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[Federal Register Volume 80, Number 96 (Tuesday, May 19, 2015)]
[Rules and Regulations]
[Pages 28767-28802]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-11586]

[[Page 28767]]

Vol. 80

Tuesday,

No. 96

May 19, 2015

Part II

Department of Labor

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Office of the Secretary

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29 CFR Part 18

Rules of Practice and Procedure for Administrative Hearings Before the 
Office of Administrative Law Judges; Final Rule

Federal Register / Vol. 80 , No. 96 / Tuesday, May 19, 2015 / Rules 
and Regulations

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DEPARTMENT OF LABOR

Office of the Secretary

29 CFR Part 18

RIN 1290-AA26

Rules of Practice and Procedure for Administrative Hearings 
Before the Office of Administrative Law Judges

AGENCY: Office of the Secretary, Labor.

ACTION: Final rule.

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SUMMARY: This is the final text of regulations governing practice and 
procedure for proceedings before the United States Department of Labor, 
Office of Administrative Law Judges (OALJ). The regulations were first 
published as a final rule in 1983 and were modeled on the Federal Rules 
of Civil Procedure (FRCP). A Notice of Proposed Rulemaking was 
published in the Federal Register on December 4, 2012 requesting public 
comment on proposed revisions to and reorganization of these 
regulations. The revisions make the regulations more accessible and 
useful to parties. The revisions also harmonize administrative hearing 
procedures with the current FRCP and with the types of claims now heard 
by OALJ, which increasingly involve whistleblower and other workplace 
retaliation claims, in addition to a longstanding caseload of 
occupational disease and injury claims. The Department received sixteen 
comments to the proposed rule. This rule responds to those comments and 
establishes the final text of the revised regulations.

DATES: 
    Effective Date: This rule is effective June 18, 2015.
    Compliance Date: This rule is effective June 18, 2015.

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

    On December 4, 2012, the Department published a Notice of Proposed 
Rulemaking (NPRM) with a request for comments amending 29 CFR part 18, 
subpart A. Rules of Practice and Procedure for Hearings Before the 
Office of Administrative Law Judge, 77 FR 72142 (Dec. 4, 2012). The 
Department proposed to amend comprehensively its procedural rules to 
reflect the changes to civil litigation since the OALJ promulgated its 
rules in 1983. Moreover, the need to update the OALJ's procedural rules 
was evident as the OALJ's authority to hear whistleblower cases 
increased. The new procedural rules are analogous to the FRCP used in 
the United States district courts and are intended to provide more 
guidance and clarity to parties practicing before the OALJ.
    The Department provided an opportunity for the public to comment 
even though the changes are to rules of agency organization, procedure 
and practice, which are exempt from the notice and public comment 
requirements of the Administrative Procedure Act (APA). See 5 U.S.C. 
553(b)(3)(A). The comment period ended on February 4, 2013. The 
Department reviewed and responded to each pertinent comment submitted. 
See infra Part 3. Accordingly, the NPRM amending 29 CFR part 18, 
subpart A, that was published on December 4, 2012, is being adopted as 
a final rule with the changes made below.
    The Department has found that a handful of departmental specific 
program regulations reference these rules, and that these references 
may now be inaccurate due to shifts in numbering. The Department plans 
to correct these references in the near future through technical 
corrections, which will be published in the Federal Register.

II. Summary of General Comments on the Notice of Proposed Rulemaking

    The Department received several general comments regarding the 
proposed changes to the OALJ rules of practice and procedure. Each 
comment is addressed as follows:
    Compliance with the APA. The Department stated in the NPRM that 
while the proposed changes consist of amendments to rules of agency 
organization, procedure and practice that are exempt from the notice 
and public comment requirements of the APA, the Department wished to 
provide the public with an opportunity to comment on any aspect of the 
proposed rule. Accordingly, the proposed changes were published in the 
Federal Register, and public comment was invited. Two commenters 
challenged the Department's reference to the APA's procedural rules 
exception and claimed that the Department thus misinformed the public 
and chilled the pool of public comment on the proposed rule changes. 
These commenters asserted that the public harm resulting from this 
alleged error could only be remedied by withdrawing the proposed rules 
and reissuing them in conformity with the full notice and comment 
protections of the APA. One commenter argued that because the rules 
contain provisions for sanctions, they ``substantially alter the rights 
and interests of parties'' which triggers the APA's requirements for 
public notice and comment. This comment principally relied on the 
vacated decision of the Court of Appeals for the District of Columbia 
in Air Transp. Ass'n of Am. v. Dep't of Transp., 900 F.2d 369 (1990), 
cert. granted, 498 U.S. 1023 (1991), vacated, 933 F.2d 1043 (1991). The 
other commenter stated that the OALJ rules of practice and procedure 
constitute agency rules with the ``force and effect of law'' that must 
be published for public comment in accordance with the Supreme Court's 
decisions in United States v. Mead Corp., 533 U.S. 218 (2001), and 
Christensen v. Harris Cnty., 529 U.S. 576 (2000).
    The Department disagrees with these claims. In decisions issued 
subsequent to its vacated ruling in Air Transp. Ass'n of Am., the D.C. 
Circuit has stressed that the `` `critical feature' '' of a rule that 
satisfies the so-called ``procedural exception `is that it covers 
agency actions that do not themselves alter the rights or interests of 
parties, although it may alter the manner in which the parties present 
themselves or their viewpoints to the agency.' '' James V. Hurson 
Assoc., Inc. v. Glickman, 229 F.3d 277, 280 (2000) (quoting JEM Broad 
Co. v. FCC, 22 F.3d 320, 326 (D.C. Cir. 1994)). The Court further held 
in Hurson that ``an otherwise procedural rule does not become a 
substantive one, for notice and comment purposes, simply because it 
imposes a burden on regulated parties.'' Id. at 281. As nothing in the 
new rules alters the ``substantive criteria'' by which claims and 
complaints are adjudicated in the hearing before the OALJ, they are 
within the procedural rules exemption. See id. at 280-81; JEM Broad 
Co., 22 F.3d at 237; Nat'l Whistleblower Ctr. v. Nuclear Regulatory 
Comm'n, 208 F.3d 256, 262 (D.C. Cir. 2000), cert. denied, 531 U.S. 1070 
(2001). The Supreme Court's decisions in Mead Corp. and Christensen 
cited by the other commenter respectively address whether a U.S. 
Customs Service classification ruling and Department of Labor opinion 
letter, neither of which were issued after APA notice and comment 
rulemaking, are entitled to deference under Chevron, U.S.A., Inc. v. 
Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). These decisions 
do not address the scope of the APA's procedural rules exception.
    The Department moreover voluntarily published the rule changes in

[[Page 28769]]

accordance with the notice and comment requirements of the APA 
consistent with the procedure recommended by the Administrative 
Conference of the United States to avoid controversy over the scope of 
the APA's notice and comment exceptions. See The Procedural and 
Practice Rule Exemption from the APA Notice-and-Comment Rulemaking 
Requirements, 1 CFR 305.92-1 (1995) (ACUS Recommendation 92-1, 
available at www.acus.gov/sites/default/files/documents/92-1/pdf). The 
commenters provided no evidence to support their claim that the 
Department's voluntary compliance with the APA's notice and comment 
requirements in accordance with the ACUS recommendation in any manner 
chilled or otherwise influenced public comment. They also cited no 
legal authority for their position that the Department's mere reference 
to the procedural rules exception vitiated the NPRM. The Department's 
receipt of multiple comments indicates that the public was neither 
``chilled'' nor deterred from submitting items for consideration. Thus, 
there is no basis for withdrawing and reissuing the rules changes.
    Conflicts with the LHWCA and BLBA. Two commenters argued that 
several provisions in the new rules providing for imposition of 
sanctions conflict with provisions of the Longshore and Harbor Workers' 
Compensation Act (LHWCA), 33 U.S.C. 901-950, which are also applicable 
to claims adjudicated under the Black Lung Benefits Act (BLBA), 30 
U.S.C. 901-945, and therefore those provisions should either be deleted 
or rewritten to specifically state that they are not applicable to 
proceedings under the LHWCA and BLBA. The commenters identified 
sections 926, 927(b) and 931 of the LHWCA, 33 U.S.C. 926, 927(b), 931, 
as conflicting with the new rules containing sanction provisions. One 
commenter also suggested that some of the new rules may contravene 
section 923(a) of the LHWCA, 33 U.S.C. 923(a). The Department believes 
however that any conflicts between the rules and the LHWCA and, for 
that matter, any other statute governing administrative hearing 
proceedings before the OALJ, are already addressed appropriately in the 
rules and do not warrant either wholesale rescission or rewriting. The 
Department also believes that the commenters overstated the alleged 
conflicts between the new rules and the LHWCA.
    Section 923(a) of the LHWCA provides that officials conducting 
hearings ``shall not be bound by common law or statutory rules of 
evidence or by technical or formal rules of procedure, except as 
provided by this chapter; but may make such investigation or inquiry or 
conduct such hearing in such manner as to best ascertain the rights of 
the parties.'' 33 U.S.C. 923(a). See also 20 CFR 702.339, 725.455(b). 
The Benefits Review Board (BRB) and courts of appeals have nevertheless 
applied provisions of the OALJ Rules of Practice and Procedure, 
particularly in regard to discovery issues, in proceedings governed by 
section 923(a) of the LHWCA in the absence of any conflict with a 
particular LHWCA or BLBA rule. See, e.g., Johnson v. Royal Coal Co., 
326 F.3d 421, 426 (4th Cir. 2003); Keener v. Peerless Eagle Coal Co., 
23 Black Lung Rep. (Juris) 1-229, 1-243 (Ben. Rev. Bd. 2007) (en banc); 
Cline v. Westmoreland Coal Co., 21 Black Lung Rep. (Juris) 1-69, 1-76 
(Ben. Rev. Bd. 1997); see also Prince v. Island Creek Coal Co., BRB No. 
01-0448 BLA, 2002 WL 34707263 (Ben. Rev. Bd. Jan. 24, 2002) (reading 29 
CFR 18.14 and 20 CFR 725.455 as complementary rules providing the ALJ 
with broad discretion to direct discovery), aff'd, 76 Fed.Appx. 67, 
2003 WL 22176988 (6th Cir. Sept. 19, 2003). It would be inappropriate 
and contrary to well-established precedent to add a textual exception 
to all of the proposed disclosure and discovery rules for LHWCA and 
BLBA cases. Moreover, Sec.  18.10(a) provides that ``[t]o the extent 
that these rules may be inconsistent with a governing statute, 
regulation, or executive order, the latter controls.'' 29 CFR 18.10(a).
    Section 926 of the LHWCA provides that ``[i]f the court having 
jurisdiction of proceedings in respect of any claim or compensation 
order determines that the proceedings in respect of such claim or order 
have been instituted or continued without reasonable ground, the costs 
of such proceedings shall be assessed against the party who has so 
instituted or continued such proceedings.'' 33 U.S.C. 926. Congress 
intended claimants to be subject to costs ``if they brought their 
unreasonable claims into court'' when it enacted section 926. Metro. 
Stevedore Co. v. Brickner, 11 F.3d 887, 890 (9th Cir. 1993). The 
Department recognizes that federal courts have the exclusive power to 
impose section 926 sanctions when a party brings a frivolous claim 
under the LHWCA. Id. at 890-91; see also Boland Marine & Mfg. Co. v. 
Rihner, 41 F.3d 997, 1004 (5th Cir. 1995). However, to the extent that 
any of the new rules conflict with section 926, the latter controls. 
See 29 CFR 18.10(a). There is therefore no conflict between section 926 
and any of the new rules.
    Section 927(b) in relevant part provides that if any person in a 
LHWCA proceeding ``disobeys or resists any lawful order or process, or 
misbehaves during a hearing or so near the place thereof as to obstruct 
the same, or neglects to produce, after having been ordered to do so, 
any pertinent book, paper, or document, or refuses to appear after 
having been subpoenaed, or upon appearing refuses to take the oath as a 
witness, or after having taken the oath refuses to be examined 
according to law,'' the adjudicatory official ``shall certify the facts 
to the district court having jurisdiction in the place in which he is 
sitting (or to the United States District Court for the District of 
Columbia'' for summary contempt proceedings). 33 U.S.C. 927(b). The 
Department agrees with the commenters that section 927(b) provides the 
district courts with the exclusive power to punish contumacious conduct 
consisting of a refusal to comply with a judge's order, lawful process 
or subpoena, or hearing room misbehavior in proceedings under the 
LHWCA. See Goicochea v. Wards Cove Packing Co., 37 Ben. Rev. Bd. Serv. 
(MB) 4, 6 (2003) (vacating dismissal of claim as sanction for 
claimant's refusal to comply with a judge's discovery order). To the 
extent that any of the new rules conflict with section 927(b), the 
latter controls. See 29 CFR 18.10(a). However, there are several 
situations addressed by the new rules involving conduct that likely 
would fall outside the categories of contumacy requiring certification 
to a district court for a section 927(b) summary contempt proceeding. 
See A-Z Intn'l v. Phillips, 323 F.3d 1141, 1146-47 (9th Cir. 2003) 
(holding that the district court lacked section 927(b) jurisdiction 
over conduct that did not involve a refusal ``to comply with a summons, 
writ, warrant, or mandate issued by the ALJ''). See, e.g., 29 CFR 
18.35(c) (sanctions for violations of Sec.  18.35(b) relating to the 
representations made when presenting a motion or other paper to the 
judge), 18.50(d)(3) (sanctions for violations of Sec.  18.50(d)(1) 
pertaining to certifications made when signing disclosures and 
discovery requests, responses and objections), 18.56(d)(1) (sanctions 
for violations of the duty under Sec.  18.56(c)(1) to protect a person 
subject to a subpoena from undue burden), 18.57(c) (sanctions for 
failures to disclose information, supplement an earlier response or to 
admit as required by Sec. Sec.  18.50(c), 18.53 and 18.63(a)), 18.57(d) 
(sanctions for a party's failure to attend its own deposition, serve

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answers to interrogatories, or respond to a request for inspection), 
18.64(d)(2) (sanctions for impeding, delaying or frustrating a 
deposition), 18.64(g) (sanctions for failing to attend or proceed with 
a deposition or serve a subpoena on a non-party deponent when another 
party, expecting the deposition to be taken, attends), 18.72(h) 
(sanctions for submitting in bad faith an affidavit or declaration in 
support of or in opposition to a motion for summary decision). To the 
extent these provisions address violations of the procedural rules 
falling outside the scope of section 927(b), there is no conflict with 
the statute.
    The Department also rejects the commenters' argument that section 
927(b) provides the exclusive remedy for any misconduct or rules 
violation occurring in LHWCA and BLBA proceedings. Section 927(b), 44 
Stat. 1438 (Mar. 4, 1927) (codified as amended at 33 U.S.C. 927), was 
originally enacted in 1927, decades before the passage of the APA which 
also governs adjudications under the LHWCA and the BLBA. 33 U.S.C. 
919(d); 30 U.S.C. 932(a); Dir., OWCP, Dep't of Labor v. Greenwich 
Collieries, 512 U.S. 267, 280-81 (1994); see also Lane v. Hollow Coal 
Co. v. Dir., OWCP, Dep't of Labor, 137 F.3d 799, 802-03 (4th Cir. 1998) 
(requiring ALJ's decision to contain findings and conclusions, in 
accordance with 5 U.S.C. 557(c)(3)(A)); Cole v. East Kentucky 
Collieries, 20 Black Lung Rep. (Juris) 1-50, 1-54 (Ben. Rev. Bd. 1996) 
(discussing statutory mechanism whereby APA applies to BLBA claims); 
Toyer v. Bethlehem Steel Corp., 28 Ben. Rev. Bd. Serv. (MB) 347, 351 
(1994) (emphasizing APA applicability in all LHWCA adjudications). 
Notably, the APA's grant of authority to ``regulate the course of the 
hearing,'' 5 U.S.C. 556(c)(5), provides a judge with an independent 
basis to take such actions as are necessary to ensure parties a fair 
and impartial adjudication. Such authority includes the power to compel 
discovery and impose sanctions for non-compliance pursuant to the OALJ 
rules of practice and procedure. See Williams v. Consolidation Coal 
Co., BRB No. 04-0756 BLA, 2005 WL 6748152, at *8 (Ben. Rev. Bd. Aug. 8, 
2005), appeal denied, 453 F.3d 609 (4th Cir. 2006), cert. denied, 549 
U.S. 1278 (2007). The bifurcation of general adjudicatory authority and 
contempt powers between administrative law judges and the district 
courts under the LHWCA is analogous to adjudication in the federal 
courts after passage of the Federal Magistrates Act, 28 U.S.C. 604, 
631-39, under which magistrate judges have general authority to order 
non-dispositive discovery sanctions while contempt charges must be 
referred to a district court judge. See Grimes v. City and County of 
San Francisco, 951 F. 2d 236, 240-41 (9th Cir. 1991) (discussing the 
scope and limits of magistrate judges' sanction authority); see also 
Dodd v. Crown Cent. Petroleum Corp., 36 Ben. Rev. Bd. Serv. (MB) 85, 89 
n.6 (2002) (affirming, as not inconsistent with section 927(b), judge's 
imposition of sanctions pursuant to 29 CFR 18.6(d)(2) for claimant's 
noncompliance with a discovery order). The Department therefore 
believes that the commenters' proposal to exempt LHWCA and BLBA 
proceedings from the judge's authority under the APA to regulate the 
course of the hearing is neither warranted by the statute nor 
consistent with the efficient and impartial conduct of administrative 
hearings.
    Section 931(a)(1) of the LHWCA provides that ``[a]ny claimant or 
representative of a claimant who knowingly and willfully makes a false 
statement or representation for the purpose of obtaining a benefit or 
payment under this chapter shall be guilty of a felony, and on 
conviction thereof shall be punished by a fine not to exceed $10,000, 
by imprisonment not to exceed five years, or by both.'' 33 U.S.C. 
931(a)(1). Section 931(c) similarly provides that ``[a] person 
including, but not limited to, an employer, his duly authorized agent, 
or an employee of an insurance carrier who knowingly and willfully 
makes a false statement or representation for the purpose of reducing, 
denying, or terminating benefits to an injured employee, or his 
dependents pursuant to section 909 of this title if the injury results 
in death, shall be punished by a fine not to exceed $10,000, by 
imprisonment not to exceed five years, or by both.'' 33 U.S.C. 931(c). 
As there is no provision in the new rules that authorizes a judge to 
impose a fine or other penalty for a knowing and willfully false 
statement or representation for the purpose of obtaining or opposing a 
benefit under the LHWCA, there is no conflict between section 931 and 
any of the new rules.
    Authority to Regulate the Conduct of Administrative Proceedings; 
Sanctions. The Department announced in the NPRM that it intended to 
bring the OALJ rules of practice and procedure into closer alignment 
with the FRCP. Doing so takes advantage of the mature precedent the 
federal courts have developed and the broad experience they have in 
applying the FRCP. Choosing which portions to adopt and which to omit 
allows for flexible case management, given the less formal nature of 
administrative proceedings, which never involve juries. These changes 
offer greater clarity and uniformity so parties can focus on the merits 
of their disputes with less distraction from litigating points of 
procedure. To attain these objectives, the new rules contain a number 
of provisions, similar to their FRCP counterparts, which authorize 
judges to take actions necessary to regulate and ensure the integrity 
of the hearing process. See 29 CFR 18.12(b)(10), 18.35(c), 18.50(d)(3), 
18.56(c)(1), 18.57(a)(2)(A), 18.57(b), 18.57(c), 18.57(d)(1), 
18.57(d)(3), 18.57(e), 18.57(f), 18.64(d)(2), 18.64(g), 18.72(h), 
18.87. Two commenters asserted that these litigation sanction 
provisions exceed a judge's authority under the APA, and attempt to 
arrogate contempt power and claim ``inherent judicial authority'' that 
is vested exclusively in the Article III courts. The Department 
believes these assertions misunderstand the challenged rules and their 
intent.
    The prior rules authorized judges to sanction a broad range of 
inappropriate conduct during the course of an administrative 
proceeding. A judge could overrule an objection to a discovery request 
(such as request for admission or an interrogatory) and compel a 
response. 29 CFR 18.6(d)(1). If that objecting party thereafter failed 
to answer or answered evasively, the judge could order that a matter be 
treated as admitted. Id. If a party failed to comply with a subpoena, 
discovery order or any other order, the judge could take other just 
actions, including (i) drawing adverse inferences; (ii) ruling that the 
matter concerning which the subpoena or order was issued be taken as 
established adversely to a non-complying party; (iii) excluding 
evidence a non-complying party offered; (iv) ruling that a non-
complying party could not object to the use of secondary evidence to 
establish what evidence it withheld should have shown; or (v) ruling 
that all or part of a pleading be stricken, or that a decision be 
rendered against the non-complying party. 29 CFR 18.6(d)(2). The prior 
rules also recognized that judges have ``all powers necessary to the 
conduct of fair and impartial hearings including, but not limited to . 
. . [w]here applicable, take any appropriate action authorized by the 
Rules of Civil Procedure for the United States District Courts, issued 
from time to time and amended pursuant to 28 U.S.C. 2072. . . .'' 29 
CFR 18.29(a)(8). The new rules preserve

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this longstanding authority to impose appropriate litigation sanctions, 
see 29 CFR 18.12(b)(10), 18.57(b), and additional provisions for 
sanctions were made as discussed above in Sec. Sec.  18.35(c), 
18.50(d)(3), 18.56(c)(1), 18.57(c), 18.57(d), 18.64(d)(2), 18.64(g), 
18.72(h). The new rules provide greater clarity and direction on the 
scope and limitations on a judge's authority to sanction a party's 
unjustified failure to carry out duties that the procedural rules 
establish.
    The Department's appellate boards and judges have no Article III 
status or powers. See, e.g., Temp. Emp't Serv. v. Trinity Marine Group, 
Inc., 261 F.3d 456, 460-61 (5th Cir. 2001); Schmit v. ITT Fed. Elec. 
Int'l, 986 F.2d 1103, 1109-10 (7th Cir. 1993); Gibas v. Saginaw Mining 
Co., 748 F.2d 1112, 1117 (6th Cir. 1984). The APA vests no contempt 
powers in ALJs. The Department acknowledges that FRCP 11 itself does 
not vest ALJs with authority to impose the sanctions embodied in that 
rule because it is a rule of the Article III trial courts. Nor was it 
clear whether FRCP 11 had been generally incorporated into the prior 
rules by 29 CFR 18.1(a). Metro. Stevedore Co. v. Brickner, 11 F.3d 887, 
891 (9th Cir. 1993) (expressing in dicta doubts about incorporation). 
FRCP 11 was unavailable for incorporation in Longshore claims, however. 
Boland Marine & Mfg. Co. v. Rihner, 41 F.3d 997 (5th Cir. 1995) 
(Section 26 of the Longshore Act confines an award of costs when 
proceedings are ``instituted or continued without reasonable grounds'' 
to proceedings that have made their way into the Article III courts. 
Therefore, neither FRCP 11 nor section 26(f) may be incorporated into 
Longshore Act proceedings at the Department through the text of 29 CFR 
18.1(a) on the theory that the ``situation [is] not provided for or 
controlled by statute.''); Metro. Stevedore Co., 11 F.3d at 891 
(finding that under section 26 of the Longshore Act only courts can 
assess costs against a claimant who institutes or continues a 
proceeding in the courts without reasonable grounds); R.S. [Simons] v. 
Va. Int'l Terminals, 42 Ben. Rev. Bd. Serv. (MB) 11, 14 (2008) 
(rejecting an argument that an ALJ could assess attorney's fees against 
an employer that were unavailable under section 28 of the Longshore Act 
by using FRCP 11 instead); Valdez v. Crosby & Overton, 34 Ben. Rev. Bd. 
Serv. (MB) 69, 77 (2000) (applying the holdings in Boland Marine & Mfg. 
Co. and Metro. Stevedore Co.); Crum v. Wolf Creek Collieries, 18 Black 
Lung Rep. (Juris) 1-80, 1-83 (Ben. Rev. Bd. 1994). Though the new rules 
use the term ``sanction'' to describe remedies that can be applied when 
a party fails to fulfill its duties, these remedies do not extend to 
the full panoply of powers available to Article III judges under their 
inherent powers or under FRCP 11, which encompass the authority to 
require an errant lawyer to participate in seminars or education 
programs, or order a fine payable to the court. See Fed. R. Civ. P. 11 
advisory committee's note (discussion of 1993 amendments).
    Nonetheless, the APA empowers ALJs, ``[s]ubject to published rules 
of the agency and within its powers . . . to regulate the course of a 
hearing.'' 5 U.S.C. 556(a)(3), (c)(5). That authority is statutorily 
explicit. The appellate courts moreover have upheld orders that impose 
litigation sanctions on parties who violate an administrative agency's 
procedural rules. See Roadway Exp., Inc. v. U.S. Dept. of Labor, 495 
F.3d 477, 484 (7th Cir. 2007) (``[A]gency's rules unambiguously permit 
the ALJ to impose, as a discovery sanction, an order excluding evidence 
that a non-complying party wishes to introduce in support of its 
claim.''); In re Bogese, 303 F.3d 1362, 1367-68 (Fed. Cir. 2002) 
(Patent and Trademark Office, like other administrative agencies, may 
impose reasonable deadlines and requirements on parties appearing 
before it and has broad authority to sanction undue delay by holding a 
patent unenforceable); Atlantic Richfield Co. v. U.S. Dep't of Energy, 
769 F.2d 771, 793 (D.C. Cir. 1984) (rejecting argument that 
administrative agency ``cannot impose evidentiary sanctions--of course, 
short of a fine or imprisonment--when necessary to preserve the 
integrity of an authorized adjudicative proceeding''). As the court of 
appeals in Atlantic Richfield Co. stated,

    It seems to us incongruous to grant an agency authority to 
adjudicate--which involves vitally the power to find the material 
facts--and yet deny authority to assure the soundness of the fact 
finding process. Without an adequate evidentiary sanction, a party 
served with a discovery order in the course of an administrative 
adjudicatory proceeding has no incentive to comply, and often times 
has every incentive to refuse to comply.

769 F.2d at 796. The adjudicatory duties of an ALJ are in many ways 
``functionally comparable'' to those of a federal district court judge. 
Butz v. Economou, 438 U.S. 478, 513-14 (1978). It would be incongruous 
to deprive an ALJ of any procedural tools that assure the integrity and 
soundness of the adjudicative process. The tools include the authority 
to impose litigation sanctions that do not conflict with the 
substantive statute applicable to the proceeding for procedural 
violations that frustrate efficient administrative adjudication. The 
Department's ALJs used a broad range of sanctions for the nearly 30 
years under the prior rules, including the dismissal of a claim or 
defense, as well as lesser evidentiary sanctions. Curley v. Grand 
Rapids Iron & Metal Co., ARB No. 00-013, ALJ No. 1999-STA-39 (ARB Feb. 
9, 1999) (affirming ALJ's authority to dismiss employment protection 
claim for abandonment, based on complainant's failure to participate in 
prehearing conference or reply to order to show cause why the matter 
should not be dismissed for failure to comply with a lawful order); see 
also Dodd v. Crown Cent. Petroleum Corp., BRB No. 02-0821, slip op. at 
9-10 (Ben. Rev. Bd. Aug. 7, 2003) (affirming the dismissal for 
abandonment of a pro se litigant's claim under the authority of 29 CFR 
18.29(a), which affords ALJs ``all necessary powers to conduct fair and 
impartial hearings and to take any appropriate action authorized by the 
Federal Rules of Civil Procedure,'' where claimant failed to attend the 
final hearing, stated he would not participate, sustained objections to 
discovery the claimant sought, and denied the claimant's motion to 
recuse the ALJ); Matthews v. LaBarge, Inc., ARB No. 08-038, ALJ No. 
2007-SOX-56 (ARB Nov. 26, 2008) (adopting ALJ's decision to dismiss 
under 29 CFR 18.6(d)(2) because ALJ found that pro se complainant 
failed to comply with discovery orders repeatedly, willfully, 
intentionally, and in bad faith); Administrator v. Global Horizons 
Manpower, Inc., ARB No. 09-016, ALJ No. 2008-TAE-3 (ARB Dec. 21, 2010) 
(affirming ALJ's order granting, as a discovery sanction under 29 CFR 
18.6(d)(2)(v) and 18.29(a)(8), all the back pay and civil penalties the 
Administrator of the Wage and Hour Division had sought against employer 
for ``willful, contumacious disregard of the discovery process as well 
as disregard of the ALJ's multiple warnings and orders''); 
Administrator v. Global Horizons, Inc., ARB No. 11-058, ALJ No. 2005-
TAE-1 & 2005-TLC-6, 2013 WL 2450031, at *4-8 (DOL Admin. Rev. Bd. May 
31, 2013) (affirming an ALJ's summary judgment awarding worker's back 
pay, repayment of impermissible deductions from pay, and awarding the 
Administrator civil penalties, which were based in large part on 145 
factual allegations deemed admitted as the result of three orders that 
imposed sanctions for misconduct in discovery). But see Goichochea v. 
Wards Cove

[[Page 28772]]

Packing Co., 37 Ben. Rev. Bd. Serv. (MB) 4, 7 (2003) (holding that in a 
claim for Longshore disability compensation benefits, the remedy for 
disobeying an order compelling discovery is the procedure described in 
section 27(b) of the Longshore Act).
    The Department kept in mind the limits on the authority of an 
administrative agency to impose sanctions when it fashioned the 
litigation sanction provisions. Section 558(b) of the APA, cited by 
some commenters, states that ``[a] sanction may not be imposed or a 
substantive rule or order issued except within the jurisdiction 
delegated to the agency and authorized by law.'' 5 U.S.C. 558(b); see 
also Am. Bus. Ass'n v. Slater, 231 F.3d 1, 7 (D.C. Cir. 2000) (holding 
that the Department of Transportation lacked statutory authority to 
require a bus company to pay monetary damages to disabled passengers 
they failed to accommodate); Windhauser v. Trane, ARB No. 05-127, OALJ 
No. 2005-SOX-17, 2007 WL 7139497, at *2-3 (DOL Admin. Rev. Bd. Oct 31, 
2007) (reversing ALJs imposition of monetary sanctions against 
whistleblower complainant because such sanctions ``are, by statute, in 
the jurisdiction of the federal district courts''). The Slater court 
distinguished between sanctions that require express statutory 
authority under section 558(d) of the APA because they are directed at 
modifying ``primary conduct,'' such as a bus company's failure to 
accommodate disabled passengers, and litigation sanctions designed to 
protect the integrity of the agency's administrative processes. Id. The 
Slater court recognized an agency has ``a limited power to impose 
sanctions that are not expressly authorized by statute, but only ones 
designed to `protect the integrity of its own processes.' '' Id. 
(quoting Touche Ross & Co. v. SEC, 609 F.2d 570, 582 (2d Cir. 1979)); 
see also Davy v. SEC, 792 F.2d 1418, 1421 (9th Cir. 1986). The 
provisions for the limited sanctions in the new rules are not directed 
to any party's primary conduct--which would be the subject matter of 
the proceeding--but to violations of procedural rules that compromise 
the integrity of the administrative hearing process. These litigation 
sanctions are consistent with the Department's regulatory authority 
under section 556(c)(5) of the APA, do not require additional express 
statutory authorization under section 558(b) of the APA, and do not 
amount to an exercise of Article III courts' contempt or sanction 
powers.
    Remedial Purpose of Whistleblower Adjudications. The Department 
received a comment regarding whistleblower adjudications generally, 
which suggested that the procedural rules should reflect the remedial 
purpose of the whistleblower statutes under the OALJ's jurisdiction. 
The Department notes that the new rules are procedural rules intended 
to apply to all proceedings before OALJ and not any specific class of 
proceeding. To the extent a particular agency seeks the application of 
specific procedural rules, it is incumbent on that agency to 
incorporate such rules into its own regulations. For instance, 
proceedings under the Employee Retirement Income Security Act of 1974 
(ERISA), 29 U.S.C. 1132, define specific procedures at 29 CFR 2570, 
subpart C.
    The Department received a similar comment suggesting that the OALJ 
``should strive for better whistleblower protection than U.S. District 
Courts'' because the OALJ has garnered specialized knowledge and the 
process is less formal in an agency adjudication. The comment however 
did not offer any concrete proposal for changes to the text of the new 
rules. Any program-specific change moreover should be addressed to the 
particular agency charged with administering the particular program.
    Effect on Pro Se Litigants. One commenter asserted that the new 
rules will make litigation of whistleblower claims harder on pro se 
parties. The commenter noted that, although the OALJ rules of practice 
and procedure are analogous to the FRCP, there are some differences: 
For example, whistleblowers do not ordinarily have to plead a claim 
through a complaint. The commenter remarked that the Administrative 
Review Board (ARB) and other appellate authorities have construed pro 
se complainants' positions liberally and with a degree of judicial 
latitude. The commenter also suggested that the Department's comments 
should make clear that decisions on the merits are the goal, and 
compliance with procedural rules should ``bend where necessary to meet 
that goal.''
    The Department agrees that concerns relating to the ability of pro 
se litigants to submit and litigate complaints deserve consideration. 
As the ARB has enunciated, a pro se litigant's presumed lack of 
familiarity with litigation procedures may require accommodation. For 
example, a pro se litigant must be informed of the consequences of 
failing to respond to dispositive motions, Motarjemi v. Metro. Council, 
Metro. Transit Div., ARB No. 08-135, ALJ No. 2008-NTS-2 (ARB Sept. 17, 
2010), and an untimely filing may be considered, Wallum v. Bell 
Helicopter Textron, Inc., ARB No. 12-110, ALJ No. 2009-AIR-20 (Sept. 
19, 2012). The new rules provide uniform procedures for case 
management, but simultaneously permit judges the flexibility to tailor 
procedures to specific cases through appropriate orders. So, for 
example, where a pro se complainant requires additional guidance, under 
the new rule the judge may issue more focused or detailed orders, as 
necessary. The new rules provide more detailed procedural information 
(particularly regarding discovery and other pre-hearing requirements) 
than had been the case previously. The Department therefore declines to 
adopt the commenter's suggestion.
    Discovery Rules Regarding Electronically Stored Information. One 
commenter voiced some general concerns that the rules should clarify 
issues related to discovery of electronically stored information (ESI), 
specifically providing that both sides have access to discovery of ESI 
and that ESI is treated the same as paper documents. The Department 
believes those concerns are adequately addressed in Sec.  18.61, which 
states that there is no differentiation in the access to ESI or paper 
discovery. Thus, the rule provides the ALJ with the ability to manage 
discovery and minimize gamesmanship in discovery of both paper 
documents and ESI.
    Electronic Filing. One commenter urged that the OALJ adopt and 
implement electronic case filing (ECF) or, in the alternative, allow 
facsimile filing and remove the maximum page limitation on faxes. Those 
concerns were also specifically raised in the comments to proposed 
Sec.  18.30 and are fully addressed in that response. However, the 
general answer is that the implementation of ECF is a resource 
constrained policy decision. Until the Department implements ECF, 
promulgating rules about ECF would lead to confusion.
    Offer of Judgment. One commenter suggested that the OALJ's rules 
should include one analogous to FRCP 68, Offer of Judgment, and should 
expressly cut off attorney's fees and other litigation costs when a 
claimant refuses an offer and fails to obtain a more favorable result.
    The Department declines to adopt the commenter's suggestion. An 
offer of judgment is significant matter that could affect an otherwise 
successful complainant's right to recover attorneys' fees as costs. 
Marek v. Chesny, 473 U.S. 1 (1985). No analog to FRCP 68 appears in the 
OALJ's previous rules. The Department stated its intention to align

[[Page 28773]]

its procedural rules more closely with the FRCP, but did not give any 
notice that an offer of judgment rule was contemplated. The Department 
believes the final rule should not include an offer of judgment 
provision for three interrelated reasons.
    First, doing so would not have given interested parties sufficient 
notice that such a rule was contemplated, and it is unclear that doing 
so now could be regarded a logical outgrowth of the rules proposed. See 
5 U.S.C. 553(b)(3); Ass'n of Private Sector Colls. & Univs. v. Duncan, 
681 F.3d 427, 461 (D.C. Cir. 2012). Second, the OALJ issues no 
judgments; it is not a court, although it shares many attributes with 
Article III federal courts. FRCP 68 would have to be substantially 
altered to adapt to the context of administrative adjudication, as 
there is no clerk who could enter a judgment in the way FRCP 68(a) 
contemplates (``The clerk must then enter judgment.''). Finally, FRCP 
68 is subject to varying interpretations in the courts of appeals on 
how the defense should address attorney's fees in the text of an offer, 
when the substantive statute at issue directs the adjudicator to assess 
those fees as an item of costs. See Charles Alan Wright et al., Federal 
practice and Procedure Sec.  3005.1 (3d ed. 2014). Any rule the 
Department adopts should make a choice between the competing theories, 
to make the rule nationally uniform, and as useful to litigants as 
possible. Those choices will not be made without the benefit of public 
comment.

III. Summary of Specific Comments on the Notice of Proposed Rulemaking

    The Department received several comments regarding specific 
sections in the NPRM. Each comment is addressed as follows:
    Sec.  18.10 Scope and purpose. One commenter expressed concern that 
the principles expressed in section 923 of the LHWCA, providing that 
the LHWCA hearing process is not bound by formal rules of evidence but 
conducted in a manner to best ascertain the rights of the parties, may 
be circumvented by procedural rules not addressed in the LHWCA and BLBA 
and respective implementing regulations. The commenter suggested part 
18 explains what sections do not apply to LHWCA or BLBA proceedings 
``to avoid confusion.'' Another commenter suggested adding a paragraph 
``(d)'' to Sec.  18.10, which would specifically state that in 
proceedings under the LHWCA and BLBA the following list of proposed 
rules would not apply: Sec. Sec.  18.12, 18.23, 18.35, 18.50, 18.56, 
18.57, 18.64, 18.70, 18.72, 18.80, and 18.87.
    Future statutory and regulatory changes in the numerous 
administered programs, including the LHWCA, BLBA, employment 
discrimination, ``whistleblower'' and immigration cannot be foreseen. 
For instance, recent litigation has highlighted a BLBA-specific issue--
one involving the disclosure of non-testifying expert opinions--that 
may deserve further consideration. See generally Fox v. Elk Run Coal 
Co., 739 F.3d 131 (4th Cir. 2014). Nothing in these rules would prevent 
the Department from adopting a procedural rule that applies only in 
BLBA claim adjudications or other program-specific contexts. Moreover, 
listing variations in procedural requirements for the numerous programs 
in each new rule defeats the purpose of the new rules and would require 
constant rulemaking activity to reflect legislative changes. The 
Department thus disagrees with the submitted proposals to individually 
identify superseding statutory, regulatory or executive order 
provisions collectively in the new Sec.  18.10 or separately in those 
new rules where a conflict may exist.
    One commenter suggested that the lack of an appeal process in 
regard to a judge's decision to modify, waive or suspend a procedural 
rule in new Sec.  18.10(c) ``appears arbitrary and capricious.'' The 
Department disagrees. First, while the case is at the OALJ, no rule may 
be waived, modified or suspended without notice to the parties. Second, 
doing so requires the judge to make two determinations: That the 
specific alteration of the rule ``will not prejudice a party,'' and 
``will serve the ends of justice.'' Finally, a party may raise before 
the appropriate appellate authority on direct review of the final order 
any error in modifying a rule.
    Sec.  18.12 Proceedings before administrative law judge. The 
Department combined the designation provisions of prior Sec.  18.25 and 
the authority provisions of prior Sec.  18.29(a). The Department 
specifically clarified in the NPRM that the enumerated powers mirrored 
those set forth in section 556 of the APA and that the enforcement 
provision of prior Sec.  18.29(b) was deleted due to its contents of 
referring contumacious conduct to an appropriate federal court is set 
forth in applicable statutes, such as Section 927(b) of the LHWCA.
    One commenter proposed that prior Sec.  18.29(b) should not be 
deleted ``even though the content is contained in applicable statutes 
[because] this provision clearly delineates an administrative law 
judge's restricted powers, especially under statutes like the LHWCA.'' 
The Department disagrees with the comment that the provision on 
referring contumacious conduct to federal court should be retained in 
the new rules since controlling program statutes provide for such 
referral action when appropriate. See, e.g., 20 CFR 725.351(c).
    The commenter also proposed deleting Sec.  18.12(b)(10) listing the 
authority of an ALJ to ``take actions authorized by the FRCP'' because 
the language would include all sanctions authorized by the FRCP and 
penalty sanctioning authority is reserved to the federal courts by the 
LHWCA and BLBA. Section 18.12(b)(10) was a succinct restatement of 
prior Sec.  18.29(a)(8). The Department agrees that the brevity in 
which prior Sec.  18.29(a)(8) was restated could be construed as 
excessively broad. To ensure consistency, the new Sec.  18.12(b)(10) is 
rewritten to closely align with prior Sec.  18.29(a)(8) by returning 
the words ``where applicable'' to the rule.
    Sec.  18.22 Representatives. The Department narrowed the rule on 
representatives appearing before OALJ to reflect the two classes of 
representatives who routinely appear--attorneys and non-attorney 
representatives. The rule sets forth the qualifications required to 
appear as a representative of a party, the minimum duties required of a 
representative, and prohibited actions of any representative. One 
comment suggested that the proposed rule setting forth the 
qualifications for an attorney representative is overreaching and 
conflicts with 5 U.S.C. 500(b). That provision states in relevant part: 
``An individual who is a member in good standing of the bar of the 
highest court of a State may represent a person before an agency on 
filing with the agency a written declaration that he is currently 
qualified as provided by this subsection and is authorized to represent 
the particular person in whose behalf he acts.'' Id. The commenter 
suggested nothing more should be required of an attorney representative 
seeking to represent a party before OALJ. The commenter believed that 
the proposed Sec.  18.22 (a)-(d) imposed additional requirements 
inconsistent with 5 U.S.C. 500(b).
    The Department has made revisions to the new rule in response to 
this comment. The Department deleted the following sentence from Sec.  
18.22(a): ``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.''

[[Page 28774]]

The Department has added the following in its place: ``Any attorney 
representative must include in the notice of appearance the license 
registration number(s) assigned to the attorney.'' Essentially the only 
requirement that an attorney representative must follow in order to 
represent a party before the Department is to file a notice of 
appearance and include the appropriate attorney license registration 
number. Filing the notice of appearance by the attorney representative 
will constitute an attestation that: (a) The attorney is a member of a 
bar in good standing of the highest court of a State, Commonwealth, or 
Territory of the United States, or the District of Columbia; and (b) no 
disciplinary proceeding is pending against the attorney in any 
jurisdiction where the attorney is licensed to practice law. The 
Department has amended Sec.  18.22(b)(1)(i) to reflect this change.
    The Department disagrees with the comment that sections (c) and (d) 
conflict with 5 U.S.C. 500. Section (c) sets forth the minimum 
requirements expected of any representative during the course of a 
proceeding before the Department, and section (d) delineates prohibited 
actions of any representative appearing in a proceeding before the 
Department. Neither section prescribes any additional requirements for 
an attorney representative to appear on behalf of a party before the 
Department.
    The Department set forth the minimum duties required of all 
representatives appearing before the OALJ in Sec.  18.22(c). These 
duties originate from the rules of conduct and standards of 
responsibility imposed by the Social Security Administration (SSA) on 
representatives appearing before the SSA. See 20 CFR 404.1740(b). While 
the Department realizes that the non-adversarial nature of SSA hearings 
may require more detailed procedures, the basic duties included in the 
new rule are elementary to any hearing process and serve as a baseline 
foundation for conducting hearings promptly, efficiently, and fairly. 
The new rule also states that an attorney representative must adhere to 
the rules of conduct applicable where the attorney is licensed to 
practice law. In setting forth this standard, the Department 
understands that hearings often occur outside of a jurisdiction where 
an attorney may be licensed to practice law, and imposing an unfamiliar 
standard of conduct on an attorney would not be ideal.
    One comment suggested that paragraph (c) should be stricken because 
requiring attorneys to adhere to the rules of conduct in their 
licensing jurisdictions ``could result in the different standards for 
the submission of evidence, discovery, and other substantive and 
procedural matters.'' The Department disagrees. Rules of professional 
conduct are generally considered rules of reason and should be 
interpreted with reference to the law itself. Different rules of 
conduct should not apply based on specific substantive or procedural 
law. At a minimum, attorneys should always be held to the standards of 
conduct where they are licensed to practice law. The Department 
declines to strike the paragraph.
    The new rule also defines prohibited actions of all representatives 
appearing before the Department in paragraph (d). The prohibited 
actions include such things as: threatening, coercing or intimidating a 
party; knowingly making false or misleading statements; or causing 
unreasonable delay. These again derive from the SSA regulations. 20 CFR 
404.1740(c). One comment suggested that the paragraph should be 
stricken because it adds confusion and may require attorneys to act 
contrary to the interests of their clients or the rules of conduct 
required by their licensing jurisdictions. The Department declines to 
strike the paragraph.
    Sec.  18.23 Disqualification and discipline of representatives. The 
proposed rule contemplated two paths for disqualification and 
disciplinary proceedings of attorney representatives appearing before 
the OALJ. One path regulated lawyers who were authorized to practice 
before the Department through admission to the bar of the highest court 
of a state or similar governmental unit, but lost the right to practice 
law in their licensing jurisdiction because of a criminal conviction or 
proven professional misconduct. The second path involved misconduct of 
a representative before the OALJ. One comment questioned the 
Department's authority to initiate disciplinary proceedings at all. The 
NPRM spells out the Department's authority to discipline attorneys in 
great detail and need not be restated herein. The Supreme Court has 
recognized such authority as early as 1923 in a case involving the 
Board of Tax Appeals where it upheld the Board's power to adopt rules 
of practice for professionals to protect the integrity of its 
administrative procedures and the public generally. See Goldsmith v. 
United States Bd. of Tax Appeals, 270 U.S. 117 (1926). Other comments 
suggested that the wording of the rule was not clear and suggested that 
as drafted, it appeared that the OALJ would be making the initial 
determination as to whether an attorney had committed any enumerated 
criminal act or professional misconduct.
    The Department considered the comments and has amended the rule by 
consolidating the grounds upon which an attorney or representative may 
be disqualified or disciplined into one section--new Sec.  18.23(a)(1). 
New Sec.  18.23(a)(1) now sets forth three distinct grounds for 
disqualification: (1) suspension of a license to practice law by any 
court or agency of the United States, or by the highest court of a 
State or similar governmental unit; (2) disbarment from the practice of 
law by consent or resignation from the bar of a court or agency while 
an investigation into allegations of misconduct is pending; or (3) 
committing an act, omission, or contumacious conduct that violates the 
procedural rules, an applicable statute, an applicable regulation, or a 
judge's order(s). Accordingly, the previous sections providing for 
disqualification upon conviction of a felony (proposed Sec.  
18.23(a)(1)(i)) or certain enumerated misdemeanors (proposed Sec.  
18.23(a)(1)(ii)) are removed from the new rule. Such conduct however 
may still be grounds for disqualification in the new rules to the 
extent that new Sec.  18.23(a)(1)(i) through (iii) apply.
    The Department also consolidated the disqualification and 
discipline procedure into one section--new Sec.  18.23(a)(2). The new 
consolidated ``Disqualification procedure'' states that in all 
instances the Chief Judge provides notice and an opportunity to be 
heard prior to taking any action. The provision deletes language 
pertaining to requests for hearing but also recognizes that, in 
appropriate instances, additional proceedings may be necessary, within 
the Chief Judge's discretion.
    Other comments questioned the timeline for disciplinary proceedings 
and the status of cases while disciplinary proceedings are pending 
against an attorney. The Department notes that the new rule 
contemplates a fast track with an initial response time of 21 days. The 
Department believes that the Chief Judge should have the discretion to 
decide whether an attorney can continue to represent a party before the 
Department during the pendency of any disciplinary proceeding on a 
case-by-case basis.
    Two commenters suggested that the Department maintain a national 
database of non-attorney representatives disciplined by the Department. 
The Department declines to amend the part 18 regulations to establish 
such a database because OALJ already

[[Page 28775]]

publishes formal disciplinary decisions on its Web site in the same 
manner as other judge decisions. See, e.g., In the Matter of the 
Qualifications of Edwin H. Rivera, 2009-MIS-2 (ALJ Feb. 6, 2009) 
(denying non-attorney representative the authority to appear in a 
representative capacity before OALJ).
    Sec.  18.24 Briefs from amicus curiae. The proposed rule sets forth 
the general procedure for accepting a brief from an amicus curiae. The 
Department received two comments suggesting that the deadline for an 
amicus brief is too short. The proposed rule required such briefs by 
the close of the hearing unless otherwise directed by the presiding 
judge. The comments pointed out that no transcript is immediately 
available when the hearing closes and it may be better for an amicus 
curiae to review the brief of the party the amicus supports to allow 
the amicus curiae to focus on new arguments. The Department considered 
the comments and agrees that setting the deadline at the close of the 
hearing is impractical. The Department has amended the new rule by 
deleting any specific deadline for an amicus brief, and instead states 
that the deadline will be set by the presiding judge.
    The Department has also received comments suggesting that it 
require amicus curiae to make disclosures similar to those found in 
U.S. Supreme Court Rule 37.4. Such disclosures include whether counsel 
for a party authored any part of an amicus brief and the identity of 
anyone who made monetary contributions to the preparation of the brief 
other than the amicus curiae or its members. The Department declines to 
adopt the specialized disclosure requirements. Any specialized 
requirement can be considered by the presiding judge and made part of a 
briefing order depending on the facts of any particular case.
    Sec.  18.30 Service and filing. Commenters suggested that the list 
of documents not to be filed until used in the proceeding or ordered by 
a judge (Sec.  18.30(b)(1)) should be amended to add the notice and 
copy of ``documents only'' subpoenas that are required to be served on 
other parties by Sec.  18.56(b)(1). That suggested change is consistent 
with the purpose of both the prior and proposed rule and reflects 
current common practice. The new rule is thus changed to add paragraph 
(b)(1)(vi) with the following language: ``the notice (and the related 
copy of the subpoena) that must be served on parties under rule 
18.56(b)(1) before a `documents only' subpoena may be served on the 
person commanded to produce the material.''
    Several commenters argued that the OALJ's rules do not adequately 
accommodate electronic filing and service, which is now commonplace in 
federal courts and adjudicatory agencies. Commenters urged that the 
OALJ adopt an electronic filing system, or at least adopt a more 
liberal stance toward accepting email and facsimile transmissions.
    The Department acknowledges that implementation of a dedicated 
electronic filing system and electronic service system for OALJ 
adjudications would be beneficial. However, because the OALJ does not 
have a dedicated electronic filing and service system, the rules of 
practice and procedure necessarily focus on traditional filing and 
service.
    Several commenters urged that, in the absence of the availability 
of electronic filing, OALJ accept documents filed by email. The 
Department declines to adopt a regulation that permits filing by email 
for routine filings with the OALJ. Email is not a substitute for a 
dedicated electronic filing system in which administrative issues such 
as document management, storage, security, and access can be 
systematically addressed. The proposed regulation at Sec.  18.30(b)(4) 
accommodates special circumstances by authorizing the judge to ``allow 
papers to be filed, signed, or verified by electronic means.''
    Alternatively, several commenters urged that the OALJ accept 
documents filed by facsimile transmission without a page limitation. 
The Department declines to adopt a regulation that permits filing by 
facsimile for routine filings with the OALJ. Facsimile technology is 
not a substitute for traditional mail or hand delivery of filings or 
for a dedicated electronic filing system. When Sec.  18.3 of the prior 
rules was amended in 1994 to permit filing by facsimile in certain 
circumstances, the Department discussed why, although the use of 
facsimile machines is often convenient to parties, it is not 
administratively practical for routine matters. See Amendment of Filing 
and Service Requirements in Proceedings Before the Office of 
Administrative Law Judges, 59 FR 41874 (Aug. 15, 1994). Although 
information technology has advanced considerably since 1994, it is 
still true that most filings before the OALJ are not time sensitive and 
that the Department is not in a position to bear the cost of receiving 
and printing large numbers of facsimile transmissions. The new rule at 
Sec.  18.30(b)(3)(i) accommodates special circumstances by allowing a 
party to file by facsimile if permitted by the judge.
    One commenter stated a concern that a judge could reject a 
facsimile filing that exceeded 12 pages. The 12 page limitation stated 
in Sec.  18.30(b)(3)(i)(A) is confined to situations in which the party 
is unable to obtain prior permission to file by facsimile because the 
judge is unavailable. The 12 page limitation is a sensible limitation 
to discourage reliance on last hour filings by facsimile. Thus, the 
Department declines to revise Sec.  18.30(b)(3)(i)(A) to remove the 12 
page limitation on facsimile filings made without the judge's 
permission.
    One commenter suggested that the OALJ's rules of practice and 
procedure provide for electronic service between parties, stating that 
if a representative wishes to receive all service by email, that 
individual should be able to so state in the record and then receive 
all subsequent service by email. Section 18.30(a)(2)(ii)(E) already 
accommodates this suggestion. That regulation states that ``[a] paper 
is served under this section by . . . 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 . . . .''
    One commenter stated that the rule, as written, creates a paradox 
that a time sensitive filing could be filed with the OALJ by facsimile, 
but served by mail on the opposing party. This commenter suggested that 
adopting a service requirement that allows for email service would 
resolve this problem. As noted above, the regulation permits parties to 
agree to receipt of service of papers by electronic means. The 
Department declines to revise the rule to require electronic service on 
another party in situations where the filing party was granted 
permission to file a paper with the OALJ electronically.
    Sec.  18.31 Privacy protection for filings and exhibits. One 
commenter suggested that the privacy requirement should be inapplicable 
to any document created prior to the effective date of the final rule 
in BLBA cases. The commenter stated that medical records containing 
social security numbers and other protected information are created 
long before a claim is filed and it would be burdensome to redact this 
information.
    The FRCP Advisory Committee noted in its comments to FRCP 5.2 that 
``[i]t is electronic availability, not the form of the initial filing, 
that raises the privacy and security concerns addressed in the E-
Government Act.'' Fed. R. Civ. P. 5.2 advisory committee's note 
(discussion of 2007 amendments). The FRCP focuses on electronic 
records, but applies the same restrictions to hard-copy documentation, 
reasoning that the

[[Page 28776]]

number of paper filings will diminish over time.
    The Department declines to adopt the commenter's suggestion. The 
privacy interests of individuals whose personal records appear before 
the OALJ outweigh the burden placed on those who represent them. Many 
of these records can be scanned and searched for the sensitive 
information, reducing the time and effort required to complete this 
redaction. The commenter's suggestion that this rule apply only to 
records created after the effective date of the final rule would 
severely limit its utility. The parties may choose to waive the 
protection of the rule if it would be unduly burdensome to redact the 
records, or the parties may petition the judge for a waiver of the 
rule.
    Sec.  18.32 Computing and extending time. Commenters noted that 
setting 4:30 p.m. as the default deadline for filing on a specific date 
is inconsistent with other rules of practice and sets a trap for the 
unwary practitioner who may reasonably expect that the deadline would 
be 11:59 p.m. They suggested changing the time to 11:59 p.m.
    The FRCP allows for electronic filing up to 11:59 p.m., but still 
sets the close of local business hours as the deadline for hardcopy 
delivery. The commenters' suggestions primarily relate to online and 
facsimile filing. The OALJ continues to rely on hardcopy delivery as 
the default authorized means of filing and allows electronic or 
facsimile filing only as authorized by order or regulation. Since both 
e-filing and facsimile filing include time stamps that show exactly 
when a document arrived at the facsimile machine or server of the 
recipient, the office need not be open to determine when a document 
arrives. Since e-filing or facsimile filing is only allowed with the 
permission of the judge, counsel can request extended filing hours when 
they request permission to file in that manner. The Department 
therefore declines to adopt the suggestion.
    Commenters also observed that the language at (a)(4) including as a 
legal holiday any other day declared a holiday by the President or 
Congress is overly broad and should be amended to include in the 
definition the provision that federal offices are closed to normal 
business. They suggested providing for extensions where a party is 
prevented from filing or requesting an extension by local 
circumstances, such as natural disasters or other events that require 
closure of government facilities.
    FRCP 6(a)(3) addresses the problem by including a provision for the 
inaccessibility of the clerk's office. The new rules allow for judges 
to grant ex post facto delays in such cases. However, changing the term 
``legal holiday'' to include any day on which the district office in 
which the document is to be filed is closed or otherwise inaccessible 
to the filing party would provide a clearer standard and avoid 
uncertainty over whether an ex post facto delay may be granted. The new 
rule is thus changed as follows:

    (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, any day declared a holiday by 
the President or Congress, and any day on which the office in which 
the document is to be filed is closed or otherwise inaccessible.

    Sec.  18.35 Signing motions and other papers; representations to 
the judge; sanctions. New Sec.  18.35 is modeled after FRCP 11. It 
states the standards attorneys and parties must meet when filing 
motions or other documents with OALJ and provides sanctioning authority 
for violations of this section.
    Several commenters pointed out that the LHWCA and BLBA contain 
specific statutory provisions dealing with resistance to an order, 
misconduct during hearings, and discovery violations. They suggest 
amending Sec.  18.35(c) to state that the sanctions provisions are not 
applicable to LHWCA and BLBA cases. The Department declines to adopt 
the commenters' suggestion for the reasons detailed above in section 
II, ``Conflicts with the LHWCA and BLBA.''
    Several commenters objected to Sec.  18.35(c) in its entirety, 
suggesting that the section is essentially an attempt by the OALJ to 
exercise contempt power, which is limited to courts and may not be 
conferred upon administrative agencies. Section 18.35(c) however is not 
identical to FRCP 11(c)(4) and does not seek to invest OALJ judges with 
powers beyond the APA's grant of authority to impose appropriate 
sanctions where necessary to regulate and ensure the integrity of the 
hearing process. Thus, for the reasons detailed above in section II, 
``Authority to Regulate the Conduct of Administrative Proceedings; 
Sanctions,'' the Department declines to delete Sec.  18.35(c).
    One commenter argued that there is no authority to hold a law firm 
jointly responsible for a violation committed by its partner, 
associate, or employee and failing to further define the circumstance 
that would justify an exception. The provision for law firm joint 
responsibility in Sec.  18.35(c)(1) is taken directly from the 
corresponding federal rule, which was revised in 1993 after the U.S. 
Supreme Court ruled that the previous language could not be interpreted 
to include a named offender's firm. Pavelic & LeFlore v. Marvel Entm't 
Grp., 493 U.S. 120 (1989). Thus, the provision is in accord with 
federal practice and the Department declines to strike or modify the 
provision in Sec.  18.35(c)(1) concerning law firm joint 
responsibility.
    One commenter observed that Sec.  18.35(c)(4) provides no guidance 
as to what type of sanction ``suffices to deter repetition of the 
conduct or comparable conduct.'' The Department agrees that Sec.  
18.35(c)(4) should be amended to provide more specific guidance. 
Paragraph (c)(4) of the rule is revised, containing the following 
language: ``A sanction imposed under this section may include, but is 
not limited to, striking part or all of the offending document, 
forbidding the filing of any further documents, excluding related 
evidence, admonishment, referral of counsel misconduct to the 
appropriate licensing authority, and including the sanctioned activity 
in assessing the quality of representation when determining an 
appropriate hourly rate and billable hours when adjudicating attorney 
fees.''
    Sec.  18.50 General provisions governing disclosure and discovery. 
Under the new rule, a party may seek discovery at any time after a 
judge issues an initial notice or order and, unless the judge on motion 
orders otherwise, the methods of discovery may be used in any sequence 
regardless of the discovery conducted by other parties. The parties' 
required initial disclosures would be made within 21 days after entry 
of an initial notice or order acknowledging that the case has been 
docketed for adjudication, and the rule includes a provision exempting 
certain proceedings and parties from the initial disclosure 
requirements. The Department received two comments focusing on the 
timing of disclosures and discovery in LHWCA and BLBA cases. One 
commenter urged that discovery should be available following transfer 
of the case to the OALJ or at any time upon stipulation of the parties, 
asserting that initial notices and orders have historically taken three 
months to issue and that discovery during this period of time will be 
unavailable under the new rule, resulting in unnecessary delay. This 
commenter also suggested that the timing for initial disclosures be set 
at 35 days following transfer of the case to the OALJ. Citing similar 
concerns about delay, the other commenter suggested that discovery 
should be available at any time after a claim is filed.

[[Page 28777]]

    The Department disagrees with these proposals. The use of a judge's 
initial notice or order as the case event allowing parties to commence 
discovery promotes uniformity and predictability as it is the first 
reliable indication to the parties that the case is actually before the 
OALJ. The Department believes that use of the date of transfer from the 
District Director, Office of Workers' Compensation Programs is 
potentially confusing because this procedure is only applicable in 
LHWCA and BLBA cases. See 20 CFR 702.317, 725.421. The transfer or 
referral is an internal administrative function that lacks the clarity 
of the initial notice of order from the judge in terms of informing 
parties that a case has been docketed for adjudication. The Department 
further believes that allowing discovery at any time after a claim is 
filed is problematic as this would inevitably lead to development of 
discovery disputes before the case is assigned to a judge. While the 
Department is sensitive to the expressed concern regarding delays in 
the issuance of an initial notice or order, this is a matter that is 
better addressed through internal policy directives rather than 
creation of a special rule of procedure or exception. Finally, the 
Department believes that the new disclosure and discovery rules, taken 
as a whole, provide parties with sufficient flexibility to ensure that 
all authorized and appropriate discovery will be available prior to 
adjudication.
    One comment raised a concern with the sequence of discovery in 
LHWCA cases by asserting that the logical first step is for a claimant 
to produce a medical report followed by the deposition of the report's 
author. The commenter suggested that the new rule could allow a 
claimant to manipulate the discovery process by delaying production of 
a medical report which might result in a respondent having insufficient 
time to identify a rebuttal expert. To blunt this potential tactic, the 
commenter proposed that the rule require a claimant to produce a 
medical report and disclose any experts early in the process. The 
Department believes that this concern is adequately addressed in the 
provisions of the rule governing disclosure of experts, see 29 CFR 
18.50(c)(2)and through the judge's broad discretion to oversee 
disclosure and discovery in an impartial manner that affords all 
parties a full and fair opportunity to be heard. Moreover, adoption of 
this proposal would create a special rule, applicable only in benefit 
cases such as those arising under the LHWCA and BLBA, which is 
inconsistent with the Department's objective of promulgating a uniform 
set of procedural rules.
    One comment proposes that pro se parties be included in the list of 
parties who are exempted from the required initial disclosures under 
paragraph (c)(1)(iii) unless an ALJ orders the party to provide 
disclosures. The Department rejects this proposal as inconsistent with 
the efficient, impartial and fair adjudication of cases. The FRCP 
provides no such exemption for pro se litigants aside from those 
persons in government custody. See Fed. R. Civ. P. 26(a)(1)(B)(iii). 
Having a separate set of rules for unrepresented parties or requiring a 
judge to provide them with legal guidance is inappropriate. See Pik v. 
Credit Suisse AG, ARB No. 11-034, ALJ No. 2011-SOX-6 (ARB May 31, 2012) 
(citing Rays Lawn & Cleaning Sys., ARB No. 06-112, ALJ No. 2005-SCA-7 
(ARB Aug. 29, 2008)); Olsen v. Triple A Mach. Shops, Inc., 25 Ben. Rev. 
Bd. Serv. (MB) 40, 46 n.4 (1991), aff'd mem. sub nom. Olsen v. Dir., 
OWCP, 996 F.2d 1226 (9th Cir. 1993).
    Two comments expressed a concern that it is burdensome and/or 
irrelevant to require an expert witness's written report to list all 
other cases in which the witness testified as an expert during the 
previous four years and the amount he or she was paid. See General 
Provisions Governing Disclosure and Discovery, 77 FR 72159 (proposed 
Dec. 4, 2014) (proposed Sec.  18.50(c)(2)(ii)(E) and (F)). These 
commentators stated that parties are not likely to have this 
information. The Department disagrees. While the parties themselves may 
not have such information, surely an expert witness would. Moreover, 
the rule allows for an exception to this requirement where stipulated 
or ordered by the judge. This exception could be invoked in those 
unusual cases where the required information might not be reasonably 
obtainable. These requirements track FRCP 26(a)(2)(B), and the 
Department is not persuaded by these comments that any deviation in the 
OALJ rules is justified.
    Two commenters urged adoption of a rule that would require parties 
to provide ESI in a searchable electronic format rather than paper 
copies when the requested information is available in electronic form. 
The commentators cited federal case law in support, stating that 
parties have been required to provide ESI in electronic format when 
requested in that form. While acknowledging the cited precedent, the 
Department rejects the proposal for a rule mandating production of ESI 
in electronic format whenever requested in that form. First, such a 
rule may violate the principle recognized in the NPRM that discovery of 
ESI should be proportional to what is at stake in the litigation. 77 FR 
72146 (citing FRCP 26(b)(2)(C)(iii)) (citing The Sedona Conference, The 
Sedona Principles: Second Edition, Best Practices Recommendations & 
Principles for Addressing Electronic Document Production 17 (Jonathan 
M. Redgrave et al. ed., 2d ed. 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.'')). 
Second, the proposal would override paragraph (b)(3)(iii), which is 
based on FRCP 26(f)(3)(C) making any issues about disclosure or 
discovery of ESI, including the form or forms in which it should be 
produced, a required item in discovery plans. This proposal also 
conflicts with Sec.  18.51(b)(2) which, like FRCP 26(b)(2)(B) upon 
which it is based, provides that ESI discovery issues are to be 
determined by the judge on a motion to compel or for protective order. 
In sum, the Department's new rules on disclosure and discovery of ESI 
track the provisions in the FRCP which were developed after 
consideration of the competing interests at stake with regard to ESI, 
and the Department is not persuaded that a different approach is 
necessary or desirable in proceedings before the OALJ.
    The Department received one comment concerning the timing of 
initial disclosures for parties who are served or joined later. The 
commenter proposed adding the following sentence to the end of 
paragraph (c)(1)(v): ``Copies of all prior disclosures shall be served 
on the newly joined party within 14 days of the joinder.'' Such an 
addition is helpful because it is common in LHWCA and BLBA cases for 
additional parties to be joined after the commencement of the OALJ 
proceeding. Therefore, the Department has added the following sentence 
to the end of paragraph (c)(1)(v) in the final rule: Copies of all 
prior disclosures must be served on a newly served or joined party 
within 21 days of the service or joinder.
    Two comments advocated adoption of early discovery protocols 
similar to the pilot project that has been implemented by some federal 
district courts to streamline discovery and reduce costs in certain 
employment discrimination cases. See Federal Judicial Center, Pilot 
Project Regarding Initial Discovery Protocols for Employment Cases 
Alleging Adverse Action (2011), available at www.fjc.gov/public/
pdf.nsf/lookup/discempl.pdf/$file/discempl.pdf. Incorporating a pilot

[[Page 28778]]

project designed for a limited class of cases into a set of uniform 
rules of practice and procedure is not desirable. To the extent such 
initiatives may be beneficial in certain cases, the Department has 
concluded that the determination to adopt such procedures is best left 
to the discretion of individual judges and/or discovery plans developed 
by parties pursuant to paragraph (b)(3).
    One comment proposed that paragraph (d)(3) should be revised to 
explicitly state that it does not apply to LHWCA and BLBA proceedings 
because 33 U.S.C. 927(b) expressly provides a procedure (i.e., 
certification of facts to a federal district court for summary contempt 
proceedings) for addressing discovery violations. A party's failure to 
comply with the certification requirements likely would not involve 
refusal to comply with an order and, therefore would not be cognizable 
as contempt subject to section 927(b). See A-Z Intn'l v. Phillips, 323 
F.3d 1141, 1146-47 (9th Cir. 2003) (holding that the district court 
lacked section 927(b) jurisdiction over conduct that did not involve a 
refusal ``to comply with a summons, writ, warrant, or mandate issued by 
the ALJ.''). The Department therefore rejects this proposal and has not 
made any change to paragraph (d)(3).
    Sec.  18.51 Discovery scope and limits. One comment suggested that 
the language of paragraph (a) defining the scope of discovery could be 
read as precluding discovery of prior medical records. The commenter 
focused this concern on the second sentence of the rule which states 
that ``the judge may order discovery of any matter relevant to the 
subject matter involved in the proceeding.'' The commenter preferred 
language limiting discovery to matters ``relevant to the subject matter 
of the proceeding'' and, alternatively, suggested that the record 
should clearly state that prior medical records are relevant to a 
party's claim or defense when medical questions are at issue. The 
Department rejects this proposal as essentially seeking a substantive 
determination that prior medical records are discoverable without 
limitation in all proceedings as long as there is some medical issue in 
play. While such records may well be relevant and discoverable in many 
cases where medical issues are raised, it is not difficult to foresee 
situations where production of a person's prior medical records might 
not be required. In the Department's view, determinations as to the 
scope of discovery with respect to specific categories of information 
cannot be properly addressed in a general procedural rule and, instead, 
must be left to case-by-case adjudication.
    Another comment stated that the exceptions established by paragraph 
(d)(3)(i) through (iii) to the general rule embodied in paragraphs 
(c)(1) and (2) which protect against disclosure of communications 
between a party's representative and an expert witness are not adequate 
to ensure access to evidence of fraud, abuse or influence such as a 
party's attorney writing the expert's report. The commenter suggested 
that the exceptions should be broadened to ensure disclosure of such 
evidence or that paragraphs (c)(1) and (c)(2) should be eliminated. The 
Department's new rules addressing disclosure of communications between 
a party's representative and an expert track the provisions of FRCP 
26(b)(3) and (4), which were revised in 2010. While the Civil Rules 
Advisory Committee stated that the revisions to FRCP 26 were intended 
to alter pre-amendment case law that required disclosure of all 
attorney-expert communications and draft reports in favor of limiting 
disclosure to communications of a factual nature in order to protect 
the theories and mental impressions of counsel, the Advisory Committee 
emphasized that the ``facts or data'' exception should be interpreted 
broadly to require disclosure of ``any facts or data `considered' by 
the expert in forming the opinions to be expressed, not only those 
relied upon by the expert.'' Fed. R. Civ. P. 26 advisory committee's 
note (discussion of 2010 amendments); see also Sara Lee Corp. v. Kraft 
Foods, Inc., 273 FRD. 416, 419 (N.D. Ill. 2011); Fialkowski v. Perry, 
No. 11-5139, 2012 WL 2527020, at *5 (E.D. Pa. Jun. 29, 2012) (holding 
that even if the requested documents are considered ``communications'' 
between a party's attorney and an expert within the meaning of FRCP 
26(b)(4)(C), they are discoverable to the extent that they fall within 
the exceptions listed in FRCP 26(b) (4)(C)(ii) and (iii), for ``facts 
and data'' that the expert considered and for ``assumptions'' that the 
expert relied on). The Department believes that the rule adequately 
addresses the concern raised in the comment, and no change has been 
made in the final rule.
    The Department received a comment stating that some of the 
commentary in the NPRM relating to limitations on the scope of 
discovery could lead judges to believe that limiting discovery is more 
important than providing whistleblower complainants with access to the 
evidence they need to prove their claims. This commenter pointed out 
that discovery is critical in whistleblower litigation where ``smoking 
gun'' evidence of unlawful motivation is rare, and he suggests that it 
would be helpful if the comments accompanying the final rule are 
balanced to recognize that while judges have discretion to limit 
unnecessary discovery, they also have a duty to enforce discovery when 
it is necessary to prove a relevant point. The commenter did not 
suggest any change in the proposed rule establishing the scope of 
discovery and its limits. The Department notes that the discussion of 
the changes in the disclosure and discovery rules in the NPRM contains 
several references to limitations on the scope of discovery which were 
necessitated by recent changes in the FRCP that were incorporated into 
the new Sec.  18.51. However, the Department believes the new rule, 
like FRCP 26(b) upon which it is based, appropriately balances 
competing discovery interests.
    Another commenter similarly suggested with respect to whistleblower 
cases that the rules should encourage early exchange of discoverable 
information, prompt resolution of discovery disputes and broad 
discovery of probative information. This commenter also did not 
advocate any particular change in the proposed rule. The Department 
believes that the new disclosure and discovery rules, taken as a whole, 
are designed to accomplish the commenter's recommended objectives in a 
fair and impartial manner. The Department further believes that 
adoption of special disclosure and discovery rules for a particular 
category of cases is neither necessary nor desirable as judges have 
discretion to resolve discovery disputes in a manner that is consistent 
with the requirements of the particular governing statute and 
implementing regulations. The Department therefore has not made any 
change to the new rules based on this comment.
    Sec.  18.55 Using depositions at hearings. Two commenters suggested 
that the new rule should be revised to permit wider use of depositions 
at hearings. One commenter proposed addition of a paragraph that would 
permit unconditional use of depositions at hearings in the absence of 
any objection. The commenter submitted that this revision would better 
align the rule with current practice and procedure. Another commenter 
urged deletion of the requirement of showing unavailability as a pre-
condition to the admission of deposition testimony from a lay or non-
expert witness. This commenter asserted that the unavailability 
requirement is overly burdensome and particularly so for benefits 
claimants who have fewer

[[Page 28779]]

resources to pay witnesses to attend hearings. The Department agrees. 
Allowing unconditional use of depositions in the absence of an 
objection comports with current practice and procedure and reduces the 
potential financial burden of producing live witnesses on all parties. 
While the proponent of using the deposition of a non-expert witness at 
hearing would still be required to demonstrate unavailability in the 
face of an objection, the Department believes that the unavailability 
provisions of the rule, which track FRCP 32(a)(4), are sufficiently 
broad to minimize the burden of producing live witnesses. Accordingly, 
the new rule has been revised and renumbered to add a new paragraph 
allowing unconditional use of depositions at hearings in the absence of 
an objection.
    Sec.  18.56 Subpoenas. The Department received two comments 
regarding the provisions of paragraph (a) relating to issuance of 
subpoenas. One of the commenters proposed that the rule state that any 
attorney authorized to practice under the rules may issue subpoenas and 
that the judge may issue subpoenas on written application of a non-
attorney. The other comment urged that paragraph (a)(3), which would 
permit a judge by order in a specific proceeding to authorize an 
attorney representative to issue and sign subpoenas, be revised to 
exempt LHWCA and BLBA proceedings because 33 U.S.C. 927(a) expressly 
delegates subpoena issuance authority to judges who cannot sub-delegate 
such authority to persons outside the Department. The Department is 
persuaded by this latter argument that the authority to issue subpoenas 
should remain with the judge. The comment cited two cases--FTC v. 
Gibson, 460 F.2d 605 (5th Cir. 1972), and United States v. Marshall 
Durbin & Co. of Haleyville, 363 F.2d 1 (5th Cir. 1966),--where sub-
delegation of statutory subpoena authority to subordinate employees of 
an agency was upheld based on reorganization plans, authorized by the 
Reorganization Act of 1949, 5 U.S.C. 901-912, that specifically 
provided for the challenged sub-delegation of subpoena power. See also 
Lewis v. NLRB, 357 U.S. 10, 14-15 (1958) (upholding sub-delegation of 
subpoena authority to the Board's regional directors). Unlike the cited 
cases, there is no reorganization plan under which the Department's 
judges have been authorized to sub-delegate statutory subpoena 
authority. Consequently, a question exists as to whether the sub-
delegation authorized by paragraph (a)(3) would withstand legal 
scrutiny. The Department has therefore deleted paragraph (a)(3) from 
the new rule. This revision renders moot the concerns raised by the 
other commenter about the need for additional protective procedures to 
protect parties from abusive subpoena practices by parties' 
representatives in the event they were authorized to issue subpoenas.
    The Department received a comment that paragraph (b)(1) dealing 
with service of subpoenas be revised to track a change in FRCP 
45(a)(4), upon which the rule is patterned, that was recommended to the 
U.S. Supreme Court by the Committee on Rules of Practice and Procedure 
of the Judicial Conference of the United States in its report of 
September 2012. See Federal Rules of Practice & Procedure, Report of 
the Judicial Conference Committee on Rules of Practice and Procedure to 
the Chief Justice of the United States and Members of the Judicial 
Conference of the United States 23 (2012), available at 
www.uscourts.gov/uscourts/RulesAndPolicies/rules/Reports/ST09-2012.pdf. 
To maintain harmony with the FRCP, the commenter proposed that 
paragraph (b)(1) be amended to read as follows:

    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 on the person to whom it is directed, a notice and a copy 
of the subpoena must be served on each party.

The Department adopts this proposal as consistent with the objective of 
bringing the OALJ rules of practice and procedure into alignment with 
the FRCP where appropriate. Paragraph (b)(1) in the final rule has been 
amended accordingly.
    The Department received two additional comments regarding paragraph 
(b)(1). One commenter raised a concern that the phrase ``allowed by 
law'' is vague and should be replaced by a reference to the particular 
controlling law. The language in question is taken verbatim from FRCP 
45(a)(4) and is intended to be interpreted in a manner consistent with 
the federal rule under which witness fees and expenses are currently 
controlled by 28 U.S.C. 1821. See Dishman v. Cleary, 279 FRD. 460, 466 
(N.D. Ill. 2012); Fisher v. Ford Motor Co., 178 FRD. 195, 197 (N.D. 
Ohio 1998). The Department does not believe that it is prudent to 
incorporate specific statutory references into the rule as statutory 
provisions are subject to change which would lead to potential 
confusion until the rule could be amended. Further, the Department 
notes that the discovery subcommittee to the Civil Rules Advisory 
Committee undertook an exhaustive survey of published commentary 
regarding FRCP 45. See Federal Rules of Practice & Procedure, Survey of 
Issues Regarding Federal Rule of Civil Procedure 45 (2009), available 
at www.uscourts.gov/uscourts/RulesAndPolicies/rules/MemoreRule45issues.pdf. Review of the survey discloses no published 
concern or comment or other criticism related to the use of ``allowed 
by law.''
    The second commenter proposed a requirement that notice of a 
subpoena(s) relating to medical or financial information include a 
statement certifying that the information will not be used or disclosed 
for any purpose other than the litigation or proceeding for which the 
information was requested and will be destroyed or returned at the end 
of the litigation or proceeding. The commenter stated that this 
additional provision is necessary to protect against inadvertent 
disclosure of sensitive information. The Department rejects this 
proposal, noting that the handling of sensitive information obtained 
during discovery should be addressed in parties' discovery plans under 
Sec.  18.50(b)(3) and that any unresolved issues relating to sensitive 
information may more appropriately be addressed by the judge on a case-
by-case basis under the protective order procedures in Sec.  18.52.
    One commenter proposed that paragraph (c)(1), requiring a judge to 
impose an appropriate sanction on a party or representative who 
violates the duty to avoid imposing an undue burden on a person subject 
to a subpoena, be revised to explicitly state that it does not apply to 
LHWCA and BLBA proceedings which are subject to the summary contempt 
procedure established by 33 U.S.C. 927(b). The Department declines to 
adopt the commenter's suggestion for the reasons detailed above in 
section II, ``Conflicts with the LHWCA and BLBA.''
    Sec.  18.57 Failure to make disclosures or to cooperate in 
discovery; sanctions. Two comments proposed revising the rule to 
specifically exempt LHWCA and BLBA cases from the sanction provisions 
which, the commenters

[[Page 28780]]

argued, are preempted by section 927(b) of the LHWCA. One of the 
commenters additionally argued that these sanction provisions violate 
the ``separation of powers'' doctrine by usurping contempt powers 
solely vested in the Article III courts. The Department declines to 
adopt the commenters' suggestions for the reasons detailed above in 
section II, ``Conflicts with the LHWCA and BLBA.''
    Sec.  18.62 Physical and Mental Examinations. One commenter 
suggested that Sec.  18.62(a)(1) should be amended to restrict an 
examination to the mental or physical ``condition in controversy.''
    The Department declines to adopt the commenter's suggestion. The 
suggested text would offer no meaningful limit because the medical 
examiner does not know how the issues have been framed in litigation. 
The party who retains an examiner and notices the examination however 
knows the scope of the report it retains an examiner to prepare. The 
Department believes it is preferable to rely on the language taken from 
FRCP 35(a), which requires the party who notices an examination to 
specify the ``time, place, manner, conditions, and scope of the 
examination,'' and to disclose the ``person or persons who will perform 
it.'' The notice must also describe the examination in a way that 
informs the party to be examined of its scope. That party may object if 
the conditions or scope of the examination stray into areas that are 
not in controversy.
    Two commenters argued that the final rule should retain the 30-day 
notice requirement found in previous Sec.  18.19(4)(d). One commenter 
stated that the new 14-day notice requirement would unreasonably burden 
the claimant. Specifically, the shorter notice period would make it 
harder for the claimant to arrange for time off from work, travel 
plans, and other matters. The commenters also asserted that Sec.  
18.62(a)(4) would not give sufficient time to object to the examination 
notice with particularity. The person to be examined may have to 
consult with others (such as experts or a treating physician) to frame 
and serve a specific objection.
    The Department agrees with the commenters' suggestions. Therefore, 
Sec.  18.62(a)(3) is amended to provide a notice period of 30 days in 
advance of an examination when the parties do not agree to a shorter 
notice in their proposed discovery plan, by stipulation, or through 
informal discussion. Section 18.62(a)(4) is amended to extend the time 
to serve an objection from 7 days to 14 days.
    One commenter suggested that the text of the rule on physical and 
mental examinations should mandate a three-step procedure before an 
examination can be noticed: (1) The parties must attempt to resolve all 
issues informally before an examination is noticed; (2) if agreement 
cannot be reached, the party that intends to notice an examination must 
request a telephone or other prehearing conference with the judge to 
discuss whether an examination is needed, and any specific procedure or 
limitations on the examination that may be appropriate; and (3) before 
the prehearing conference, the party proposing the examination must 
state with particularity why the examination is needed, why the 
deposition of the party to be examined is insufficient to address the 
issues the examination would address, and describe what will occur at 
the examination.
    The Department declines to adopt the commenter's proposal. First, 
the parties ordinarily should have discussed whether an examination is 
appropriate, and its scope, when they frame the proposed discovery plan 
early in the case, just as happens in the U.S. district courts. Second, 
the claims at the OALJ frequently involve a physical or mental 
condition that serves as one of the bases raised for relief--an issue 
that is litigated less often in U.S. district courts. It makes sense 
therefore for the default assumption in the rules to be that an 
examination is appropriate in cases before the OALJ, even though FRCP 
35 allows such examinations only upon motion for good cause before the 
U.S. district courts.
    One commenter suggested that Sec.  18.62(c)(1) be amended to 
require that the examination report (1) be delivered to the examined 
party within 21 days, (2) be delivered no fewer than 45 days before the 
hearing, and (3) fulfill the requirements of expert testimony found in 
proposed Sec.  18.50(c)(2)(ii) [required for witnesses who must provide 
a written report].
    The Department declines to adopt these additional requirements. 
Section 18.62 establishes a procedure to set an examination. It should 
not be conflated with the separate disclosures a party must make before 
final hearing, particularly about the testimony of experts. The 
examiner may not be a trial witness. The examination report may be only 
a portion of the data an expert witness who testifies at final hearing 
rely on to reach an opinion. Section 18.50(c)(2)(ii) has an independent 
effect. With respect to the timing of reports, the parties should build 
into the discovery plan an appropriate period for the examiner to write 
and serve a report, which can be incorporated into a prehearing order. 
To ensure the party examined has the examination report promptly, 
however the Department agrees that the party who retained the examiner 
and receives the examination report must serve a copy of the 
examination report on the party examined no later than seven days after 
it receives the report.
    Sec.  18.64 Depositions by oral examination. One commenter asserted 
that an ALJ cannot impose the sanctions enumerated in Sec.  18.57 in 
LHWCA and BLBA adjudications for the types of misconduct described in 
Sec.  18.64(d)(2) and (g). Therefore, the commenter suggested that the 
Department add an exception to the rules for these cases. The 
Department declines to amend Sec.  18.64 to provide such an exception 
for the reasons detailed above in section II, ``Authority to Regulate 
the Conduct of Administrative Proceedings; Sanctions'' and ``Conflicts 
with the LHWCA and BLBA.''
    Sec.  18.64 Depositions by oral examination and Sec.  18.65 
Depositions by written questions. One commenter stated that proposed 
Sec. Sec.  18.64 and 18.65 refer to an ``officer,'' but do not clarify 
the ``officer's'' relations to the deposition proceeding. FRCP 30(b)(5) 
and 31(b) use the term ``officer'' to describe the court reporter who 
administers the oath, takes and certifies the testimony, states that 
the deposition is complete when it ends, and reads the written 
deposition questions. The Department agrees with the commenter that the 
title to Sec. Sec.  18.64(b)(5) and 18.65(b) should be altered to 
clarify that the ``officer'' is the ``deposition officer.''
    Sec.  18.70 Motions for dispositive action. One commenter objected 
generally to the use of motions to dismiss in proceedings where there 
are shifting burdens of proof or where the claimant benefits from legal 
presumptions. The commenter argued specifically that Sec.  18.70(c) 
should be stricken or made not applicable to cases under the LHWCA 
because such a rule would require claimants to plead with more 
specificity than required under the Act, and noted that an injury and 
timely filing are presumed. The Department declines to strike or modify 
Sec.  18.70(c). That section states that a party is permitted to move 
to dismiss part or all of the matter ``for reasons recognized under 
controlling law.'' The new section is not intended to modify existing 
law controlling the standard for dispositive motions, including motions 
challenging the sufficiency of a pleading. Moreover, Sec.  18.10(a) 
states that ``[t]o the extent that these rules may be inconsistent with 
a governing statute, regulation, or

[[Page 28781]]

executive order, the latter controls.'' Thus, a party's motion to 
dismiss under Sec.  18.70(c) does not upset any statutory or regulatory 
presumptions or shifting burdens of proof.
    Sec.  18.72 Summary decision. One commenter argued for the 
development of a rule that would allow ALJs to enter summary decision 
in a condensed order that is compliant with the APA, but which does not 
require a complete recitation of all evidence. The commenter argued 
that such a summary ruling would minimize judges' workload and allow 
for quicker adjudications. The commenter suggested that the rules 
permit such a summary ruling upon agreement of the parties because 
without such a provision in the rules, parties will have concerns about 
whether such an order would be deemed deficient by the BRB. Because the 
APA specifies what must be included in an ALJ's decision and order, the 
Department declines to modify Sec.  18.72 to provide for a condensed 
decision on summary decision. Section 18.72(a) provides that the judge 
should state on the record the reasons for granting or denying a motion 
for summary decision or partial summary decision.
    Two commenters stated that the use of summary adjudications is 
inconsistent with the goal of fair administrative proceedings for 
whistleblowers and should be rarely, if ever, used. The commenters 
argued that summary decisions based on written submissions favor 
employers over employees and increase costs. The commenters argued that 
summary decisions deprive the ALJ of the opportunity to determine the 
credibility of the witnesses, which is important in cases where motive 
and intent are critical issues. The commenters recommended that Sec.  
18.72 state that summary judgment is generally considered inappropriate 
in administrative proceedings.
    The Department declines to revise Sec.  18.72 to state that summary 
decision is inappropriate in administrative proceedings, in general, or 
in whistleblower proceedings, in particular. The utility of a summary 
decision procedure for agencies having a substantial caseload of formal 
adjudications has long been recognized. See Summary Decision in Agency 
Adjudication,1 CFR 305.70-3 (1995) (ACUS Recommendation 70-3, available 
at www.acus.gov/sites/default/files/documents/70-3.pdf). Section 18.72 
is a procedural rule applicable to the many types of adjudications 
conducted by the OALJ, and is neutral on the question of whether 
summary decision as a procedural mechanism is disproportionately 
adverse to the interests of whistleblower complainants. Any rulemaking 
proposing a regulation discouraging summary decision in whistleblower 
cases is within the responsibility and purview of the agency which has 
programmatic and policy responsibility over whistleblower cases, and 
not the OALJ, whose role is adjudicatory. Moreover, the ARB has issued 
several decisions that provide ample guidance to the public and to 
judges on the standards specific to summary decision motions in 
whistleblower cases. See Evans v. E.P.A., ARB No. 08-059, ALJ No. 2008-
CAA-3 (ARB Apr. 30, 2010); Hasan v. Enercon Serv., Inc., ARB No. 10-
061, ALJ Nos. 2004-ERA-22 and 27 (ARB July 28, 2011); Lee v. Parker-
Hannifin Corp., Advanced Prod. Bus. Unit, ARB No. 10-021, ALJ No. 2009-
SWD-3 (ARB Feb. 29, 2012); Franchini v. Argonne Nat'l Lab., ARB No. 11-
006, ALJ No. 2009-ERA-14 (ARB Sept. 26, 2012); see also Guillory v. 
Domtar Indus., 95 F.3d 1320, 1326 (5th Cir. 1996) (``Though summary 
judgment is rarely proper when an issue of intent is involved, the 
presence of an intent issue does not automatically preclude summary 
judgment; the case must be evaluated like any other to determine 
whether a genuine issue of material fact exists.'').
    Another commenter objected that motions for summary judgment allow 
cases to be framed by the party that does not have the burden of proof 
at trial, and that under Sec.  18.72, the moving party gets the last 
word. The commenter described complainants being ``sandbagged'' by 
primary briefs that provide abbreviated or unclear statements of facts 
or arguments, which are tactically written to prevent cogent or 
complete responses. Then, complainants are faced with reply briefs that 
clarify or even add arguments and provide additional authorities in 
support of those arguments. The commenter stated that many circuit 
courts deal with this problem by allowing surreply briefs, or by 
expressly limiting reply briefs to the four corners of the arguments 
made by the non-moving party in opposition to summary judgment. Thus, 
the commenter suggested a rule that specifically allows for a surreply, 
makes clear that the reply and surreply may only respond to material in 
the opposing submission, and states that all ``new'' material be 
disregarded by the court.
    The Department declines to revise Sec.  18.72 to expressly allow 
surreply briefs, or to expressly limit reply briefs to the four corners 
of the arguments made by the non-moving party in opposition to summary 
judgment. OALJ judges have the power necessary to conduct fair and 
impartial proceedings, and are capable of dealing with a parties' 
raising of new arguments in reply briefs without a specific rule. For 
example, in Du Jardin v. Morrison Knudsen Corp., 1993-TSC-3 (ALJ Nov. 
29, 1993), the ALJ refused to consider new arguments raised by the 
respondent in a reply brief to the complainant's response to the 
respondent's motion for summary decision. In Inman v. Fannie Mae, 2007-
SOX-47 (ALJ Mar. 5, 2008), rev'd and remanded on other grounds, Inman 
v. Fannie Mae, ARB No. 08-060, ALJ No. 2007-SOX-47 (ARB June 28, 2011), 
the ALJ permitted the complainant to file a surreply on a motion for 
summary decision. The Department notes that under FRCP 56, on which 
Sec.  18.72 is modeled, there is no right to file a surreply. Although 
the commenter stated that many circuit courts allow surreply briefs, it 
did not identify those circuits. Our review of federal appellate court 
rules and circuit court local rules found that the rules generally do 
not mention surreply briefs, or only allow them upon leave of the 
court. See, e.g., Dist. N.M. Local R. Civ. P. 7.4(b) (2013); Dist. N.H. 
Local R. 7.1e(3) (2013).
    Two commenters suggested that the timing aspects of Sec.  18.72 
will be troublesome for whistleblower complainants, for whom the 
efficiency and cost of opposing motions for summary judgment is of 
paramount importance. Motions for summary decision are usually filed by 
respondents, and consequently, when such motions are filed near to the 
hearing date, complainants are disadvantaged because they are severely 
burdened by the need to respond to the motion and prepare for the 
evidentiary hearing within a short time period. The commenters 
recommended that: (1) Substantive summary motions aimed at eliminating 
claims or types of damages should be filed no later than 90 days prior 
to a hearing date; (2) counsel responding to such motions should have 
21 to 30 days to file their responsive pleadings; and (3) all such 
motions should be resolved at least 30 days prior to a hearing date.
    The Department declines to revise Sec.  18.72 to require summary 
decision motions be filed no later than 90 days prior to a hearing 
date. Prior Sec.  18.40(a) provided that a party may file a motion for 
summary decision at least 20 days before the date fixed for any 
hearing. With the new Sec.  18.72, the Department increased the 
timeframe for filing motions for summary decision to 30 days before the 
date fixed for the formal

[[Page 28782]]

hearing. In the OALJ's experience, this timeframe would generally 
afford sufficient time for all parties and the judge to address the 
motion. As noted in the new Sec.  18.10(a), the OALJ rules of practice 
and procedure are to be administered to secure the just, speedy, and 
inexpensive determination of every proceeding. In whistleblower cases, 
in particular, the regulations direct that hearings are to commence 
expeditiously. See, e.g., 20 CFR 1979.107(b). Moreover, if necessary, 
Sec.  18.72 gives the ALJ the discretion to adjust deadlines, as 
appropriate.
    One comment argued that Sec.  18.72(h) should be revised to 
explicitly state that it does not apply in proceedings under the LHWCA 
and the BLBA because 33 U.S.C. 927(b) expressly provides a procedure 
(i.e., certification of facts to a federal district court for summary 
contempt proceedings) for resistance of a lawful order, misconduct 
during hearings, and discovery violations. The commenter thus argued 
that the sanctions listed in the Sec.  18.72(h) are unavailable to ALJs 
presiding in hearings under the LHWCA or BLBA. The Department declines 
to adopt the commenters' suggestion for the reasons detailed above in 
section II, ``Conflicts with the LHWCA and BLBA.''
    Sec.  18.80 Prehearing statement. The Department added a 
requirement that a participating party file a prehearing statement at 
least 21 days prior to the date set for hearing. Prior Sec.  18.7 did 
not have a requirement for filing prehearing statements.
    A commenter proposed that the time for filing the prehearing 
statement be extended to 45 days prior to hearing to allow the parties 
time to ascertain if additional discovery is needed, and to prevent the 
need for continuances to conduct discovery on witnesses and evidence 
not timely disclosed. The commenter argued that the additional time 
will preclude post trial depositions to rectify untimely disclosed 
information. The Department declines to extend the date for submission 
of the prehearing statement and notes that the rule allows for the 
judge to order a different time frame, if appropriate.
    A commenter objected to the statement in the NPRM that the 
Department proposed to add a new regulation at Sec.  18.80(e) requiring 
a party to file objections to an opposing party's proposed exhibits or 
use of deposition testimony within 14 days of being served, and that 
failure to object waives an objection unless the judge finds good cause 
for failure to object. The NPRM is in error. The new rule does not 
include such a provision.
    Sec.  18.84 Official notice. The Department clarifies procedures in 
Sec.  18.84 that a judge may follow when taking judicial notice. The 
rule provides that official notice may be taken of any adjudicative 
fact or other matter subject to judicial notice, and the parties must 
be given an adequate opportunity to show the contrary of the matter 
noticed.
    A commenter objected to a practice by ALJs in BLBA claims of taking 
official notice of the Dictionary of Occupational Titles (4th ed. Rev. 
1991). He contended that such practice invades upon the province of a 
medical expert who must consider job duties and tasks in assessing 
whether a pulmonary impairment would or would not prevent the 
performance of such tasks. Although the Department agrees with the 
commenter that a matter subject to judicial notice is a matter whose 
accuracy cannot be reasonably questioned, it declines to identify 
specific matters for which official notice is not appropriate. The rule 
states that parties must be given an adequate opportunity to show the 
contrary of the matter noted. The Department accordingly declines to 
amend this provision.
    Sec.  18.87 Standards of conduct. The Department relocated the 
prior Sec.  18.36 to Sec.  18.87 and divided the prior paragraph (b) 
into two paragraphs: (b) Exclusion for misconduct, and (c) Review of 
representative's exclusion. A commenter contended that the rule should 
be revised to explicitly state that Sec.  18.87 does not apply in 
proceedings under the LHWCA and BLBA. The commenter reasoned that rules 
of procedure apply only to the extent that they are consistent with the 
BLBA or its implementing regulations, and since the LHWCA and BLBA 
contain a specific statutory provision dealing with the resistance of 
an order, misconduct during hearings, and discovery violations, 33 
U.S.C. 927(b), the sanction provisions under either the Rules of 
Practice and Procedure before the OALJ or the FRCP do not apply. The 
commenter also objected to the rule because Congress did not vest the 
OALJ with contempt powers. The Department declines to adopt the 
commenters' suggestion for the reasons detailed above in section II, 
``Conflicts with the LHWCA and BLBA.''
    Sec.  18.88 Transcript of proceedings. Section 18.88(b) of the new 
rule states that motions to correct the official transcript must be 
filed within 14 days of the receipt of the transcript unless the judge 
permits additional time. A commenter suggested that motions to correct 
be filed seven days after filing of the post-hearing brief. The 
commenter reasoned that attorneys typically review the transcript as 
they write the brief, and that counsel can be more helpful in this 
regard after they have reviewed the transcript in preparation for their 
brief. The Department declines to extend the date for motions to 
correct. The Department contemplates that parties would have a 
corrected transcript at the time they prepare their brief. Also, the 
rule allows for correction of errors discovered during preparation of a 
brief, as the rule provides that a judge may correct errors in the 
transcript at any time before issuing a decision and upon notice to the 
parties.
    Sec.  18.92 Decision and order. The Department revised the prior 
Sec.  18.57 into two sections, Sec.  18.91, Post-hearing Briefs; and 
Sec.  18.92, Decision and Order. The language that the Department 
deleted stated that the ALJ was to issue a decision within a 
``reasonable time'' after receiving the parties' filings or within 30 
days after receiving the parties' consent findings. Two commenters 
submitted concerns about the new Sec.  18.92. They observed that, under 
the current practice, parties ``have no mechanism or ability to know 
when decisions will be issued,'' and expressed concern that delays 
adversely impact both employers and employees. The Department has 
determined that questions about how long it takes the OALJ's judges to 
issue their decisions are best handled as matters of policy and 
resource allocation. The Department therefore declines to adopt the 
commenters' suggestions that Sec.  18.92 be amended to include a 
timeframe for issuance of a judge's decision.
    Sec.  18.93 Motion for reconsideration. The prior rule contained no 
general provision on motions for reconsideration of decisions and 
orders. The Department added a new provision stating that motions for 
reconsideration of a decision and order must be filed within 10 days 
after service of the decision on the moving party.
    One commenter suggested that the provision be amended to permit 
motions for reconsideration to be filed within 30 days, instead of the 
10 days in the new rule. The commenter stated that the BLBA regulation 
permits such motions to be filed within 30 days. 20 CFR 725.479(b). In 
the commenter's view, its proposal will provide for uniformity among 
all types of cases. The commenter also indicated that a longer time 
period for such motions will obviate the need to submit motions for 
extensions of time to file motions for reconsideration, and will 
provide practitioners and their clients with sufficient time to make 
informed

[[Page 28783]]

decisions about whether to even file motions for reconsideration. Broad 
motions aimed at all issues will thus be avoided and the resulting 
burden on ALJs will be reduced.
    As the commenter correctly indicated, and as mentioned in the NPRM, 
the new rule is modeled after FRCP 59(e), which gives parties 28 days 
from the date of entry of a judgment to file a motion to alter or amend 
the judgment. A motion for reconsideration may be filed in BLBA cases 
within 30 days. 20 CFR 725.479(b). Compensation orders in LHWCA cases 
similarly are final 30 days after filing unless other proceedings are 
instituted.
    The Department considered other timeframes for motions for 
reconsideration that were more in line with FRCP 59(e) or 20 CFR 
725.479(b). However, some of the Department's regulations pertaining to 
specific statutes within the OALJ's purview state that the ALJ's 
decision and order is final, unless a petition for review is filed with 
the ARB within a specific time, less than 30 days from service of the 
ALJ's decision and order. See, e.g., 29 CFR 1978.109(e)(specifying 14 
days for cases under the Surface Transportation Assistance Act); 29 CFR 
1980.110(e) (specifying 10 days for cases under the Sarbanes-Oxley 
Act); 29 CFR 1992.110(a)(specifying 10 days for cases under the 
National Transit Systems Security Act/Federal Railroad Safety Act). 
Permitting a party to move for reconsideration after the date that a 
petition for review must be filed with the ARB would be inconsistent 
with the Department's position regarding finality of ALJ decisions in 
such cases. Additionally, if the deadline for submitting a motion for 
reconsideration is after the deadline for submitting a petition for 
review, if a motion for reconsideration is not submitted, a party may 
thereby inadvertently foreclose its options regarding appeal. The 
Department therefore declines to adopt the commenter's suggestion 
regarding the number of days within which motions for reconsideration 
can be filed.

IV. Cross Referencing Chart

    To assist in the transition to the revised Subpart A, the chart 
below provides cross references between the new section and section 
title, and the old section and section title of each rule. The chart 
also provides cross references to the corresponding FRCP rule, where 
applicable. Finally, the chart lists the sections from the old Subpart 
A that have been deleted.

Part 18, Subpart A--Cross Referencing Chart

----------------------------------------------------------------------------------------------------------------
                                                               Old section
    New section     New section title      Old section            title         Federal Rule of Civil Procedure
----------------------------------------------------------------------------------------------------------------
                                               General Provisions
----------------------------------------------------------------------------------------------------------------
18.10.............  Scope and purpose  18.1/18.26.........  Scope of rules    Fed. R. Civ. P. 1.
                                                             and conduct of
                                                             hearings.
18.11.............  Definitions......  18.2...............  Definitions.....
18.12.............  Proceedings        18.25/18.29(a).....  Proceedings
                     before                                  before
                     administrative                          administrative
                     law judge.                              law judge/
                                                             authority of
                                                             the
                                                             administrative
                                                             law judge.
18.13.............  Settlement judge   18.9...............  Consent order or
                     procedure.                              settlement;
                                                             settlement
                                                             judge procedure.
18.14.............  Ex parte           18.38..............  Ex parte
                     communication.                          communications.
18.15.............  Substitution of    18.30..............  Unavailability    Fed. R. Civ. P. 63.
                     administrative                          of
                     law judge.                              administrative
                                                             law judge.
18.16.............  Disqualification.  18.31..............  Disqualification
18.17.............  Legal assistance.  18.35..............  Legal assistance
----------------------------------------------------------------------------------------------------------------
                                           Parties and Representatives
----------------------------------------------------------------------------------------------------------------
18.20.............  Parties to a       18.10..............  Parties, how
                     proceeding.                             designated.
18.21.............  Party appearance   18.39/18.34(a).....  18.39, Waiver of
                     and                                     right to appear
                     participation.                          and failure to
                                                             participate or
                                                             to appear--text
                                                             was
                                                             incorporated
                                                             into proposed
                                                             ``participation
                                                             '' rule.
18.22.............  Representatives..  18.34..............  Representatives.
18.23.............  Disqualification
                     of
                     representatives.
18.24.............  Briefs from        18.12..............  Amicus curiae...
                     amicus curiae.
----------------------------------------------------------------------------------------------------------------
                             Service, Format and Timing of Filings and Other Papers
----------------------------------------------------------------------------------------------------------------
18.30.............  Service and        18.3...............  Service and       Fed. R. Civ. P. 5.
                     filing.                                 filing.
18.31.............  Privacy            ...................  ................  Fed. R. Civ. P. 5.2.
                     protection for
                     filings and
                     exhibits.
18.32.............  Computing and      18.4...............  Time              Fed. R. Civ. P. 6.
                     extending time.                         computations.
18.33.............  Motions and other  18.6...............  Motions and       Fed. R. Civ. P. 7(b) & 43(c).
                     papers.                                 requests.
18.34.............  Format of papers
                     filed.
18.35.............  Signing motions    ...................  ................  Fed. R. Civ. P. 11.
                     and other
                     papers;
                     representations
                     to the judge;
                     sanctions.
18.36.............  Amendments after   18.5...............  Responsive
                     referral to the                         pleadings--answ
                     Office of                               er and request
                     Administrative                          for hearings.
                     Law Judges.
----------------------------------------------------------------------------------------------------------------
                                              Prehearing Procedure
----------------------------------------------------------------------------------------------------------------
18.40.............  Notice of hearing  18.27..............  Notice of
                                                             hearing.
18.41.............  Continuances and   18.28..............  Continuances....
                     changes in place
                     of hearing.
18.42.............  Expedited          18.42..............  Expedited
                     proceedings.                            proceedings.
18.43.............  Consolidation;     18.11..............  Consolidation of  Fed. R. Civ. P. 42.
                     separate                                hearings.
                     hearings.

[[Page 28784]]

 
18.44.............  Prehearing         18.8...............  Prehearing        Fed. R. Civ. P. 16.
                     conference.                             conferences.
----------------------------------------------------------------------------------------------------------------
                                            Disclosure and Discovery
----------------------------------------------------------------------------------------------------------------
18.50.............  General            ...................  ................  Fed. R. Civ. P. 26 (a), (d), (f),
                     provisions                                                (g).
                     governing
                     disclosure and
                     discovery.
18.51.............  Discovery scope    18.14..............  Scope of          Fed. R. Civ. P. 26 (b).
                     and limits.                             discovery.
18.52.............  Protective orders  18.15..............  Protective        Fed. R. Civ. P. 26 (c).
                                                             orders.
18.53.............  Supplementing      18.16..............  Supplementation   Fed. R. Civ. P.26 (e).
                     disclosures and                         of responses.
                     responses.
18.54.............  Stipulations       18.17..............  Stipulations      Fed. R. Civ. P. 29.
                     about discovery                         regarding
                     and procedure.                          discovery.
18.55.............  Using depositions  18.23..............  Use of            Fed. R. Civ. P. 32.
                     at hearings.                            depositions at
                                                             hearings.
18.56.............  Subpoena.........  18.24..............  Subpoenas.......  Fed. R. Civ. P. 45.
18.57.............  Failure to make    18.21..............  Motion to compel  Fed. R. Civ. P. 37.
                     disclosures or                          discovery.
                     to cooperate in
                     discovery;
                     sanctions.
----------------------------------------------------------------------------------------------------------------
                                               Types of Discovery
----------------------------------------------------------------------------------------------------------------
18.60.............  Interrogatories    18.18..............  Written           Fed. R. Civ. P. 33.
                     to parties.                             interrogatories
                                                             to parties/.
18.61.............  Producing          18.19..............  Production of     Fed. R. Civ. P. 34.
                     documents,                              documents and
                     electronically                          other evidence;
                     stored                                  entry upon land
                     information, and                        for inspection
                     tangible things,                        and other
                     or entering onto                        purposes; and
                     land, for                               physical and
                     inspection and                          mental
                     other purposes.                         examination.
18.62.............  Physical and       18.19..............  Production of     Fed. R. Civ. P. 35.
                     mental                                  documents and
                     examinations.                           other evidence;
                                                             entry upon land
                                                             for inspection
                                                             and other
                                                             purposes; and
                                                             physical and
                                                             mental
                                                             examination.
18.63.............  Requests for       18.20..............  Admissions......  Fed. R. Civ. P. 36.
                     admission.
18.64.............  Depositions by     18.22..............  Depositions by    Fed. R. Civ. P. 30.
                     oral examination.                       oral
                                                             examinations.
18.65.............  Depositions by     ...................  ................  Fed. R. Civ. P. 31.
                     written
                     questions.
----------------------------------------------------------------------------------------------------------------
                                           Disposition Without Hearing
----------------------------------------------------------------------------------------------------------------
18.70.............  Motions for
                     dispositive
                     action.
18.71.............  Approval of        18.9...............
                     settlement or
                     consent findings.
18.72.............  Summary decision.  18.40/18.41........  18.40, Motion     Fed. R. Civ. P. 56.
                                                             for summary
                                                             decision merged
                                                             with 18.41,
                                                             Summary
                                                             decision.
----------------------------------------------------------------------------------------------------------------
                                                     Hearing
----------------------------------------------------------------------------------------------------------------
18.80.............  Prehearing         18.7...............  Prehearing
                     statement.                              statements.
18.81.............  Formal hearing...  18.43..............  Formal hearings.  Fed. R. Civ. P. 43(a).
18.82.............  Exhibits.........  18.47/18.48 18.49/   Exhibits/records
                                        18.50.               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,        18.46/18.56........  In camera and
                     sensitive, or                           protective
                     classified                              orders/
                     material.                               restricted
                                                             access.
18.86.............  Hearing room       18.37..............  Hearing room
                     conduct.                                conduct.
18.87.............  Standards of       18.36..............  Standards of
                     conduct.                                conduct.
18.88.............  Transcript of      18.52..............  Record of
                     proceedings.                            hearings.
----------------------------------------------------------------------------------------------------------------
                                                  Post Hearing
----------------------------------------------------------------------------------------------------------------
18.90.............  Closing the        18.54/18.55........  Closing the
                     record;                                 record /receipt
                     subsequent                              of documents
                     motions.                                after hearing.
18.91.............  Post-hearing       18.57..............  Decision of the
                     brief.                                  administrative
                                                             law judge and
                                                             post-hearing
                                                             briefs.
18.92.............  Decision and       18.57..............  Decision of the
                     order.                                  administrative
                                                             law judge and
                                                             post-hearing
                                                             briefs.
18.93.............  Motion for         ...................  ................  Fed. R. Civ. P. 59 (e).
                     reconsideration.
18.94.............  Indicative ruling  ...................  ................  Fed. R. Civ. P. 62.1.
                     on a motion for
                     relief that is
                     barred by a
                     pending petition
                     for review.
18.95.............  Review of          18.58..............  Appeals.........
                     Decision.
----------------------------------------------------------------------------------------------------------------
                                                Deleted Sections
----------------------------------------------------------------------------------------------------------------
                    Deleted..........  18.13..............  Discovery
                                                             methods.
                    Deleted..........  18.32..............  Separation of
                                                             functions.

[[Page 28785]]

 
                    Deleted..........  18.33..............  Expedition......
                    Deleted..........  18.53..............  Closing of
                                                             hearings.
                    Deleted..........  18.59..............  Certification of
                                                             official record.
----------------------------------------------------------------------------------------------------------------

List of Subjects in 29 CFR Part 18

    Administrative practice and procedure, Labor.

    Signed: At Washington, DC, this 7th of May, 2015.
Thomas E. Perez,
Secretary of Labor.

    For the reasons set forth in the preamble, amend part 18 of title 
29 of the Code of Federal Regulations as follows:

PART 18--RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE 
HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES

0
1. The authority citation for part 18 continues 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.

0
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 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

Sec.  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.

Sec.  18.11  Definitions.

    For purposes of these rules, these definitions supplement the 
definitions in the Administrative Procedure Act, 5 U.S.C. 551.
    Calendar call means a meeting in which the judge calls cases 
awaiting hearings, determines case status, and assigns a hearing date 
and time.
    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.
    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.
    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.
    Judge means an administrative law judge appointed under the 
provisions of 5 U.S.C. 3105.
    Order means the judge's disposition of one or more procedural or 
substantive issues, or of the entire matter.
    Proceeding means an action before the Office of Administrative Law 
Judges

[[Page 28786]]

that creates a record leading to an adjudication or order.
    Representative means any person permitted to represent another in a 
proceeding before the Office of Administrative Law Judges.

Sec.  18.12  Proceedings before administrative law judge.

    (a) Designation. The Chief Judge designates the presiding judge for 
all proceedings.
    (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) Where applicable take any appropriate action authorized by the 
FRCP.

Sec.  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, and the 
termination of proceedings under this section are matters not subject 
to review by Department officials.

Sec.  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.

Sec.  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 Sec.  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 Sec.  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.

Sec.  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.

Sec.  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

Sec.  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.

[[Page 28787]]

Sec.  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.
    (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.

Sec.  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. Any attorney representative must include in the notice of 
appearance the license registration number(s) assigned to the attorney.
    (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.
    (i) 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 
filing of the Notice of Appearance required in paragraph (a) of this 
section constitutes an attestation that:
    (A) The attorney is a member of a bar in good standing of the 
highest court of a State, Commonwealth, or Territory of the United 
States, or the District of Columbia where the attorney has been 
licensed to practice law; and
    (B) No disciplinary proceeding is pending against the attorney in 
any jurisdiction where the attorney is licensed to practice law.
    (ii) 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.
    (iii) Disclosure of discipline. An attorney representative must 
promptly disclose to the judge any action suspending, enjoining, 
restraining, disbarring, or otherwise currently restricting the 
attorney in the practice of law in any jurisdiction where the attorney 
is licensed to practice law.
    (2) Non-attorney representative. An individual who is not an 
attorney as defined by paragraph (b)(1) of this section 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.

Sec.  18.23  Disqualification of representatives.

    (a) Disqualification--(1) Grounds for disqualification. 
Representatives qualified under Sec.  18.22 may be disqualified for:
    (i) Suspension of a license to practice law or disbarment from the 
practice of law by any court or agency of the United States, highest 
court of a State, Commonwealth, or Territory of the United States, or 
the District of Columbia;
    (ii) Disbarment from the practice of law on consent or resignation 
from the bar of a court or agency while an investigation into an 
allegation of misconduct is pending; or
    (iii) Committing an act, omission, or contumacious conduct that 
violates these rules, an applicable statute, an applicable regulation, 
or the judge's order(s).
    (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) Notification of disqualification action. When an attorney 
representative is disqualified, the Chief Judge will notify the 
jurisdiction(s) in which the attorney is licensed 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.
    (c) Application for reinstatement. A representative 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

[[Page 28788]]

further proceedings before the Chief Judge.

Sec.  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. The deadline for submission of an amicus brief will 
be set by the presiding judge.

Service, Format, and Timing of Filings and Other Papers

Sec.  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--(i) 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.
    (ii) Service in general. A paper is served under this section by:
    (A) Handing it to the person;
    (B) Leaving it;
    (1) 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
    (2) 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.
    (C) Mailing it to the person's last known address--in which event 
service is complete upon mailing;
    (D) Leaving it with the docket clerk if the person has no known 
address;
    (E) 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
    (F) 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:
    (i) The title of the document;
    (ii) The name and address of each person or representative being 
served;
    (iii) The name of the party filing the paper and the party's 
representative, if any;
    (iv) The date of service; and
    (v) 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 Sec.  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:
    (i) Notices of deposition,
    (ii) Depositions,
    (iii) Interrogatories,
    (iv) Requests for documents or tangible things or to permit entry 
onto land;
    (v) Requests for admission, and
    (vi) The notice (and the related copy of the subpoena) that must be 
served on the parties under rule 18.56(b)(1) before a ``documents 
only'' subpoena may be served on the person commended to produce the 
material.
    (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.
    (i) Filing by facsimile--(A) 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.
    (B) 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.
    (C) Retention of the original document. The original signed 
document will not be substituted into the record unless required by law 
or the judge.
    (ii) 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.
    (iii) 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.

Sec.  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 social-security number and 
taxpayer-identification number;
    (2) The year of the individual's birth;
    (3) The minor's initials; and
    (4) The last four digits of the financial-account 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 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 Sec. Sec.  18.85 and 18.52.

Sec.  18.32  Computing and extending time.

    (a) Computing time. The following rules apply in computing any time

[[Page 28789]]

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:
    (i) Exclude the day of the event that triggers the period;
    (ii) Count every day, including intermediate Saturdays, Sundays, 
and legal holidays; and
    (iii) 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 on which the district office in which the document is to be 
filed is closed or otherwise inaccessible.
    (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 Sec.  18.30(a)(2)(B)(iii) or (iv), 3 days are added after 
the period would otherwise expire under paragraph (a) of this section.

Sec.  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 paragraph (c)(4) of this section, 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:
    (i) When the motion may be heard ex parte;
    (ii) When these rules or an appropriate statute, regulation, or 
executive order set a different time; or
    (iii) 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:
    (i) To dismiss;
    (ii) For summary decision; and
    (iii) 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.

Sec.  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 Sec.  
18.31(a)(1).

Sec.  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 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;

[[Page 28790]]

    (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 Sec.  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 may 
include, but is not limited to, striking part or all of the offending 
document, forbidding the filing of any further documents, excluding 
related evidence, admonishment, referral of counsel misconduct to the 
appropriate licensing authority, and including the sanctioned activity 
in assessing the quality of representation when determining an 
appropriate hourly rate and billable hours when adjudicating attorney 
fees.
    (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 Sec. Sec.  18.50 through 18.65.

Sec.  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

Sec.  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.

Sec.  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.

Sec.  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.

Sec.  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.

Sec.  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;
    (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 Sec. Sec.  18.70 and 18.72;
    (6) Controlling and scheduling discovery, including orders 
affecting disclosures and discovery under Sec. Sec.  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 
Sec.  18.13, private

[[Page 28791]]

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 Sec.  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

Sec.  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:
    (i) 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
    (ii) 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:
    (i) Methods of discovery may be used in any sequence; and
    (ii) 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:
    (i) 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;
    (ii) 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;
    (iii) Any issues about disclosure or discovery of electronically 
stored information, including the form or forms in which it should be 
produced;
    (iv) Any issues about claims of privilege or of protection as 
hearing-preparation 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;
    (v) What changes should be made in the limitations on discovery 
imposed under these rules and what other limitations should be imposed; 
and
    (vi) Any other orders that the judge should issue under Sec.  18.52 
or Sec.  18.44.
    (c) Required disclosures--(1) Initial disclosure--(i) In general. 
Except as exempted by paragraph (c)(1)(ii) of this section or otherwise 
ordered by the judge, a party must, without awaiting a discovery 
request, provide to the other parties:
    (A) 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;
    (B) 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
    (C) A computation of each category of damages claimed by the 
disclosing party--who must also make available for inspection and 
copying as under Sec.  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.
    (ii) Proceedings exempt from initial disclosure. The following 
proceedings are exempt from initial disclosure:
    (A) 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;
    (B) A proceeding before the Board of Alien Labor Certification 
Appeals under the Immigration and Nationality Act; and
    (C) A proceeding under the regulations governing certification of 
H-2 non-immigrant temporary agricultural employment at 20 CFR part 655, 
subpart B;
    (D) A rulemaking proceeding under the Occupational Safety and 
Health Act of 1970; and
    (E) A proceeding for civil penalty assessments under Employee 
Retirement Income Security Act of 1974, 29 U.S.C. 1132.
    (iii) Parties exempt from initial disclosure. The following parties 
are exempt from initial disclosure:
    (A) In a Black Lung benefits proceeding under 30 U.S.C. 901 et 
seq., the representative of the Office of 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
    (B) In a proceeding under the Longshore and Harbor Workers' 
Compensation Act, 33 U.S.C. 901-950, or an associated statute such as 
the Defense Base Act, 42 U.S.C. 1651-1654, 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).
    (iv) Time for initial disclosures--in general. A party must make 
the initial disclosures required by paragraph

[[Page 28792]]

(c)(1)(i) 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 a different time is set by stipulation or a judge's 
order, or 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.
    (v) 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. Copies of all prior disclosures must be served on a 
newly served or joined party within 21 days of the service or joinder.
    (vi) 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--(i) 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.
    (ii) 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:
    (A) A complete statement of all opinions the witness will express 
and the basis and reasons for them;
    (B) The facts or data considered by the witness in forming them;
    (C) Any exhibits that will be used to summarize or support them;
    (D) The witness's qualifications, including a list of all 
publications authored in the previous 10 years;
    (E) 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
    (F) A statement of the compensation to be paid for the study and 
testimony in the case.
    (iii) 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:
    (A) The subject matter on which the witness is expected to present 
expert opinion evidence; and
    (B) A summary of the facts and opinions to which the witness is 
expected to testify.
    (iv) Supplementing the disclosure. The parties must supplement 
these disclosures when required under Sec.  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 Sec.  18.80.
    (4) Form of disclosures. Unless the judge orders otherwise, all 
disclosures under this paragraph (c) 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:
    (i) With respect to a disclosure, it is complete and correct as of 
the time it is made; and
    (ii) With respect to a discovery request, response, or objection, 
it is:
    (A) 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;
    (B) Not interposed for any improper purpose, such as to harass, 
cause unnecessary delay, or needlessly increase the cost of litigation; 
and
    (C) 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 Sec.  18.57, on the signer, the party on whose behalf the 
signer was acting, or both.

Sec.  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 
Sec.  18.64. The judge's order may also limit the number of requests 
under Sec.  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 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) Inadvertently disclosed privileged or protected information. 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.

[[Page 28793]]

    (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:
    (i) 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;
    (ii) The party seeking discovery has had ample opportunity to 
obtain the information by discovery in the action; or
    (iii) 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:
    (i) They are otherwise discoverable under paragraph (a) of this 
section; and
    (ii) 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:
    (i) A written statement that the person has signed or otherwise 
adopted or approved; or
    (ii) 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 Sec.  
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 Sec.  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 Sec.  
18.50(c)(2)(B), regardless of the form of the communications, except to 
the extent that the communications:
    (i) Relate to compensation for the expert's study or testimony;
    (ii) Identify facts or data that the party's representative 
provided and that the expert considered in forming the opinions to be 
expressed; or
    (iii) 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:
    (i) As provided in Sec.  18.62(c); or
    (ii) 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:
    (i) Expressly make the claim; and
    (ii) 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.

Sec.  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 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.

Sec.  18.53  Supplementing disclosures and responses.

    (a) In general. A party who has made a disclosure under Sec.  
18.50(c)--or who has responded to an interrogatory, request for 
production, or request for

[[Page 28794]]

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 Sec.  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 
Sec.  18.50(c)(3) are due.

Sec.  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.

Sec.  18.55  Using depositions at hearings.

    (a) Using depositions--(1) In general. If there is no objection, 
all or part of a deposition may be used at a hearing to the extent it 
would be admissible under the applicable rules of evidence as if the 
deponent were present and testifying.
    (2) Over objection. Notwithstanding any objection, all or part of a 
deposition may be used at a hearing against a party on these 
conditions:
    (i) The party was present or represented at the taking of the 
deposition or had reasonable notice of it;
    (ii) It is used to the extent it would be admissible under the 
applicable rules of evidence if the deponent were present and 
testifying; and
    (iii) The use is allowed by paragraphs (a)(3) through (9) of this 
section.
    (3) 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.
    (4) 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 Sec.  18.64(b)(6) or Sec.  18.65(a)(4).
    (5) 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.
    (6) Unavailable witness. A party may use for any purpose the 
deposition of a witness, whether or not a party, if the judge finds:
    (i) That the witness is dead;
    (ii) 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;
    (iii) That the witness cannot attend or testify because of age, 
illness, infirmity, or imprisonment;
    (iv) That the party offering the deposition could not procure the 
witness's attendance by subpoena; or
    (v) 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.
    (7) Limitations on use--(i) 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 Sec.  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.
    (ii) Unavailable deponent; party could not obtain a representative. 
A deposition taken without leave of the judge under the unavailability 
provision of Sec.  18.64(a)(2)(i)(C) 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.
    (8) 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.
    (9) 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:
    (i) Before the deposition begins; or
    (ii) Promptly after the basis for disqualification becomes known 
or, with reasonable diligence, could have been known.
    (3) To the taking of the deposition--(i) 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.
    (ii) Objection to an error or irregularity. An objection to an 
error or irregularity at an oral examination is waived if:
    (A) 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
    (B) It is not timely made during the deposition.
    (iii) Objection to a written question. An objection to the form of 
a written question under Sec.  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 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.

Sec.  18.56  Subpoena.

    (a) In general. (1) Upon written application of a party the judge 
may

[[Page 28795]]

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--(i) Requirements--in general. Every subpoena 
must:
    (A) 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 Sec.  18.31(a)(1);
    (B) Bear the signature of the issuing judge;
    (C) 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
    (D) Set out the text of paragraphs (c) and (d) of this section.
    (ii) 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.
    (iii) 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.
    (iv) 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.
    (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 on the person to 
whom it is directed, a notice and copy of the subpoena must be served 
on each party.
    (2) Service in the United States. Subject to paragraph (c)(3)(i)(B) 
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--(i) 
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.
    (ii) 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:
    (A) At any time, on notice to the commanded person, the serving 
party may move the judge for an order compelling production or 
inspection.
    (B) 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--(i) When required. On timely 
motion, the judge must quash or modify a subpoena that:
    (A) Fails to allow a reasonable time to comply;
    (B) 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)(ii)(C) of this section, the person may be 
commanded to attend the formal hearing;
    (C) Requires disclosure of privileged or other protected matter, if 
no exception or waiver applies; or
    (D) Subjects a person to undue burden.
    (ii) 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:
    (A) Disclosing a trade secret or other confidential research, 
development, or commercial information;
    (B) 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
    (C) 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.
    (iii) Specifying conditions as an alternative. In the circumstances 
described in paragraph (c)(3)(ii) of this section, the judge may, 
instead of quashing or modifying a subpoena, order appearance or 
production under specified conditions if the serving party:
    (A) Shows a substantial need for the testimony or material that 
cannot be otherwise met without undue hardship; and
    (B) 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:
    (i) 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.
    (ii) Form for producing electronically stored information not 
specified. If a subpoena does not specify a form for producing 
electronically stored information, the person responding

[[Page 28796]]

must produce it in a form or forms in which it is ordinarily maintained 
or in a reasonably usable form or forms.
    (iii) Electronically stored information produced in only one form. 
The person responding need not produce the same electronically stored 
information in more than one form.
    (iv) 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 Sec.  18.51(b)(4)(iii). The judge 
may specify conditions for the discovery.
    (2) Claiming privilege or protection--(i) Information withheld. A 
person withholding subpoenaed information under a claim that it is 
privileged or subject to protection as hearing-preparation material 
must:
    (A) Expressly make the claim; and
    (B) 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.
    (ii) Information produced. If information produced in response to a 
subpoena is subject to a claim of privilege or of protection as 
hearing-preparation 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.

Sec.  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--(i) To compel disclosure. If a party fails to 
make a disclosure required by Sec.  18.50(c), any other party may move 
to compel disclosure and for appropriate sanctions.
    (ii) 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:
    (A) A deponent fails to answer a question asked under Sec. Sec.  
18.64 and 18.65;
    (B) A corporation or other entity fails to make a designation under 
Sec. Sec.  18.64(b)(6) and 18.65(a)(4);
    (C) A party fails to answer an interrogatory submitted under Sec.  
18.60; or
    (D) A party fails to respond that inspection will be permitted--or 
fails to permit inspection--as requested under Sec.  18.61.
    (iii) 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 Sec. Sec.  18.64(b)(6) and 
18.65(a)(4)--fails to obey an order to provide or permit discovery, 
including an order under Sec.  18.50(b) or paragraph (a) of this 
section, the judge may issue further just orders. They may include the 
following:
    (i) 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;
    (ii) Prohibiting the disobedient party from supporting or opposing 
designated claims or defenses, or from introducing designated matters 
in evidence;
    (iii) Striking claims or defenses in whole or in part;
    (iv) Staying further proceedings until the order is obeyed;
    (v) Dismissing the proceeding in whole or in part; or
    (vi) 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 Sec.  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 Sec. Sec.  18.50(c) and 18.53, or if a party fails to admit 
what is requested under Sec.  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--(i) Motion; grounds for sanctions. The judge may, on motion, 
order sanctions if:
    (A) A party or a party's officer, director, or managing agent--or a 
person designated under Sec. Sec.  18.64(b)(6) and 18.65(a)(4)--fails, 
after being served with proper notice, to appear for that person's 
deposition; or
    (B) A party, after being properly served with interrogatories under 
Sec.  18.60 or a request for inspection under Sec.  18.61, fails to 
serve its answers, objections, or written response.
    (ii) 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)(i) 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 Sec.  18.52(a).

[[Page 28797]]

    (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

Sec.  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 Sec.  18.51.
    (2) Scope. An interrogatory may relate to any matter that may be 
inquired into under Sec.  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:
    (i) By the party to whom they are directed; or
    (ii) 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 
Sec.  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.

Sec.  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 Sec.  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:
    (i) 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
    (ii) 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:
    (i) Must describe with reasonable particularity each item or 
category of items to be inspected;
    (ii) Must specify a reasonable time, place, and manner for the 
inspection and for performing the related acts; and
    (iii) May specify the form or forms in which electronically stored 
information is to be produced.
    (2) Responses and objections--(i) 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 
Sec.  18.54 or be ordered by the judge.
    (ii) 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.
    (iii) Objections. An objection to part of a request must specify 
the part and permit inspection of the rest.
    (iv) 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.
    (v) 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:
    (A) 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;
    (B) 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
    (C) A party need not produce the same electronically stored 
information in more than one form.
    (c) Nonparties. As provided in Sec.  18.56, a nonparty may be 
compelled to produce documents and tangible things or to permit an 
inspection.

Sec.  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:
    (i) The legal basis for the examination;
    (ii) The time, place, manner, conditions, and scope of the 
examination, as well as the person or persons who will perform it; and
    (iii) How the reasonable transportation expenses were calculated.
    (3) Service of notice. Unless otherwise agreed by the parties, the 
notice must be

[[Page 28798]]

served no fewer than 30 days before the examination date.
    (4) Objection. The person to be examined must serve any objection 
to the notice no later than 14 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 no later than seven days after 
it receives the report, 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.

Sec.  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 Sec.  18.51 relating 
to:
    (i) Facts, the application of law to fact, or opinions about 
either; and
    (ii) The genuineness of any described documents.
    (2) Form; copy of a document. Each matter must be separately 
stated. 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 Sec.  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.

Sec.  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 Sec.  
18.56.
    (2) With leave. A party must obtain leave of the judge, and the 
judge must grant leave to the extent consistent with Sec.  18.51(b):
    (i) If the parties have not stipulated to the deposition and:
    (A) The deposition would result in more than 10 depositions being 
taken under this section or Sec.  18.65 by one of the parties;
    (B) The deponent has already been deposed in the case; or
    (C) The party seeks to take the deposition before the time 
specified in Sec.  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
    (ii) 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 Sec.  18.61, the notice must comply with the requirements of 
Sec.  18.61(b).
    (3) Method of recording--(i) 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.
    (ii) 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.
    (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) Deposition officer's duties--(i) 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:
    (A) The officer's name and business address;
    (B) The date, time, and place of the deposition;
    (C) The deponent's name;
    (D) The officer's administration of the oath or affirmation to the 
deponent;

[[Page 28799]]

    (E) The identity of all persons present; and
    (F) The date and method of service of the notice of deposition.
    (ii) Conducting the deposition; avoiding distortion. If the 
deposition is recorded nonstenographically, the officer must repeat the 
items in paragraphs (b)(5)(i)(A) and (B) 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.
    (iii) 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 (b)(6) does 
not preclude a deposition by any other procedure allowed by these 
rules.
    (c) Examination and cross-examination; record of the examination; 
objections; written questions--(1) Examination and cross-examination. 
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)(i) 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 Sec.  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 Sec.  18.57, on a person who impedes, delays, or 
frustrates the fair examination of the deponent.
    (3) Motion to terminate or limit--(i) 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.
    (ii) Order. The judge may order that the deposition be terminated 
or may limit its scope and manner as provided in Sec.  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:
    (i) To review the transcript or recording; and
    (ii) 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--(i) 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:
    (A) 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
    (B) 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.
    (ii) 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 Sec.  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

[[Page 28800]]

    (2) Serve a subpoena on a nonparty deponent, who consequently did 
not attend.

Sec.  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 
Sec.  18.56.
    (2) With leave. A party must obtain leave of the judge, and the 
judge must grant leave to the extent consistent with Sec.  18.51(b):
    (i) If the parties have not stipulated to the deposition and:
    (A) The deposition would result in more than 10 depositions being 
taken under this section or Sec.  18.64 by a party;
    (B) The deponent has already been deposed in the case; or
    (C) The party seeks to take a deposition before the time specified 
in Sec.  18.50(a); or
    (ii) 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 Sec.  
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 deposition 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 Sec.  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

Sec.  18.70  Motions for dispositive action.

    (a) In general. When consistent with statute, regulation or 
executive order, any party may move under Sec.  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.

Sec.  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.

Sec.  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:
    (i) 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
    (ii) 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 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

[[Page 28801]]

    (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

Sec.  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 Sec.  18.50(d).

Sec.  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.

Sec.  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.

Sec.  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.
    (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.

Sec.  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.

[[Page 28802]]

Sec.  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.

Sec.  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.

Sec.  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 non-attorney 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.

Sec.  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

Sec.  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 Sec.  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.

Sec.  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.

Sec.  18.92  Decision and order.

    At the conclusion of the proceeding, the judge must issue a written 
decision and order.

Sec.  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.

Sec.  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.

Sec.  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. 2015-11586 Filed 5-18-15; 8:45 am]
 BILLING CODE 4510-20-P
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