[Federal Register Volume 62, Number 147 (Thursday, July 31, 1997)]
[Rules and Regulations]
[Pages 40933-40934]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-20130]


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OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

29 CFR Part 2200


Rules of Procedure for E-Z Trials

AGENCY: Occupational Safety and Health Review Commission.

ACTION: Final Rule.

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SUMMARY: This document eliminates the sunset provision from the 
procedures governing the E-Z Trial program and continues the E-Z Trial 
program as part of the Commission Rules of Procedure, as codified in 
Title 29 of the Code of Federal Regulations as Part 2200. In addition, 
this document implements revisions to the procedural rules governing 
the E-Z Trial program which are intended to assist the E-Z Trial 
process in meeting its objective of allowing parties in less complex 
cases to argue their cases before the Commission with as few legal 
formalities as possible.

DATES: Effective July 31, 1997.

FOR FURTHER INFORMATION CONTACT: Earl R. Ohman, Jr., General Counsel, 
(202) 606-5410, Occupational Safety and Health Review Commission, 1120 
20th Street NW, 9th Floor, Washington DC 20036-3419.

SUPPLEMENTARY INFORMATION: On June 24, 1997, the Occupational Safety 
and Health Review Commission published in the Federal Register (62 FR 
34031) proposed changes to the procedural rules governing the E-Z Trial 
program. The Commission would like to thank those who took the time and 
interest to submit comments.

    The Secretary of Labor responded by stating that it appears that 
many of the concerns she initially had with the E-Z Trial program can 
be avoided if the Commission continues to exercise sound judgment in 
the designation of cases for E-Z Trial, to be receptive to motions by 
either party to modify or discontinue the procedure, and to conduct 
pre-hearing conferences in such a manner as to prevent surprises at 
trial. The Secretary also expressed her wish that the Commission remain 
open to future modifications of the rule as it gains experience with 
the E-Z Trial program.
    The Commission has evaluated the E-Z Trial program during its pilot 
stage and has decided to eliminate the sunset provision of the E-Z 
Trial procedures and to maintain E-Z Trial as part of the Commission's 
Rules of Procedure. The Commission notes that E-Z Trial has reduced the 
time necessary to try and reach a decision in cases of the type 
eligible for E-Z Trial from 423 days to 141 days--a two-thirds 
reduction. In addition, feedback received from the focus groups held 
concerning E-Z Trial reflects that the program has realized many of its 
other goals. The comments received in response to the proposed 
amendments raise issues which the Commission hopes its modified 
procedures adequately address and the Commission remains open to future 
modifications as the need may arise.

1. Eligibility for E-Z Trial

    The Commission proposed amending Rule 202 to make cases involving a 
fatality or an allegation of willfulness ineligible for E-Z Trial. The 
Commission also proposed that cases having an aggregate proposed 
penalty of more than $10,000, but not more than $20,000, may be 
considered for E-Z Trial designation at the discretion of the Chief 
Administrative Law Judge. The Commission received no comments 
specifically opposing these changes. Accordingly, the Commission adopts 
the proposed amendments.

2. Disclosure of Information

    Currently, Rule 206 requires the Secretary of Labor to disclose to 
the employer copies of the narrative (Form OSHA 1-A) and the worksheet 
(Form OSHA 1-B), or their equivalents, within 12 working days after a 
case has been designated for E-Z Trial. The Commission proposed 
amending the rule to require the Secretary to provide the employer with 
reproductions of any photographs or videotapes that the Secretary 
intends to use at the hearing within 30 calendar days of designation 
for E-Z Trial.
    One commentator suggested that the Secretary should be required to 
disclose all photographs or videotapes, not just the ones the Secretary 
anticipates using at the hearing. The commentator stated that there may 
be photographs or videotapes which would be helpful to an employer's 
defense, but which the Secretary does not intend to use, and noted that 
under the proposed rule, the Secretary is not required to disclose such 
evidence. While the Commission expects that the Secretary would turn 
over such material without being required to do so, in order to make it 
clear that no loophole exists in the E-Z Trial procedures and because 
the E-Z Trial process favors disclosure over the traditional avenues of 
discovery, the Commission has decided that the Secretary should provide 
to the employer as part of the disclosure requirement any exculpatory 
evidence, including photographs and videotapes. Accordingly, the 
Commission has revised Rule 206 to include the

[[Page 40934]]

disclosure of any exculpatory material the Secretary has in her 
possession.

3. Pre-hearing Conference

    The proposed rule provides that the pre-hearing conference be 
conducted as soon as practicable after the employer has received the 
narrative and worksheet under the provisions of Rule 206. One 
commentator suggested that the pre-hearing conference be held only 
after the employer has also received any photographs or videotapes so 
that the employer has the benefit of all mandatory disclosure before 
the pre-hearing conference. The commentator expressed concern that 
allowing the pre-hearing conference to go forward without the 
employer's prior access to any photographs or videotapes places the 
employer in an unfair position. Because Rule 207 requires the parties 
to set forth an agreed statement of issues and facts, witnesses and 
exhibits, defenses, motions, and any other pertinent matter including 
affirmative defenses at the pre-hearing conference, the commentator 
noted that an employer may not be properly prepared to do so without 
the photographs and videotapes.
    We acknowledge the interest in having an employer fully prepared 
for the pre-hearing conference, and we note that under the proposed 
rule, there is no requirement that the Judge hold the pre-hearing 
conference before the employer receives any photographs or videotapes. 
We expect that generally the pre-hearing conference will be scheduled 
after the employer is in receipt of any photographs and videotapes. 
However, the Commission has decided to adopt the proposed rule which 
allows the Judge to exercise his or her discretion to conduct the pre-
hearing conference at any time after the employer is in receipt of the 
narrative and the worksheet.

4. Hearing

    One of the objectives of the E-Z Trial process is to expeditiously 
adjudicate less complex cases. As a result, the Commission believes 
that cases proceeding under the E-Z Trial process should be exempt from 
Rule 60, which requires that the parties be given notice of the time, 
place, and nature of the hearing at least thirty days in advance of the 
hearing. Because the cases designated for E-Z Trial contain relatively 
few citation items and do not involve complex matters of fact or law, 
the Commission believes that the parties will not be harmed by allowing 
the Judge to schedule the hearing with less than 30 days notice. 
Accordingly, the Commission has revised Rule 209 to reflect the 
exemption from Rule 60.

List of Subjects in 29 CFR Part 2200

    Administrative practice and procedure, Hearing and appeal 
procedures.

    For the reasons set forth in the preamble, the Occupational Safety 
and Health Review Commission amends Title 29, Chapter XX, Part 2200, 
Subpart M of the Code of Federal Regulations as follows:

PART 2200--RULES OF PROCEDURE

    1. The authority citation for part 2200 continues to read as 
follows:

    Authority: 29 U.S.C. 661(g).

    2. Section 2200.201 is amended by removing paragraph (b) and the 
designation for paragraph (a).
    3. Section 2200.202 is revised to read as follows:


Sec. 2200.202   Eligibility for E-Z Trial.

    (a) Those cases selected for E-Z Trial will be those that do not 
involve complex issues of law or fact. Cases appropriate for E-Z Trial 
would generally include those with one or more of the following 
characteristics:
    (1) Relatively few citation items,
    (2) An aggregate proposed penalty of not more than $10,000,
    (3) No allegation of willfulness or a repeat violation,
    (4) Not involving a fatality,
    (5) A hearing that is expected to take less than two days, or
    (6) A small employer whether appearing pro se or represented by 
counsel.
    (b) Those cases with an aggregate proposed penalty of more than 
$10,000, but not more than $20,000, if otherwise appropriate, may be 
selected for E-Z Trial at the discretion of the Chief Administrative 
Law Judge.
    4. Section 2200.206(a) is revised to read as follows:


Sec. 2200.206   Disclosure of information.

    (a) Disclosure to employer. (1) Within 12 working days after a case 
is designated for E-Z Trial, the Secretary shall provide the employer, 
free of charge, copies of the narrative (Form OSHA 1-A) and the 
worksheet (Form OSHA 1-B), or their equivalents.
    (2) Within 30 calendar days after a case is designated for E-Z 
Trial, the Secretary shall provide the employer with reproductions of 
any photographs or videotapes that the Secretary anticipates using at 
the hearing.
    (3) Within 30 calendar days after a case is designated for E-Z 
Trial, the Secretary shall provide to the employer any exculpatory 
evidence in the Secretary's possession.
    (4) The Judge shall act expeditiously on any claim by the employer 
that the Secretary improperly withheld or redacted any portion of the 
documents, photographs, or videotapes on the grounds of confidentiality 
or privilege.
* * * * *
    5. Section 2200.207(a) is amended by revising the first sentence to 
read as follows:


Sec. 2200.207   Pre-hearing conferences.

    (a) When held. As early as practicable after the employer has 
received the documents set forth in Sec. 2200.206(a)(1), the presiding 
Judge will order and conduct a pre-hearing conference.* * *
* * * * *
    6. Section 2200.209(a) is revised to read as follows:


Sec. 2200.209   Hearing.

    (a) Procedures. As soon as practicable after the conclusion of the 
pre-hearing conference, the Judge will hold a hearing on any issue that 
remains in dispute. The hearing will be in accordance with subpart E of 
these rules, except for Sec. 2200.60, 2200.73, and 2200.74 which will 
not apply.
* * * * *
    Dated: July 25, 1997.
Earl R. Ohman, Jr.,
General Counsel.
[FR Doc. 97-20130 Filed 7-30-97; 8:45 am]
BILLING CODE 7600-01-M