion of the settlement judge 

after considering the nature of the case, 

location of the participants, availability 

of technology, and efficiency of 

administration. 

(g) Confidentiality. All discussions 

with the settlement judge are 

confidential; none may be recorded or 

transcribed. The settlement judge must 

not disclose any confidential 

communications made during 

settlement proceedings, except as 

required by statute, executive order, or 

court order. The settlement judge may 

not be subpoenaed or called as a witness 

in any hearing of the case or any 

subsequent administrative proceedings 

before the Department to testify to 

statements made or conduct during the 

settlement discussions. 

(h) Report. The parties must promptly 

inform the presiding judge of the 

outcome of the settlement negotiations. 

If a settlement is reached, the parties 

must submit the required documents to 

the presiding judge within 14 days of 

the conclusion of settlement discussions 

unless the presiding judge orders 

otherwise. 

(i) Non-reviewable decisions. Whether 

a settlement judge should be appointed, 

the selection of a particular settlement 

judge, or the termination of proceedings 

under this section, are matters not 

subject to review by Department 

officials. 

§ 18.14 Ex parte communication. 

The parties, their representatives, or 

other interested persons must not 

engage in ex parte communications on 

the merits of a case with the judge. 

§ 18.15 Substitution of administrative law 

judge. 

(a) Substitution during hearing. If the 

judge is unable to complete a hearing, 

a successor judge designated pursuant 

to § 18.12 may proceed upon certifying 

familiarity with the record and 

determining that the case may be 

completed without prejudice to the 

parties. The successor judge must, at a 

party’s request, recall any witness 

whose testimony is material and 

disputed and who is available to testify 

again without undue burden. The 

successor judge may also recall any 

other witness. 

(b) Substitution following hearing. If 

the judge is unable to proceed after the 

hearing is concluded, the successor 

judge appointed pursuant to § 18.12 

may issue a decision and order based 

upon the existing record after notifying 

the parties and giving them an 

opportunity to respond. Within 14 days 

of receipt of the judge’s notice, a party 

may file an objection to the judge 

issuing a decision based on the existing 

record. If no objection is filed, the 

objection is considered waived. Upon 

good cause shown, the judge may order 

supplemental proceedings. 

§ 18.16 Disqualification. 

(a) Disqualification on judge’s 

initiative. A judge must withdraw from 

a proceeding whenever he or she 

considers himself or herself 

disqualified. 

(b) Request for disqualification. A 

party may file a motion to disqualify the 

judge. The motion must allege grounds 

for disqualification, and include any 

appropriate supporting affidavits, 

declarations or other documents. The 

presiding judge must rule on the motion 

in a written order that states the grounds 

for the ruling. 

§ 18.17 Legal assistance. 

The Office of Administrative Law 

Judges does not appoint representatives, 

refer parties to representatives, or 

provide legal assistance. 

Parties and Representatives 

§ 18.20 Parties to a proceeding. 

A party seeking original relief or 

action is designated a complainant, 

claimant or plaintiff, as appropriate. A 

party against whom relief or other 

action is sought is designated a 

respondent or defendant, as appropriate. 

When participating in a proceeding, the 

applicable Department of Labor’s agency 

is a party or party-in-interest. 

§ 18.21 Party appearance and 

participation. 

(a) In general. A party may appear and 

participate in the proceeding in person 

or through a representative. 

(b) Waiver of participation. By filing 

notice with the judge, a party may waive 

the right to participate in the hearing or 

the entire proceeding. When all parties 

waive the right to participate in the 

hearing, the judge may issue a decision 

and order based on the pleadings, 

evidence, and briefs. 


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(c) Failure to appear. When a party 

has not waived the right to participate 

in a hearing, conference or proceeding 

but fails to appear at a scheduled 

hearing or conference, the judge may, 

after notice and an opportunity to be 

heard, dismiss the proceeding or enter 

a decision and order without further 

proceedings if the party fails to establish 

good cause for its failure to appear. 

§ 18.22 Representatives. 

(a) Notice of appearance. When first 

making an appearance, each 

representative must file a notice of 

appearance that indicates on whose 

behalf the appearance is made and the 

proceeding name and docket number. 

The notice of appearance shall also 

include the statements and 

documentation required for admission 

to appear for the applicable category of 

representation found in subdivision (b) 

of this section. 

(b) Categories of representation; 

admission standards. 

(1) Attorney representative. Under 

these rules, ‘‘attorney’’ or ‘‘attorney 

representative’’ means an individual 

who has been admitted to the bar of the 

highest court of a State, Commonwealth, 

or Territory of the United States, or the 

District of Columbia. 

(A) Attorney in good standing. An 

attorney who is in good standing in his 

or her licensing jurisdiction may 

represent a party or subpoenaed witness 

before the Office of Administrative Law 

Judges. The attorney’s representation of 

good standing is sufficient proof of good 

standing, unless otherwise directed by 

the judge. 

(B) Attorney not in good standing. An 

attorney who is not in good standing in 

his or her licensing jurisdiction may not 

represent a party or subpoenaed witness 

before the Office of Administrative Law 

Judges, unless he or she obtains the 

judge’s approval. Such an attorney must 

file a written statement that establishes 

why the failure to maintain good 

standing is not disqualifying. The judge 

may deny approval for the appearance 

of such an attorney after providing 

notice and an opportunity to be heard. 

(C) Disclosure of discipline. An 

attorney representative must promptly 

disclose to the judge any action 

suspending, enjoining, restraining, 

disbarring, or otherwise currently 

restricting him or her in the practice of 

law. 

(2) Non-attorney representative. An 

individual who is not an attorney as 

defined by paragraph (b)(1) may 

represent a party or subpoenaed witness 

upon the judge’s approval. The 

individual must file a written request to 

serve as a non-attorney representative 

that sets forth the name of the party or 

subpoenaed witness represented and 

certifies that the party or subpoenaed 

witness desires the representation. The 

judge may require that the 

representative establish that he or she is 

subject to the laws of the United States 

and possesses communication skills, 

knowledge, character, thoroughness and 

preparation reasonably necessary to 

render appropriate assistance. The judge 

may inquire as to the qualification or 

ability of a non-attorney representative 

to render assistance at any time. The 

judge may deny the request to serve as 

non-attorney representative after 

providing the party or subpoenaed 

witness with notice and an opportunity 

to be heard. 

(c) Duties. A representative must be 

diligent, prompt, and forthright when 

dealing with parties, representatives and 

the judge, and act in a manner that 

furthers the efficient, fair and orderly 

conduct of the proceeding. An attorney 

representative must adhere to the 

applicable rules of conduct for the 

jurisdiction(s) in which the attorney is 

admitted to practice. 

(d) Prohibited actions. A 

representative must not: 

(1) threaten, coerce, intimidate, 

deceive or knowingly mislead a party, 

representative, witness, potential 

witness, judge, or anyone participating 

in the proceeding regarding any matter 

related to the proceeding; 

(2) knowingly make or present false or 

misleading statements, assertions or 

representations about a material fact or 

law related to the proceeding; 

(3) unreasonably delay, or cause to be 

delayed, without good cause, any 

proceeding; or 

(4) engage in any other action or 

behavior prejudicial to the fair and 

orderly conduct of the proceeding. 

(e) Withdrawal of appearance. A 

representative who desires to withdraw 

after filing a notice of appearance or a 

party desiring to withdraw the 

appearance of a representative must file 

a motion with the judge. The motion 

must state that notice of the withdrawal 

has been given to the party, client or 

representative. The judge may deny a 

representative’s motion to withdraw 

when necessary to avoid undue delay or 

prejudice to the rights of a party. 

§ 18.23 Disqualification and discipline of 

representatives. 

(a) Disqualification. 

(1) Grounds for disqualification. 

Representatives qualified under § 18.22 

may be disqualified upon: 

(A) conviction of a felony; 

(B) conviction of a misdemeanor, a 

necessary element of which includes: 

(i) interference with the 

administration of justice; 

(ii) false swearing; 

(iii) misrepresentation; 

(iv) fraud; 

(v) willful failure to file an income tax 

return; 

(vi) deceit; 

(vii) bribery; 

(viii) extortion; 

(ix) misappropriation; 

(x) theft; or 

(xi) attempt, conspiracy, or 

solicitation to commit a serious crime. 

(C) suspension or disbarment by any 

court or agency of the United States, the 

District of Columbia, any state, territory, 

commonwealth or possession of the 

United States; 

(D) disbarment on consent or 

resignation from the bar of a court or 

agency while an investigation into an 

allegation of misconduct is pending; 

(2) Disqualification procedure. The 

Chief Judge must provide notice and an 

opportunity to be heard as to why the 

representative should not be 

disqualified from practice before the 

Office of Administrative Law Judges. 

The notice will include a copy of the 

document that provides the grounds for 

the disqualification. Unless otherwise 

directed, any response must be filed 

within 21 days of service of the notice. 

The Chief Judge’s determination must 

be based on the reliable, probative and 

substantial evidence of record, 

including the notice and response. 

(b) Discipline. 

(1) Grounds for discipline. The Office 

of Administrative Law Judges may 

suspend, disqualify, or otherwise 

discipline a representative. Conduct that 

may result in discipline includes: 

(A) an act, omission, or contumacious 

conduct relating to any proceeding 

before OALJ that violates these rules, an 

applicable statute, an applicable 

regulation, or the judge’s order or 

instruction; or 

(B) failure to adhere to the applicable 

rules of conduct for the jurisdiction(s) in 

which the attorney is admitted to 

practice in any proceeding before OALJ. 

(2) Disciplinary procedure. 

(A) Notice. The Chief Judge must 

notify the representative of the grounds 

for proposed discipline, and of the 

opportunity for a hearing. A request for 

hearing must be filed within 21 days of 

service of the notice. 

(B) Default. If the representative does 

not respond to the notice, the Chief 

Judge may issue a final disciplinary 

order. 

(C) Disciplinary proceedings. If the 

representative responds to the notice, 

the Chief Judge will designate a judge to 

conduct a hearing, if requested, and to 


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72178 Federal Register / Vol. 77, No. 233 / Tuesday, December 4, 2012 / Proposed Rules 

issue a decision and order. The 

representative has the opportunity to 

present evidence, and argument. The 

decision must be based on the reliable, 

probative and substantial evidence of 

record, including any submissions from 

the representative. 

(D) Petition for review. A petition to 

review the decision and order must be 

filed with the Chief Judge within 30 

days of the date of the decision and 

order, and state the grounds for review. 

The Chief Judge reviews the decision 

and order under the substantial 

evidence standard. The Chief Judge’s 

decision is not subject to review within 

the Department of Labor. 

(c) Notification of disciplinary action. 

When an attorney representative is 

suspended or disqualified, the Chief 

Judge will notify the jurisdiction(s) in 

which the attorney is admitted to 

practice and the National Lawyer 

Regulatory Data Bank maintained by the 

American Bar Association Standing 

Committee on Professional Discipline, 

by providing a copy of the decision and 

order. 

(d) Application for reinstatement. A 

representative suspended or 

disqualified under this section may be 

reinstated by the Chief Judge upon 

application. At the discretion of the 

Chief Judge, consideration of an 

application for reinstatement may be 

limited to written submissions or may 

be referred for further proceedings 

pursuant to paragraph (b)(2) of this 

section. 

§ 18.24 Briefs from amicus curiae. 

The United States or an officer or 

agency thereof, or a State, Territory, 

Commonwealth, or the District of 

Columbia may file an amicus brief 

without the consent of the parties or 

leave of the judge. Any other amicus 

curiae may file a brief only by leave of 

the judge, upon the judge’s request, or 

if the brief states that all parties have 

consented to its filing. A request for 

leave to file an amicus brief must be 

made by written motion that states the 

interest of the movant in the proceeding. 

Unless otherwise directed by the judge, 

an amicus brief must be filed by the 

close of the hearing. 

Service, Format and Timing of Filings 

and Other Papers 

§ 18.30 Service and filing. 

(a) Service on parties. 

(1) In general. Unless these rules 

provide otherwise, all papers filed with 

OALJ or with the judge must be served 

on every party. 

(2) Service: how made. 

(A) Serving a party’s representative. If 

a party is represented, service under this 

section must be made on the 

representative. The judge also may order 

service on the party. 

(B) Service in general. A paper is 

served under this section by: 

(i) handing it to the person; 

(ii) leaving it: 

(a) at the person’s office with a clerk 

or other person in charge or, if no one 

is in charge, in a conspicuous place in 

the office; or 

(b) if the person has no office or the 

office is closed, at the person’s dwelling 

or usual place of abode with someone of 

suitable age and discretion who resides 

there; 

(iii) mailing it to the person’s last 

known address—in which event service 

is complete upon mailing; 

(iv) leaving it with the docket clerk if 

the person has no known address; 

(v) sending it by electronic means if 

the person consented in writing—in 

which event service is complete upon 

transmission, but is not effective if the 

serving party learns that it did not reach 

the person to be served; or 

(vi) delivering it by any other means 

that the person consented to in 

writing—in which event service is 

complete when the person making 

service delivers it to the agency 

designated to make delivery. 

(3) Certificate of service. A certificate 

of service is a signed written statement 

that the paper was served on all parties. 

The statement must include: 

(A) the title of the document; 

(B) the name and address of each 

person or representative being served; 

(C) the name of the party filing the 

paper and the party’s representative, if 

any; 

(D) the date of service; and 

(E) how the paper was served. 

(b) Filing with Office of 

Administrative Law Judges. 

(1) Required filings. Any paper that is 

required to be served must be filed 

within a reasonable time after service 

with a certificate of service. But 

disclosures under § 18.50(c) and the 

following discovery requests and 

responses must not be filed until they 

are used in the proceeding or the judge 

orders filing: 

(A) notices of deposition, 

(B) depositions, 

(C) interrogatories, 

(D) requests for documents or tangible 

things or to permit entry onto land; and 

(E) requests for admission. 

(2) Filing: when made—in general. A 

paper is filed when received by the 

docket clerk or the judge during a 

hearing. 

(3) Filing how made. A paper may be 

filed by mail, courier service, hand 

delivery, facsimile or electronic 

delivery. 

(A) Filing by facsimile. 

(i) When permitted. A party may file 

by facsimile only as directed or 

permitted by the judge. If a party cannot 

obtain prior permission because the 

judge is unavailable, a party may file by 

facsimile up to 12 pages, including a 

statement of the circumstances 

precluding filing by delivery or mail. 

Based on the statement, the judge may 

later accept the document as properly 

filed at the time transmitted. 

(ii) Cover sheet. Filings by facsimile 

must include a cover sheet that 

identifies the sender, the total number 

of pages transmitted, and the matter’s 

docket number and the document’s title. 

(iii) Retention of the original 

document. The original signed 

document will not be substituted into 

the record unless required by law or the 

judge. 

(B) Any party filing a facsimile of a 

document must maintain the original 

document and transmission record until 

the case is final. A transmission record 

is a paper printed by the transmitting 

facsimile machine that states the 

telephone number of the receiving 

machine, the number of pages sent, the 

transmission time and an indication that 

no error in transmission occurred. 

(C) Upon a party’s request or judge’s 

order, the filing party must provide for 

review the original transmitted 

document from which the facsimile was 

produced. 

(4) Electronic filing, signing, or 

verification. A judge may allow papers 

to be filed, signed, or verified by 

electronic means. 

§ 18.31 Privacy protection for filings and 

exhibits. 

(a) Redacted filings and exhibits. 

Unless the judge orders otherwise, in an 

electronic or paper filing or exhibit that 

contains an individual’s Social-Security 

number, taxpayer-identification 

number, or birth date, the name of an 

individual known to be a minor, or a 

financial-account number, the party or 

nonparty making the filing must redact 

all such information, except: 

(1) the last four digits of the SocialSecurity number and taxpayeridentification number; 

(2) the year of the individual’s birth; 

(3) the minor’s initials; and 

(4) the last four digits of the financialaccount number. 

(b) Exemptions from the redaction 

requirement. The redaction requirement 

does not apply to the following: 

(1) the record of an administrative or 

agency proceeding; 

(2) the official record of a state-court 

proceeding; 

(3) the record of a court or tribunal, 

if that record was not subject to the 


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Federal Register / Vol. 77, No. 233 / Tuesday, December 4, 2012 / Proposed Rules 72179 

redaction requirement when originally 

filed; and 

(4) a filing or exhibit covered by 

paragraph (c) of this section. 

(c) Option for filing a reference list. A 

filing that contains redacted information 

may be filed together with a reference 

list that identifies each item of redacted 

information and specifies an 

appropriate identifier that uniquely 

corresponds to each item listed. The 

reference list must be filed under seal 

and may be amended as of right. Any 

reference in the case to a listed 

identifier will be construed to refer to 

the corresponding item of information. 

(d) Waiver of protection of identifiers. 

A person waives the protection of 

paragraph (a) of this section as to the 

person’s own information by filing or 

offering it without redaction and not 

under seal. 

(e) Protection of material. For good 

cause, the judge may order protection of 

material pursuant to §§ 18.85, 

Privileged, sensitive, or classified 

material and 18.52, Protective orders. 

§ 18.32 Computing and extending time. 

(a) Computing time. The following 

rules apply in computing any time 

period specified in these rules, a judge’s 

order, or in any statute, regulation, or 

executive order that does not specify a 

method of computing time. 

(1) When the period is stated in days 

or a longer unit of time: 

(A) exclude the day of the event that 

triggers the period; 

(B) count every day, including 

intermediate Saturdays, Sundays, and 

legal holidays; and 

(C) include the last day of the period, 

but if the last day is a Saturday, Sunday, 

or legal holiday, the period continues to 

run until the end of the next day that 

is not a Saturday, Sunday, or legal 

holiday. 

(2) ‘‘Last day’’ defined. Unless a 

different time is set by a statute, 

regulation, executive order, or judge’s 

order, the ‘‘last day’’ ends at 4:30 p.m. 

local time where the event is to occur. 

(3) ‘‘Next day’’ defined. The ‘‘next 

day’’ is determined by continuing to 

count forward when the period is 

measured after an event and backward 

when measured before an event. 

(4) ‘‘Legal holiday’’ defined. ‘‘Legal 

holiday’’ means the day set aside by 

statute for observing New Year’s Day, 

Martin Luther King Jr.’s Birthday, 

Washington’s Birthday, Memorial Day, 

Independence Day, Labor Day, 

Columbus Day, Veterans’ Day, 

Thanksgiving Day, or Christmas Day; 

and any day declared a holiday by the 

President or Congress. 

(b) Extending time. When an act may 

or must be done within a specified time, 

the judge may, for good cause, extend 

the time: 

(1) with or without motion or notice 

if the judge acts, or if a request is made, 

before the original time or its extension 

expires; or 

(2) on motion made after the time has 

expired if the party failed to act because 

of excusable neglect. 

(c) Additional time after certain kinds 

of service. When a party may or must act 

within a specified time after service and 

service is made under 

§ 18.30(a)(2)(B)(iii) or (iv), 3 days are 

added after the period would otherwise 

expire under paragraph (a) of this 

section. 

§ 18.33 Motions and other papers. 

(a) In general. A request for an order 

must be made by motion. The motion 

must: 

(1) be in writing, unless made during 

a hearing; 

(2) state with particularity the 

grounds for seeking the order; 

(3) state the relief sought; 

(4) unless the relief sought has been 

agreed to by all parties, be accompanied 

by affidavits, declarations, or other 

evidence; and 

(5) if required by subsection (c)(4), 

include a memorandum of points and 

authority supporting the movant’s 

position. 

(b) Form. The rules governing 

captions and other matters of form 

apply to motions and other requests. 

(c) Written motion before hearing. 

(1) A written motion before a hearing 

must be served with supporting papers, 

at least 21 days before the time specified 

for the hearing, with the following 

exceptions: 

(A) when the motion may be heard ex 

parte; 

(B) when these rules or an appropriate 

statute, regulation, or executive order 

set a different time; or, 

(C) when an order sets a different 

time. 

(2) A written motion served within 21 

days before the hearing must state why 

the motion was not made earlier. 

(3) A written motion before hearing 

must state that counsel conferred, or 

attempted to confer, with opposing 

counsel in a good faith effort to resolve 

the motion’s subject matter, and 

whether the motion is opposed or 

unopposed. A statement of consultation 

is not required with pro se litigants or 

with the following motions: 

(A) to dismiss; 

(B) for summary decision; and 

(C) any motion filed as ‘‘joint,’’ 

‘‘agreed,’’ or ‘‘unopposed.’’ 

(4) Unless the motion is unopposed, 

the supporting papers must include 

affidavits, declarations or other proof to 

establish the factual basis for the relief. 

For a dispositive motion and a motion 

relating to discovery, a memorandum of 

points and authority must also be 

submitted. A Judge may direct the 

parties file additional documents in 

support of any motion. 

(d) Opposition or other response to a 

motion filed prior to hearing. A party to 

the proceeding may file an opposition or 

other response to the motion within 14 

days after the motion is served. The 

opposition or response may be 

accompanied by affidavits, declarations, 

or other evidence, and a memorandum 

of the points and authorities supporting 

the party’s position. Failure to file an 

opposition or response within 14 days 

after the motion is served may result in 

the requested relief being granted. 

Unless the judge directs otherwise, no 

further reply is permitted and no oral 

argument will be heard prior to hearing. 

(e) A motions made at hearing. A 

motion made at a hearing may be stated 

orally unless the judge determines that 

a written motion or response would best 

serve the ends of justice. 

(f) Renewed or repeated motions. A 

motion seeking the same or 

substantially similar relief previously 

denied, in whole or in part, must 

include the following information: 

(1) the earlier motion(s); 

(2) when the respective motion was 

made, 

(3) the judge to whom the motion was 

made, 

(4) the earlier ruling(s), and 

(5) the basis for the current motion. 

(g) Motion hearing. The judge may 

order a hearing to take evidence or oral 

argument on a motion. 

§ 18.34 Format of papers filed. 

Every paper filed must be printed in 

black ink on 8.5 x 11-inch opaque white 

paper and begin with a caption that 

includes: 

(a) the parties’ names, 

(b) a title that describes the paper’s 

purpose, and 

(c) the docket number assigned by the 

Office of Administrative Law Judges. If 

the Office has not assigned a docket 

number, the paper must bear the case 

number assigned by the Department of 

Labor agency where the matter 

originated. If the case number is an 

individual’s Social Security number 

then only the last four digits may be 

used. See 18.31(a)(1). 

§ 18.35 Signing motions and other papers; 

representations to the judge; sanctions. 

(a) Date and signature. Every written 

motion and other paper filed with OALJ 

must be dated and signed by at least one 


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representative of record in the 

representative’s name—or by a party 

personally if the party is unrepresented. 

The paper must state the signer’s 

address, telephone number, facsimile 

number and email address, if any. The 

judge must strike an unsigned paper 

unless the omission is promptly 

corrected after being called to the 

representative’s or party’s attention. 

(b) Representations to the judge. By 

presenting to the judge a written motion 

or other paper—whether by signing, 

filing, submitting, or later advocating 

it—the representative or unrepresented 

party certifies that to the best of the 

person’s knowledge, information, and 

belief, formed after an inquiry 

reasonable under the circumstances: 

(1) it is not being presented for any 

improper purpose, such as to harass, 

cause unnecessary delay, or needlessly 

increase the cost of the proceedings; 

(2) the claims, defenses, and other 

legal contentions are warranted by 

existing law or by a nonfrivolous 

argument for extending, modifying, or 

reversing existing law or for establishing 

new law; 

(3) the factual contentions have 

evidentiary support or, if specifically so 

identified, will likely have evidentiary 

support after a reasonable opportunity 

for further investigation or discovery; 

and 

(4) the denials of factual contentions 

are warranted on the evidence or, if 

specifically so identified, are reasonably 

based on belief or a lack of information. 

(c) Sanctions. 

(1) In general. If, after notice and a 

reasonable opportunity to respond, the 

judge determines that paragraph (b) of 

this section has been violated, the judge 

may impose an appropriate sanction on 

any representative, law firm, or party 

that violated the rule or is responsible 

for the violation. Absent exceptional 

circumstances, a law firm must be held 

jointly responsible for a violation 

committed by its partner, associate, or 

employee. 

(2) Motion for sanctions. A motion for 

sanctions must be made separately from 

any other motion and must describe the 

specific conduct that allegedly violates 

paragraph (b) of this section. The 

motion must be served under § 18.30(a), 

but it must not be filed or be presented 

to the judge if the challenged paper, 

claim, defense, contention, or denial is 

withdrawn or appropriately corrected 

within 21 days after service or within 

another time the judge sets. 

(3) On the judge’s initiative. On his or 

her own, the judge may order a 

representative, law firm, or party to 

show cause why conduct specifically 

described in the order has not violated 

paragraph (b) of this section. 

(4) Nature of a sanction. A sanction 

imposed under this section must be 

limited to what suffices to deter 

repetition of the conduct or comparable 

conduct by others similarly situated. 

(5) Requirements for an order. An 

order imposing a sanction must describe 

the sanctioned conduct and explain the 

basis for the sanction. 

(d) Inapplicability to discovery. This 

section does not apply to disclosures 

and discovery requests, responses, 

objections, and motions under §§ 18.50 

through 18.65. 

§ 18.36 Amendments after referral to the 

Office of Administrative Law Judges. 

The judge may allow parties to amend 

and supplement their filings. 

Prehearing Procedure 

§ 18.40 Notice of hearing. 

(a) In general. Except when the 

hearing is scheduled by calendar call, 

the judge must notify the parties of the 

hearing’s date, time, and place at least 

14 days before the hearing. The notice 

is sent by regular, first-class mail, unless 

the judge determines that circumstances 

require service by certified mail or other 

means. The parties may agree to waive 

the 14-day notice for the hearing. 

(b) Date, time, and place. The judge 

must consider the convenience and 

necessity of the parties and the 

witnesses in selecting the date, time, 

and place of the hearing. 

§ 18.41 Continuances and changes in 

place of hearing. 

(a) By the judge. Upon reasonable 

notice to the parties, the judge may 

change the time, date, and place of the 

hearing. 

(b) By a party’s motion. A request by 

a party to continue a hearing or to 

change the place of the hearing must be 

made by motion. 

(1) Continuances. A motion for 

continuance must be filed promptly 

after the party becomes aware of the 

circumstances supporting the 

continuance. In exceptional 

circumstances, a party may orally 

request a continuance and must 

immediately notify the other parties of 

the continuance request. 

(2) Change in place of hearing. A 

motion to change the place of a hearing 

must be filed promptly. 

§ 18.42 Expedited proceedings. 

A party may move to expedite the 

proceeding. The motion must 

demonstrate the specific harm that 

would result if the proceeding is not 

expedited. If the motion is granted, the 

formal hearing ordinarily will not be 

scheduled with less than 7 days notice 

to the parties, unless all parties consent 

to an earlier hearing. 

§ 18.43 Consolidation; separate hearings. 

(a) Consolidation. If separate 

proceedings before the Office of the 

Administrative Law Judges involve a 

common question of law or fact, a judge 

may: 

(1) join for hearing any or all matters 

at issue in the proceedings; 

(2) consolidate the proceedings; or 

(3) issue any other orders to avoid 

unnecessary cost or delay. 

(b) Separate hearings. For 

convenience, to avoid prejudice, or to 

expedite and economize, the judge may 

order a separate hearing of one or more 

issues. 

§ 18.44 Prehearing conference. 

(a) In general. The judge, with or 

without a motion, may order one or 

more prehearing conferences for such 

purposes as: 

(1) expediting disposition of the 

proceeding; 

(2) establishing early and continuing 

control so that the case will not be 

protracted because of lack of 

management; 

(3) discouraging wasteful prehearing 

activities; 

(4) improving the quality of the 

hearing through more thorough 

preparation; and 

(5) facilitating settlement. 

(b) Scheduling. Prehearing 

conferences may be conducted in 

person, by telephone, or other means 

after reasonable notice of time, place 

and manner of conference has been 

given. 

(c) Participation. All parties must 

participate in prehearing conferences as 

directed by the judge. A represented 

party must authorize at least one of its 

attorneys or representatives to make 

stipulations and admissions about all 

matters that can reasonably be 

anticipated for discussion at the 

prehearing conference, including 

possible settlement. 

(d) Matters for consideration. At the 

conference, the judge may consider and 

take appropriate actions on the 

following matters: 

(1) formulating and simplifying the 

issues, and eliminating frivolous claims 

or defenses; 

(2) amending the papers that had 

framed the issues before the matter was 

referred for hearing; 

(3) obtaining admissions and 

stipulations about facts and documents 

to avoid unnecessary proof, and ruling 

in advance on the admissibility of 

evidence; 


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(4) avoiding unnecessary proof and 

cumulative evidence, and limiting the 

number of expert or other witnesses; 

(5) determining the appropriateness 

and timing of dispositive motions under 

§§ 18.70 and 18.72; 

(6) controlling and scheduling 

discovery, including orders affecting 

disclosures and discovery under 

§§ 18.50 through 18.65; 

(7) identifying witnesses and 

documents, scheduling the filing and 

exchange of any exhibits and prehearing 

submissions, and setting dates for 

further conferences and for the hearing; 

(8) referring matters to a special 

master; 

(9) settling the case and using special 

procedures to assist in resolving the 

dispute such as the settlement judge 

procedure under § 18.13, private 

mediation, and other means authorized 

by statute or regulation; 

(10) determining the form and content 

of prehearing orders; 

(11) disposing of pending motions; 

(12) adopting special procedures for 

managing potentially difficult or 

protracted proceedings that may involve 

complex issues, multiple parties, 

difficult legal questions, or unusual 

proof problems; 

(13) consolidating or ordering 

separate hearings under § 18.43; 

(14) ordering the presentation of 

evidence early in the proceeding on a 

manageable issue that might, on the 

evidence, be the basis for disposing of 

the proceeding; 

(15) establishing a reasonable limit on 

the time allowed to present evidence; 

and 

(16) facilitating in other ways the just, 

speedy, and inexpensive disposition of 

the proceeding. 

(e) Reporting. The judge may direct 

that the prehearing conference be 

recorded and transcribed. If the 

conference is not recorded, the judge 

should summarize the conference 

proceedings on the record at the hearing 

or by separate prehearing notice or 

order. 

Disclosure and Discovery 

§ 18.50 General provisions governing 

disclosure and discovery. 

(a) Timing and sequence of discovery. 

(1) Timing. A party may seek 

discovery at any time after a judge 

issues an initial notice or order. But if 

the judge orders the parties to confer 

under paragraph (b) of this section: 

(A) the time to respond to any 

pending discovery requests is extended 

until the time agreed in the discovery 

plan, or that the judge sets in resolving 

disputes about the discovery plan, and 

(B) no party may seek additional 

discovery from any source before the 

parties have conferred as required by 

paragraph (b) of this section, except by 

stipulation. 

(2) Sequence. Unless, on motion, the 

judge orders otherwise for the parties’ 

and witnesses’ convenience and in the 

interests of justice: 

(A) methods of discovery may be used 

in any sequence; and 

(B) discovery by one party does not 

require any other party to delay its 

discovery. 

(b) Conference of the parties; planning 

for discovery. 

(1) In general. The judge may order 

the parties to confer on the matters 

described in paragraphs (b)(2) and (3) of 

this section. 

(2) Conference content; parties’ 

responsibilities. In conferring, the 

parties must consider the nature and 

basis of their claims and defenses and 

the possibilities for promptly settling or 

resolving the case; make or arrange for 

the disclosures required by paragraph 

(c) of this section; discuss any issues 

about preserving discoverable 

information; and develop a proposed 

discovery plan. The representatives of 

record and all unrepresented parties 

that have appeared in the case are 

jointly responsible for arranging the 

conference, for attempting in good faith 

to agree on the proposed discovery plan, 

and for submitting to the judge within 

14 days after the conference a written 

report outlining the plan. The judge may 

order the parties or representatives to 

attend the conference in person. 

(3) Discovery plan. A discovery plan 

must state the parties’ views and 

proposals on: 

(A) what changes should be made in 

the timing, form, or requirement for 

disclosures under paragraph (c) of this 

section, including a statement of when 

initial disclosures were made or will be 

made; 

(B) the subjects on which discovery 

may be needed, when discovery should 

be completed, and whether discovery 

should be conducted in phases or be 

limited to or focused on particular 

issues; 

(C) any issues about disclosure or 

discovery of electronically stored 

information, including the form or 

forms in which it should be produced; 

(D) any issues about claims of 

privilege or of protection as hearingpreparation materials, including—if the 

parties agree on a procedure to assert 

these claims after production—whether 

to ask the judge to include their 

agreement in an order; 

(E) what changes should be made in 

the limitations on discovery imposed 

under these rules and what other 

limitations should be imposed; and 

(F) any other orders that the judge 

should issue under § 18.52 or under 

§ 18.44. 

(c) Required disclosures. 

(1) Initial disclosure. 

(A) In general. Except as exempted by 

paragraph (c)(1)(B) of this section or 

otherwise ordered by the judge, a party 

must, without awaiting a discovery 

request, provide to the other parties: 

(i) the name and, if known, the 

address and telephone number of each 

individual likely to have discoverable 

information—along with the subjects of 

that information—that the disclosing 

party may use to support its claims or 

defenses, unless the use would be solely 

for impeachment; 

(ii) a copy—or a description by 

category and location—of all 

documents, electronically stored 

information, and tangible things that the 

disclosing party has in its possession, 

custody, or control and may use to 

support its claims or defenses, unless 

the use would be solely for 

impeachment; and 

(iii) a computation of each category of 

damages claimed by the disclosing 

party—who must also make available 

for inspection and copying as under 

§ 18.61 the documents or other 

evidentiary material, unless privileged 

or protected from disclosure, on which 

each computation is based, including 

materials bearing on the nature and 

extent of injuries suffered. 

(B) Proceedings exempt from initial 

disclosure. The following proceedings 

are exempt from initial disclosure: 

(i) a proceeding under 29 CFR part 20 

for review of an agency determination 

regarding the existence or amount of a 

debt, or the repayment schedule 

proposed by the agency; 

(ii) a proceeding before the Board of 

Alien Labor Certification Appeals under 

the Immigration and Nationality Act; 

and 

(iii) a proceeding under the 

regulations governing certification of H– 

2 non-immigrant temporary agricultural 

employment at 20 CFR part 655, subpart 

B; 

(iv) a rulemaking proceeding under 

the Occupational Safety and Health Act 

of 1970; and 

(v) a proceeding for civil penalty 

assessments under Employee 

Retirement Income Security Act of 1974, 

29 U.S.C. 1132. 

(C) Parties Exempt from Initial 

Disclosure. The following parties are 

exempt from initial disclosure: 

(i) in a Black Lung benefits 

proceeding under 30 U.S.C. 901 et seq., 

the representative of the Office of 


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Workers’ Compensation Programs of the 

Department of Labor, if an employer has 

been identified as the Responsible 

Operator and is a party to the 

proceeding (see 20 CFR 725.418(d)); and 

(ii) in a proceeding under the 

Longshore and Harbor Workers’ 

Compensation Act, 33 U.S.C. 901 et 

seq., or an associated statute such as the 

Defense Base Act, 42 U.S.C. 1651 et seq., 

the representative of the Office of 

Workers’ Compensation Programs of the 

Department of Labor, unless the 

Solicitor of Labor or the Solicitor’s 

designee has elected to participate in 

the proceeding under 20 CFR 

702.333(b), or unless an employer or 

carrier has applied for relief under the 

special fund, as defined in 33 U.S.C. 

908(f). 

(D) Time for initial disclosures—in 

general. A party must make the initial 

disclosures required by paragraph 

(c)(1)(A) of this section within 21 days 

after an initial notice or order is entered 

acknowledging that the proceeding has 

been docketed at the OALJ unless (i) a 

different time is set by stipulation or a 

judge’s order, or (ii) a party objects 

during the conference that initial 

disclosures are not appropriate in the 

proceeding and states the objection in 

the proposed discovery plan. In ruling 

on the objection, the judge must 

determine what disclosures, if any, are 

to be made and must set the time for 

disclosure. 

(E) Time for initial disclosures—for 

parties served or joined later. A party 

that is first served or otherwise joined 

later in the proceeding must make the 

initial disclosures within 21 days after 

being served or joined, unless a different 

time is set by stipulation or the judge’s 

order. 

(F) Basis for initial disclosure; 

unacceptable excuses. A party must 

make its initial disclosures based on the 

information then reasonably available to 

it. A party is not excused from making 

its disclosures because it has not fully 

investigated the case or because it 

challenges the sufficiency of another 

party’s disclosures or because another 

party has not made its disclosures. 

(2) Disclosure of expert testimony. 

(A) In general. A party must disclose 

to the other parties the identity of any 

witness who may testify at hearing, 

either live or by deposition. The judge 

should set the time for the disclosure by 

prehearing order. 

(B) Witnesses who must provide a 

written report. Unless otherwise 

stipulated or ordered by the judge, this 

disclosure must be accompanied by a 

written report—prepared and signed by 

the witness—if the witness is one 

retained or specially employed to 

provide expert testimony in the case or 

one whose duties as the party’s 

employee regularly involve giving 

expert testimony. The report must 

contain: 

(i) a complete statement of all 

opinions the witness will express and 

the basis and reasons for them; 

(ii) the facts or data considered by the 

witness in forming them; 

(iii) any exhibits that will be used to 

summarize or support them; 

(iv) the witness’s qualifications, 

including a list of all publications 

authored in the previous 10 years; 

(v) a list of all other cases in which, 

during the previous 4 years, the witness 

testified as an expert at trial, a hearing, 

or by deposition; and 

(vi) a statement of the compensation 

to be paid for the study and testimony 

in the case. 

(C) Witnesses who do not provide a 

written report. Unless otherwise 

stipulated or ordered by the judge that 

the witness is not required to provide a 

written report, this disclosure must 

state: 

(i) the subject matter on which the 

witness is expected to present expert 

opinion evidence; and 

(ii) a summary of the facts and 

opinions to which the witness is 

expected to testify. 

(D) Supplementing the disclosure. 

The parties must supplement these 

disclosures when required under 

§ 18.53. 

(3) Prehearing disclosures. In addition 

to the disclosures required by 

paragraphs (c)(1) and (2) of this section, 

a party must provide to the other parties 

and promptly file the prehearing 

disclosures described in § 18.80. 

(4) Form of disclosures. Unless the 

judge orders otherwise, all disclosures 

under paragraph (c) under this section 

must be in writing, signed, and served. 

(d) Signing disclosures and discovery 

requests, responses, and objections. 

(1) Signature required; effect of 

signature. Every disclosure under 

paragraph (c) of this section and every 

discovery request, response, or objection 

must be signed by at least one of the 

party’s representatives in the 

representative’s own name, or by the 

party personally if unrepresented, and 

must state the signer’s address, 

telephone number, facsimile number, 

and email address, if any. By signing, a 

representative or party certifies that to 

the best of the person’s knowledge, 

information, and belief formed after a 

reasonable inquiry: 

(A) with respect to a disclosure, it is 

complete and correct as of the time it is 

made; and 

(B) with respect to a discovery 

request, response, or objection, it is: 

(i) consistent with these rules and 

warranted by existing law or by a 

nonfrivolous argument for extending, 

modifying, or reversing existing law, or 

for establishing new law; 

(ii) not interposed for any improper 

purpose, such as to harass, cause 

unnecessary delay, or needlessly 

increase the cost of litigation; and 

(iii) neither unreasonable nor unduly 

burdensome or expensive, considering 

the needs of the case, prior discovery in 

the case, the amount in controversy, and 

the importance of the issues at stake in 

the action. 

(2) Failure to sign. Other parties have 

no duty to act on an unsigned 

disclosure, request, response, or 

objection until it is signed, and the 

judge must strike it unless a signature is 

promptly supplied after the omission is 

called to the representative’s or party’s 

attention. 

(3) Sanction for improper 

certification. If a certification violates 

this section without substantial 

justification, the judge, on motion or on 

his or her own, must impose an 

appropriate sanction, as provided in 

§ 18.57, on the signer, the party on 

whose behalf the signer was acting, or 

both. 

§ 18.51 Discovery scope and limits. 

(a) Scope in general. Unless otherwise 

limited by a judge’s order, the scope of 

discovery is as follows: Parties may 

obtain discovery regarding any 

nonprivileged matter that is relevant to 

any party’s claim or defense—including 

the existence, description, nature, 

custody, condition, and location of any 

documents or other tangible things and 

the identity and location of persons who 

know of any discoverable matter. For 

good cause, the judge may order 

discovery of any matter relevant to the 

subject matter involved in the 

proceeding. Relevant information need 

not be admissible at the hearing if the 

discovery appears reasonably calculated 

to lead to the discovery of admissible 

evidence. All discovery is subject to the 

limitations imposed by paragraph (b)(4) 

of this section. 

(b) Limitations on frequency and 

extent. 

(1) When permitted. By order, the 

judge may alter the limits in these rules 

on the number of depositions and 

interrogatories or on the length of 

depositions under § 18.64. The judge’s 

order may also limit the number of 

requests under § 18.63. 

(2) Specific limitations on 

electronically stored information. A 

party need not provide discovery of 

electronically stored information from 

sources that the party identifies as not 


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reasonably accessible because of undue 

burden or cost. On motion to compel 

discovery or for a protective order, the 

party from whom discovery is sought 

must show that the information is not 

reasonably accessible because of undue 

burden or cost. If that showing is made, 

the judge may nonetheless order 

discovery from such sources if the 

requesting party shows good cause, 

considering the limitations of paragraph 

(b)(4) of this section. The judge may 

specify conditions for the discovery. 

(3) By requesting electronically stored 

information, a party consents to the 

application of Federal Rule of Evidence 

502 with regard to inadvertently 

disclosed privileged or protected 

information. 

(4) When required. On motion or on 

his or her own, the judge must limit the 

frequency or extent of discovery 

otherwise allowed by these rules when: 

(A) the discovery sought is 

unreasonably cumulative or duplicative, 

or can be obtained from some other 

source that is more convenient, less 

burdensome, or less expensive; 

(B) the party seeking discovery has 

had ample opportunity to obtain the 

information by discovery in the action; 

or 

(C) the burden or expense of the 

proposed discovery outweighs its likely 

benefit, considering the needs of the 

case, the amount in controversy, the 

parties’ resources, the importance of the 

issues at stake in the action, and the 

importance of the discovery in resolving 

the issues. 

(c) Hearing preparation: materials. 

(1) Documents and tangible things. 

Ordinarily, a party may not discover 

documents and tangible things that are 

prepared in anticipation of litigation or 

for hearing by or for another party or its 

representative (including the other 

party’s attorney, consultant, surety, 

indemnitor, insurer, or agent). But, 

subject to paragraph (d) of this section, 

those materials may be discovered if: 

(A) they are otherwise discoverable 

under paragraph (a) of this section; and 

(B) the party shows that it has 

substantial need for the materials to 

prepare its case and cannot, without 

undue hardship, obtain their substantial 

equivalent by other means. 

(2) Protection against disclosure. A 

judge who orders discovery of those 

materials must protect against 

disclosure of the mental impressions, 

conclusions, opinions, or legal theories 

of a party’s representative concerning 

the litigation. 

(3) Previous statement. Any party or 

other person may, on request and 

without the required showing, obtain 

the person’s own previous statement 

about the action or its subject matter. If 

the request is refused, the person may 

move for a judge’s order. A previous 

statement is either: 

(A) a written statement that the 

person has signed or otherwise adopted 

or approved; or 

(B) a contemporaneous stenographic, 

mechanical, electrical, or other 

recording—or a transcription of it—that 

recites substantially verbatim the 

person’s oral statement. 

(d) Hearing preparation: experts. 

(1) Deposition of an expert who may 

testify. A party may depose any person 

who has been identified as an expert 

whose opinions may be presented at 

trial. If § 18.50(c)(2)(B) requires a report 

from the expert the deposition may be 

conducted only after the report is 

provided, unless the parties stipulate 

otherwise. 

(2) Hearing-preparation protection for 

draft reports or disclosures. Paragraphs 

(c)(1) and (2) of this section protect 

drafts of any report or disclosure 

required under § 18.50(c)(2), regardless 

of the form in which the draft is 

recorded. 

(3) Hearing-preparation protection for 

communications between a party’s 

representative and expert witnesses. 

Paragraphs (c)(1) and (2) under this 

section protect communications 

between the party’s representative and 

any witness required to provide a report 

under § 18.50(c)(2)(B), regardless of the 

form of the communications, except to 

the extent that the communications: 

(A) relate to compensation for the 

expert’s study or testimony; 

(B) identify facts or data that the 

party’s representative provided and that 

the expert considered in forming the 

opinions to be expressed; or 

(C) identify assumptions that the 

party’s representative provided and that 

the expert relied on in forming the 

opinions to be expressed. 

(4) Expert employed only for hearing 

preparation. Ordinarily, a party may 

not, by interrogatories or deposition, 

discover facts known or opinions held 

by an expert who has been retained or 

specially employed by another party in 

anticipation of litigation or to prepare 

for hearing and whose testimony is not 

anticipated to be used at the hearing. 

But a party may do so only: 

(A) as provided in § 18.62(b); or 

(B) on showing exceptional 

circumstances under which it is 

impracticable for the party to obtain 

facts or opinions on the same subject by 

other means. 

(e) Claiming privilege or protecting 

hearing-preparation materials. 

(1) Information withheld. When a 

party withholds information otherwise 

discoverable by claiming that the 

information is privileged or subject to 

protection as hearing-preparation 

material, the party must: 

(A) expressly make the claim; and 

(B) describe the nature of the 

documents, communications, or 

tangible things not produced or 

disclosed—and do so in a manner that, 

without revealing information itself 

privileged or protected, will enable 

other parties to assess the claim. 

(2) Information produced. If 

information produced in discovery is 

subject to a claim of privilege or of 

protection as hearing-preparation 

material, the party making the claim 

must notify any party that received the 

information of the claim and the basis 

for it. After being notified, a party must 

promptly return, sequester, or destroy 

the specified information and any 

copies it has; must not use or disclose 

the information until the claim is 

resolved; must take reasonable steps to 

retrieve the information if the party 

disclosed it before being notified; and 

may promptly present the information 

to the judge for an in camera 

determination of the claim. The 

producing party must preserve the 

information until the claim is resolved. 

§ 18.52 Protective orders. 

(a) In general. A party or any person 

from whom discovery is sought may file 

a written motion for a protective order. 

The motion must include a certification 

that the movant has in good faith 

conferred or attempted to confer with 

other affected parties in an effort to 

resolve the dispute without the judge’s 

action. The judge may, for good cause, 

issue an order to protect a party or 

person from annoyance, embarrassment, 

oppression, or undue burden or 

expense, including one or more of the 

following: 

(1) forbidding the disclosure or 

discovery; 

(2) specifying terms, including time 

and place, for the disclosure or 

discovery; 

(3) prescribing a discovery method 

other than the one selected by the party 

seeking discovery; 

(4) forbidding inquiry into certain 

matters, or limiting the scope of 

disclosure or discovery to certain 

matters; 

(5) designating the persons who may 

be present while the discovery is 

conducted; 

(6) requiring that a deposition be 

sealed and opened only on the judge’s 

order; 

(7) requiring that a trade secret or 

other confidential research, 

development, or commercial 


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information not be revealed or be 

revealed only in a specified way; and 

(8) requiring that the parties 

simultaneously file specified documents 

or information in sealed envelopes, to 

be opened as the judge directs. 

(b) Ordering discovery. If a motion for 

a protective order is wholly or partly 

denied, the judge may, on just terms, 

order that any party or person provide 

or permit discovery. 

§ 18.53 Supplementing disclosures and 

responses. 

(a) In general. A party who has made 

a disclosure under § 18.50(c)—or who 

has responded to an interrogatory, 

request for production, or request for 

admission—must supplement or correct 

its disclosure or response: 

(1) in a timely manner if the party 

learns that in some material respect the 

disclosure or response is incomplete or 

incorrect, and if the additional or 

corrective information has not otherwise 

been made known to the other parties 

during the discovery process or in 

writing; or 

(2) as ordered by the judge. 

(b) Expert witness. For an expert 

whose report must be disclosed under 

§ 18.50(c)(2)(B), the party’s duty to 

supplement extends both to information 

included in the report and to 

information given during the expert’s 

deposition. Any additions or changes to 

this information must be disclosed by 

the time the party’s prehearing 

disclosures under § 18.50(c)(3) are due. 

§ 18.54 Stipulations about discovery 

procedure. 

Unless the judge orders otherwise, the 

parties may stipulate that: 

(a) a deposition may be taken before 

any person, at any time or place, on any 

notice, and in the manner specified—in 

which event it may be used in the same 

way as any other deposition; and 

(b) other procedures governing or 

limiting discovery be modified—but a 

stipulation extending the time for any 

form of discovery must have the judge’s 

approval if it would interfere with the 

time set for completing discovery, for 

hearing a motion, or for hearing. 

§ 18.55 Using depositions at hearings. 

(a) Using depositions. 

(1) In general. At a hearing, all or part 

of a deposition may be used against a 

party on these conditions: 

(A) the party was present or 

represented at the taking of the 

deposition or had reasonable notice of 

it; 

(B) it is used to the extent it would be 

admissible under the applicable rules of 

evidence if the deponent were present 

and testifying; and 

(C) the use is allowed by paragraphs 

(a)(2) through (8) of this section. 

(2) Impeachment and other uses. Any 

party may use a deposition to contradict 

or impeach the testimony given by the 

deponent as a witness, or for any other 

purpose allowed by the applicable rules 

of evidence. 

(3) Deposition of party, agent, or 

designee. An adverse party may use for 

any purpose the deposition of a party or 

anyone who, when deposed, was the 

party’s officer, director, managing agent, 

or designee under § 18.64(b)(6) or 

§ 18.65(a)(4). 

(4) Deposition of expert, treating 

physician, or examining physician. A 

party may use for any purpose the 

deposition of an expert witness, treating 

physician or examining physician. 

(5) Unavailable witness. A party may 

use for any purpose the deposition of a 

witness, whether or not a party, if the 

judge finds: 

(A) that the witness is dead; 

(B) that the witness is more than 100 

miles from the place of hearing or is 

outside the United States, unless it 

appears that the witness’s absence was 

procured by the party offering the 

deposition; 

(C) that the witness cannot attend or 

testify because of age, illness, infirmity, 

or imprisonment; 

(D) that the party offering the 

deposition could not procure the 

witness’s attendance by subpoena; or 

(E) on motion and notice, that 

exceptional circumstances make it 

desirable—in the interests of justice and 

with due regard to the importance of 

live testimony in an open hearing—to 

permit the deposition to be used. 

(6) Limitations on use. 

(A) Deposition taken on short notice. 

A deposition must not be used against 

a party who, having received less than 

14 days’ notice of the deposition, 

promptly moved for a protective order 

under § 18.52(a)(2) requesting that it not 

be taken or be taken at a different time 

or place—and this motion was still 

pending when the deposition was taken. 

(B) Unavailable deponent; party could 

not obtain a representative. A 

deposition taken without leave of the 

judge under the unavailability provision 

of § 18.64(a)(2)(A)(iii) must not be used 

against a party who shows that, when 

served with the notice, it could not, 

despite diligent efforts, obtain a 

representative to represent it at the 

deposition. 

(7) Using part of a deposition. If a 

party offers in evidence only part of a 

deposition, an adverse party may 

require the offeror to introduce other 

parts that in fairness should be 

considered with the part introduced, 

and any party may itself introduce any 

other parts. 

(8) Deposition taken in an earlier 

action. A deposition lawfully taken may 

be used in a later action involving the 

same subject matter between the same 

parties, or their representatives or 

successors in interest, to the same extent 

as if taken in the later action. A 

deposition previously taken may also be 

used as allowed by the applicable rules 

of evidence. 

(b) Objections to admissibility. Subject 

to paragraph (d)(3) of this section, an 

objection may be made at a hearing to 

the admission of any deposition 

testimony that would be inadmissible if 

the witness were present and testifying. 

(c) Form of presentation. Unless the 

judge orders otherwise, a party must 

provide a transcript of any deposition 

testimony the party offers, but the judge 

may receive the testimony in 

nontranscript form as well. 

(d) Waiver of objections. 

(1) To the notice. An objection to an 

error or irregularity in a deposition 

notice is waived unless promptly served 

in writing on the party giving the notice. 

(2) To the officer’s qualification. An 

objection based on disqualification of 

the officer before whom a deposition is 

to be taken is waived if not made: 

(A) before the deposition begins; or 

(B) promptly after the basis for 

disqualification becomes known or, 

with reasonable diligence, could have 

been known. 

(3) To the taking of the deposition. 

(A) Objection to competence, 

relevance, or materiality. An objection 

to a deponent’s competence—or to the 

competence, relevance, or materiality of 

testimony—is not waived by a failure to 

make the objection before or during the 

deposition, unless the ground for it 

might have been corrected at that time. 

(B) Objection to an error or 

irregularity. An objection to an error or 

irregularity at an oral examination is 

waived if: 

(i) it relates to the manner of taking 

the deposition, the form of a question or 

answer, the oath or affirmation, a party’s 

conduct, or other matters that might 

have been corrected at that time; and 

(ii) it is not timely made during the 

deposition. 

(C) Objection to a written question. 

An objection to the form of a written 

question under § 18.65 is waived if not 

served in writing on the party 

submitting the question within the time 

for serving responsive questions or, if 

the question is a recross-question, 

within 7 days after being served with it. 

(4) To completing and returning the 

deposition. An objection to how the 

officer transcribed the testimony—or 


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prepared, signed, certified, sealed, 

endorsed, sent, or otherwise dealt with 

the deposition—is waived unless a 

motion to suppress is made promptly 

after the error or irregularity becomes 

known or, with reasonable diligence, 

could have been known. 

§ 18.56 Subpoena. 

(a) In general. 

(1) Upon written application of a 

party the judge may issue a subpoena 

authorized by statute or law that 

requires a witness to attend and to 

produce relevant papers, books, 

documents, or tangible things in the 

witness’ possession or under the 

witness’ control. 

(2) Form and contents. 

(A) Requirements—in general. Every 

subpoena must: 

(i) state the title of the matter and 

show the case number assigned by the 

Office of Administrative Law Judges or 

the Office of Worker’s Compensation 

Programs. In the event that the case 

number is an individual’s Social 

Security number only the last four 

numbers may be used. See § 18.31(a)(1); 

(ii) bear either the signature of the 

issuing judge or the signature of an 

attorney authorized to issue the 

subpoena under paragraph (a)(3) of this 

section; 

(iii) command each person to whom 

it is directed to do the following at a 

specified time and place: attend and 

testify; produce designated documents, 

electronically stored information, or 

tangible things in that person’s 

possession, custody, or control; or 

permit the inspection of premises; and 

(iv) set out the text of paragraphs (c) 

and (d) of this section. 

(B) Command to attend a 

deposition—notice of the recording 

method. A subpoena commanding 

attendance at a deposition must state 

the method for recording the testimony. 

(C) Combining or separating a 

command to produce or to permit 

inspection; specifying the form for 

electronically stored information. A 

command to produce documents, 

electronically stored information, or 

tangible things or to permit the 

inspection of premises may be included 

in a subpoena commanding attendance 

at a deposition or hearing, or may be set 

out in a separate subpoena. A subpoena 

may specify the form or forms in which 

electronically stored information is to be 

produced. 

(D) Command to produce; included 

obligations. A command in a subpoena 

to produce documents, electronically 

stored information, or tangible things 

requires the responding party to permit 

inspection, copying, testing, or sampling 

of the materials. 

(3) The judge may, by order in a 

specific proceeding, authorize an 

attorney representative to issue and sign 

a subpoena. 

(b) Service. 

(1) By whom; tendering fees; serving a 

copy of certain subpoenas. Any person 

who is at least 18 years old and not a 

party may serve a subpoena. Serving a 

subpoena requires delivering a copy to 

the named person and, if the subpoena 

requires that person’s attendance, 

tendering with it the fees for 1 day’s 

attendance and the mileage allowed by 

law. Service may also be made by 

certified mail with return receipt. Fees 

and mileage need not be tendered when 

the subpoena issues on behalf of the 

United States or any of its officers or 

agencies. If the subpoena commands the 

production of documents, electronically 

stored information, or tangible things or 

the inspection of premises before the 

formal hearing, then before it is served, 

a notice must be served on each party. 

(2) Service in the United States. 

Subject to paragraph (c)(3)(A)(ii) of this 

section, a subpoena may be served at 

any place within a State, 

Commonwealth, or Territory of the 

United States, or the District of 

Columbia. 

(3) Service in a foreign country. 28 

U.S.C. 1783 governs issuing and serving 

a subpoena directed to a United States 

national or resident who is in a foreign 

country. 

(4) Proof of service. Proving service, 

when necessary, requires filing with the 

judge a statement showing the date and 

manner of service and the names of the 

persons served. The statement must be 

certified by the server. 

(c) Protecting a person subject to a 

subpoena. 

(1) Avoiding undue burden; sanctions. 

A party or representative responsible for 

requesting, issuing, or serving a 

subpoena must take reasonable steps to 

avoid imposing undue burden on a 

person subject to the subpoena. The 

judge must enforce this duty and 

impose an appropriate sanction. 

(2) Command to produce materials or 

permit inspection. 

(A) Appearance not required. A 

person commanded to produce 

documents, electronically stored 

information, or tangible things, or to 

permit the inspection of premises, need 

not appear in person at the place of 

production or inspection unless also 

commanded to appear for a deposition 

or hearing. 

(B) Objections. A person commanded 

to produce documents or tangible things 

or to permit inspection may serve on the 

party or representative designated in the 

subpoena a written objection to 

inspecting, copying, testing or sampling 

any or all of the materials or to 

inspecting the premises—or to 

producing electronically stored 

information in the form or forms 

requested. The objection must be served 

before the earlier of the time specified 

for compliance or 14 days after the 

subpoena is served. If an objection is 

made, the following rules apply: 

(i) At any time, on notice to the 

commanded person, the serving party 

may move the judge for an order 

compelling production or inspection. 

(ii) These acts may be required only 

as directed in the order, and the order 

must protect a person who is neither a 

party nor a party’s officer from 

significant expense resulting from 

compliance. 

(3) Quashing or modifying a 

subpoena. 

(A) When required. On timely motion, 

the judge must quash or modify a 

subpoena that: 

(i) fails to allow a reasonable time to 

comply; 

(ii) requires a person who is neither 

a party nor a party’s officer to travel 

more than 100 miles from where that 

person resides, is employed, or regularly 

transacts business in person—except 

that, subject to paragraph (c)(3)(B)(iii) of 

this section, the person may be 

commanded to attend the formal 

hearing; 

(iii) requires disclosure of privileged 

or other protected matter, if no 

exception or waiver applies; or 

(iv) subjects a person to undue 

burden. 

(B) When permitted. To protect a 

person subject to or otherwise affected 

by a subpoena, the judge may, on 

motion, quash or modify the subpoena 

if it requires: 

(i) disclosing a trade secret or other 

confidential research, development, or 

commercial information; 

(ii) disclosing an unretained expert’s 

opinion or information that does not 

describe specific occurrences in dispute 

and results from the expert’s study that 

was not requested by a party; or 

(iii) a person who is neither a party 

nor a party’s officer to incur substantial 

expense to travel more than 100 miles 

to attend the formal hearing. 

(C) Specifying conditions as an 

alternative. In the circumstances 

described in paragraph (c)(3)(B) of this 

section, the judge may, instead of 

quashing or modifying a subpoena, 

order appearance or production under 

specified conditions if the serving party: 

(i) shows a substantial need for the 

testimony or material that cannot be 


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otherwise met without undue hardship; 

and 

(ii) ensures that the subpoenaed 

person will be reasonably compensated. 

(d) Duties in responding to a 

subpoena. 

(1) Producing documents or 

electronically stored information. These 

procedures apply to producing 

documents or electronically stored 

information: 

(A) Documents. A person responding 

to a subpoena to produce documents 

must produce them as they are kept in 

the ordinary course of business or must 

organize and label them to correspond 

to the categories in the demand. 

(B) Form for producing electronically 

stored information not specified. If a 

subpoena does not specify a form for 

producing electronically stored 

information, the person responding 

must produce it in a form or forms in 

which it is ordinarily maintained or in 

a reasonably usable form or forms. 

(C) Electronically stored information 

produced in only one form. The person 

responding need not produce the same 

electronically stored information in 

more than one form. 

(D) Inaccessible electronically stored 

information. The person responding 

need not provide discovery of 

electronically stored information from 

sources that the person identifies as not 

reasonably accessible because of undue 

burden or cost. On motion to compel 

discovery or for a protective order, the 

person responding must show that the 

information is not reasonably accessible 

because of undue burden or cost. If that 

showing is made, the judge may 

nonetheless order discovery from such 

sources if the requesting party shows 

good cause, considering the limitations 

of § 18.51(b)(4)(C). The judge may 

specify conditions for the discovery. 

(2) Claiming privilege or protection. 

(A) Information withheld. A person 

withholding subpoenaed information 

under a claim that it is privileged or 

subject to protection as hearingpreparation material must: 

(i) expressly make the claim; and 

(ii) describe the nature of the 

withheld documents, communications, 

or tangible things in a manner that, 

without revealing information itself 

privileged or protected, will enable the 

parties to assess the claim. 

(B) Information produced. If 

information produced in response to a 

subpoena is subject to a claim of 

privilege or of protection as hearingpreparation material, the person making 

the claim may notify any party that 

received the information of the claim 

and the basis for it. After being notified, 

a party must promptly return, sequester, 

or destroy the specified information and 

any copies it has; must not use or 

disclose the information until the claim 

is resolved; must take reasonable steps 

to retrieve the information if the party 

disclosed it before being notified; and 

may promptly present the information 

to the judge in camera for a 

determination of the claim. The person 

who produced the information must 

preserve the information until the claim 

is resolved. 

(e) Failure to obey. When a person 

fails to obey a subpoena, the party 

adversely affected by the failure may, 

when authorized by statute or by law, 

apply to the appropriate district court to 

enforce the subpoena. 

§ 18.57 Failure to make disclosures or to 

cooperate in discovery; sanctions. 

(a) Motion for an order compelling 

disclosure or discovery. 

(1) In general. On notice to other 

parties and all affected persons, a party 

may move for an order compelling 

disclosure or discovery. The motion 

must include a certification that the 

movant has in good faith conferred or 

attempted to confer with the person or 

party failing to make disclosure or 

discovery in an effort to obtain it 

without the judge’s action. 

(2) Specific motions. 

(A) To compel disclosure. If a party 

fails to make a disclosure required by 

§ 18.50(c), any other party may move to 

compel disclosure and for appropriate 

sanctions. 

(B) To compel a discovery response. A 

party seeking discovery may move for 

an order compelling an answer, 

designation, production, or inspection. 

This motion may be made if: 

(i) a deponent fails to answer a 

question asked under §§ 18.64 and 

18.65; 

(ii) a corporation or other entity fails 

to make a designation under §§ 18.64(d) 

and 18.65(a)(4); 

(iii) a party fails to answer an 

interrogatory submitted under § 18.60; 

or 

(iv) a party fails to respond that 

inspection will be permitted—or fails to 

permit inspection—as requested under 

§ 18.61. 

(C) Related to a deposition. When 

taking an oral deposition, the party 

asking a question may complete or 

adjourn the examination before moving 

for an order. 

(3) Evasive or incomplete disclosure, 

answer, or response. For purposes of 

paragraph (a) of this section, an evasive 

or incomplete disclosure, answer, or 

response must be treated as a failure to 

disclose, answer, or respond. 

(b) Failure to comply with a judge’s 

order. 

(1) For not obeying a discovery order. 

If a party or a party’s officer, director, 

or managing agent—or a witness 

designated under §§ 18.64(b)(6) and 

18.65(a)(4)—fails to obey an order to 

provide or permit discovery, including 

an order under § 18.50(b) or paragraph 

(a) of this section, the judge may issue 

further just orders. They may include 

the following: 

(A) directing that the matters 

embraced in the order or other 

designated facts be taken as established 

for purposes of the proceeding, as the 

prevailing party claims; 

(B) prohibiting the disobedient party 

from supporting or opposing designated 

claims or defenses, or from introducing 

designated matters in evidence; 

(C) striking claims or defenses in 

whole or in part; 

(D) staying further proceedings until 

the order is obeyed; 

(E) dismissing the proceeding in 

whole or in part; or 

(F) rendering a default decision and 

order against the disobedient party; 

(2) For not producing a person for 

examination. If a party fails to comply 

with an order under § 18.62 requiring it 

to produce another person for 

examination, the judge may issue any of 

the orders listed in paragraph (b)(1) of 

this section, unless the disobedient 

party shows that it cannot produce the 

other person. 

(c) Failure to disclose, to supplement 

an earlier response, or to admit. If a 

party fails to provide information or 

identify a witness as required by 

§§ 18.50(c) and 18.53, or if a party fails 

to admit what is requested under 

§ 18.63(a) and the requesting party later 

proves a document to be genuine or the 

matter true, the party is not allowed to 

use that information or witness to 

supply evidence on a motion or at a 

hearing, unless the failure was 

substantially justified or is harmless. In 

addition to or instead of this sanction, 

the judge, on motion and after giving an 

opportunity to be heard may impose 

other appropriate sanctions, including 

any of the orders listed in paragraph 

(b)(1) of this section. 

(d) Party’s failure to attend its own 

deposition, serve answers to 

interrogatories, or respond to a request 

for inspection. 

(1) In general. 

(A) Motion; grounds for sanctions. 

The judge may, on motion, order 

sanctions if: 

(i) a party or a party’s officer, director, 

or managing agent—or a person 

designated under §§ 18.64(b)(6) and 

18.65(a)(4)—fails, after being served 

with proper notice, to appear for that 

person’s deposition; or 


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(ii) a party, after being properly served 

with interrogatories under § 18.60 or a 

request for inspection under § 18.61, 

fails to serve its answers, objections, or 

written response. 

(B) Certification. A motion for 

sanctions for failing to answer or 

respond must include a certification 

that the movant has in good faith 

conferred or attempted to confer with 

the party failing to act in an effort to 

obtain the answer or response without 

the judge’s action. 

(2) Unacceptable excuse for failing to 

act. A failure described in paragraph 

(d)(1)(A) of this section is not excused 

on the ground that the discovery sought 

was objectionable, unless the party 

failing to act has a pending motion for 

a protective order under § 18.52(a). 

(3) Types of sanctions. Sanctions may 

include any of the orders listed in 

paragraph (b)(1) of this section. 

(e) Failure to provide electronically 

stored information. Absent exceptional 

circumstances, a judge may not impose 

sanctions under these rules on a party 

for failing to provide electronically 

stored information lost as a result of the 

routine, good-faith operation of an 

electronic information system. 

(f) Procedure. A judge may impose 

sanctions under this section upon: 

(1) a separately filed motion; or 

(2) notice from the judge followed by 

a reasonable opportunity to be heard. 

Types of Discovery 

§ 18.60 Interrogatories to parties. 

(a) In general. 

(1) Number. Unless otherwise 

stipulated or ordered by the judge, a 

party may serve on any other party no 

more than 25 written interrogatories, 

including all discrete subparts. Leave to 

serve additional interrogatories may be 

granted to the extent consistent with 

§ 18.51. 

(2) Scope. An interrogatory may relate 

to any matter that may be inquired into 

under § 18.51. An interrogatory is not 

objectionable merely because it asks for 

an opinion or contention that relates to 

fact or the application of law to fact, but 

the judge may order that the 

interrogatory need not be answered 

until designated discovery is complete, 

or until a prehearing conference or some 

other time. 

(b) Answers and objections. 

(1) Responding party. The 

interrogatories must be answered: 

(A) by the party to whom they are 

directed; or 

(B) if that party is a public or private 

corporation, a partnership, an 

association, or a governmental agency, 

by any officer or agent, who must 

furnish the information available to the 

party. 

(2) Time to respond. The responding 

party must serve its answers and any 

objections within 30 days after being 

served with the interrogatories. A 

shorter or longer time may be stipulated 

to under § 18.54 or be ordered by the 

judge. 

(3) Answering each interrogatory. 

Each interrogatory must, to the extent it 

is not objected to, be answered 

separately and fully in writing under 

oath. 

(4) Objections. The grounds for 

objecting to an interrogatory must be 

stated with specificity. Any ground not 

stated in a timely objection is waived 

unless the judge, for good cause, 

excuses the failure. 

(5) Signature. The person who makes 

the answers must sign them, and the 

attorney or non-attorney representative 

who objects must sign any objections. 

(c) Use. An answer to an interrogatory 

may be used to the extent allowed by 

the applicable rules of evidence. 

(d) Option to produce business 

records. If the answer to an interrogatory 

may be determined by examining, 

auditing, compiling, abstracting, or 

summarizing a party’s business records 

(including electronically stored 

information), and if the burden of 

deriving or ascertaining the answer will 

be substantially the same for either 

party, the responding party may answer 

by: 

(1) specifying the records that must be 

reviewed, in sufficient detail to enable 

the interrogating party to locate and 

identify them as readily as the 

responding party could; and 

(2) giving the interrogating party a 

reasonable opportunity to examine and 

audit the records and to make copies, 

compilations, abstracts, or summaries. 

§ 18.61 Producing documents, 

electronically stored information, and 

tangible things, or entering onto land, for 

inspection and other purposes. 

(a) In general. A party may serve on 

any other party a request within the 

scope of § 18.51: 

(1) to produce and permit the 

requesting party or its representative to 

inspect, copy, test, or sample the 

following items in the responding 

party’s possession, custody, or control: 

(A) any designated documents or 

electronically stored information— 

including writings, drawings, graphs, 

charts, photographs, sound recordings, 

images, and other data or data 

compilations—stored in any medium 

from which information can be obtained 

either directly or, if necessary, after 

translation by the responding party into 

a reasonably usable form; or 

(B) any designated tangible things; or 

(2) to permit entry onto designated 

land or other property possessed or 

controlled by the responding party, so 

that the requesting party may inspect, 

measure, survey, photograph, test, or 

sample the property or any designated 

object or operation on it. 

(b) Procedure. 

(1) Contents of the request. The 

request: 

(A) must describe with reasonable 

particularity each item or category of 

items to be inspected; 

(B) must specify a reasonable time, 

place, and manner for the inspection 

and for performing the related acts; and 

(C) may specify the form or forms in 

which electronically stored information 

is to be produced. 

(2) Responses and objections. 

(A) Time to respond. The party to 

whom the request is directed must 

respond in writing within 30 days after 

being served. A shorter or longer time 

may be stipulated to under § 18.54 or be 

ordered by the judge. 

(B) Responding to each item. For each 

item or category, the response must 

either state that inspection and related 

activities will be permitted as requested 

or state an objection to the request, 

including the reasons. 

(C) Objections. An objection to part of 

a request must specify the part and 

permit inspection of the rest. 

(D) Responding to a request for 

production of electronically stored 

information. The response may state an 

objection to a requested form for 

producing electronically stored 

information. If the responding party 

objects to a requested form—or if no 

form was specified in the request—the 

party must state the form or forms it 

intends to use. 

(E) Producing the documents or 

electronically stored information. 

Unless otherwise stipulated or ordered 

by the judge, these procedures apply to 

producing documents or electronically 

stored information: 

(i) A party must produce documents 

as they are kept in the usual course of 

business or must organize and label 

them to correspond to the categories in 

the request; 

(ii) If a request does not specify a form 

for producing electronically stored 

information, a party must produce it in 

a form or forms in which it is ordinarily 

maintained or in a reasonably usable 

form or forms; and 

(iii) A party need not produce the 

same electronically stored information 

in more than one form. 

(c) Nonparties. As provided in 

§ 18.56, a nonparty may be compelled to 

produce documents and tangible things 

or to permit an inspection. 


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§ 18.62 Physical and mental examinations. 

(a) Examination by notice. 

(1) In general. A party may serve upon 

another party whose mental or physical 

condition is in controversy a notice to 

attend and submit to an examination by 

a suitably licensed or certified 

examiner. 

(2) Contents of the notice. The notice 

must specify: 

(A) the legal basis for the 

examination; 

(B) the time, place, manner, 

conditions, and scope of the 

examination, as well as the person or 

persons who will perform it; and 

(C) how the reasonable transportation 

expenses were calculated. 

(3) Service of notice. Unless otherwise 

agreed by the parties, the notice must be 

served no fewer than 14 days before the 

examination date. 

(4) Objection. The person to be 

examined must serve any objection to 

the notice no later than 7 days after the 

notice is served. The objection must be 

stated with particularity. 

(b) Examination by motion. 

Upon objection by the person to be 

examined the requesting party may file 

a motion to compel a physical or mental 

examination. The motion must include 

the elements required by paragraph 

(a)(2) of this section. 

(c) Examiner’s report. 

(1) Delivery of the report. The party 

who initiated the examination must, 

deliver a complete copy of the 

examination report to the party 

examined, together with like reports of 

all earlier examinations of the same 

condition. 

(2) Contents. The examiner’s report 

must be in writing and must set out in 

detail the examiner’s findings, including 

diagnoses, conclusions, and the results 

of any tests. 

§ 18.63 Requests for admission. 

(a) Scope and procedure. 

(1) Scope. A party may serve on any 

other party a written request to admit, 

for purposes of the pending action only, 

the truth of any matters within the 

scope of § 18.51 relating to: 

(A) facts, the application of law to 

fact, or opinions about either; and 

(B) the genuineness of any described 

documents. 

(2) Form; copy of a document. Each 

matter must be separately stated. A 

request to admit the genuineness of a 

document must be accompanied by a 

copy of the document unless it is, or has 

been, otherwise furnished or made 

available for inspection and copying. 

(3) Time to respond; effect of not 

responding. A matter is admitted unless, 

within 30 days after being served, the 

party to whom the request is directed 

serves on the requesting party a written 

answer or objection addressed to the 

matter and signed by the party or its 

attorney. A shorter or longer time for 

responding may be stipulated to under 

§ 18.54 or be ordered by the judge. 

(4) Answer. If a matter is not admitted, 

the answer must specifically deny it or 

state in detail why the answering party 

cannot truthfully admit or deny it. A 

denial must fairly respond to the 

substance of the matter; and when good 

faith requires that a party qualify an 

answer or deny only a part of a matter, 

the answer must specify the part 

admitted and qualify or deny the rest. 

The answering party may assert lack of 

knowledge or information as a reason 

for failing to admit or deny only if the 

party states that it has made reasonable 

inquiry and that the information it 

knows or can readily obtain is 

insufficient to enable it to admit or 

deny. 

(5) Objections. The grounds for 

objecting to a request must be stated. A 

party must not object solely on the 

ground that the request presents a 

genuine issue for hearing. 

(6) Motion regarding the sufficiency of 

an answer or objection. The requesting 

party may move to determine the 

sufficiency of an answer or objection. 

Unless the judge finds an objection 

justified, the judge must order that an 

answer be served. On finding that an 

answer does not comply with this 

section, the judge may order either that 

the matter is admitted or that an 

amended answer be served. The judge 

may defer final decision until a 

prehearing conference or a specified 

time before the hearing. 

(b) Effect of an admission; 

withdrawing or amending it. A matter 

admitted under this section is 

conclusively established unless the 

judge, on motion, permits the admission 

to be withdrawn or amended. The judge 

may permit withdrawal or amendment 

if it would promote the presentation of 

the merits of the action and if the judge 

is not persuaded that it would prejudice 

the requesting party in maintaining or 

defending the action on the merits. An 

admission under this section is not an 

admission for any other purpose and 

cannot be used against the party in any 

other proceeding. 

§ 18.64 Depositions by oral examination. 

(a) When a deposition may be taken. 

(1) Without leave. A party may, by 

oral questions, depose any person, 

including a party, without leave of the 

judge except as provided in paragraph 

(a)(2) of this section. The deponent’s 

attendance may be compelled by 

subpoena under § 18.56. 

(2) With leave. A party must obtain 

leave of the judge, and the judge must 

grant leave to the extent consistent with 

§ 18.51(b): 

(A) if the parties have not stipulated 

to the deposition and: 

(i) the deposition would result in 

more than 10 depositions being taken 

under this section or § 18.65 by one of 

the parties; 

(ii) the deponent has already been 

deposed in the case; or 

(iii) the party seeks to take the 

deposition before the time specified in 

§ 18.50(a), unless the party certifies in 

the notice, with supporting facts, that 

the deponent is expected to leave the 

United States and be unavailable for 

examination in this country after that 

time; or 

(B) if the deponent is confined in 

prison. 

(b) Notice of the deposition; other 

formal requirements. 

(1) Notice in general. Except as 

stipulated or otherwise ordered by the 

judge, a party who wants to depose a 

person by oral questions must give 

reasonable written notice to every other 

party of no fewer than 14 days. The 

notice must state the time and place of 

the deposition and, if known, the 

deponent’s name and address. If the 

name is unknown, the notice must 

provide a general description sufficient 

to identify the person or the particular 

class or group to which the person 

belongs. 

(2) Producing documents. If a 

subpoena duces tecum is to be served 

on the deponent, the materials 

designated for production, as set out in 

the subpoena, must be listed in the 

notice or in an attachment. If the notice 

to a party deponent is accompanied by 

a request for production under § 18.61, 

the notice must comply with the 

requirements of § 18.61(b). 

(3) Method of recording. 

(A) Method stated in the notice. The 

party who notices the deposition must 

state in the notice the method for 

recording the testimony. Unless the 

judge orders otherwise, testimony may 

be recorded by audio, audiovisual, or 

stenographic means. The noticing party 

bears the recording costs. Any party 

may arrange to transcribe a deposition. 

(B) Additional method. With prior 

notice to the deponent and other parties, 

any party may designate another 

method for recording the testimony in 

addition to that specified in the original 

notice. That party bears the expense of 

the additional record or transcript 

unless the judge orders otherwise. 


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(4) By remote means. The parties may 

stipulate—or the judge may on motion 

order—that a deposition be taken by 

telephone or other remote means. For 

the purpose of this section, the 

deposition takes place where the 

deponent answers the questions. 

(5) Officer’s duties. 

(A) Before the deposition. Unless the 

parties stipulate otherwise, a deposition 

must be conducted before a person 

having power to administer oaths. The 

officer must begin the deposition with 

an on-the-record statement that 

includes: 

(i) The officer’s name and business 

address; 

(ii) the date, time, and place of the 

deposition; 

(iii) the deponent’s name; 

(iv) the officer’s administration of the 

oath or affirmation to the deponent; 

(v) the identity of all persons present; 

and 

(vi) the date and method of service of 

the notice of deposition. 

(B) Conducting the deposition; 

avoiding distortion. If the deposition is 

recorded nonstenographically, the 

officer must repeat the items in 

paragraphs (b)(5)(A)(i)–(iii) of this 

section at the beginning of each unit of 

the recording medium. The deponent’s 

and attorneys’ appearance or demeanor 

must not be distorted through recording 

techniques. 

(C) After the deposition. At the end of 

a deposition, the officer must state on 

the record that the deposition is 

complete and must set out any 

stipulations made by the attorneys about 

custody of the transcript or recording 

and of the exhibits, or about any other 

pertinent matters. 

(6) Notice or subpoena directed to an 

organization. In its notice or subpoena, 

a party may name as the deponent a 

public or private corporation, a 

partnership, an association, a 

governmental agency, or other entity 

and must describe with reasonable 

particularity the matters for 

examination. The named organization 

must then designate one or more 

officers, directors, or managing agents, 

or designate other persons who consent 

to testify on its behalf; and it may set 

out the matters on which each person 

designated will testify. A subpoena 

must advise a nonparty organization of 

its duty to make this designation. The 

persons designated must testify about 

information known or reasonably 

available to the organization. This 

paragraph (6) does not preclude a 

deposition by any other procedure 

allowed by these rules. 

(c) Examination and crossexamination; record of the examination; 

objections; written questions. 

(1) Examination and crossexamination. The examination and 

cross-examination of a deponent 

proceed as they would at the hearing 

under the applicable rules of evidence. 

After putting the deponent under oath 

or affirmation, the officer must record 

the testimony by the method designated 

under paragraph (b)(3)(A) of this 

section. The testimony must be recorded 

by the officer personally or by a person 

acting in the presence and under the 

direction of the officer. 

(2) Objections. An objection at the 

time of the examination—whether to 

evidence, to a party’s conduct, to the 

officer’s qualifications, to the manner of 

taking the deposition, or to any other 

aspect of the deposition—must be noted 

on the record, but the examination still 

proceeds; the testimony is taken subject 

to any objection. An objection must be 

stated concisely in a nonargumentative 

and nonsuggestive manner. A person 

may instruct a deponent not to answer 

only when necessary to preserve a 

privilege, to enforce a limitation ordered 

by the judge, or to present a motion 

under paragraph (d)(3) of this section. 

(3) Participating through written 

questions. Instead of participating in the 

oral examination, a party may serve 

written questions in a sealed envelope 

on the party noticing the deposition, 

who must deliver them to the officer. 

The officer must ask the deponent those 

questions and record the answers 

verbatim. 

(d) Duration; sanction; motion to 

terminate or limit. 

(1) Duration. Unless otherwise 

stipulated or ordered by the judge, a 

deposition is limited to 1 day of 7 hours. 

The judge must allow additional time 

consistent with § 18.51(b) if needed to 

fairly examine the deponent or if the 

deponent, another person, or any other 

circumstance impedes or delays the 

examination. 

(2) Sanction. The judge may impose 

an appropriate sanction, in accordance 

with § 18.57, on a person who impedes, 

delays, or frustrates the fair examination 

of the deponent. 

(3) Motion to terminate or limit. 

(A) Grounds. At any time during a 

deposition, the deponent or a party may 

move to terminate or limit it on the 

ground that it is being conducted in bad 

faith or in a manner that unreasonably 

annoys, embarrasses, or oppresses the 

deponent or party. If the objecting 

deponent or party so demands, the 

deposition must be suspended for the 

time necessary to obtain an order. 

(B) Order. The judge may order that 

the deposition be terminated or may 

limit its scope and manner as provided 

in § 18.52. If terminated, the deposition 

may be resumed only by the judge’s 

order. 

(e) Review by the witness; changes. 

(1) Review; statement of changes. On 

request by the deponent or a party 

before the deposition is completed, the 

deponent must be allowed 30 days after 

being notified by the officer that the 

transcript or recording is available in 

which: 

(A) To review the transcript or 

recording; and 

(B) if there are changes in form or 

substance, to sign a statement listing the 

changes and the reasons for making 

them. 

(2) Changes indicated in the officer’s 

certificate. The officer must note in the 

certificate prescribed by paragraph (f)(1) 

of this section whether a review was 

requested and, if so, must attach any 

changes the deponent makes during the 

30-day period. 

(f) Certification and delivery; exhibits; 

copies of the transcript or recording; 

filing. 

(1) Certification and delivery. The 

officer must certify in writing that the 

witness was duly sworn and that the 

deposition accurately records the 

witness’s testimony. The certificate 

must accompany the record of the 

deposition. Unless the judge orders 

otherwise, the officer must seal the 

deposition in an envelope or package 

bearing the title of the action and 

marked ‘‘Deposition of [witness’s 

name]’’ and must promptly send it to 

the party or the party’s representative 

who arranged for the transcript or 

recording. The party or the party’s 

representative must store it under 

conditions that will protect it against 

loss, destruction, tampering, or 

deterioration. 

(2) Documents and tangible things. 

(A) Originals and copies. Documents 

and tangible things produced for 

inspection during a deposition must, on 

a party’s request, be marked for 

identification and attached to the 

deposition. Any party may inspect and 

copy them. But if the person who 

produced them wants to keep the 

originals, the person may: 

(i) Offer copies to be marked, attached 

to the deposition, and then used as 

originals—after giving all parties a fair 

opportunity to verify the copies by 

comparing them with the originals; or 

(ii) give all parties a fair opportunity 

to inspect and copy the originals after 

they are marked—in which event the 

originals may be used as if attached to 

the deposition. 


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72190 Federal Register / Vol. 77, No. 233 / Tuesday, December 4, 2012 / Proposed Rules 

(B) Order regarding the originals. Any 

party may move for an order that the 

originals be attached to the deposition 

pending final disposition of the 

proceeding. 

(3) Copies of the transcript or 

recording. Unless otherwise stipulated 

or ordered by the judge, the officer must 

retain the stenographic notes of a 

deposition taken stenographically or a 

copy of the recording of a deposition 

taken by another method. When paid 

reasonable charges, the officer must 

furnish a copy of the transcript or 

recording to any party or the deponent. 

(4) Notice of filing. A party who files 

the deposition must promptly notify all 

other parties of the filing. 

(g) Failure to attend a deposition or 

serve a subpoena. A judge may order 

sanctions, in accordance with § 18.57, if 

a party who, expecting a deposition to 

be taken, attends in person or by an 

attorney, and the noticing party failed 

to: 

(1) Attend and proceed with the 

deposition; or 

(2) serve a subpoena on a nonparty 

deponent, who consequently did not 

attend. 

§ 18.65 Depositions by written questions. 

(a) When a deposition may be taken. 

(1) Without leave. A party may, by 

written questions, depose any person, 

including a party, without leave of the 

judge except as provided in paragraph 

(a)(2) of this section. The deponent’s 

attendance may be compelled by 

subpoena under § 18.56. 

(2) With leave. A party must obtain 

leave of the judge, and the judge must 

grant leave to the extent consistent with 

§ 18.51(b): 

(A) If the parties have not stipulated 

to the deposition and: 

(i) The deposition would result in 

more than 10 depositions being taken 

under this section or § 18.64 by a party; 

(ii) the deponent has already been 

deposed in the case; or 

(iii) the party seeks to take a 

deposition before the time specified in 

§ 18.50(a); or 

(B) if the deponent is confined in 

prison. 

(3) Service; required notice. A party 

who wants to depose a person by 

written questions must serve them on 

every other party, with a notice stating, 

if known, the deponent’s name and 

address. If the name is unknown, the 

notice must provide a general 

description sufficient to identify the 

person or the particular class or group 

to which the person belongs. The notice 

must also state the name or descriptive 

title and the address of the officer before 

whom the deposition will be taken. 

(4) Questions directed to an 

organization. A public or private 

corporation, a partnership, an 

association, or a governmental agency 

may be deposed by written questions in 

accordance with § 18.64(b)(6). 

(5) Questions from other parties. Any 

questions to the deponent from other 

parties must be served on all parties as 

follows: Cross-questions, within 14 days 

after being served with the notice and 

direct questions; redirect questions, 

within 7 days after being served with 

cross-questions; and recross-questions, 

within 7 days after being served with 

redirect questions. The judge may, for 

good cause, extend or shorten these 

times. 

(b) Delivery to the officer; officer’s 

duties. Unless a different procedure is 

ordered by the judge, the party who 

noticed the deposition must deliver to 

the officer a copy of all the questions 

served and of the notice. The officer 

must promptly proceed in the manner 

provided in § 18.64(c), (e), and (f) to: 

(1) Take the deponent’s testimony in 

response to the questions; 

(2) prepare and certify the deposition; 

and 

(3) send it to the party, attaching a 

copy of the questions and of the notice. 

(c) Notice of completion or filing. 

(1) Completion. The party who 

noticed the deposition must notify all 

other parties when it is completed. 

(2) Filing. A party who files the 

deposition must promptly notify all 

other parties of the filing. 

Disposition Without Hearing 

§ 18.70 Motions for dispositive action. 

(a) In general. When consistent with 

statute, regulation or executive order, 

any party may move under § 18.33 for 

disposition of the pending proceeding. 

If the judge determines at any time that 

subject matter jurisdiction is lacking, 

the judge must dismiss the matter. 

(b) Motion to remand. A party may 

move to remand the matter to the 

referring agency. A remand order must 

include any terms or conditions and 

should state the reason for the remand. 

(c) Motion to dismiss. A party may 

move to dismiss part or all of the matter 

for reasons recognized under controlling 

law, such as lack of subject matter 

jurisdiction, failure to state a claim 

upon which relief can be granted, or 

untimeliness. If the opposing party fails 

to respond, the judge may consider the 

motion unopposed. 

(d) Motion for decision on the record. 

When the parties agree that an 

evidentiary hearing is not needed, they 

may move for a decision based on 

stipulations of fact or a stipulated 

record. 

§ 18.71 Approval of settlement or consent 

findings. 

(a) Motion for approval of settlement 

agreement. When the applicable statute 

or regulation requires it, the parties 

must submit a settlement agreement for 

the judge’s review and approval. 

(b) Motion for consent findings and 

order. Parties may file a motion to 

accept and adopt consent findings. Any 

agreement that contains consent 

findings and an order that disposes of 

all or part of a matter must include: 

(1) a statement that the order has the 

same effect as one made after a full 

hearing; 

(2) a statement that the order is based 

on a record that consists of the paper 

that began the proceeding (such as a 

complaint, order of reference, or notice 

of administrative determination), as it 

may have been amended, and the 

agreement; 

(3) a waiver of any further procedural 

steps before the judge; and 

(4) a waiver of any right to challenge 

or contest the validity of the order 

entered into in accordance with the 

agreement. 

§ 18.72 Summary decision. 

(a) Motion for summary decision or 

partial summary decision. A party may 

move for summary decision, identifying 

each claim or defense—or the part of 

each claim or defense—on which 

summary decision is sought. The judge 

shall grant summary decision if the 

movant shows that there is no genuine 

dispute as to any material fact and the 

movant is entitled to decision as a 

matter of law. The judge should state on 

the record the reasons for granting or 

denying the motion. 

(b) Time to file a motion. Unless the 

judge orders otherwise, a party may file 

a motion for summary decision at any 

time until 30 days before the date fixed 

for the formal hearing. 

(c) Procedures. 

(1) Supporting factual positions. A 

party asserting that a fact cannot be or 

is genuinely disputed must support the 

assertion by: 

(A) citing to particular parts of 

materials in the record, including 

depositions, documents, electronically 

stored information, affidavits or 

declarations, stipulations (including 

those made for purposes of the motion 

only), admissions, interrogatory 

answers, or other materials; or 

(B) showing that the materials cited 

do not establish the absence or presence 

of a genuine dispute, or that an adverse 

party cannot produce admissible 

evidence to support the fact. 

(2) Objection that a fact is not 

supported by admissible evidence. A 


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party may object that the material cited 

to support or dispute a fact cannot be 

presented in a form that would be 

admissible in evidence. 

(3) Materials not cited. The judge 

need consider only the cited materials, 

but the judge may consider other 

materials in the record. 

(4) Affidavits or declarations. An 

affidavit or declaration used to support 

or oppose a motion must be made on 

personal knowledge, set out facts that 

would be admissible in evidence, and 

show that the affiant or declarant is 

competent to testify on the matters 

stated. 

(d) When facts are unavailable to the 

nonmovant. If a nonmovant shows by 

affidavit or declaration that, for 

specified reasons, it cannot present facts 

essential to justify its opposition, the 

judge may: 

(1) defer considering the motion or 

deny it; 

(2) allow time to obtain affidavits or 

declarations or to take discovery; or 

(3) issue any other appropriate order. 

(e) Failing to properly support or 

address a fact. If a party fails to properly 

support an assertion of fact or fails to 

properly address another party’s 

assertion of fact as required by 

paragraph (c) of this section, the judge 

may: 

(1) give an opportunity to properly 

support or address the fact; 

(2) consider the fact undisputed for 

purposes of the motion; 

(3) grant summary decision if the 

motion and supporting materials— 

including the facts considered 

undisputed—show that the movant is 

entitled to it; or 

(4) issue any other appropriate order. 

(f) Decision independent of the 

motion. After giving notice and a 

reasonable time to respond, the judge 

may: 

(1) grant summary decision for a 

nonmovant; 

(2) grant the motion on grounds not 

raised by a party; or 

(3) consider summary decision on the 

judge’s own after identifying for the 

parties material facts that may not be 

genuinely in dispute. 

(g) Failing to grant all the requested 

relief. If the judge does not grant all the 

relief requested by the motion, the judge 

may enter an order stating any material 

fact—including an item of damages or 

other relief—that is not genuinely in 

dispute and treating the fact as 

established in the case. 

(h) Affidavit or declaration submitted 

in bad faith. If satisfied that an affidavit 

or declaration under this section is 

submitted in bad faith or solely for 

delay, the judge—after notice and a 

reasonable time to respond—may order 

sanctions or other relief as authorized 

by law. 

Hearing 

§ 18.80 Prehearing statement. 

(a) Time for filing. Unless the judge 

orders otherwise, at least 21 days before 

the hearing, each participating party 

must file a prehearing statement. 

(b) Required conference. Before filing 

a prehearing statement, the party must 

confer with all other parties in good 

faith to: 

(1) stipulate to the facts to the fullest 

extent possible; and 

(2) revise exhibit lists, eliminate 

duplicative exhibits, prepare joint 

exhibits, and attempt to resolve any 

objections to exhibits. 

(c) Contents. Unless ordered 

otherwise, the prehearing statement 

must state: 

(1) the party’s name; 

(2) the issues of law to be determined 

with reference to the appropriate 

statute, regulation, or case law; 

(3) a precise statement of the relief 

sought; 

(4) the stipulated facts that require no 

proof; 

(5) the facts disputed by the parties; 

(6) a list of witnesses the party 

expects to call; 

(7) a list of the joint exhibits; 

(8) a list of the party’s exhibits; 

(9) an estimate of the time required for 

the party to present its case-in-chief; 

and 

(10) any additional information that 

may aid the parties’ preparation for the 

hearing or the disposition of the 

proceeding, such as the need for 

specialized equipment at the hearing. 

(d) Joint prehearing statement. The 

judge may require the parties to file a 

joint prehearing statement rather than 

individual prehearing statements. 

(e) Signature. The prehearing 

statement must be in writing and 

signed. By signing, an attorney, 

representative, or party makes the 

certifications described in § 18.50(d). 

§ 18.81 Formal hearing. 

(a) Public. Hearings are open to the 

public. But, when authorized by law 

and only to the minimum extent 

necessary, the judge may order a hearing 

or any part of a hearing closed to the 

public, including anticipated witnesses. 

The order closing all or part of the 

hearing must state findings and explain 

why the reasons for closure outweigh 

the presumption of public access. The 

order and any objection must be part of 

the record. 

(b) Taking testimony. Unless a closure 

order is issued under paragraph (a) of 

this section, the witnesses’ testimony 

must be taken in an open hearing. For 

good cause and with appropriate 

safeguards, the judge may permit 

testimony in an open hearing by 

contemporaneous transmission from a 

different location. 

(c) Party participation. For good cause 

and with appropriate safeguards, the 

judge may permit a party to participate 

in an open hearing by contemporaneous 

transmission from a different location. 

§ 18.82 Exhibits. 

(a) Identification. All exhibits offered 

in evidence must be marked with a 

designation identifying the party 

offering the exhibit and must be 

numbered and paginated as the judge 

orders. 

(b) Electronic data. By order the judge 

may prescribe the format for the 

submission of data that is in electronic 

form. 

(c) Exchange of exhibits. When 

written exhibits are offered in evidence, 

one copy must be furnished to the judge 

and to each of the parties at the hearing, 

unless copies were previously furnished 

with the list of proposed exhibits or the 

judge directs otherwise. If the judge 

does not fix a date for the exchange of 

exhibits, the parties must exchange 

copies of exhibits at the earliest 

practicable time before the hearing 

begins. 

(d) Authenticity. The authenticity of a 

document identified in a pre-hearing 

exhibit list is admitted unless a party 

files a written objection to authenticity 

at least 7 days before the hearing. The 

judge may permit a party to challenge a 

document’s authenticity if the party 

establishes good cause for its failure to 

file a timely written objection. 

(e) Substitution of copies for original 

exhibits. The judge may permit a party 

to withdraw original documents offered 

in evidence and substitute accurate 

copies of the originals. 

(f) Designation of parts of documents. 

When only a portion of a document 

contains relevant matter, the offering 

party must exclude the irrelevant parts 

to the greatest extent practicable. 

(g) Records in other proceedings. 

Portions of the record of other 

administrative proceedings, civil actions 

or criminal prosecutions may be 

received in evidence, when the offering 

party shows the copies are accurate. 

§ 18.83 Stipulations. 

(a) The parties may stipulate to any 

facts in writing at any stage of the 

proceeding or orally on the record at a 

deposition or at a hearing. These 

stipulations bind the parties unless the 

judge disapproves them. 


srobinson on DSK4SPTVN1PROD with 
72192 Federal Register / Vol. 77, No. 233 / Tuesday, December 4, 2012 / Proposed Rules 

(b) Every stipulation that requests or 

requires a judge’s action must be written 

and signed by all affected parties or 

their representatives. Any stipulation to 

extend time must state the reason for the 

date change. 

(c) A proposed form of order may be 

submitted with the stipulation; it may 

consist of an endorsement on the 

stipulation of the words, ‘‘Pursuant to 

stipulation, it is so ordered,’’ with 

spaces designated for the date and the 

signature of the judge. 

§ 18.84 Official notice. 

On motion of a party or on the judge’s 

own, official notice may be taken of any 

adjudicative fact or other matter subject 

to judicial notice. The parties must be 

given an adequate opportunity to show 

the contrary of the matter noticed. 

§ 18.85 Privileged, sensitive, or classified 

material. 

(a) Exclusion. On motion of any 

interested person or the judge’s own, the 

judge may limit the introduction of 

material into the record or issue orders 

to protect against undue disclosure of 

privileged communications, or sensitive 

or classified matters. The judge may 

admit into the record a summary or 

extract that omits the privileged, 

sensitive or classified material. 

(b) Sealing the record. 

(1) On motion of any interested 

person or the judge’s own, the judge 

may order any material that is in the 

record to be sealed from public access. 

The motion must propose the fewest 

redactions possible that will protect the 

interest offered as the basis for the 

motion. A redacted copy or summary of 

any material sealed must be made part 

of the public record unless the 

necessary redactions would be so 

extensive that the public version would 

be meaningless, or making even a 

redacted version or summary available 

would defeat the reason the original is 

sealed. 

(2) An order that seals material must 

state findings and explain why the 

reasons to seal adjudicatory records 

outweigh the presumption of public 

access. Sealed materials must be placed 

in a clearly marked, separate part of the 

record. Notwithstanding the judge’s 

order, all parts of the record remain 

subject to statutes and regulations 

pertaining to public access to agency 

records. 

§ 18.86 Hearing room conduct. 

Participants must conduct themselves 

in an orderly manner. The consumption 

of food or beverage, and rearranging 

courtroom furniture are prohibited, 

unless specifically authorized by the 

judge. Electronic devices must be 

silenced and must not disrupt the 

proceedings. Parties, witnesses and 

spectators are prohibited from using 

video or audio recording devices to 

record hearings. 

§ 18.87 Standards of conduct. 

(a) In general. All persons appearing 

in proceedings must act with integrity 

and in an ethical manner. 

(b) Exclusion for misconduct. During 

the course of a proceeding, the judge 

may exclude any person—including a 

party or a party’s attorney or nonattorney representative—for 

contumacious conduct such as refusal to 

comply with directions, continued use 

of dilatory tactics, refusal to adhere to 

reasonable standards of orderly or 

ethical conduct, failure to act in good 

faith, or violation of the prohibition 

against ex parte communications. The 

judge must state the basis for the 

exclusion. 

(c) Review of representative’s 

exclusion. Any representative excluded 

from a proceeding may appeal to the 

Chief Judge for reinstatement within 7 

days of the exclusion. The exclusion 

order is reviewed for abuse of 

discretion. The proceeding from which 

the representative was excluded will not 

be delayed or suspended pending 

review by the Chief Judge, except for a 

reasonable delay to enable the party to 

obtain another representative. 

§ 18.88 Transcript of proceedings. 

(a) Hearing transcript. All hearings 

must be recorded and transcribed. The 

parties and the public may obtain copies 

of the transcript from the official 

reporter at rates not to exceed the 

applicable rates fixed by the contract 

with the reporter. 

(b) Corrections to the transcript. A 

party may file a motion to correct the 

official transcript. Motions for 

correction must be filed within 14 days 

of the receipt of the transcript unless the 

judge permits additional time. The 

judge may grant the motion in whole or 

part if the corrections involve 

substantive errors. At any time before 

issuing a decision and upon notice to 

the parties, the judge may correct errors 

in the transcript. 

Post Hearing 

§ 18.90 Closing the record; subsequent 

motions. 

(a) In general. The record of a hearing 

closes when the hearing concludes, 

unless the judge directs otherwise. If 

any party waives a hearing, the record 

closes on the date the judge sets for the 

filing of the parties’ submissions. 

(b) Motion to reopen the record. 

(1) A motion to reopen the record 

must be made promptly after the 

additional evidence is discovered. No 

additional evidence may be admitted 

unless the offering party shows that new 

and material evidence has become 

available that could not have been 

discovered with reasonable diligence 

before the record closed. Each new item 

must be designated as an exhibit under 

§ 18.82(a) and accompanied by proof 

that copies have been served on all 

parties. 

(2) If the record is reopened, the other 

parties must have an opportunity to 

offer responsive evidence, and a new 

evidentiary hearing may be set. 

(c) Motions after the decision. After 

the decision and order is issued, the 

judge retains jurisdiction to dispose of 

appropriate motions, such as a motion 

to award attorney’s fees and expenses, a 

motion to correct the transcript, or a 

motion for reconsideration. 

§ 18.91 Post-hearing brief. 

The judge may grant a party time to 

file a post-hearing brief with proposed 

findings of fact, conclusions of law, and 

the specific relief sought. The brief must 

refer to all portions of the record and 

authorities relied upon in support of 

each assertion. 

§ 18.92 Decision and order. 

At the conclusion of the proceeding, 

the judge must issue a written decision 

and order. 

§ 18.93 Motion for reconsideration. 

A motion for reconsideration of a 

decision and order must be filed no later 

than 10 days after service of the 

decision on the moving party. 

§ 18.94 Indicative ruling on a motion for 

relief that is barred by a pending petition for 

review. 

(a) Relief pending review. If a timely 

motion is made for relief that the judge 

lacks authority to grant because a 

petition for review has been docketed 

and is pending, the judge may: 

(1) defer considering the motion; 

(2) deny the motion; or 

(3) state either that the judge would 

grant the motion if the reviewing body 

remands for that purpose or that the 

motion raises a substantial issue. 

(b) Notice to reviewing body. The 

movant must promptly notify the clerk 

of the reviewing body if the judge states 

that he or she would grant the motion 

or that the motion raises a substantial 

issue. 

(c) Remand. The judge may decide the 

motion if the reviewing body remands 

for that purpose. 


srobinson on DSK4SPTVN1PROD with 
Federal Register / Vol. 77, No. 233 / Tuesday, December 4, 2012 / Proposed Rules 72193 

§ 18.95 Review of decision. 

The statute or regulation that 

conferred hearing jurisdiction provides 

the procedure for review of a judge’s 

decision. If the statute or regulation 

does not provide a procedure, the 

judge’s decision becomes the Secretary’s 

final administrative decision. 

[FR Doc. 2012–28516 Filed 12–3–12; 8:45 am] 

BILLING CODE 4510–20–P 


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