PART 2200—RULES OF PROCEDURE

Subpart A—General Provisions

2200.1 Definitions.

2200.2 Scope of rules; applicability of Federal Rules of Civil Procedure; 

construction.

2200.3 Use of number.

2200.4 Computing time.

2200.5 Extension of time.

2200.6 Record address.

2200.7 Service, notice, and posting.

2200.8 Filing.

2200.9 Consolidation.

2200.10 Severance.

2200.11 [Reserved]

2200.12 References to cases.

Subpart B—Parties and Representatives

2200.20 Party status.

2200.21 Intervention; appearance by non-parties.

2200.22 Representation of parties and intervenors.

2200.23 Appearances and withdrawals.

2200.24 Brief of an amicus curiae.

Subpart C—Pleadings and Motions

2200.30 General rules.

2200.31 Caption; titles of cases.

2200.32 Signing of pleadings and motions.

2200.33 Notices of contest.

2200.34 Employer contests.

2200.35 Disclosure of corporate parents, subsidiaries, and affiliates.

2200.36 [Reserved]

2200.37 Petitions for modification of the abatement period.

2200.38 Employee contests.

2200.39 Statement of position.

2200.40 Motions and requests.

2200.41 [Reserved]

Subpart D—Prehearing Procedures and Discovery

2200.50 [Reserved]

2200.51 Prehearing conferences and orders.

2200.52 General provisions governing discovery.
2200.53 Production of documents and things.

2200.54 Request for admissions.

2200.55 Interrogatories.

2200.56 Depositions.

2200.57 [Reserved]

Subpart E—Hearings

2200.60 Notice of hearing; location.

2200.61 Submission without hearing.

2200.62 Postponement of hearing.

2200.63 Stay of proceedings.

2200.64 Failure to appear.

2200.65 Issuance of subpoenas; petitions to revoke or modify subpoenas; payment 

of witness fees and mileage; right to inspect or copy data.

2200.66 Transcript of testimony.

2200.67 Duties and powers of Judges.

2200.68 Recusal of the Judge.

2200.69 Examination of witnesses.

2200.70 Exhibits.

2200.71 Rules of evidence.

2200.72 Objections.

2200.73 Interlocutory review.

2200.74 Filing of briefs and proposed findings with the Judge; oral argument at 

the hearing.

Subpart F—Posthearing Procedures

2200.90 Decisions and reports of Judges.

2200.91 Discretionary review; petitions for discretionary review; statements in 

opposition to petitions.

2200.92 Review by the Commission.

2200.93 Briefs before the Commission.

2200.94 [Reserved]

2200.95 Oral argument before the Commission.

2200.96 Commission receipt of copies of petitions for judicial review of 

Commission orders when petitions for review are filed in two or more courts of appeals 

with respect to the same order.

Subpart G—Miscellaneous Provisions

2200.100 Settlement.

2200.101 Failure to obey rules.

2200.102 Withdrawal.

2200.103 Expedited proceeding.

2200.104 Standards of conduct.

2200.105 Ex parte communication.
2200.106 Amendment to rules.

2200.107 Special circumstances; waiver of rules.

2200.108 Official Seal of the Occupational Safety and Health Review. 

Commission.

Subpart H—Settlement Part

2200.120 Settlement procedure.

Subparts I-L [Reserved]

Subpart M—Simplified Proceedings

2200.200 Purpose.

2200.201 Application.

2200.202 Eligibility for Simplified Proceedings.

2200.203 Commencing Simplified Proceedings.

2200.204 Discontinuance of Simplified Proceedings.

2200.205 Filing of pleadings.

2200.206 Disclosure of information.

2200.207 Pre-hearing conference.

2200.208 Discovery.

2200.209 Hearing.

2200.210 Review of Judge’s decision.

2200.211 Applicability of subparts A through G.

Subpart A – General Provisions

§ 2200.1 Definitions.

As used in this part:

(a) Act means the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678.

(b) Commission, person, employer, and employee have the meanings set forth in section 3 of 

the Act, 29 U.S.C. 652.

(c) Secretary means the Secretary of Labor or the Secretary’s duly authorized representative.

(d) Executive Secretary means the Executive Secretary of the Commission.

(e) Affected employee means an employee of a cited employer who is exposed to or has access 

to the hazard arising out of the allegedly violative circumstances, conditions, practices, or 

operations.
(f) Judge means an Administrative Law Judge appointed pursuant to section 12(e) of the Act, 

29 U.S.C. 661(e), as amended by Pub. L. 95-251, 92 Stat.183, 184 (1978).

(g) Authorized employee representative means a labor organization that has a collective 

bargaining relationship with the cited employer and that represents affected employees who are 

members of the collective bargaining unit.

(h) Representative means any person, including an authorized employee representative, 

authorized by a party or intervenor to represent it in a proceeding.

(i) Citation means a written communication issued by the Secretary to an employer pursuant to 

section 9(a) of the Act, 29 U.S.C. 658(a).

(j) Notification of proposed penalty means a written communication issued by the Secretary to 

an employer pursuant to section 10(a) or (b) of the Act, 29 U.S.C. 659(a) or (b).

(k) Day means a calendar day.

(l) Working day means all days except Saturdays, Sundays, or Federal holidays.

(m) Proceeding means any proceeding before the Commission or before a Judge.

(n) Pleadings are complaints and answers filed under § 2200.34, statements of reasons and 

employers’ responses filed under § 2200.38, and petitions for modification of abatement and 

objecting parties’ responses filed under § 2200.37. A motion is not a pleading within the 

meaning of these rules.

§ 2200.2 Scope of rules; applicability of Federal Rules of Civil Procedure; construction.

(a) Scope. These rules shall govern all proceedings before the Commission and its Judges.

(b) Applicability of Federal Rules of Civil Procedure. In the absence of a specific provision, 

procedure shall be in accordance with the Federal Rules of Civil Procedure.

(c) Construction. These rules shall be construed to secure an expeditious, just, and 

inexpensive determination of every case.

§ 2200.3 Use of number.

Words importing the singular number may extend and be applied to the plural and vice versa.
§ 2200.4 Computing time.

(a) Computation. The following rules apply in computing any time period specified in these 

rules or by any order that does not specify a method of computing time.

(1) Period stated in days or longer unit. 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 Federal holidays; and

(iii) Include the last day of the period, but if the last day is a Saturday, Sunday, or Federal 

holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, 

or Federal holiday.

(2) Period stated in working days. When the period is stated in working days, count every day 

except intermediate Saturdays, Sundays, and Federal holidays.

(3) Operating status of receiving Commission office. Unless the Commission or the Judge 

orders otherwise, if the receiving Commission office is closed on the last day for filing due to 

inclement weather or other circumstance, then the time for filing is extended to the first day the 

office is open that is not a Saturday, Sunday, or Federal holiday.

(4) “Last day” defined. Unless a different time is set by a rule or order, the last day ends:

(i) For documents filed electronically in the Commission’s E-File System, at 11:59 p.m. in the 

time zone of the receiving Commission office; and

(ii) For filing by other means, when the receiving Commission office is scheduled to close.

(5) “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.

(6) “Federal holiday” defined. “Federal holiday” means:

(i) The day set aside by statute for observing New Year’s Day, Martin Luther King Jr.’s 

Birthday, Washington’s Birthday, Memorial Day, Juneteenth National Independence Day, 

Independence Day, Labor Day, Columbus Day, Veterans’ Day, Thanksgiving Day, or 

Christmas Day; and,

(ii) Any day declared a holiday by the President or Congress.
(7) Computation Examples.

(i) If a judge orders that a document is due in 40 days, count every calendar day starting the 

day after that order (day 1) until reaching day 40 (due date). If the receiving Commission 

office is closed on day 40 (such as on a Saturday, Sunday, or Federal holiday), the document 

would be due the next day the office is open. In other words, if day 40 falls on a Saturday, and 

the following Monday is a Federal holiday, the document would be due on Tuesday, the day 

after the holiday.

(ii) If a judge orders that a document is due 14 days before a hearing, count backwards starting 

the day before the hearing (day 1) until reaching day 14. If the receiving Commission office is 

closed on day 14 (such as on a Saturday, Sunday, or Federal holiday), the document would be

due on the last day the office is open before the Saturday, Sunday, or Federal holiday. In other 

words, if day 14 falls on a Sunday, and the Friday before is a Federal holiday, the document 

would be due on Thursday, the day before the holiday.

(b) Additional time after service by U.S. Mail. When a party may or must act within a 

specified time after service and service is made by U.S. Mail under § 2200.7, 3 days are added 

after the period would otherwise expire under § 2200.4(a). Provided, however, that this 

provision does not apply to computing the time for filing a petition for discretionary review 

under § 2200.91(b).

§ 2200.5 Extension of time.

The Commission or the Judge on their own initiative or, upon motion of a party, for good 

cause shown, may enlarge or shorten any time prescribed by these rules or prescribed by an 

order. All such motions shall be in writing and shall conform with § 2200.40, but, in exigent 

circumstances in a case pending before a Judge, an oral request may be made and shall be 

followed by a written motion filed with the Judge within such time as the Judge prescribes. A 

request for an extension of time should be received in advance of the date on which the 

pleading or document is due to be filed. However, in exigent circumstances, an extension of 

time may be granted even though the request was filed after the designated time for filing has 

expired. In such circumstances, the party requesting the extension must show, in writing, the 

reasons for the party’s failure to make the request before the time prescribed for the filing had 

expired. The motion may be acted upon before the time for response has expired.

§ 2200.6 Record address.

(a) Every pleading or document filed by any party or intervenor shall contain the name, current 

address, telephone number, and email address of the party or intervenor’s representative or, if 

there is no representative, the party or intervenor’s own name, current address, telephone 

number, and email address. Any change in such information shall be communicated promptly 
in writing to the Judge, or the Executive Secretary if no Judge has been assigned, and to all 

other parties and intervenors. A party or intervenor who fails to furnish such information shall 

be deemed to have waived its right to notice and service under these rules.

(b) Representatives, parties, and intervenors who file case documents electronically in the 

Commission’s E-File System pursuant to § 2200.8(c) are responsible for both maintaining a 

valid email address associated with the registered account and regularly monitoring that email 

address.

§ 2200.7 Service, notice, and posting.

(a) When service is required. At the time of filing pleadings or other documents, the filer shall 

serve a copy on every other party or intervenor. Every document relating to discovery required 

to be served on a party shall be served on all parties and intervenors. Every order required by 

its terms to be served shall be served on all parties and intervenors.

(b) Service on represented parties or intervenors. Service upon a party or intervenor who has 

appeared through a representative shall be made only upon such representative unless the 

Judge orders service on the party or intervenor.

(c) How accomplished. Unless otherwise ordered, service may be accomplished by the 

following methods:

(1) Commission’s E-File System. For electronically-filed documents, service shall be deemed 

accomplished by the simultaneous service of the document by email on all other parties and 

intervenors in the case, together with proof of service pursuant to paragraph (d) of this section.

(2) U.S. Mail. Service shall be deemed accomplished upon depositing the item in the U.S. 

Mail with first-class or higher class (such as priority mail) postage pre-paid addressed to the 

recipient’s record address provided pursuant to § 2200.6.

(3) Commercial or other personal delivery. Service shall be deemed accomplished upon 

delivery to the recipient’s record address provided pursuant to § 2200.6.

(4) Facsimile transmission. Service by facsimile transmission shall be deemed accomplished 

upon delivery to the receiving facsimile machine. The party serving a document by facsimile 

is responsible for the successful transmission and legibility of documents intended to be 

served.

(5) Non-E-Filed Documents. Documents required to be served upon other counsel or parties 

but that are not filed with the Commission in the Commission’s E-File System (such as 
discovery documents served pursuant to § 2200.52(j)) may be served by any means agreed to 

by all parties in writing.

(d) Proof of service. Service shall be documented by a written certificate of service setting 

forth the date and manner of service. The certificate of service shall be filed with the pleading 

or document.

(e) Proof of posting. Where service is accomplished by posting, proof of such posting shall be 

filed not later than the first working day following the posting.

(f) Service on represented employees. Service and notice to employees represented by an 

authorized employee representative shall be deemed accomplished by serving the 

representative in a manner prescribed in paragraph (c) of this section.

(g) Service on unrepresented employees. In the event there are affected employees who are not 

represented by an authorized employee representative, the employer shall post, immediately 

upon receipt, the docketing notice for the notice of contest or petition for modification of the 

abatement period. The posting shall be at or near where the citation is required to be posted 

pursuant to section 9(b) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 658(b), 

and 29 CFR § 1903.16. The employer shall post:

(1) A copy of the notice of contest or petition for modification of the abatement period;

(2) A notice informing the affected employees of their right to party status; and

(3) A notice informing the affected employees of the availability of all pleadings for inspection 

and copying at reasonable times.

(4)(i) A notice in the following form shall be deemed to comply with this paragraph: (Name of 

employer)

Your employer has been cited by the Secretary of Labor for violation of the Occupational 

Safety and Health Act of 1970. The citation has been contested and will be the subject of a 

hearing before the OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION. 

Affected employees are entitled to participate in this hearing as parties under terms and 

conditions established by the OCCUPATIONAL SAFETY AND HEALTH REVIEW 

COMMISSION in its Rules of Procedure. Notice of intent to participate must be filed no later 

than 14 days before the hearing. Any notice of intent to participate should be sent to: 

Occupational Safety and Health Review Commission, Office of the Executive Secretary, One 

Lafayette Centre, 1120 20th Street, NW., Suite 980, Washington, DC 20036–3457. All 

pleadings relevant to this matter may be inspected at: (Place reasonably convenient to 

employees, preferably at or near workplace.)
(ii) Where appropriate, the second sentence of the above notice will be deleted and the 

following sentence will be substituted:

The reasonableness of the period prescribed by the Secretary of Labor for abatement of the 

violation has been contested and will be the subject of a hearing before the OCCUPATIONAL 

SAFETY AND HEALTH REVIEW COMMISSION.

(h) Special service requirements; authorized employee representatives. The authorized 

employee representative, if any, shall be served by the employer with the notice set forth in 

paragraph (g) of this section and with a copy of the notice of contest or petition for 

modification of the abatement period.

(i) Notice of hearing to unrepresented employees. Immediately upon receipt, a copy of the 

notice of the hearing to be held before the Judge shall be served by the employer on affected 

employees who are not represented by an authorized employee representative by posting a 

copy of the notice of such hearing at or near the place where the citation is required to be 

posted pursuant to section 9(b) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 

658(b), and 29 CFR § 1903.16.

(j) Notice of hearing to represented employees. Immediately upon receipt of the notice of the 

hearing to be held before the Judge, the employer shall serve a copy of the notice on the 

authorized employee representative of affected employees in the manner prescribed in 

paragraph (c) of this section. The employer need not serve the notice of hearing, as stated 

above, if on or before the date the hearing notice is received, the authorized employee 

representative has entered an appearance in conformance with §§ 2200.22 and 2200.23.

(k) Employee contest; service on other employees.

(1) Where a notice of contest with respect to the reasonableness of the abatement period is 

filed under § 2200.38 by an affected employee who is not represented by an authorized 

employee representative and there are other affected employees who are represented by an 

authorized employee representative, the unrepresented affected employee shall serve the 

following documents on the authorized employee representative:

(i) The notice of contest with respect to the reasonableness of the abatement period; and

(ii) A copy of the Secretary’s statement of reasons, filed in conformance with § 2200.38(a).

(2) Service on the authorized employee representative shall be in the manner prescribed in 

paragraph (c) of this section. The unrepresented affected employee shall file proof of such 

service.
(l) Employee contest; Service on employer. Where a notice of contest with respect to the 

reasonableness of the abatement period is filed by an affected employee or an authorized 

employee representative, a copy of the notice of contest and response filed in support of the 

notice of contest shall be provided to the employer for posting in the manner prescribed in 

paragraph (g) of this section.

(m) Employee contest; Service on other authorized employee representatives. An authorized 

employee representative who files a notice of contest with respect to the reasonableness of the 

abatement period shall be responsible for serving any other authorized employee representative 

whose members are affected employees in the manner prescribed in paragraph (c) of this 

section.

(n) Duration of posting. Where posting is required by this section, such posting shall be 

maintained until the commencement of the hearing or until earlier disposition.

(o) Service of show cause orders—

(1) Service on parties and intervenors using Commission’s E-File System. Service of show 

cause orders shall be deemed completed by service through the Commission’s E-File System 

on a representative who has entered an appearance for a party or intervenor under § 2200.23 or 

on a self-represented party or intervenor who has not been exempted from using the

Commission’s E-File System. See also § 2200.101(a).

(2) Service on self-represented parties or intervenors exempted from using the Commission’s 

E-File System. In addition to the service methods permitted by § 2200.7(c), the Commission 

or the Judge shall serve a show cause order on a self-represented party or intervenor who has 

been exempted from using the Commission’s E-File System by certified mail or by any other 

method (including commercial delivery service) that provides confirmation of delivery to the 

addressee’s record address provided under § 2200.6.

§ 2200.8 Filing.

(a) What to file—

(1) General. All documents required to be served on a party or intervenor shall be filed either 

before service or within a reasonable time after service.

(2) Discovery documents. Discovery documents generated pursuant to §§ 2200.52 through

2200.56 shall not be filed with the Commission or the Judge. Filing and retention of such 

discovery documents shall comply with § 2200.52(i) and (j).
(b) Where to file. Prior to assignment of a case to a Judge, all documents shall be filed 

electronically in the Commission’s E-File System or with the Executive Secretary at One 

Lafayette Centre, 1120 20th Street, NW., Suite 980, Washington, DC 20036-3457. After the 

assignment of the case to a Judge, all documents shall be filed electronically in the 

Commission’s E-File System or with the Judge at the address given in the notice of 

assignment. After the docketing of the Judge’s report, all documents shall be filed with the 

Executive Secretary, except as provided in § 2200.90(b)(4).

(c) Electronic filing with the Commission—

(1) Mandatory e-filing. All parties and intervenors must file documents electronically in the 

Commission’s E-File System by following the instructions on the Commission’s website 

(www.oshrc.gov), unless a self-represented party or intervenor is able to claim that complying 

with this paragraph will place an undue burden upon that party or intervenor under paragraph 

(c)(2) of this section or the documents are exempt from e-filing under paragraph (c)(5) of this 

section. Documents may not be filed with the Commission or the Judge via email, unless 

allowed under paragraph (d)(1) of this section.

(2) Undue burden. Self-represented parties or intervenors may submit a written statement to 

the Judge requesting an exemption from the mandatory e-filing requirement on the grounds 

that it would place an undue burden on them to comply with the requirement. If the judge 

grants an exemption, exempt self-represented parties or intervenors must file documents by 

postage-prepaid first class or higher class U.S. Mail, commercial delivery service, personal 

delivery, or facsimile transmission as described in paragraph (d) of this section. Documents 

may not be filed with the Commission or the Judge via email, unless allowed under paragraph 

(d)(1) of this section.

(3) If technical difficulties prevent the successful submission of electronically filed documents, 

the e-filer should refer to the instructions for electronic filing on the Commission’s website 

(www.oshrc.gov).

(4) Documents filed electronically in the Commission’s E-File System may contain an 

electronic signature of the filer which will have the same legal effect, validity, and 

enforceability as if signed manually. The term “electronic signature” means an electronic 

symbol or process attached to or logically associated with a contact or other record and 

executed or adopted by a person with the intent to sign the document.

(5) Confidential and privileged documents. The following documents must not be filed 

electronically in the Commission’s E-File System:

(i) Documents that may not be released to the public because the information is covered by a 

protective order or has been placed “under seal” pursuant to § 2200.52(d) and (e).
(ii) Documents submitted for in camera inspection by the Commission or the Judge, including 

material for which a privilege is claimed. Claims regarding privileged information must 

comply with § 2200.52(d).

(iii) Confidential settlement documents filed with the Judge pursuant to settlement procedures 

pursuant to § 2200.120.

(iv) Applications for subpoenas made ex parte pursuant to § 2200.65.

(6) Sensitive information. Unless the Commission or the Judge orders otherwise, all sensitive 

information in documents filed electronically in the Commission’s E-File System must be 

redacted pursuant to paragraph (d)(5) of this section.

(7) Date of filing. The date of filing for documents filed electronically is the day that the 

complete document is successfully submitted in the Commission’s E-File System pursuant to 

§ 2200.4(a)(4)(i). Electronic filing shall be completed by following the instructions on the 

Commission’s website (www.oshrc.gov).

(8) Timeliness. Representatives and self-represented parties and intervenors bear the sole 

responsibility for ensuring that a filing is timely made.

(9) Certificate of service. Proof of service shall accompany each document filed in the 

Commission’s E-File System. The certificate of service shall certify simultaneous service of 

the document by email on all other parties and intervenors in the case. It is the responsibility 

of the filing party to retain records showing the date of transmission, including receipts.

(d) Documents that are not filed in the Commission’s E-File System; alternative filing 

methods—

(1) How to file. Documents may be filed by postage-prepaid first class or higher class U.S. 

Mail, commercial delivery service, personal delivery, or facsimile transmission. Only 

documents exempt from e-filing under paragraph (c)(5) of this section may be filed by email.

(2) Number of copies. Unless otherwise ordered or stated in this part, only the original of a 

document shall be filed.

(3) Filing date.

(i) Except for the documents listed in paragraph (d)(3)(ii) of this section, if filing is by U.S. 

first class mail (or higher class mail, such as priority mail), then filing is deemed completed 

upon depositing the material in the U.S. Mail. If filing is by any other means (e.g., personal 
delivery, commercial delivery service, or facsimile transmission) then filing is deemed 

completed upon receipt by the Commission.

(ii) Filing is completed upon receipt by the Commission for petitions for interlocutory review

(§ 2200.73), petitions for discretionary review (§ 2200.91), and EAJA applications (§ 

2204.301).

(iii) Representatives and self-represented parties and intervenors bear the sole responsibility 

for ensuring that a filing is timely made.

(4) Certificate of service. A certificate of service shall accompany each document filed. The 

certificate shall set forth the dates and manner of filing and service.

(5) Sensitive information. Unless the Commission or the Judge orders otherwise, in any filing 

with the Commission, information that is sensitive but not privileged (e.g., Social Security 

numbers, driver’s license numbers, passport numbers, taxpayer-identification numbers, 

birthdates, mother’s maiden names, names of minors, an individual’s physical personal 

address, financial account numbers) shall be redacted. Parties shall exercise caution when 

filing medical records, medical treatment records, medical diagnosis records, employment 

history, and individual financial information, and shall redact or exclude materials unnecessary 

to the case.

(6) Privileged information. Claims regarding privileged information shall comply with

§ 2200.52(d).

§ 2200.9 Consolidation.

Cases may be consolidated on the motion of any party conforming to § 2200.40, on the Judge’s 

own motion, or on the Commission’s own motion, where there exist common parties, common 

questions of law or fact or in such other circumstances as justice or the administration of the 

Act require.

§ 2200.10 Severance.

Upon its own motion, or upon motion of any party or intervenor conforming to § 2200.40, 

where a showing of good cause has been made by the party or intervenor, the Commission or 

the Judge may order any proceeding severed with respect to some or all claims or parties.

§ 2200.11 [Reserved]

§ 2200.12 References to cases.
(a) Citing decisions by Commission and Judges—

(1) Generally. Parties citing decisions by the Commission should include in the citation the 

name of the employer, the OSHRC docket number, the year of the decision, and a citation to a 

print or electronic reference source. Citations to Commission and ALJ decisions published on 

the Commission’s website (www.oshrc.gov) are also accepted. For example,

(i) Print:

(A) Hackensack Steel Corp., 20 BNA OSHC 1387, 1388 (No. 97-0755, 2003).

(B) Hackensack Steel Corp., 2002-2004 CCH OSHD ¶ 32,690, p. 51,558 (No. 97-0755, 2003).

(ii) Electronic:

(A) Hackensack Steel Corp., No. 97-0755, 2003 WL 22232017, at *4 (OSHRC Sept. 25, 

2003).

(B) Hackensack Steel Corp., No. 97-0755, 2003 LEXIS 450392, at *2 (OSHRC Sept. 25, 

2003).

(iii) Commission website (www.oshrc.gov):

(A) PDF versions of cases should be cited as follows and identify the relevant page number:

Jacobs Field Servs. N. Am., No. 10-2659, at 5 (OSHRC 2015).

(B) HTML versions of cases should be cited as follows and identify the relevant paragraph 

number: Jacobs Field Servs. N. Am., No. 10-2659, at ¶ 9 (OSHRC 2015).

(2) Parenthetical statements. When citing the decision of a Judge, the digest of an opinion, or 

the opinion of a single Commissioner, a parenthetical statement identifying that the decision is 

non-precedential (e.g. “ALJ”) must be included. For example, Rust Engineering Co., 1984 

CCH OSHD ¶27,023 (No.79-2090, 1984) (view of Chairman ), vacating direction for 

review of 1980 CCH OSHD ¶24,269 (1980) (ALJ) (digest).

(b) References to court decisions.

(1) Citation to court decisions should be to the official reporter whenever possible. For 

example,

(i) W.G. Yates & Sons Constr. Co. v. OSHRC, 459 F.3d 604, 608-09 (5th Cir. 2006).
(ii) Martin v. OSHRC (CF & I Steel Corp.), 499 U.S. 144, 150-51 (1991).

(2) Name of employer to be indicated. When a court decision is cited in which the first-listed 

party on each side is either the Secretary of Labor (or the name of a particular Secretary of 

Labor), the Commission, or a labor union, the citation should include in parenthesis the name 

of the employer in the Commission proceeding. For example, Donovan v. Allied Industrial 

Workers (Archer Daniels Midland Co.), 760 F.2d 783 (7th Cir. 1985); Donovan v. OSHRC 

(Mobil Oil Corp.), 713 F. 2d 918 (2d Cir. 1983).

Subpart B – Parties and Representatives

§ 2200.20 Party status.

(a) Affected employees.

(1) Affected employees and authorized employee representatives may elect party status 

concerning any matter in which the Act confers a right to participate. The election shall be 

accomplished by filing a written notice of election at least 14 days before the hearing. A 

notice of election filed less than 14 days prior to the hearing is ineffective unless good cause is 

shown for not timely filing the notice.

(2) A notice of election shall be served on all other parties in accordance with § 2200.7.

(b) Employees no longer employed by cited employer. An employee of a cited employer who 

was exposed to or had access to the hazard arising out of the allegedly violative circumstances, 

conditions, practices, or operations and who is no longer employed by the cited employer is 

permitted to participate as a party.

(c) Employee contest.

(1) Where a notice of contest is filed by an employee or by an authorized employee 

representative with respect to the reasonableness of the period for abatement of a violation, the 

employer charged with the responsibility of abating the violation may elect party status by a 

notice filed at least 14 days before the hearing.

(2) A notice of election shall be served on all other parties in accordance with § 2200.7.

§ 2200.21 Intervention; appearance by non-parties.

(a) When allowed. A petition for leave to intervene may be filed at any time prior to 14 days 

before commencement of the hearing. A petition filed less than 14 days prior to the 
commencement of the hearing will be denied unless good cause is shown for not timely filing 

the petition. A petition shall be served on all parties in accordance with § 2200.7.

(b) Requirements of petition.

(1) The petition shall set forth the interest of the petitioner in the proceeding and show that the 

participation of the petitioner will assist in the determination of the issues in question and that 

the intervention will not unduly delay the proceeding.

(2) If the petitioner is an employee who is not employed by the cited employer but who 

performed work at the cited worksite, the petition, in addition to the requirements of paragraph 

(b)(1) of this section, shall set forth material facts sufficient to demonstrate that the petitioner 

was exposed to or has access to the hazard arising out of the allegedly violative circumstances, 

conditions, practices, or operations.

(c) Ruling on petition.

(1) For petitions filed by an employee, as defined in paragraph (b)(2) of this section, the 

Commission or the Judge shall grant the petition for intervention.

(2) For all other petitions, the Commission or the Judge may grant a petition for intervention 

that meets the requirements of paragraph (b)(1) of this section.

(3) An order granting a petition shall specify the extent and terms of an intervenor’s 

participation in the proceedings.

§ 2200.22 Representation of parties and intervenors.

(a) Representation. Any party or intervenor may appear in person, through an attorney, or 

through any non-attorney representative. A representative must file an appearance in 

accordance with § 2200.23. In the absence of an appearance by a representative, a party or 

intervenor will be deemed to appear for itself. A corporation or unincorporated association 

may be represented by an authorized officer or agent.

(b) Affected employees in collective bargaining unit. Where an authorized employee 

representative (see § 2200.1(g)) elects to participate as a party, affected employees who are 

members of the collective bargaining unit may not separately elect party status. If the 

authorized employee representative does not elect party status, affected employees who are 

members of the collective bargaining unit may elect party status in the same manner as 

affected employees who are not members of the collective bargaining unit. See paragraph (c) 

of this section.
(c) Affected employees not in collective bargaining unit. Affected employees who are not 

members of a collective bargaining unit may elect party status under § 2200.20(a). If more 

than one employee so elects, the Judge shall provide for them to be treated as one party.

(d) Control of proceeding. A representative of a party or intervenor shall be deemed to control 

all matters respecting the interest of such party or intervenor in the proceeding.

§ 2200.23 Appearances and withdrawals.

(a) Entry of appearance—

(1) General. A representative of a party or intervenor shall enter an appearance by signing the 

first document filed on behalf of the party or intervenor in accordance with paragraph (a)(2) of 

this section or subsequently by filing an entry of appearance in accordance with paragraph 

(a)(3) of this section.

(2) Appearance in first document or pleading. If the first document filed on behalf of a party 

or intervenor is signed by a representative, the representative shall be recognized as 

representing that party. No separate entry of appearance by the representative is necessary, 

provided the document contains the information required by § 2200.6.

(3) Subsequent appearance. Where a representative has not previously appeared on behalf of a 

party or intervenor, the representative shall file an entry of appearance with the Executive 

Secretary, or Judge if the case has been assigned. The entry of appearance shall be signed by

the representative and contain the information required by § 2200.6.

(b) Withdrawal of counsel. Any counsel or representatives of record desiring to withdraw their 

appearance, or any parties desiring to withdraw the appearance of their counsel or 

representatives of record, must file a motion conforming with § 2200.40 with the Commission 

or the Judge requesting leave to withdraw, showing that prior notice of the motion has been 

given by the counsel or representative or party to the client or counsel or representative, as the 

case may be, and providing current contact information for the client, including street address, 

email address, and phone number. The motion of counsel to withdraw may, in the discretion 

of the Commission or the Judge, be denied where it is necessary to avoid undue delay or 

prejudice to the rights of a party or intervenor.

§ 2200.24 Brief of an amicus curiae.

The brief of an amicus curiae may be filed only by leave of the Commission or the Judge. The 

brief may be conditionally filed with the motion for leave conforming to § 2200.40. A motion 

for leave shall identify the interest of the applicant and shall state the reasons why a brief of an 

amicus curiae is desirable. Any amicus curiae shall file its brief within the time allowed the 
party whose position the amicus will support unless the Commission or the Judge, for good 

cause shown, grants leave for later filing. In that event, the Commission or the Judge may 

specify within what period an opposing party may answer. The brief of an amicus curiae shall 

conform to § 2200.74 or § 2200.93.

Subpart C – Pleadings and Motions

§ 2200.30 General rules.

(a) Format. Pleadings and other documents (other than exhibits) shall be typewritten, double 

spaced, with typeface of text being no smaller than 12-point and typeface of footnotes being no 

smaller than 11-point, on letter size opaque paper (8 1⁄2 inches by 11 inches). All margins shall 

be 1 1⁄2 inches. Pleadings and other documents shall be fastened without the use of staples at 

the upper left corner.

(b) Clarity. Each allegation or response of a pleading or motion shall be simple, concise, and 

direct.

(c) Separation of claims. Each allegation or response shall be made in separate numbered 

paragraphs. Each paragraph shall be limited as far as practicable to a statement of a single set 

of circumstances.

(d) Adoption by reference. Statements in a pleading may be adopted by reference in a different 

part of the same pleading or in another pleading or in any motion. A copy of any written 

instrument which is an exhibit to a pleading is a part of the pleading for all purposes.

(e) Alternative pleading. A party may set forth two or more statements of a claim or defense 

alternatively or hypothetically. When two or more statements are made in the alternative and 

one of them would be sufficient if made independently, the pleading is not made insufficient

by the insufficiency of one or more of the alternative statements. A party may state as many 

separate claims or defenses as it has regardless of consistency. All statements shall be made 

subject to the signature requirements of § 2200.32.

(f) Form of pleadings, motions, and other documents. Any pleading, motion, or other 

document shall contain a caption complying with § 2200.31 and a signature complying with 

§ 2200.32. The form and content of motions shall conform with § 2200.40.

(g) Burden of persuasion. The rules of pleading established by this subpart are not 

determinative in deciding which party bears the burden of persuasion on an issue. By pleading 

a matter affirmatively, a party does not waive its right to argue that the burden of persuasion on 

the matter is on another party.
(h) Enforcement of pleading rules. The Commission or the Judge may refuse for filing any 

pleading or motion that does not comply with the requirements of this subpart.

§ 2200.31 Caption; titles of cases.

(a) Notice of contest cases. Cases initiated by a notice of contest shall be titled: Secretary of 

Labor,

Complainant,

v.

(Name of Employer),

Respondent.

(b) Petitions for modification of abatement period. Cases initiated by a petition for 

modification of the abatement period shall be titled:

(Name of employer),

Petitioner,

v.

Secretary of Labor,

Respondent.

(c) Location of title. The titles listed in paragraphs (a) and (b) of this section shall appear at the 

left upper portion of the initial page of any pleading or document (other than exhibits) filed.

(d) Docket number. The initial page of any pleading or document (other than exhibits) shall 

show, at the upper right of the page, opposite the title, the docket number, if known, assigned 

by the Commission.

§ 2200.32 Signing of pleadings and motions.

Pleadings and motions shall be signed by the filing party or by the party’s representative. The 

signature of a representative constitutes a representation by the representative that the 

representative is authorized to represent the party or parties on whose behalf the pleading is 

filed. The signature of a representative or party also constitutes a certificate by the 

representative or party that the representative or party has read the pleading, motion, or other 

document, that to the best of the representative’s or party’s knowledge, information, and belief, 

formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or 

a good faith argument for the extension, modification, or reversal of existing law, and that it is 

not included for any improper purpose, such as to harass or to cause unnecessary delay or 

needless increase in the cost of litigation. If a pleading, motion, or other document is signed in 

violation of this rule, such signing party or its representative shall be subject to the sanctions 
set forth in § 2200.101 or § 2200.104. A signature by a party representative constitutes a 

representation by the representative that the representative understands that the rules and 

orders of the Commission and its Judges apply equally to attorney and non-attorney 

representatives.

§ 2200.33 Notices of contest.

Within 15 working days after receipt of any of the following notices, the Secretary shall notify 

the Commission of the receipt in writing and shall promptly furnish to the Executive Secretary 

of the Commission the original of any documents or records filed by the contesting party and 

copies of all other documents or records relevant to the contest:

(a) Notification that the employer intends to contest a citation or proposed penalty under 

section 10(a) of the Act, 29 U.S.C. 659(a); or

(b) Notification that the employer wishes to contest a notice of a failure to abate or a proposed 

penalty under section 10(b) of the Act, 29 U.S.C. 659(b); or

(c) A notice of contest filed by an employee or representative of employees with respect to the 

reasonableness of the abatement period under section 10(c) of the Act, 29 U.S.C. 659(c).

Note 1 to § 2200.33: Failure to meet the 15-working day deadline to file a notice of contest 

results in the citation or notification of failure to abate becoming a final order of the 

Commission. Under extraordinary circumstances, the cited employer, an affected employee, 

or an authorized employee representative may seek relief from the final order pursuant to 

Federal Rule of Civil Procedure 60, by promptly filing a request for such relief with the 

Commission’s Executive Secretary, One Lafayette Centre, 1120 20th Street, NW, Suite 980, 

Washington, DC 20036-3457. See Brancifort Builders, Inc., 9 BNA OSHC 2113, 2116-17 

(1981).

§ 2200.34 Employer contests.

(a) Complaint.

(1) The Secretary shall file a complaint with the Commission no later than 21 days after receipt 

of the notice of contest.

(2) The complaint shall set forth all alleged violations and proposed penalties which are 

contested, stating with particularity:

(i) The basis for jurisdiction;
(ii) The time, location, place, and circumstances of each such alleged violation; and

(iii) The considerations upon which the period for abatement and the proposed penalty of each 

such alleged violation are based.

(3) Where the Secretary seeks in the complaint to amend the citation or proposed penalty, the 

Secretary shall set forth the reasons for amendment and shall state with particularity the change 

sought.

(b) Answer.

(1) Within 21 days after service of the complaint, the party against whom the complaint was 

issued shall file an answer with the Commission.

(2) The answer shall contain a short and plain statement denying those allegations in the 

complaint which the party intends to contest. Any allegation not denied shall be deemed 

admitted.

(3) The answer shall include all affirmative defenses being asserted. Such affirmative defenses 

include, but are not limited to, “infeasibility,” “unpreventable employee misconduct,” and 

“greater hazard.”

(4) The failure to raise an affirmative defense in the answer may result in the party being 

prohibited from raising the defense at a later stage in the proceeding, unless the Judge finds 

that the party has asserted the defense as soon as practicable.

(c) Motions filed in lieu of an answer. A motion filed in lieu of an answer pursuant to this 

subpart shall be filed no later than 21 days after service of the complaint. The form and 

content of the motion shall comply with § 2200.40.

§ 2200.35 Disclosure of corporate parents, subsidiaries, and affiliates.

(a) General. All answers, petitions for modification of abatement period, or other initial 

pleadings filed under these rules by a corporation shall be accompanied by a separate 

declaration listing all parents, subsidiaries, and affiliates of that corporation or stating that the 

corporation has no parents, subsidiaries, or affiliates, whichever is applicable.

(b) Failure to disclose. The Commission or the Judge in its discretion may refuse to accept for 

filing an answer or other initial pleading that lacks the disclosure declaration required by this 

paragraph. A party that fails to file an adequate declaration may be held in default after being 

given an opportunity to show cause why it should not be held in default. All show cause 
orders issued by the Commission or the Judge shall be served in a manner prescribed in § 

2200.7(o).

(c) Continuing duty to disclose. A party subject to the disclosure requirement of this paragraph 

has a continuing duty to notify the Commission or the Judge of any change in the information 

on the disclosure declaration until the Commission issues a final order disposing of the 

proceeding.

§ 2200.36 [Reserved]

§ 2200.37 Petitions for modification of the abatement period.

(a) Grounds for modifying abatement date. An employer may file a petition for modification 

of abatement date when such employer has made a good faith effort to comply with the 

abatement requirements of a citation, but such abatement has not been completed because of 

factors beyond the employer’s reasonable control.

(b) Contents of petition. A petition for modification of abatement date shall be in writing and 

shall include the following information:

(1) All steps taken by the employer, and the dates of such action, in an effort to achieve 

compliance during the prescribed abatement period.

(2) The specific additional abatement time necessary in order to achieve compliance.

(3) The reasons such additional time is necessary, including the unavailability of professional 

or technical personnel or of materials and equipment, or because necessary construction or 

alteration of facilities cannot be completed by the original abatement date.

(4) All available interim steps being taken to safeguard the employees against the cited hazard 

during the abatement period.

(c) When and where filed; posting requirement; responses to petition. A petition for 

modification of abatement date shall be filed with the Area Director of the United States 

Department of Labor who issued the citation no later than the close of the next working day 

following the date on which abatement was originally required. A later-filed petition shall be 

accompanied by the employer’s statement of exceptional circumstances explaining the delay.

(1) A copy of such petition shall be posted in a conspicuous place where all affected 

employees will have notice of the petition or near each location where the violation occurred. 

The petition shall remain posted for a period of 10 working days.
(2) Affected employees or the representatives may file an objection in writing to such petition 

with the aforesaid Area Director. Failure to file such objection within 10 working days of the 

date of posting of such petition shall constitute a waiver of any further right to object to said 

petition.

(3) The Secretary or the Secretary’s duly authorized agent shall have the authority to approve 

any uncontested petition for modification of abatement date filed pursuant to paragraphs (b) 

and (c) of this section. Such uncontested petitions shall become final orders pursuant to 

sections 10(a) and (c) of the Act, 29 U.S.C. 659(a) and (c).

(4) The Secretary or the Secretary’s authorized representative shall not exercise the Secretary’s 

approval power until the expiration of 15 working days from the date the petition was posted 

pursuant to paragraphs (c)(1) and (2) of this section by the employer.

(d) Contested petitions. Where any petition is objected to by the Secretary or affected 

employees, such petition shall be processed as follows:

(1) The Secretary shall forward the petition, citation, and any objections to the Commission 

within 10 working days after the expiration of the 15 working day period set out in paragraph 

(c)(4) of this section.

(2) The Commission shall docket and process such petitions as expedited proceedings as 

provided for in § 2200.103 of this Part.

(3) An employer petitioning for a modification of the abatement period shall have the burden 

of proving in accordance with the requirements of section 10(c) of the Act, 29 U.S.C. 659(c), 

that such employer has made a good faith effort to comply with the abatement requirements of 

the citation and that abatement has not been completed because of factors beyond the 

employer’s reasonable control.

(4) Where the petitioner is a corporation, it shall file a separate declaration listing all parents, 

subsidiaries, and affiliates of that corporation or stating that the corporation has no parents, 

subsidiaries, or affiliates, whichever is applicable, within 10 working days after service of the 

Commission docketing notice of the petition for modification of the abatement date. Service 

of the filed declaration on the other parties and intervenors shall be accomplished in a manner 

prescribed in § 2200.7(c). The requirements set forth in § 2200.35(b) through (c) shall apply.

(5) Each objecting party shall file a response setting forth the reasons for opposing the 

abatement date requested in the petition, within 10 working days after service of the 

Commission docketing notice of the petition for modification of the abatement date. Service 

of the response on the other parties and intervenors shall be accomplished in a manner 

prescribed in § 2200.7(c).
§ 2200.38 Employee contests.

(a) Secretary’s statement of reasons. Where an affected employee or authorized employee 

representative files a notice of contest with respect to the abatement period, the Secretary shall, 

within 14 days from receipt of the notice of contest, file a clear and concise statement of the 

reasons the abatement period prescribed by the Secretary is not unreasonable.

(b) Response to Secretary’s statement. Not later than 14 days after service of the Secretary’s 

statement, referred to in paragraph (a) of this section, the contesting affected employee or 

authorized employee representative shall file a response. Service of the filed statement on the 

other parties and intervenors shall be accomplished in a manner prescribed in § 2200.7(c).

(c) Expedited proceedings. All contests under this section shall be handled as expedited 

proceedings as provided for in § 2200.103.

§ 2200.39 Statement of position.

At any time prior to the commencement of the hearing before the Judge, any person entitled to 

appear as a party, or any person who has been granted leave to intervene, may file a statement 

of position with respect to any or all issues to be heard. The Judge may order the filing of a 

statement of position.

§ 2200.40 Motions and requests.

(a) How to make. An application or request for an order must be made by written motion. A 

motion shall not be included in another pleading or document, such as a brief or petition for 

discretionary review, but shall be made in a separate document. In exigent circumstances in 

cases pending before a Judge, an oral motion may be made during an off-the-record telephone 

conference if the motion is subsequently reduced to writing and filed within such time as the 

judge prescribes.

(b) Form of motions. All motions shall contain a caption complying with § 2200.31 and a 

signature complying with § 2200.32. Requests for orders that are presented in any other form, 

such as by a business letter or by an email, shall not be considered or granted.

(c) Content of motions. A motion shall contain a clear and plain statement of the relief sought 

and state with particularity the grounds for seeking the order. Written memoranda, briefs, 

affidavits, or other relevant material or documents may be filed in support of the motion or a 

response.
(d) Duty to confer. Prior to filing a motion, the moving party shall confer or make reasonable 

efforts to confer with all other parties and shall state in the motion the efforts undertaken to 

confer. The motion shall also state if any other party opposes or does not oppose the motion.

(e) Proposed order for procedural motions. All procedural motions shall be accompanied by a 

proposed order that would grant the relief requested in the motion. A procedural motion may 

be ruled upon prior to the expiration of the time for response.

(f) Oral motions. Oral motions may be made during a hearing and shall be included in the 

transcript, if a transcript is being made.

(g) When to make.

(1) A motion filed in lieu of an answer pursuant to § 2200.34(c) shall be filed no later than 21 

days after service of the complaint.

(2) Motions shall be made as soon as the grounds for the motion are known. A party is not 

required to raise by motion any matter that the party has previously included in any pleading as 

defined in § 2200.1(n), unless the party seeks a ruling on the previously pleaded matter prior to 

the hearing on the merits.

(3) A motion to postpone a hearing shall comply with § 2200.62.

(h) Responses. Any party or intervenor upon whom a motion has been served shall file a 

response within 14 days from service of the motion.

(i) Reconsideration. A party adversely affected by a ruling on any motion may file a motion 

for reconsideration within 7 days of service of the ruling.

(j) Summary judgment motions. The provisions of Federal Rule of Civil Procedure 56 apply to 

motions for summary judgment.

§ 2200.41 [Reserved]

Subpart D – Prehearing Procedures and Discovery

§ 2200.50 [Reserved]

§ 2200.51 Prehearing conferences and orders.

(a) Scheduling conference.
(1) The Judge may, upon the Judge’s discretion, consult with the attorneys, non-attorney party 

representatives, and any self-represented parties, by a scheduling conference, telephone, mail, 

or other suitable means, and within 30 days after the filing of the answer, enter a scheduling 

order that limits the time:

(i) To join other parties and to amend the pleadings;

(ii) To file and hear motions; and

(iii) To complete discovery.

(2) The scheduling order also may include:

(i) The date or dates for conferences before hearing, a final prehearing conference, and 

hearing; and

(ii) Any other matters appropriate to the circumstances of the case.

(b) Prehearing conference. In addition to the prehearing procedures set forth in Federal Rule 

of Civil Procedure 16, the Judge may, upon the Judge’s own initiative or on the motion of a 

party, direct the parties to confer among themselves to consider settlement, stipulation of facts, 

or any other matter that may expedite the hearing.

(c) Compliance. Parties must fully prepare for a useful discussion of all procedural and 

substantive issues involved in prehearing conferences and shall participate in such conferences 

in good faith. Parties failing to do so may be subject to sanctions under §§ 2200.101 and 

2200.104.

§ 2200.52 General provisions governing discovery.

(a) General—

(1) Methods and limitations. In conformity with these rules, any party may, without leave of 

the Commission or the Judge, obtain discovery by one or more of the following methods:

(i) Production of documents or things or permission to enter upon land or other property for 

inspection and other purposes to the extent provided in § 2200.53;

(ii) Requests for admission to the extent provided in § 2200.54; and

(iii) Interrogatories to the extent provided in § 2200.55.
(iv) Discovery is not available under these rules through depositions except to the extent 

provided in §2200.56.

(v) In the absence of a specific provision, discovery procedures shall be in accordance with the 

Federal Rules of Civil Procedure, except that the provisions of Federal Rule of Civil Procedure 

26(a) do not apply to Commission proceedings. This exception does not preclude any 

prehearing disclosures (including disclosure of expert testimony and written reports) directed 

in a scheduling order entered under § 2200.51.

(2) Time for discovery. A party may initiate all forms of discovery in conformity with these 

Rules at any time after the filing of the first responsive pleading or motion that delays the 

filing of an answer, such as a motion to dismiss. Discovery shall be initiated early enough to 

permit completion of discovery no later than 14 days prior to the date set for hearing, unless

the Judge orders otherwise.

(3) Service of discovery documents. Every document relating to discovery required to be 

served on a party shall be served on all parties.

(4) Stipulations about discovery procedures. Unless the Commission or the Judge orders 

otherwise, the parties may stipulate that:

(i) 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

(ii) Other procedures governing or limiting discovery may be modified—but a stipulation 

extending the time for any form of discovery must be approved by the Commission or the 

Judge if it would interfere with the time set forth for completing discovery, for hearing a 

motion, or for hearing.

(b) Scope of discovery. The information or response sought through discovery may concern 

any matter that is not privileged and that is relevant to the subject matter involved in the 

pending case and proportional to the needs of the case, considering the importance of the 

issues at stake, the parties’ relative access to relevant information, the parties’ resources, the 

importance of the discovery in resolving the issues, and whether the burden or expense of the 

proposed discovery outweighs its likely benefit. Information within this scope of discovery 

need not be admissible in evidence to be discoverable.

(c) Limitations. The frequency or extent of the discovery methods provided by these rules may 

be limited by the Commission or the Judge if it is determined that:

(1) The discovery sought is unreasonably cumulative or duplicative, or it is obtainable from 

some other source that is more convenient, less burdensome, or less expensive;
(2) The party seeking discovery has had ample opportunity to obtain the information sought by 

discovery in the action; or

(3) The proposed discovery is outside the scope permitted by paragraph (b) of this section.

(d) Privilege—

(1) Claims of privilege. The initial claim of privilege shall specify the privilege claimed and 

the general nature of the material for which the privilege is claimed. In response to an order 

from the Commission or the Judge, or in response to a motion to compel, the claim shall: 

identify the information that would be disclosed; set forth the privilege that is claimed; and 

allege the facts showing that the information is privileged. The claim shall be supported by 

affidavits, depositions, or testimony and shall specify the relief sought. The claim may be 

accompanied by a motion for a protective order or by a motion that the allegedly privileged 

information be received and the claim ruled upon in camera, that is, with the record and 

hearing room closed to the public, or ex parte, that is, without the participation of parties and 

their representatives. The Judge may enter an order and impose terms and conditions on the 

Judge’s examination of the claim as justice may require, including an order designed to ensure 

that the allegedly privileged information not be disclosed until after the examination is 

completed.

(2) Upholding or rejecting claims of privilege. If the Judge upholds the claim of privilege, the 

Judge may order and impose terms and conditions as justice may require, including a 

protective order. If the Judge overrules the claim, the person claiming the privilege may obtain 

as of right an order sealing from the public those portions of the record containing the 

allegedly privileged information pending interlocutory or final review of the ruling, or final 

disposition of the case, by the Commission. Interlocutory review of such an order shall be 

given priority consideration by the Commission.

(3) Resolving claims of privilege outside of discovery proceedings. A Judge may utilize the 

procedures set forth in paragraphs (d) and (e) of this section outside of discovery proceedings, 

including during the hearing.

(e) Protective orders. In connection with any discovery procedures and where a showing of 

good cause has been made, the Commission or the Judge may make any order including, but 

not limited to, one or more of the following:

(1) That the discovery not be had;

(2) That the discovery may be had only on specified terms and conditions, including a 

designation of the time or place;
(3) That the discovery may be had only by a method of discovery other than that selected by 

the party seeking discovery;

(4) That certain matters not be inquired into, or that the scope of the discovery be limited to 

certain matters;

(5) That discovery be conducted with no one present except persons designated by the 

Commission or the Judge;

(6) That a deposition after being sealed be opened only by order of the Commission or the

Judge;

(7) That a trade secret or other confidential research, development, or commercial information 

not be disclosed or be disclosed only in a designated way;

(8) That the parties simultaneously file specified documents or information enclosed in sealed 

envelopes to be opened as directed by the Commission or the Judge.

(f) Failure to cooperate; motions to compel; sanctions—

(1) Motions to compel discovery. A party may file a motion conforming to § 2200.40 for an 

order compelling discovery when another party refuses or obstructs discovery. In considering 

a motion to compel, the Judge shall treat an evasive or incomplete answer as a failure to 

answer.

(2) Sanctions. If a party fails to comply with an order compelling discovery, the Judge may 

enter an order to redress the failure. Such order may issue upon the initiative of a Judge, after 

affording an opportunity to show cause why the order should not be entered, or upon the 

motion of a party conforming to § 2200.40. The order may include any sanction stated in 

Federal Rule of Civil Procedure 37, including the following:

(i) An order that designated facts shall be taken to be established for purposes of the case in 

accordance with the claim of the party obtaining that order;

(ii) An order refusing to permit the disobedient party to support or to oppose designated claims 

or defenses or prohibiting it from introducing designated matters in evidence;

(iii) An order striking pleadings or parts of pleadings or staying further proceedings until the 

order is obeyed; and
(iv) An order dismissing the action or proceeding or any part of the action or proceeding or 

rendering a judgment by default against the disobedient party.

(g) Unreasonable delays. None of the discovery procedures set forth in these rules shall be 

used in a manner or at a time which shall delay or impede the progress of the case toward 

hearing status or the hearing of the case on the date for which it is scheduled, unless, in the 

interests of justice, the Judge shall order otherwise. Unreasonable delays in utilizing discovery 

procedures may result in termination of the party’s right to conduct discovery.

(h) Show cause orders. All show cause orders issued by the Commission or the Judge under 

paragraph (f) of this section shall be served in a manner prescribed in § 2200.7(o).

(i) Supplementation of responses. A party that has responded to a request for discovery with a 

response that was complete when made is under no duty to supplement the response to include 

information subsequently acquired, except as follows:

(1) A party is under a duty to promptly supplement the response with respect to any question 

directly addressed to:

(i) The identity and location of persons having knowledge of discoverable matters; and

(ii) The identity of each person expected to be called as an expert witness at the hearing, the 

subject matter on which the person is expected to testify, and the substance of the person’s 

testimony.

(2) A party is under a duty to promptly amend a prior response if the party obtains information 

upon the basis of which:

(i) The party knows that the response was incorrect when made; or

(ii) The party knows that the response though correct when made is no longer true and the 

circumstances are such that a failure to amend the response is in substance a knowing 

concealment.

(3) A duty to supplement responses may be imposed by order of the court, agreement of the 

parties, or at any time prior to the hearing through new requests for supplementation of prior 

responses.

(j) Filing of discovery. Requests for production or inspection under § 2200.53, requests for 

admission under § 2200.54 and responses to requests for admission, interrogatories under

§ 2200.55 and the answers to interrogatories, and depositions under § 2200.56 shall be served 

upon other counsel or parties, but shall not be filed with the Commission or the Judge. The 
party responsible for service of the discovery material shall retain the original and become the 

custodian.

(k) Relief from discovery requests. If relief is sought under § 2200.101 or § 2200.52(e), (f), or

(g) concerning any interrogatories, requests for production or inspection, requests for 

admissions, answers to interrogatories, or responses to requests for admissions, copies of the 

portions of the interrogatories, requests, answers, or responses in dispute shall be filed with the 

Commission or the Judge contemporaneously with any motion filed under § 2200.101 or § 

2200.52(e), (f), or (g).

(l) Use at hearing. If interrogatories, requests, answers, responses, or depositions are to be 

used at the hearing or are necessary to a prehearing motion which might result in a final order 

on any claim, the portions to be used shall be filed with the Commission or the Judge at the 

outset of the hearing or at the filing of the motion insofar as their use can be reasonably 

anticipated. Section 2200.56(f) prescribes additional procedures pertaining to the use of 

depositions at a hearing.

(m) Use on review or appeal. When documentation of discovery not previously in the record 

is needed for review or appeal purposes, upon an application and order of the Commission or 

the Judge, the necessary discovery documents shall be filed with the Executive Secretary of the 

Commission.

§ 2200.53 Production of documents and things.

(a) Scope. At any time after the filing of the first responsive pleading or motion that delays the 

filing of an answer, such as a motion to dismiss, any party may serve on any other party a 

request to:

(1) Produce and permit the party making the request, or a person acting on the party’s behalf, 

to inspect and copy any designated documents, or to inspect and copy, test, or sample any 

tangible things which are in the possession, custody, or control of the party upon whom the 

request is served;

(2) Permit entry upon designated land or other property in the possession or control of the 

party upon whom the request is served for the purpose of inspection and measuring, surveying, 

photographing, testing, or sampling the property or any designated object or operation on the 

property.

(b) Procedure. The request shall set forth the items to be inspected, either by individual item 

or by category, and describe each item and category with reasonable particularity. It shall 

specify a reasonable time, place, and manner of making the inspection and performing related 

acts. The party upon whom the request is served shall serve a written response within 30 days 
after service of the request, unless the requesting party allows a longer time. The Commission 

or the Judge may allow a shorter time or a longer time, should the requesting party deny an 

extension. The response shall state, with respect to each item or category, that inspection and 

related activities will be permitted as requested, unless the request is objected to in whole or in 

part, in which event the reasons for objection shall be stated. If objection is made to part of an 

item or category, that part shall be specified. To obtain a ruling on an objection by the 

responding party, the requesting party shall file a motion conforming to § 2200.40 with the 

Judge and shall annex its request to the motion, together with the response and objections, if 

any.

§ 2200.54 Request for admissions.

(a) Scope and procedure—

(1) Scope. Any time after the filing of the first responsive pleading or motion that delays the 

filing of an answer, such as a motion to dismiss, 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 § 2200.52(b) 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. The number of 

requested admissions shall not exceed 25, including subparts, except upon the agreement of the 

parties or by order of the Commission or the Judge. 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 representative. A 

shorter or longer time for responding may be provided by written stipulation of the parties or 

by order of the Commission or 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 an objection is sustained, 

the Commission or the Judge must order that an answer be served. On finding that an answer 

does not comply with this rule, the Commission or the Judge may order either that the matter is 

admitted or that an amended answer be served. The Commission or the Judge may defer the 

final decision until a prehearing conference or a specified time before hearing.

(b) Effect of admission; withdrawal or modification. A matter admitted under paragraph (a) of 

this section is conclusively established unless the Commission or the Judge on motion permits 

the admission to be withdrawn or amended. The Commission or the Judge may permit 

withdrawal or modification if it would promote the presentation of the merits of the case and if 

the Commission or the Judge is not persuaded that it would prejudice the requesting party in 

maintaining or defending the case on the merits. An admission under paragraph (a) of this 

section is not an admission for any other purpose and cannot be used against the party in any 

other proceeding.

§ 2200.55 Interrogatories.

(a) General. At any time after the filing of the first responsive pleading or motion that delays 

the filing of an answer, such as a motion to dismiss, any party may serve interrogatories upon 

any other party. The number of interrogatories shall not exceed 25 questions, including 

subparts, except upon the agreement of the parties or by order of the Commission or the Judge. 

The party seeking to serve more than 25 questions, including subparts, shall have the burden of 

persuasion to establish that the complexity of the case or the number of citation items 

necessitates a greater number of interrogatories.

(b) Answers. All answers shall be made in good faith and as completely as the answering 

party’s information will permit. The answering party is required to make reasonable inquiry 

and ascertain readily obtainable information. An answering party may not give lack of 

information or knowledge as an answer or as a reason for failure to answer, unless the 

answering party states that it has made reasonable inquiry and that information known or 

readily obtainable by it is insufficient to enable it to answer the substance of the interrogatory.

(c) Procedure. Each interrogatory shall be answered separately and fully under oath or 

affirmation. If the interrogatory is objected to, the objection shall be stated in lieu of the 

answer. The answers are to be signed by the person making them and the objections shall be 

signed by the party or its counsel. The party on whom the interrogatories have been served 

shall serve a copy of its answers or objections upon the propounding party within 30 days after 
the service of the interrogatories. The Judge may allow a shorter or longer time. The burden 

shall be on the party submitting the interrogatories to file a motion conforming to § 2200.40

for an order with respect to any objection or other failure to answer an interrogatory.

§ 2200.56 Depositions.

(a) General. Depositions of parties, intervenors, or witnesses shall be allowed only by 

agreement of all the parties or on order of the Commission or the Judge following the filing of 

a motion of a party stating good and just reasons. All depositions shall be before an officer 

authorized to administer oaths and affirmations at the place of examination. The deposition 

shall be taken in accordance with the Federal Rules of Civil Procedure, particularly Federal 

Rule of Civil Procedure 30.

(b) When to file. A motion to take depositions may be filed after the filing of the first 

responsive pleading or motion that delays the filing of an answer, such as a motion to dismiss.

(c) Notice of taking. Any depositions allowed by the Commission or the Judge may be taken 

after 14 days’ written notice to the other party or parties. The 14-day notice requirement may 

be waived by the parties pursuant to § 2200.52(a)(4)(i).

(d) Method of recording and expenses. The party that notices the deposition must state in the 

notice the method for recording the testimony. Unless the Commission or the Judge orders 

otherwise, testimony may be recorded by audio, audiovisual, or stenographic means. 

Witnesses whose depositions are taken and the person recording the deposition shall each be 

paid the same fees that are paid for like services in the federal courts. Any party may arrange 

to transcribe a deposition. The party noticing the deposition shall pay the recording costs, any 

witness fees, and mileage expense. Deposition subpoenas shall comply with § 2200.65.

(e) Use of depositions. Depositions taken under this rule may be used for discovery, to 

contradict or impeach the testimony of a deponent as a witness, or for any other purpose 

permitted by the Federal Rules of Evidence and the Federal Rules of Civil Procedure, 

particularly Federal Rule of Civil Procedure 32. An audio or audiovisual deposition offered 

into evidence in whole or in part must be accompanied by a transcription of the deposition. All 

transcription costs must be borne by the party offering the deposition into evidence.

(f) Excerpts from depositions to be offered at hearing. Except when used for purposes of 

impeachment, at least 7 days prior to the hearing, the parties or counsel shall furnish to the 

Judge and all opposing parties or counsel the transcribed excerpts from depositions (by page 

and line number) which they expect to introduce at the hearing. Four working days later, the 

adverse party or counsel for the adverse party shall furnish to the Judge and all opposing 

parties or counsel additional transcribed excerpts from the depositions (by page and line 

number) which they expect to be read pursuant to Federal Rules of Civil Procedure 32(a)(4), as 
well as any objections (by page and line number) to opposing party’s or counsel’s depositions. 

With reasonable notice to the Judge and all parties or counsel, other excerpts may be read.

§ 2200.57 [Reserved]

Subpart E – Hearings

§ 2200.60 Notice of hearing; location.

Except by agreement of the parties, or in an expedited proceeding under § 2200.103, when a 

hearing is first set, the Judge shall give the parties and intervenors notice of the time, place, 

and nature of the hearing at least 30 days in advance of the hearing. If a hearing is being 

rescheduled, or if exigent circumstances are present, at least 10 days’ notice shall be given. 

The Judge will designate a place and time of hearing that involves as little inconvenience and 

expense to the parties as is practicable.

§ 2200.61 Submission without hearing.

(a) A case may be fully stipulated by the parties and submitted to the Commission or the Judge 

for a decision at any time. The stipulation of facts shall be in writing and signed by the parties 

or their representatives. The submission of a case under this rule does not alter the burden of 

proof, the requirements otherwise applicable with respect to adducing proof, or the effect of 

failure of proof.

(b) Motions for summary judgment are governed by § 2200.40(j).

§ 2200.62 Postponement of hearing.

(a) Motion to postpone. A hearing may be postponed by the Judge on the Judge’s own 

initiative or for good cause shown upon the motion of a party. A motion for postponement 

shall state the position of the other parties, either by a joint motion or by a representation of the 

moving party. The filing of a motion for postponement does not automatically postpone a 

hearing. The form and content of such motions shall comply with § 2200.40.

(b) Grounds for postponement. A motion for postponement grounded on conflicting 

engagements of counsel or employment of new counsel shall be promptly filed.

(c) When motion must be received. A motion to postpone a hearing must be received at least 

10 days prior to the hearing. A motion for postponement received less than 10 days prior to 

the hearing will generally be denied unless good cause is shown for late filing.
(d) Postponement in excess of 60 days. No postponement in excess of 60 days shall be granted 

without the concurrence of the Chief Administrative Law Judge. The original of any motion 

seeking a postponement in excess of 60 days shall be filed with the Judge and a copy sent to 

the Chief Administrative Law Judge.

§ 2200.63 Stay of proceedings.

(a) Motion for stay. Stays are not favored. A party seeking a stay of a case assigned to a Judge 

shall file a motion for stay conforming to § 2200.40 with the Judge and send a copy to the 

Chief Administrative Law Judge. A motion for a stay shall state the position of the other 

parties, either by a joint motion or by the representation of the moving party. The motion shall 

set forth the reasons a stay is sought and the length of the stay requested.

(b) Ruling on motion to stay. The Judge, with the concurrence of the Chief Administrative 

Law Judge, may grant any motion for stay for the period requested or for such period as is 

deemed appropriate.

(c) Periodic reports required. The parties in a stayed proceeding shall be required to submit 

periodic reports on such terms and conditions as the Judge may direct. The length of time 

between the reports shall be no longer than 90 days unless the Judge otherwise orders.

§ 2200.64 Failure to appear.

(a) Attendance at hearing. The failure of a party to appear in person or by a duly authorized 

representative at the hearing constitutes a waiver of the right to a hearing. A failure of the 

Secretary to appear constitutes abandonment of the case. A failure of the Respondent to 

appear is deemed an admission of the facts alleged and consent to the relief sought in the 

Complaint (or, in Simplified Proceedings, the citation and notification of proposed penalty). 

The Judge may default the non-appearing party without further proceeding or notice.

(b) Requests for reinstatement. Requests for reinstatement must be made, in the absence of 

extraordinary circumstances, within 7 days after the scheduled hearing date. See

§ 2200.90(c).

(c) Rescheduling hearing. The Commission or the Judge, upon a showing of good cause, may 

excuse such failure to appear. In such event, the hearing will be rescheduled as expeditiously 

as possible from the issuance of the Judge’s order.
§ 2200.65 Issuance of subpoenas; petitions to revoke or modify subpoenas; payment of 

witness fees and mileage; right to inspect or copy data.

(a) Issuance of subpoenas. On behalf of the Commission or any Commission member, the 

Judge shall, on the application of any party, issue to the applying party subpoenas requiring the 

attendance and testimony of witnesses and/or the production of any evidence, including, but 

not limited to, relevant books, records, correspondence, or documents, in the witness’ 

possession or under the witness’ control, at a deposition or at a hearing before the Commission 

or the Judge. The party to whom the subpoena is issued shall be responsible for its service. 

Applications for subpoenas, if filed prior to the assignment of the case to a Judge, shall be filed 

with the Executive Secretary at One Lafayette Centre, 1120 20th Street NW, Suite 980, 

Washington, DC 20036-3457. After the case has been assigned to a Judge, applications shall 

be filed with the Judge. Applications for subpoena(s) may be made ex parte. The subpoena 

shall show on its face the name and address of the party at whose request the subpoena was 

issued.

(b) Service of subpoenas. A subpoena may be served by any person who is not a party and is 

not less than 18 years of age. Service of a subpoena upon the person it names may be made by 

service on the person named, by certified mail return receipt requested, or by leaving a copy at 

the person’s principal place of business or at the person’s residence with a person of suitable 

age and discretion who resides there. A subpoena may be served at any place in the United 

States or any Territory or possession of the United States. A subpoena may command a person 

to attend and produce documents or tangible things, from any place in the United States or any 

Territory or possession of the United States, at any designated place of hearing or deposition.

(c) Revocation or modification of subpoenas. Any person served with a subpoena, whether 

requiring attendance and testimony (ad testificandum) or for the production of evidence (duces 

tecum), shall, within 5 days after the date of service of the subpoena, move in writing to revoke 

or modify the subpoena if the person does not intend to comply. All motions to revoke or 

modify shall be served on the party at whose request the subpoena was issued. The 

Commission or the Judge shall revoke or modify the subpoena if in its opinion the evidence 

whose production is required does not relate to any matter under investigation or in question in 

the proceedings or the subpoena does not describe with sufficient particularity the evidence to 

be produced, or if for any other reason sufficient in law the subpoena is otherwise invalid. The 

Commission or the Judge shall make a simple statement of procedural or other grounds for the 

ruling on the motion to revoke, modify, or affirm. The motion to revoke or modify, any 

answer filed, and any ruling on the motion shall become part of the record.

(d) Rights of persons compelled to submit data or other information in documents. Persons 

compelled to submit data or other information at a public proceeding are entitled to retain 

documents they submitted that contain the data or information, or to procure a copy of such 

documents upon their payment of lawfully prescribed costs. If such persons submit the data or 
other information by testimony, they are entitled to a copy of the transcript of their testimony 

upon their payment of the lawfully prescribed costs.

(e) Witness fees and mileage. Witnesses summoned to appear for a deposition or to appear 

before the Commission or the Judge shall be paid the same witness fees and mileage expense 

that are paid witnesses in the federal courts. Witness fees and mileage expense shall be paid 

by the party at whose instance the witness appears.

(f) Failure to comply with subpoena. Upon the failure of any person to comply with the 

subpoena issued upon the request of a party, the Commission by its counsel shall recommend 

to the U.S. Department of Justice that proceedings be initiated in the appropriate district court 

for the enforcement of the subpoena, if in the Commission’s judgment the enforcement of the 

subpoena would be consistent with law and with policies of the Act. In such instances, neither 

the Commission nor its counsel shall be deemed to have assumed responsibility for the 

effective prosecution of the subpoena before the court.

§ 2200.66 Transcript of testimony.

(a) Hearings. Hearings shall be transcribed verbatim. A copy of the transcript of testimony 

taken at the hearing, duly certified by the reporter, shall be filed with the Judge before whom 

the matter was heard.

(b) Payment for transcript. The Commission shall bear all expenses for court reporters’ fees 

and for copies of the hearing transcript received by it. Each party is responsible for securing 

and paying for its copy of the transcript.

(c) Correction of errors. Error in the transcript of the hearing may be corrected by the Judge 

on the Judge’s own motion, on joint motion by the parties, or on motion by any party. The 

motion shall conform to § 2200.40 and shall state the error in the transcript and the correction 

to be made. The official transcript shall reflect the corrections.

§ 2200.67 Duties and powers of Judges.

It shall be the duty of the Judge to conduct a fair and impartial hearing, to assure that the facts 

are fully elicited, to adjudicate all issues and avoid delay. The Judge shall have authority with 

respect to cases assigned to the Judge, between the time the Judge is designated and the time 

the Judge issues a decision, subject to the rules and regulations of the Commission, to:

(a) Administer oaths and affirmations;

(b) Issue authorized subpoenas and rule on petitions to modify, revoke, or affirm, in 

accordance with § 2200.65;
(c) ) Rule on claims of privilege and claims that information is protected and issue protective 

orders, in accordance with § 2200.52(d) and (e).

(d) Rule upon offers of proof and receive relevant evidence;

(e) Take or cause depositions to be taken whenever the needs of justice would be served;

(f) ) Regulate the course of the hearing and, if appropriate or necessary, exclude persons or 

counsel from the hearing for contemptuous conduct and strike all related testimony of 

witnesses refusing to answer any proper questions;

(g) Hold conferences for the settlement or simplification of the issues;

(h) Dispose of procedural requests or similar matters, including motions referred to the Judge 

by the Commission and motions to amend pleadings; also to dismiss complaints, or portions of 

complaints, and to order hearings reopened or, upon motion, consolidated prior to issuance of a 

decision;

(i) Make decisions that conform to 5 U.S.C. 557 of the Administrative Procedure Act;

(j) Call and examine witnesses and to introduce into the record documentary or other evidence;

(k) Approve or appoint an interpreter;

(l) Request the parties to state their respective positions concerning any issue in the case or 

theory in support of their position;

(m) Adjourn the hearing as the needs of justice and good administration require;

(n) Take any other action necessary under the foregoing and authorized by the published rules 

and regulations of the Commission.

§ 2200.68 Recusal of the Judge.

(a) Discretionary recusal. A Judge may recuse themself from a proceeding whenever the 

Judge deems it appropriate.

(b) Mandatory recusal. A Judge shall recuse themself under circumstances that would require 

disqualification of a federal judge under Canon 3(C) of the Code of Conduct for United States 

Judges, except that the required recusal may be set aside under the conditions specified by 

Canon 3(D).
(c) Request for recusal. Any party may request that the Judge, at any time following the 

Judge’s designation and before the filing of a decision, be recused under paragraph (a) or (b) of 

this section or both by filing with the Judge, promptly upon the discovery of the alleged facts, 

an affidavit setting forth in detail the matters alleged to constitute grounds for recusal.

(d) Ruling on request. If the Judge finds that a request for recusal has been filed with due 

diligence and that the material filed in support of the request establishes that recusal either is 

appropriate under paragraph (a) of this section or is required under paragraph (b) of this 

section, the Judge shall recuse themself from the proceeding. If the Judge denies a request for 

recusal, the Judge shall issue a ruling on the record, stating the grounds for denying the 

request, and shall proceed with the hearing, or, if the hearing has closed, proceed with the 

issuance of a decision under the provisions of § 2200.90.

§ 2200.69 Examination of witnesses.

Witnesses shall be examined orally under oath or affirmation. Opposing parties have the right 

to cross-examine any witness whose testimony is introduced by an adverse party. All parties 

shall have the right to cross-examine any witness called by the Judge pursuant to § 2200.67(j).

§ 2200.70 Exhibits.

(a) Marking exhibits. All exhibits offered in evidence by a party shall be marked for 

identification before or during the hearing. Exhibits shall be marked with the case docket 

number, with a designation identifying the party or intervenor offering the exhibit, and 

numbered consecutively.

(b) Removal or substitution of exhibits in evidence. Unless the Judge finds it impractical, a 

copy of each exhibit shall be given to the other parties and intervenors. A party may remove 

an exhibit from the official record during the hearing or at the conclusion of the hearing only 

upon permission of the Judge. The Judge, in the Judge’s discretion, may permit the 

substitution of a duplicate for any original document offered into evidence.

(c) Reasons for denial of admitting exhibit. A Judge may, in the Judge’s discretion, deny the 

admission of any exhibit because of its excessive size, weight, or other characteristic that 

prohibits its convenient transportation and storage. A party may offer into evidence 

photographs, models, or other representations of any such exhibit.

(d) Rejected exhibits. All exhibits offered but denied admission into evidence, except exhibits 

referred to in paragraph (c) of this section, shall be placed in a separate file designated for 

rejected exhibits.
(e) Return of physical exhibits. A party may on motion request the return of a physical exhibit 

within 30 days after expiration of the time for filing a petition for review of a Commission 

final order in a United States Court of Appeals under section 11 of the Act, 29 U.S.C. 660, or 

within 30 days after completion of any proceedings initiated in a Court of Appeals. The 

motion shall be addressed to the Executive Secretary and provide supporting reasons. The 

exhibit shall be returned if the Executive Secretary determines that it is no longer necessary for 

use in any Commission proceeding.

(f) Request for custody of physical exhibit. Any person may on motion to the Executive 

Secretary request custody of a physical exhibit for use in any court or tribunal. The motion 

shall state the reasons for the request and the duration of custody requested. If the exhibit has 

been admitted in a pending Commission case, the motion shall be served on all parties to the 

proceeding. Any person granted custody of an exhibit shall inform the Executive Secretary of 

the status every 6 months (e.g., 6 months after January 15 would be July 15) of the person’s 

continuing need for the exhibit and return the exhibit after completion of the proceeding.

(g) Disposal of physical exhibit. Any physical exhibit may be disposed of by the 

Commission’s Executive Secretary subject to the requirements of the National Archives and 

Records Administration.

§ 2200.71 Rules of evidence.

The Federal Rules of Evidence are applicable.

§ 2200.72 Objections.

(a) Statement of objection. Any objection with respect to the conduct of the hearing, including 

any objection to the introduction of evidence or a ruling by the Judge, may be stated orally or 

in writing, accompanied by a short statement of the grounds for the objection, and shall be 

included in the record. No such objection shall be deemed waived by further participation in 

the hearing.

(b) Offer of proof. Whenever evidence is excluded from the record, the party offering such 

evidence may make an offer of proof, which shall be included in the record of the proceeding.

(c) Once the Judge rules definitively on the record—either before or at the hearing—a party 

need not renew an objection or offer of proof to preserve a claim of error for appeal.

§ 2200.73 Interlocutory review.
(a) General. Interlocutory review of a Judge’s ruling is discretionary with the Commission. A 

petition for interlocutory review may be granted only where the petition asserts and the 

Commission finds:

(1) That the review involves an important question of law or policy that controls the outcome 

of the case, and that immediate review of the ruling will materially expedite the final 

disposition of the proceedings or subsequent review by the Commission may provide an 

inadequate remedy; or

(2) That the ruling will result in a disclosure, before the Commission may review the Judge’s 

report, of information that is alleged to be privileged.

(b) Petition for interlocutory review. Within 7 days following the service of a Judge’s ruling 

from which review is sought, a party may file a petition for interlocutory review with the 

Commission. Responses to the petition, if any, shall be filed within 7 days following service of 

the petition. Service of the filed petition on the other parties and intervenors shall be 

accomplished in a manner prescribed in § 2200.7(c). A copy of the petition and responses 

shall be filed with the Judge. The petition is denied unless granted within 30 days of the date 

of receipt by the Commission’s Executive Secretary. A corporate party that files a petition for 

interlocutory review or a response to such a petition under this section shall file with the 

Commission a copy of its declaration of corporate parents, subsidiaries, and affiliates 

previously filed with the Judge under the requirements of § 2200.35 or § 2200.37(d)(4). In its 

discretion the Commission may refuse to accept for filing a petition or response that fails to 

comply with this disclosure requirement. A corporate party filing the declaration required by 

this paragraph shall have a continuing duty to advise the Executive Secretary of any changes to 

its declaration until the petition is deemed denied or a decision is issued on the merits.

(c) Denial without prejudice. The Commission’s decision not to grant a petition for 

interlocutory review shall not preclude a party from raising an objection to the Judge’s 

interlocutory ruling in a petition for discretionary review.

(d) Stay—

(1) Trade secret matters. The filing of a petition for interlocutory review of a Judge’s ruling 

concerning an alleged trade secret shall stay the effect of the ruling until the petition is deemed 

denied or ruled upon.

(2) Other cases. In all other cases, the filing or granting of a petition for interlocutory review 

shall not stay a proceeding or the effect of a ruling unless otherwise ordered.

(e) Judge’s comments. The Judge may be requested to provide the Commission with written 

views on whether the petition is meritorious. When the written comments are filed with the 
Commission, the Judge shall serve the comments on all parties in a manner prescribed in § 

2200.7(c).

(f) Briefs. Notice shall be given to the parties if the Commission decides to request briefs on 

the issues raised by an interlocutory review. See § 2200.93–Briefs before the Commission.

(g) When filing effective. A petition for interlocutory review is deemed to be filed only when 

received by the Commission, as specified in § 2200.8(d)(3)(ii).

§ 2200.74 Filing of briefs and proposed findings with the Judge; oral argument at the 

hearing.

(a) General. A party is entitled to a reasonable period at the close of the hearing for oral 

argument, which shall be included in the transcript of the hearing. Any party shall be entitled, 

upon request made before the close of hearing, to file a brief, proposed findings of fact and 

conclusions of law, or both, with the Judge. In lieu of briefs, the Judge may permit or direct 

the parties to file memoranda or statements of authority.

(b) Time. Briefs shall be filed simultaneously on a date established by the Judge. A motion for 

extension of time for filing any brief shall be made at least 3 working days prior to the due date 

and shall recite that the moving party has conferred with the other parties on the motion. 

Reply briefs shall not be allowed except by order of the Judge.

(c) Untimely briefs. Untimely briefs will not be accepted unless accompanied by a motion 

setting forth good cause for the delay. The form and content of motions shall comply with

§ 2200.40.

Subpart F – Posthearing Procedures

§ 2200.90 Decisions and reports of Judges.

(a) Judge’s decision—

(1) Contents of Judge’s decision. The Judge shall prepare a decision that conforms to 5 U.S.C. 

557 of the Administrative Procedure Act and constitutes the final disposition of the 

proceedings. The decision shall be in writing and shall include findings of fact, conclusions of 

law, and the reasons or bases for them, on all the material issues of fact, law, or discretion 

presented on the record. The decision shall include an order affirming, modifying, or vacating 

each contested citation item and each proposed penalty or directing other appropriate relief. A 

decision finally disposing of a petition for modification of the abatement period shall contain 

an order affirming or modifying the abatement period.
(2) Service of the Judge’s decision. The Judge shall serve a copy of the decision on each party 

in a manner prescribed in § 2200.7(c).

(b) Judge’s report—

(1) Contents of Judge’s report. The Judge’s report shall consist of the entire record, including 

the Judge’s decision.

(2) Filing of Judge’s report. On the eleventh day after service of the decision on the parties, 

the Judge shall file the report with the Executive Secretary for docketing.

(3) Docketing of Judge’s report by Executive Secretary. Promptly upon filing of the Judge’s 

report, the Executive Secretary shall docket the report and notify all parties of the docketing 

date. The date of docketing of the Judge’s report is the date that the Judge’s report is made for 

purposes of section 12(j) of the Act, 29 U.S.C. 661(j).

(4) Correction of errors in Judge’s report.

(i) Until the Judge’s report has been directed for review or, in the absence of a direction for 

review, until the decision has become a final order as described in paragraph (f) of this section, 

the Judge may correct clerical errors arising through oversight or inadvertence in decisions,

orders, or other parts of the record under Federal Rule of Civil Procedure 60(a). If a Judge’s 

report has been directed for review, the decision may be corrected during the pendency of 

review with leave of the Commission.

(ii) After a Judge’s decision has become a final order as described in paragraph (f) of this 

section, the Commission or the Judge may correct a clerical mistake or a mistake arising from 

oversight or omission under Federal Rule of Civil Procedure 60(a).

(c) Relief from default. Until the Judge’s report has been docketed by the Executive Secretary, 

the Judge may relieve a party of default or grant reinstatement under § 2200.101(b), 

§ 2200.52(f)(2), or § 2200.64(b).

(d) Filing documents after the docketing date. Except for documents filed under paragraph 

(b)(4)(i) of this section, which shall be filed with the Judge, on or after the date of docketing of 

the Judge’s report all documents shall be filed with the Executive Secretary.

(e) Settlement. Settlement documents shall be filed in the manner prescribed in § 2200.100(c).
(f) Judge’s decision final unless review directed. If no Commissioner directs review of a 

report on or before the thirtieth day following the date of docketing of the Judge’s report, the 

decision of the Judge shall become a final order of the Commission.

§ 2200.91 Discretionary review; petitions for discretionary review; statements in 

opposition to petitions.

(a) Review discretionary. Review by the Commission is not a right. A Commissioner may, as 

a matter of discretion, direct review on the Commissioner’s own motion or on the petition of a 

party.

(b) Petitions for discretionary review. A party adversely affected or aggrieved by the decision 

of the Judge may seek review by the Commission by filing a petition for discretionary review 

with the Executive Secretary at any time following the service of the Judge’s decision on the 

parties but no later than 20 days after the date of docketing of the Judge’s report. Service of 

the filed petition on the other parties and intervenors shall be accomplished in a manner 

prescribed in § 2200.7(c). The earlier a petition is filed, the more consideration it can be 

given. A petition for discretionary review may be conditional, and it may state that review is 

sought only if a Commissioner were to direct review on the petition of an opposing party.

(c) Cross-petitions for discretionary review. Where a petition for discretionary review has 

been filed by one party, any other party adversely affected or aggrieved by the decision of the 

Judge may seek review by the Commission by filing a cross-petition for discretionary review. 

The cross-petition may be conditional. See paragraph (b) of this section. A cross-petition 

shall be filed directly with the Executive Secretary within 27 days after the date of docketing 

of the Judge’s report. The earlier a cross-petition is filed, the more consideration it can be 

given.

(d) Contents of the petition. No particular form is required for a petition for discretionary 

review. A petition should state why review should be directed, including: whether the Judge’s 

decision raises an important question of law, policy, or discretion; whether review by the 

Commission will resolve a question about which the Commission’s Judges have rendered 

differing opinions; whether the Judge’s decision is contrary to law or Commission precedent; 

whether a finding of material fact is not supported by a preponderance of the evidence; 

whether a prejudicial error of procedure or an abuse of discretion was committed. A petition 

should concisely state the portions of the decision for which review is sought and should refer 

to the citations and citation items (for example, citation 3, item 4a) for which review is sought. 

A petition shall not incorporate by reference a brief or legal memorandum. Brevity and the 

inclusion of precise references to the record and legal authorities will facilitate prompt review 

of the petition.
(e) When filing effective. A petition for discretionary review is filed when received by the 

Commission, as specified in § 2200.8(d)(3)(ii).

(f) Prerequisite to judicial review; effect of filing. A petition for review under this section is, 

under 5 U.S.C. 704, a prerequisite to the seeking of judicial review of the final agency action. 

The effect of filing a petition for review is to stay the decision of the Judge.

(g) Statements in opposition to petition. Statements in opposition to petitions for discretionary 

review may be filed in the manner specified in this section for the filing of petitions for 

discretionary review. Statements in opposition shall concisely state why the Judge’s decision 

should not be reviewed with respect to each portion of the petition to which it is addressed.

§ 2200.92 Review by the Commission.

(a) Jurisdiction of the Commission; issues on review. Unless the Commission orders 

otherwise, a direction for review establishes jurisdiction in the Commission to review the 

entire case. The issues to be decided on review are within the discretion of the Commission.

(b) Review on a Commissioner’s motion; issues on review. At any time within 30 days after 

the docketing date of the Judge’s report, a Commissioner may, on the Commissioner’s own 

motion, direct that a Judge’s decision be reviewed. Factors that may be considered in deciding 

whether to direct review absent a petition include, but are not limited to, whether the case 

raises novel questions of law or policy or involves a conflict between Administrative Law 

Judges’ decisions. When a Commissioner directs review on the Commissioner’s own motion, 

the issues ordinarily will be those specified in the direction for review or any later order.

(c) Issues not raised before Judge. The Commission will ordinarily not review issues that the 

Judge did not have the opportunity to pass upon. In exercising discretion to review issues that 

the Judge did not have the opportunity to pass upon, the Commission may consider such 

factors as whether there was good cause for not raising the issue before the Judge, the degree 

to which the issue is factual, the degree to which proceedings will be disrupted or delayed by 

raising the issue on review, whether the ability of an adverse party to press a claim or defense 

would be impaired, and whether considering the new issue would avoid injustice or ensure that 

judgment will be rendered in accordance with the law and facts.

§ 2200.93 Briefs before the Commission.

(a) Requests for briefs. The Commission ordinarily will request the parties to file briefs on 

issues before the Commission. After briefs are requested, a party may, instead of filing a brief, 

file a letter setting forth its arguments or a letter stating that it will rely on its petition for 

discretionary review or previous brief. A party not intending to file a brief shall notify the 

Commission in writing within the applicable time for filing briefs and shall serve a copy on all 
other parties. The provisions of this section apply to the filing of briefs and letters filed in lieu 

of briefs.

(b) Filing briefs. Unless the briefing notice states otherwise:

(1) Time for filing briefs. The party required to file the first brief shall do so within 40 days 

after the date of the briefing notice. All other parties shall file their briefs within 30 days after 

the first brief is served. Any reply brief permitted by these rules or by order shall be filed 

within 15 days after the second brief is served.

(2) Sequence of filing.

(i) If one petition for discretionary or interlocutory review has been filed, the petitioning party 

shall file the first brief.

(ii) If more than one petition has been filed, the party whose petition was filed first shall file 

the first brief.

(iii) If no petition has been filed, the parties shall file simultaneous briefs.

(3) Reply briefs. The party that filed the first brief may file a reply brief, or, if briefs are to be 

filed simultaneously, both parties may file a reply brief. Additional briefs are otherwise not 

allowed except by leave of the Commission.

(c) Motion for extension of time for filing brief. An extension of time to file a brief will 

ordinarily not be granted except for good cause shown. A motion for extension of time to file 

a brief shall be filed at the Commission no later than 5 days prior to the expiration of the time 

limit prescribed in paragraph (b) of this section, shall comply with § 2200.40, and shall include 

the following information: when the brief is due, the number and duration of extensions of 

time that have been granted to each party, the length of extension being requested, the specific 

reason for the extension being requested, and an assurance that the brief will be filed within the 

time extension requested.

(d) Consequences of failure to timely file brief. The Commission may decline to accept a brief 

that is not timely filed. If a petitioning party fails to respond to a briefing notice or expresses 

no interest in review, the Commission may vacate the direction for review, or it may decide the 

case without that party’s brief. If the non-petitioning party fails to respond to a briefing notice 

or expresses no interest in review, the Commission may decide the case without that party’s 

brief. If a case was directed for review upon a Commissioner’s own motion, and any party 

fails to respond to the briefing notice, the Commission may either vacate the direction for 

review or decide the case without briefs.
(e) Length of brief. Except by permission of the Commission, a main brief, including briefs 

and legal memoranda it incorporates by reference, shall contain no more than 35 pages of text. 

A reply brief, including briefs and legal memoranda it incorporates by reference, shall contain 

no more than 20 pages of text.

(f) Format. Briefs shall be typewritten, double spaced, with typeface of text being no smaller 

than 12-point and typeface of footnotes being no smaller than 11-point, on letter size opaque 

paper (8 1⁄2 inches by 11 inches). All margins shall be 1 1⁄2 inches.

(g) Table of contents. A brief in excess of 15 pages shall include a table of contents.

(h) Failure to meet requirements. The Commission may return briefs that do not meet the 

requirements of paragraphs (e) and (f) of this section.

(i) Brief of an amicus curiae. The Commission may allow a brief of an amicus curiae pursuant 

to the criteria and time period set forth in § 2200.24. Any brief of an amicus curiae must meet 

the requirements of paragraphs (b) through (h) of this section. No reply brief of an amicus 

curiae will be received.

§ 2200.94 [Reserved]

§ 2200.95 Oral argument before the Commission.

(a) When ordered. Upon motion of any party or upon its own motion, the Commission may 

order oral argument. Parties requesting oral argument must demonstrate why oral argument 

would facilitate resolution of the issues before the Commission. Normally, motions for oral 

argument shall not be considered until after all briefs have been filed.

(b) Notice of argument. The Executive Secretary shall advise all parties whether oral argument 

is to be heard. Within a reasonable time before the oral argument is scheduled, the Executive 

Secretary shall inform the parties of the time and place therefor, the issues to be heard, and the 

time allotted to the parties.

(c) Postponement.

(1) Except under extraordinary circumstances, a request for postponement must be filed at least 

10 days before oral argument is scheduled.

(2) The Executive Secretary shall notify the parties of a postponement in a manner best 

calculated to avoid unnecessary travel or inconvenience to the parties. The Executive 

Secretary shall inform all parties of the new time and place for the oral argument.
(d) Order and content of argument.

(1) Counsel shall be afforded such time for oral argument as the Commission may provide by 

order. Requests for enlargement of time may be made by motion filed reasonably in advance 

of the date fixed for the argument.

(2) The petitioning party shall argue first. If the case is before the Commission on crosspetitions, the Commission will inform the parties in advance of the order of appearance.

(3) Counsel may reserve a portion of the time allowed for rebuttal but in opening argument 

shall present the case fairly and completely and shall not reserve points of substance for 

presentation during rebuttal.

(4) Oral argument should undertake to emphasize and clarify the written arguments appearing 

in the briefs. The Commission will look with disfavor on any oral argument that is read from a 

previously filed document.

(5) At any time, the Commission may terminate a party’s argument or interrupt the party’s 

presentation for questioning by the Commissioners.

(e) Failure to appear. Should either party fail to appear for oral argument, the party present 

may be allowed to proceed with its argument.

(f) Consolidated cases. Where two or more consolidated cases are scheduled for oral 

argument, the consolidated cases shall be considered as one case for the purpose of allotting 

time to the parties unless the Commission otherwise directs.

(g) Multiple counsel. Where more than one counsel argues for a party to the case or for 

multiple parties on the same side in the case, it is counsels’ responsibility to agree upon a fair 

division of the total time allotted. In the event of a failure to agree, the Commission will 

allocate the time. The Commission may, in its discretion, limit the number of counsel heard 

for each party or side in the argument. No later than 5 days prior to the date of scheduled 

argument, the Commission must be notified of the names of the counsel who will argue.

(h) Exhibits/visual aids.

(1) The parties may use exhibits introduced into evidence at the hearing. If a party wishes to 

use a visual aid not part of the record, written notice of the proposed use shall be given to 

opposing counsel 15 days prior to the argument. Objections, if any, shall be in writing, served 

on all adverse parties, and filed not fewer than 7 days before the argument.
(2) No visual aid shall introduce or rely upon facts or evidence not already part of the record.

(3) If visual aids or exhibits other than documents are to be used at the argument, counsel shall 

arrange with the Executive Secretary to have them placed in the hearing room on the date of 

the argument before the Commission convenes.

(4) Parties using visual aids not introduced into evidence shall have them removed from the 

hearing room unless the Commission directs otherwise. If such visual aids are not reclaimed 

by the party within a reasonable time after notice is given by the Executive Secretary, such 

visual aids shall be disposed of at the discretion of the Executive Secretary.

(i) Recording oral argument.

(1) Unless the Commission directs otherwise, oral arguments shall be electronically recorded 

and made part of the record. Any other sound recording in the hearing room is prohibited. 

Oral arguments shall also be transcribed verbatim. A copy of the transcript of the oral 

argument taken by a qualified court reporter, shall be filed with the Commission. The 

Commission shall bear all expenses for court reporters’ fees and for copies of the hearing 

transcript received by it.

(2) Persons desiring to listen to the recordings shall make appropriate arrangements with the 

Executive Secretary. Any party desiring a written copy of the transcript is responsible for 

securing and paying for its copy.

(3) Error in the transcript of the oral argument may be corrected by the Commission on its own 

motion, on joint motion by the parties, or on motion by any party. The motion shall state the 

error in the transcript and the correction to be made. The official transcript shall reflect the 

corrections.

(j) Failure to file brief. A party that fails to file a brief shall not be heard at the time of oral 

argument except by permission of the Commission.

(k) Participation in oral argument by amicus curiae.

(1) An amicus curiae will not be permitted to participate in the oral argument without leave of 

the Commission upon proper motion. Participation generally will be limited to a portion of the 

time allotted to the party in whose interest the amicus curiae seeks to participate. In 

extraordinary circumstances, the amicus curiae may be allotted its own time for oral argument.

(2) A motion by amicus curiae seeking leave to participate in oral argument shall be filed no 

later than 14 days prior to the date oral argument is scheduled.
(3) The motion of an amicus curiae for leave to participate at oral argument shall identify the 

interest of the applicant and shall state the reason(s) why its participation at oral argument is 

desirable.

(4) Motions in opposition to the motion of an amicus curiae for leave to participate in the oral 

argument must be filed within 10 days of the date of the motion.

§ 2200.96 Commission receipt of copies of petitions for judicial review of Commission 

orders when petitions for review are filed in two or more courts of appeals with respect to 

the same order.

The Commission officer and office designated to receive, pursuant to 28 U.S.C. 2112(a)(1), 

copies of petitions for review of Commission orders, from the persons instituting the review 

proceedings in a court of appeals, are the Executive Secretary and the Office of the Executive

Secretary at the Commission’s Office, One Lafayette Centre, 1120 20th Street, N.W., Suite 

980, Washington, DC 20036-3457. The petition shall state that it is being submitted to the 

Commission pursuant to 28 U.S.C. 2112 by the persons or person who filed the petition in the 

court of appeals and shall be stamped by the court with the date of filing. (28 U.S.C. 2112(a) 

contains certain applicable requirements.)

Subpart G – Miscellaneous Provisions

§ 2200.100 Settlement.

(a) Policy. Settlement is permitted and encouraged by the Commission at any stage of the 

proceedings.

(b) Requirements—

(1) Notification of Settlement. If the parties have agreed to a partial or full settlement, they 

shall so notify the Judge in a written joint submission (titled “Notification of Settlement” or 

“Notification of Partial Settlement,” as appropriate), in which the parties shall:

(i) List the contested items that have been settled and, if only a partial settlement agreement 

has been reached, also list the contested items that remain to be decided;

(ii) If posting of the settlement agreement is required by § 2200.7(g), certify that the parties’ 

settlement agreement has been posted in the manner prescribed by that rule and certify the date 

of posting;
(iii) If party status has been elected under § 2200.20, certify that the party has been afforded an 

opportunity to provide input on all matters pertaining to the settlement before the agreement is 

finalized; and

(iv) If the settlement agreement includes the withdrawal of a notice of contest, citation, 

notification of proposed penalty, or petition for modification of abatement period, state 

whether such withdrawal is with prejudice.

(2) The parties shall not incorporate the settlement agreement in, or append it to, the joint 

submission required in paragraph (b)(1) of this section or substitute the settlement agreement 

for the required joint submission.

(3) Issuance of order terminating proceeding. If the requirements of paragraphs (b)(1) and (2) 

of this section have been met with respect to all contested citation items and no affected 

employees who have elected party status have raised an objection to the reasonableness of any 

abatement period, the Judge shall issue an Order acknowledging that the parties have resolved 

all contested citation items and agreed to terminate the proceeding before the Commission.

(c) Filing; service and notice. A Notification of Settlement submitted after a Judge’s report 

has been issued shall be filed with the Executive Secretary. Proof of service shall be filed with 

the Notification of Settlement, showing service upon all parties and authorized employee 

representatives in the manner prescribed by § 2200.7(c) and (d) and the posting of notice to 

non-party affected employees in the manner prescribed by § 2200.7(g). The parties shall also 

file a draft order terminating the proceedings for adoption by the Judge or, if the Judge’s report 

has been issued, by the Commission. If the time has not expired under these rules for electing 

party status, an order acknowledging the termination of the proceedings before the 

Commission because of the settlement shall not be issued until at least 14 days after service or 

posting to consider any affected employee’s or authorized employee representative’s objection 

to the reasonableness of any abatement time. The affected employee or authorized employee 

representative shall file any such objection within this time. If such objection is filed, the 

Commission or the Judge shall provide an opportunity for the affected employees or 

authorized employee representative to be heard and present evidence on the objection, which 

shall be limited to the reasonableness of the abatement period.

§ 2200.101 Failure to obey rules.

(a) Sanctions. When any party has failed to plead or otherwise proceed as provided by these 

rules or as required by the Commission or the Judge, the party may be declared to be in default 

either on the initiative of the Commission or the Judge, after having been afforded an 

opportunity to show cause why the party should not be declared to be in default, or on the 

motion of a party. Subsequently, the Commission or the Judge, in their discretion, may enter a 
decision against the defaulting party or strike any pleading or document not filed in accordance 

with these rules.

(b) Motion to set aside sanctions. For reasons deemed sufficient by the Commission or the 

Judge and upon motion conforming to § 2200.40 expeditiously made, the Commission or the 

Judge may set aside a sanction imposed under paragraph (a) of this section. See § 2200.90(c).

(c) Discovery sanctions and failure to appear. This section does not apply to sanctions for 

failure to comply with orders compelling discovery, which are governed by § 2200.52(f), or to 

a default for failure to appear, which is governed by § 2200.64(a).

(d) Show cause orders. All show cause orders issued by the Commission or the Judge under 

paragraph (a) of this section shall be served in a manner prescribed in § 2200.7(o).

§ 2200.102 Withdrawal.

A party may withdraw its notice of contest, citation, notification of proposed penalty, or 

petition for modification of abatement period at any stage of a proceeding. The notice of 

withdrawal shall be served in accordance with § 2200.7(c) upon all parties and authorized 

employee representatives that are eligible to elect, but have not elected, party status. It shall 

also be posted in the manner prescribed in § 2200.7(g) for the benefit of any affected 

employees not represented by an authorized employee representative who are eligible to elect, 

but have not elected, party status. Proof of service shall accompany the notice of withdrawal 

in accordance with § 2200.7(d).

§ 2200.103 Expedited proceeding.

(a) When ordered. Upon application of any party or intervenor or upon its own motion, the 

Commission may order an expedited proceeding. When an expedited proceeding is ordered by 

the Commission, the Executive Secretary shall notify all parties and intervenors.

(b) Automatic expedition. Cases initiated by employee contests and petitions for modification 

of abatement period shall be expedited. See §§ 2200.37(d)(2) and 2200.38(c).

(c) Effect of ordering expedited proceeding. When an expedited proceeding is required by 

these rules or ordered by the Commission, it shall take precedence on the docket of the Judge 

to whom it is assigned, or on the Commission’s review docket, as applicable, over all other 

classes of cases, and shall be set for hearing or for the submission of briefs at the earliest 

practicable date.

(d) Time sequence set by Judge. The assigned Judge shall make rulings with respect to time 

for filing of pleadings and with respect to all other matters, without reference to times set forth 
in these rules, and shall do all other things appropriate to complete the proceeding in the 

minimum time consistent with fairness.

§ 2200.104 Standards of conduct.

(a) General. All representatives appearing before the Commission and its Judges shall comply 

with the letter and spirit of the Model Rules of Professional Conduct of the American Bar 

Association.

(b) Misbehavior before a Judge—

(1) Exclusion from a proceeding. A Judge may exclude from participation in a proceeding any 

person, including a party or its representative, who engages in disruptive behavior, refuses to 

comply with orders or rules of procedure, continuously uses dilatory tactics, refuses to adhere 

to standards of orderly or ethical conduct, or fails to act in good faith. The cause for the 

exclusion shall be stated in writing or may be stated in the record if the exclusion occurs 

during the course of the hearing. Where the person removed is a party’s attorney or other 

representative, the Judge shall suspend the proceeding for a reasonable time for the purpose of 

enabling the party to obtain another attorney or other representative.

(2) Appeal rights if excluded. Any attorney or other representative excluded from a proceeding 

by a Judge may, within 7 days of the exclusion, appeal to the Commission for reinstatement. 

No proceeding shall be delayed or suspended pending disposition of the appeal.

(c) Disciplinary action by the Commission. If an attorney or other representative practicing 

before the Commission engages in unethical or unprofessional conduct or fails to comply with 

any rule or order of the Commission or its Judges, the Commission may, after reasonable 

notice and an opportunity to show cause to the contrary, and after hearing, if requested, take 

any appropriate disciplinary action, including suspension or disbarment from practice before 

the Commission.

(d) Show cause orders. All show cause orders issued by the Commission under paragraph (c) 

of this section shall be served in a manner prescribed in § 2200.7(o).

§ 2200.105 Ex parte communication.

(a) General. Except as permitted by § 2200.120 or as otherwise authorized by law, there shall 

be no ex parte communication with respect to the merits of any case not concluded, between 

any Commissioner, Judge, employee, or agent of the Commission who is employed in the 

decisional process and any of the parties or intervenors, representatives, or other interested 

persons.
(b) Disciplinary action. In the event an ex parte communication occurs, the Commission or 

the Judge may make such orders or take such actions as fairness requires. The exclusion of a 

person by a Judge from a proceeding shall be governed by § 2200.104(b). Any disciplinary 

action by the Commission, including suspension or disbarment, shall be governed by § 

2200.104(c).

(c) Placement on public record. All ex parte communications in violation of this section shall 

be placed on the public record of the proceeding.

§ 2200.106 Amendment to rules.

The Commission may at any time upon its own motion or initiative, or upon written suggestion 

of any interested person setting forth reasonable grounds therefor, amend or revoke any of the 

rules contained in this Part. The Commission invites suggestions from interested parties to

amend or revoke rules of procedure. Such suggestions should be sent by email to

rules.suggestions@oshrc.gov or addressed to the Executive Secretary of the Commission at 

One Lafayette Centre, 1120 20th Street, NW., Suite 980, Washington, DC 20036–3457.

§ 2200.107 Special circumstances; waiver of rules.

In special circumstances not contemplated by the provisions of these rules and for good cause 

shown, the Commission or the Judge may, upon application by any party or intervenor or on 

their own motion, after 3 working days’ notice to all parties and intervenors, waive any rule or 

make such orders as justice or the administration of the Act requires.

§ 2200.108 Official Seal of the Occupational Safety and Health Review Commission.

The seal of the Commission shall consist of: A gold eagle outspread, head facing dexter, a 

shield with 13 vertical stripes superimposed on its breast, holding an olive branch in its claws, 

the whole superimposed over a plain solid white Greek cross with a green background, 

encircled by a white band edged in black and inscribed “Occupational Safety and Health 

Review Commission” in black letters.

Subpart H – Settlement Part

§ 2200.120 Settlement procedure.

(a) Voluntary settlement—

(1) Applicability and duration.
(i) Voluntary settlement applies only to notices of contests by employers and to applications 

for fees under the Equal Access to Justice Act and 29 CFR Part 2204.

(ii) Upon motion of any party conforming to § 2200.40 after the docketing of the notice of 

contest, or with the consent of the parties at any time in the proceedings, the Chief 

Administrative Law Judge may assign a case to a Settlement Judge for proceedings under this 

section. In the event either the Secretary or the employer objects to the use of a Settlement 

Judge procedure, such procedure shall not be imposed.

(2) Length of voluntary settlement procedures. Voluntary settlement procedures shall be for a 

period not to exceed 75 days, unless extended with the concurrence of the Chief 

Administrative Law Judge.

(b) Mandatory settlement—

(1) Applicability. Mandatory settlement applies only to notices of contest by employers in 

which the aggregate amount of the penalties sought by the Secretary is $205,000 or greater. 

Periodically, the aggregate amount of penalties for case referral to Mandatory Settlement 

Proceedings may be adjusted proportionately upon consideration of the penalty increases 

required by the Inflation Adjustment Act of 2015. The adjusted aggregate penalty amount for 

case referral to Mandatory Settlement will be posted on the Commission’s website 

(www.oshrc.gov).

(2) Assignment of case and appointment of Settlement Judge. Notwithstanding any other 

provisions of these rules, upon the docketing of the notice of contest, the Chief Administrative 

Law Judge shall assign to the Settlement Part any case which satisfies the criteria set forth in 

paragraph (b)(1) of this section. The Chief Administrative Law Judge shall appoint a 

Settlement Judge, who shall be a Judge other than the one assigned to hear and decide the case, 

except as provided in paragraph (f)(2) of this section.

(3) Mandatory settlement proceedings.

(i) The Settlement Judge may consult all attorneys, non-attorney representatives, and selfrepresented parties by any suitable means to schedule the Settlement Conference and to 

facilitate preparation for the conference.

(ii) The Settlement Judge may issue a preconference scheduling order addressing procedural 

matters, including but not limited to, formal pleadings, settlement status conference calls, ex 

parte caucus calls, and allowing, limiting, or suspending discovery during the settlement 

proceedings.
(iii) The Settlement Conference shall be conducted as soon as practicable, taking into 

consideration the case size, the complexity of the issues, and the time needed to complete 

preconference preparation.

(iv) Mandatory settlement procedures under this section shall be for a period not to exceed 120 

days, unless extended with the concurrence of the Chief Administrative Law Judge.

(v) If at the conclusion of the settlement proceedings the case has not been settled, the 

Settlement Judge shall promptly inform the Chief Administrative Law Judge in accordance 

with § 2200.120(f)(2).

(c) Powers and duties of Settlement Judges.

(1) The Settlement Judge shall confer with the parties regarding the whole or partial settlement 

of the case and seek resolution of as many issues as is feasible.

(2) The Settlement Judge may require the parties to provide statements of the issues in 

controversy and the factual predicate for each party’s position on each issue and may enter 

other orders as appropriate to facilitate the proceedings.

(3) The Settlement Judge may allow or suspend discovery during the settlement proceedings.

(4) The Settlement Judge has the discretion to engage in ex parte communications throughout 

the course of settlement proceedings. The Settlement Judge may suggest privately to each 

attorney or other representative of a party what concessions the client should consider and 

assess privately with each attorney or other representative the reasonableness of the party’s 

case or settlement position.

(5) The Settlement Judge may, with the consent of the parties, conduct such other settlement 

proceedings as may aid in the settlement of the case.

(d) Settlement conference—

(1) General. The Settlement Judge shall convene and preside over conferences between the 

parties. The Settlement Judge shall designate the time, place, and nature of the conference.

(2) Participation in conference. The Settlement Judge may require that any attorney or other 

representative who is expected to try the case for each party be present. The Settlement Judge 

may also require that the party’s representative be accompanied by an official of the party 

having full settlement authority on behalf of the party. The parties and their representatives or 

attorneys are expected to be completely candid with the Settlement Judge so that the 

Settlement Judge may properly guide settlement discussions. The failure to be present at a 

settlement conference or otherwise to comply with the orders of the Settlement Judge or the 
refusal to cooperate fully within the spirit of this rule may result in default or the imposition of 

sanctions under § 2200.101.

(3) Confidentiality of settlement proceedings.

(i) All statements made and all information presented during the course of settlement 

proceedings under this section shall be regarded as confidential and shall not be divulged 

outside of these proceedings except with the consent of the parties. The Settlement Judge shall 

issue appropriate orders to protect the confidentiality of settlement proceedings.

(ii) The Settlement Judge shall not divulge any statements or information presented during 

private negotiations with a party or the party’s representative during settlement proceedings 

except with the consent of that party.

(iii) The following shall not be admissible in any subsequent hearing, except by stipulation of 

the parties:

(A) Evidence of statements or conduct in settlement proceedings under this section within the 

scope of Federal Rule of Evidence 408,

(B) Notes or other material prepared by or maintained by the Settlement Judge in connection 

with settlement proceedings, and

(C) Communications between the Settlement Judge and the Chief Administrative Law Judge in 

connection with settlement proceedings including the report of the Settlement Judge under 

paragraph (f) of this section.

(iv) Documents and factual information disclosed in the settlement proceeding may not be 

used in litigation unless obtained through appropriate discovery or subpoena.

(v) With respect to the Settlement Judge’s participation in settlement proceedings, the 

Settlement Judge shall not discuss the merits of the case with any other person, nor appear as a 

witness in any hearing of the case.

(vi) The requirements of paragraph (d)(3) of this section apply unless disclosure is required by 

any applicable law or public policy.

(e) Record of settlement proceedings. No material of any form required to be held confidential 

under paragraph (d)(3) of this section shall be considered part of the official case record 

required to be maintained under 29 U.S.C. 661(g), nor shall any such material be open to 

public inspection as required by section 661(g), unless the parties otherwise stipulate. With the 

exception of an order approving the terms of any partial settlement agreed to between the 
parties as set forth in paragraph (f)(1) of this section, the Settlement Judge shall not file or 

cause to be filed in the official case record any material in the Settlement Judge’s possession 

relating to these settlement proceedings, including but not limited to communications with the 

Chief Administrative Law Judge and the Settlement Judge’s report under paragraph (f) of this 

section, unless the parties otherwise stipulate.

(f) Report of Settlement Judge.

(1) The Settlement Judge shall promptly notify the Chief Administrative Law Judge in writing 

of the status of the case at the conclusion of the settlement period or such time that the 

Settlement Judge determines further negotiations would be fruitless. If the Settlement Judge 

has made such a determination and a settlement agreement is not achieved within 75 days of 

the case being assigned to voluntary settlement proceedings or within 120 days of being 

assigned for mandatory settlement proceedings, the Settlement Judge shall then advise the 

Chief Administrative Law Judge in writing. The Chief Administrative Law Judge may then in 

the Chief Administrative Law Judge’s discretion allow an additional period of time, for further 

proceedings under this section. If at the expiration of the period allotted under this paragraph 

the Settlement Judge has not approved a full settlement, the Settlement Judge shall furnish to 

the Chief Administrative Law Judge copies of any written stipulations and orders embodying 

the terms of any partial settlement the parties have reached.

(2) At the termination of the settlement period without a full settlement, the Chief 

Administrative Law Judge shall promptly assign the case to an Administrative Law Judge 

other than the Settlement Judge or Chief Administrative Law Judge for appropriate action on 

the remaining issues. If all the parties, the Settlement Judge, and the Chief Administrative 

Law Judge agree, the Settlement Judge may be retained as the Hearing Judge.

(g) Non-reviewability. Notwithstanding the provisions of § 2200.73 regarding interlocutory 

review, any decision concerning the assignment of any Judge and any decision by the 

Settlement Judge to terminate settlement proceedings under this section is not subject to 

review, appeal, or rehearing.

Subpart I-L [Reserved]

Subpart M – Simplified Proceedings

§ 2200.200 Purpose.

(a) The purpose of the Simplified Proceedings subpart is to provide simplified procedures for 

resolving contests under the Occupational Safety and Health Act of 1970, so that parties before 

the Commission may reduce the time and expense of litigation while being assured due process 
and a hearing that meets the requirements of the Administrative Procedure Act, 5 U.S.C. 554. 

These procedural rules will be applied to accomplish this purpose.

(b) Procedures under this subpart are simplified in a number of ways. The major differences 

between these procedures and those provided in subparts A through G of the Commission’s 

rules of procedure are as follows.

(1) Complaints and answers are not required.

(2) Pleadings generally are not required. Early discussions among the parties and the Judge are 

required to narrow and define the disputes between the parties.

(3) The Secretary is required to provide the employer with certain informational documents 

early in the proceeding.

(4) Discovery is not permitted except as ordered by the Judge.

(5) Interlocutory appeals are not permitted.

(6) Hearings are less formal. The admission of evidence is not controlled by the Federal Rules 

of Evidence except as provided for in § 2200.209(c). The Judge may allow the parties to argue 

their case orally at the conclusion of the hearing, and may allow or require post-hearing briefs 

or statements of position. The judge may render a decision from the bench.

§ 2200.201 Application.

The rules in this subpart will govern proceedings before a Judge in a case chosen for 

Simplified Proceedings under § 2200.203.

§ 2200.202 Eligibility for Simplified Proceedings.

(a) Those cases selected for Simplified Proceedings will be those that do not involve complex 

issues of law or fact. Cases appropriate for Simplified Proceedings will 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 $20,000,

(3) No allegation of willfulness or a repeat violation,

(4) Not involving a fatality,
(5) A hearing that is expected to take less than 2 days, or

(6) A small employer whether self-represented or represented by counsel.

(b) Those cases with an aggregate proposed penalty of more than $20,000, but not more than

$30,000, if otherwise appropriate, may be selected for Simplified Proceedings at the discretion 

of the Chief Administrative Law Judge.

§ 2200.203 Commencing Simplified Proceedings.

(a) Selection. Upon receipt of a Notice of Contest, the Chief Administrative Law Judge may, 

at the Chief Administrative Law Judge’s discretion, assign an appropriate case for Simplified 

Proceedings.

(b) Party request. Within 21 days of the notice of docketing, any party may request that the 

case be assigned for Simplified Proceedings. The request must be in writing. For example, “I 

request Simplified Proceedings” will suffice. The request must be sent to the Executive 

Secretary. Copies must be sent to each of the other parties.

(c) Judge’s ruling on request. The Chief Administrative Law Judge or the Judge assigned to 

the case may grant a party’s request and assign a case for Simplified Proceedings at the 

Judge’s discretion. Such request shall be acted upon within 14 days of its receipt by the Judge.

(d) Time for filing complaint or answer under § 2200.34. If a party has requested Simplified 

Proceedings or the Judge has assigned the case for Simplified Proceedings, the times for filing 

a complaint or answer will not run. If a request for Simplified Proceedings is denied, the 

period for filing a complaint or answer will begin to run upon issuance of the notice denying 

Simplified Proceedings.

§ 2200.204 Discontinuance of Simplified Proceedings.

(a) Procedure. If it becomes apparent at any time that a case is not appropriate for Simplified 

Proceedings, the Judge assigned to the case may, upon motion by any party or upon the 

Judge’s own motion, discontinue Simplified Proceedings and order the case to continue under 

conventional rules. Before discontinuing Simplified Proceedings, the Judge will consult with 

the Chief Administrative Law Judge.

(b) Party motion. At any time during the proceedings any party may request that Simplified 

Proceedings be discontinued and that the matter continue under conventional procedures. A 

motion to discontinue must conform to § 2200.40 and explain why the case is inappropriate for

Simplified Proceedings. Responses to such motions shall be filed within the time specified by
§ 2200.40. Joint motions to return a case to conventional proceedings shall be granted by the 

Judge and do not require a showing of good cause, except that the Judge may deny such a 

motion that is filed less than 30 days before a scheduled hearing date.

(c) Ruling. If Simplified Proceedings are discontinued, the Judge may issue such orders as are 

necessary for an orderly continuation under conventional rules.

§ 2200.205 Filing of pleadings.

(a) Complaint and answer. Once a case is designated for Simplified Proceedings, the 

complaint and answer requirements are suspended. If the Secretary has filed a complaint 

under § 2200.34 (a), a response to a petition under § 2200.37(d)(5), or a response to an 

employee contest under § 2200.38(a), and if Simplified Proceedings has been ordered, no 

response to these documents will be required.

(b) Motions. Limited, if any, motion practice is contemplated in Simplified Proceedings, but 

all motion practice shall conform with § 2200.40.

§ 2200.206 Disclosure of information.

(a) Disclosure to employer.

(1) Within 21 days after a case is designated for Simplified Proceedings, 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 days after a case is designated for Simplified Proceedings, the Secretary shall 

provide the employer with reproductions of any photographs or videotapes that the Secretary 

anticipates using at the hearing.

(3) Within 30 days after a case is designated for Simplified Proceedings, 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.

(b) Disclosure to the Secretary. When the employer raises an affirmative defense pursuant to

§ 2200.207(b), the Judge shall order the employer to disclose to the Secretary such documents 

relevant to the affirmative defense as the Judge deems appropriate.

§ 2200.207 Pre-hearing conference.
(a) When held. As early as practicable after the employer has received the documents set forth 

in § 2200.206(a)(1), the Judge may conduct a pre-hearing conference, which the Judge may 

hold in person or by telephone or electronic means.

(b) Content. At the pre-hearing conference, the parties may discuss the following: settlement 

of the case; the narrowing of issues; an agreed statement of issues and facts; all defenses; 

witnesses and exhibits; motions; and any other pertinent matter. Except under extraordinary 

circumstances, any affirmative defenses not raised at the pre-hearing conference may not be 

raised later. At the conclusion of the conference, the Judge will issue an order that may set 

forth any agreements reached by the parties and that may specify the issues to be addressed by 

the parties at the hearing.

§ 2200.208 Discovery.

Discovery, including requests for admissions, will only be allowed under the conditions and 

time limits set by the Judge.

§ 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 § 2200.73 which will not apply.

(b) Agreements. At the beginning of the hearing, the Judge will enter into the record all 

agreements reached by the parties as well as defenses raised during the pre-hearing conference.

The parties and the Judge then will attempt to resolve or narrow the remaining issues. The 

Judge will enter into the record any further agreements reached by the parties.

(c) Evidence. Except as to matters that are protected by evidentiary privilege, the admission of 

evidence is not controlled by the Federal Rules of Evidence, but the Judge may accept a 

written stipulation of the parties that the Federal Rules of Evidence shall apply in whole or, as 

specified, in part. The Judge will receive oral, physical, or documentary evidence that is not 

irrelevant, unduly repetitious, or unreliable. Testimony will be given under oath or 

affirmation.

(d) Reporter. A reporter will be present at the hearing. An official verbatim transcript of the 

hearing will be prepared and filed with the Judge. Parties may purchase copies of the 

transcript from the reporter.

(e) Oral and written argument. Each party may present an oral argument at the close of the 

hearing. The Judge may allow or require post-hearing briefs or statements of position upon the 
request of either party or on the Judge’s own motion. The form of any post-hearing briefs shall 

conform to § 2200.74 unless the Judge specifies otherwise.

(f) Judge’s decision—

(1) Bench decision. The Judge may render a decision from the bench. In rendering a decision 

from the bench, the Judge shall state the issues in the case and make clear both the Judge’s 

findings of fact and conclusions of law on the record. The Judge shall reduce the bench 

decision in the matter to writing and serve it on the parties as soon as practicable, but no later 

than 45 days after the hearing. If additional time is needed, approval of the Chief 

Administrative Law Judge is required. The decision shall be prepared in accordance with § 

2200.90(a). The written decision shall include, as an appendix, the bench decision as set forth 

in the transcript.

(2) Written decision. If the Judge does not render a decision from the bench, the Judge will 

issue a written decision within 60 days of the close of the record. The record will ordinarily be 

deemed closed upon the latter of the filing of the hearing transcript, or the completion of any 

permitted post-hearing briefing. The decision will be in accordance with § 2200.90(a). If 

additional time is needed, approval of the Chief Administrative Law Judge is required.

(g) Filing of Judge’s decision with the Executive Secretary. When the Judge issues a written 

decision, service, filing, and docketing of the Judge’s written decision shall be in accordance 

with § 2200.90.

§ 2200.210 Review of Judge’s decision.

Any party may petition for Commission review of the Judge’s decision as provided in 

§ 2200.91. After the issuance of the Judge’s written decision, the parties may pursue the case 

following the rules in Subpart F of this part.

§ 2200.211 Applicability of subparts A through G.

The provisions of subpart D (§§ 2200.50-2200.57) and §§ 2200.34, 2200.37(d), 2200.38, 

2200.71, and 2200.73 will not apply to Simplified Proceedings. All other rules contained in

subparts A through G of the Commission’s rules of procedure will apply when consistent with 

the rules in this subpart governing Simplified Proceedings.