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Occupational Safety and Health Division’s Comments in Response to 

the Occupational Safety and Health Review Commission’s

Advanced Notice of Proposed Rulemaking, 29 CFR part 2200, 83 FR 45366

November 16, 2018

The Occupational Safety and Health Division (OSH), Office of the Solicitor of Labor (SOL)

supports the Occupational Safety and Health Review Commission’s (OSHRC or Commission)

decision to review its rules of procedure in light of technological advances and the evolution of 

practice before the Commission. We appreciate this opportunity to comment, and as discussed 

below, we believe there are several areas in which changes to the rules could facilitate improved 

practice before the Commission. These comments were compiled by OSH from suggestions 

made by SOL attorneys across the country who practice before the Commission. 

E-filing

E-filing should be mandatory when the parties are represented by counsel or lay representatives. 

However, there should be an exception for pro se litigants. A number of pro-se litigants do not 

speak English or do not have access to or sufficient knowledge of computers. These parties could

receive default judgments for failing to respond or the Secretary will have to expend additional 

resources explaining how to file electronically as well as having to educate them about OSRHC 

procedures. If e-filing is mandatory, then service by email also should be assumed to be proper 

service except, as set forth above, for pro se litigants. 

Prehearing Procedures and Discovery

The Commission should provide uniform definitions for terms used in discovery. For example, 

commonly used terms such as communication, document, identify, and person could be defined 

in the rules. Common definitions would facilitate Commission practice by minimizing 

disagreement and misunderstandings arising in discovery proceedings.

The OSHRC should clarify whether Fed. R. Civ. P 26(b)’s proportionality requirement for 

discovery applies in OSHRC cases. Under Rule 2(b), 29 C.F.R. § 2200.2(b), the Federal Rules 

of Civil Procedure only apply if there is not a specific provision on point. The OSHRC rule 

regarding the scope of discovery is encompassed in Rule 52(b), 29 C.F.R. § 2200.52(b), so 

arguably, Fed. R. Civ. P 26(b), which also addresses the scope of discovery and encompasses the 

proportionality requirement, is not applicable to OSHRC proceedings. However, many 

practitioners raise proportionality in discovery, and the administrative law judges have provided 

differing interpretations. A uniform approach on this issue would be beneficial for all parties.

We urge the OSHRC to consider updating or replacing Rule 54(b), 29 CFR 2200.54(b), 

governing responding to requests for admissions, with the text from the analogous rule in the 

Federal Rules of Civil Procedure, Fed. R. Civ. P 36(a)(3)-(5). We believe these additions will 

make requests for admissions more meaningful and streamline issues for motion practice or 

trials.
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The OSHRC should clarify that nationwide service of OSHRC subpoenas is permissible. Rule 

57, 29 CFR 2200.57, is currently silent on geographical limits of subpoenas. The amendment 

should clarify that Fed. R. Civ. P. 45’s 100-mile-service restriction does not apply to 

Commission subpoenas. This issue arises often, and as some administrative law judges have 

noted in their rulings, Rule 57 is best read in light of NLRB provisions that allow for nationwide 

service. An amendment to the rule would provide notice to all parties and would obviate 

Commission adjudication on the issue. 

Summary Judgment

The OSHRC should incorporate Fed. R. Civ. P. 56, Summary Judgment, into its rules. This 

would encourage the use of summary judgments in appropriate cases. Additionally, a robust 

summary judgment practice could lead to a reduction of cases on the OSHRC docket or at a 

minimum or reduce the number of issues that will need to be tried, which in turn would shorten 

the length of trials and eliminate the need for certain fact and expert witnesses. 

Settlement

The OSHRC should consider clarifying the length of time a settlement needs to be 

posted. Commission Rule 100(c), 29 CFR 2200.100(c) states that settlements must be posted in 

compliance with Rule 7(g), 29 CFR 2200.7(g). However, Rule 7(g) does not address the 

duration of time for posting. Rule 7(n), 29 CFR 2200.7(n), states that posting “shall be 

maintained until the commencement of the hearing or until earlier disposition,” which is 

ambiguous as applied to settlements. This causes confusion among the parties, especially 

employers who have the responsibility to post settlements.

OSH proposes that the penalty threshold for applicability of mandatory settlement proceedings

be increased to account for recent (and future) changes in the statutory maximum for OSHA 

penalties. The existing penalty threshold of $100,000 is outdated. Specifically, the current 

penalty threshold of $100,000 should be increased to $185,000 and, that every 3 years thereafter, 

the threshold be proportionately increased to maintain the same or similar ratio to the maximum 

penalty for willful or repeat violations (currently $126,749). Based on the Inflation Adjustment 

Act of 2015, the statutory maximums for OSHA penalties have increased since 2015 and will 

likely continue to increase incrementally each year. As a result, many more contested cases 

currently exceed the $100,000 threshold than prior to 2016. We believe it is not in the best 

interests of the government or the regulated community to automatically assign all cases in 

excess of $100,000 to mandatory settlement proceedings. The Commission should therefore 

consider updating the penalty threshold for mandatory settlement proceedings to maintain a 

consistent ratio between that threshold and the maximum penalty for a willful or repeat 

violations.

Simplified Proceedings

OSH recommends that Rule 206(b), 29 CFR 2200.206(b), addressing disclosures to the 

Secretary, should be amended to require employers to disclose affirmative defenses on a set 

schedule. Under Rule 206(a), 29 CFR 2200.206(a), the Secretary must make certain disclosures 
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to the employer, however, there is no reciprocal requirement for the employer. This rule change 

would prevent last minute filings that prejudice the Secretary’s preparation of the case and the 

need for time extensions or continuances. Furthermore, if the Secretary is provided with this 

information, it would allow the parties to have open and frank discussions about potential 

settlement early in the proceedings instead of the days or week before the hearing date.

OSH proposes amending Rule 207(a), 29 CFR 2200.207(a) addressing the pre-hearing 

conference. We recommend that the Rule be revised to require this conference be held at least 

30 days before the hearing. Frequently, there are simplified proceedings cases where an 

employer completely fails to communicate with the Secretary, and it is only during the prehearing conference that we learn the employer’s defenses for the first time. Situations also arise 

where pro-se litigants have abandoned their contest, yet we receive no notice until they fail to 

participate in the pre-hearing call. We believe this rule change would prevent the Secretary and 

the Administrative Law Judges from unnecessarily expending litigation resources.

Interlocutory Review

Under the Commission’s current rules governing interlocutory review, the Commission has a 

general policy of discouraging interlocutory appeals, granting them only where it determines that 

the appeal would involve “an important question of law or policy about which there is substantial 

ground for difference of opinion” or where the ruling below would result in a disclosure of 

privileged information. 29 C.F.R. 2200.73. This standard closely tracks the applicable federal 

rule governing appeal of interlocutory decisions. See 28 U.S.C. § 1292(b). OSH believes that 

the Commission’s current interlocutory rules appropriately require the parties to wait – unless 

exceptional circumstances apply - until all claims as to all parties are resolved before any appeal 

can be brought to challenge any of the decisions made by the ALJ during the pendency of the 

case. A contrary rule would likely be highly disruptive to the expeditious resolution of trial 

matters; limiting appeals to final judgments prevents piecemeal litigation and promotes judicial 

economy. Accordingly, we recommend that the Commission retain its current rule governing 

interlocutory review.