PART 2200 -- RULES OF PROCEDURE
Subpart A -- General Provisions
As used herein:
(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 his 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 by the Chairman of the Commission pursuant to section 12(j) of the Act, 29 U.S.C. §661(j), 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.
(h) Representative means any person, including an authorized employee representative, authorized by a party or intervenor to represent him 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 contestants' 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 gender and number.
(a) Number. Words importing the singular number may extend and be applied to the plural and vice versa.
(b) Gender. Words importing the masculine gender may be applied to the feminine gender.
§2200.4 Computation of time.
(a) Computation. In computing any period of time prescribed or allowed in these rules, the day from which the designated period begins to run shall not be included. The last day of the period so computed shall be included unless it is a Saturday, Sunday or Federal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday, or Federal holiday. When the period of time prescribed or allowed is less than 11 days, the period shall commence on the first day which is not a Saturday, Sunday, or Federal holiday, and intermediate Saturdays, Sundays, and Federal holidays shall likewise be excluded from the computation.
(b) Service by mail. Where service of a document, including documents issued by the Commission or Judge, is made by mail pursuant to §2200.7, a separate period of 3 days shall be allowed, in addition to the prescribed period, for the filing of a response. This additional 3-day period shall commence on the calendar day following the day on which service has been made and shall include all calendar days; that is, paragraph (a) of this section shall not apply to the extent it requires the exclusion of Saturdays, Sundays, or Federal holidays. The prescribed period for the responsive filing shall commence on the first day following the expiration of the 3-day period, except when the prescribed period is less than 11 days. Where the period is less than 11 days, it shall commence on the first day following the expiration of the 3-day period that is not a Saturday, Sunday, or Federal holiday.
(c) Exclusion. Paragraph (b) of this section does not apply to petitions for discretionary review. The period of time for filing a petition for discretionary review is governed by §2200.91(b).
§2200.5 Extension of time.
The Commission or 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 but, in exigent circumstances in a case pending before a Judge, an oral request may be made and thereafter shall be followed by a written motion filed with the Judge within 3 working days. 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.
Every pleading or document filed by any party or intervenor shall contain the name, current address and telephone number of his representative or, if he has no representative, his own name, current address and telephone number. 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 his right to notice and service under these rules.
§2200.7 Service and notice.
(a) When service is required. At the time of filing pleadings or other documents, a copy thereof shall be served by the filing party or intervenor on every other party or intervenor. Every paper 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 upon each of the 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.
(c) How accomplished. Unless otherwise ordered, service may be accomplished by postage pre-paid first class mail at the last known address, by electronic transmission, or by personal delivery. Service is deemed effected at the time of mailing (if by mail), at the time of receipt (if by electronic transmission), or at the time of personal delivery (if by personal delivery). Facsimile transmission of documents and documents sent by an overnight delivery service shall be considered personal delivery. Legibility of documents served by facsimile transmission is the responsibility of the serving party. Documents may be served by electronic transmission only when all parties consent in writing and the certificate of service of the electronic transmission states such consent and the method of transmission. All parties must be electronically served. Electronic service must be accomplished by following the requirements set forth on the Commission's Web site (https://www.oshrc.gov.).
(d) Proof of service. Proof of service shall be accomplished by a written statement of the same which sets forth the date and manner of service. Such statement 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 the manner prescribed in paragraph (c) of this section.
(g) Service on unrepresented employees. In the event that there are any affected employees who are not represented by an authorized employee representative, the employer shall, immediately upon receipt of notice of the docketing of the notice of contest or petition for modification of the abatement period, post, where the citation is required to be posted, a copy of the notice of contest and a notice informing such affected employees of their right to party status and of the availability of all pleadings for inspection and copying at reasonable times. 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 10 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.)
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 with the notice set forth in paragraph (g) of this section and with a copy of the notice of contest.
(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.
(j) Notice of hearing to represented 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 the authorized employee representative of affected employees in the manner prescribed in paragraph (c) of this section, if the employer has not been informed that the authorized employee representative has entered an appearance as of the date such notice is received by the employer.
(k) Employee contest; Service on other employees. Where a notice of contest is filed 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 employee shall, upon receipt of the statement filed in conformance with §2200.38, serve a copy thereof on such authorized employee representative in the manner prescribed in paragraph (c) of this section and shall file proof of such service.
(l) Employee contest; Service on employer. Where a notice of contest is filed by an affected employee or an authorized employee representative, a copy of the notice of contest and response filed in support thereof 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 shall be responsible for serving any other authorized employee representative whose members are affected employees.
(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.
(a) What to file. All papers required to be served on a party or intervenor, except for those papers associated with part of a discovery request under Rules 52 through 56, shall be filed either before service or within a reasonable time thereafter.
(b) Where to file. Prior to assignment of a case to a Judge, all papers shall be filed with the Executive Secretary at One Lafayette Centre, 1120 20th Street, NW., Suite 980, Washington, DC 20036–3457. Subsequent to the assignment of the case to a Judge, all papers shall be filed with the Judge at the address given in the notice informing of such assignment. Subsequent to the docketing of the Judge's report, all papers shall be filed with the Executive Secretary, except as provided in §2200.90(b)(3).
(c) How to file. Unless otherwise ordered, filings may be accomplished by postage-prepaid first class mail, personal delivery, or electronic transmission or facsimile transmission.
(d) Number of copies. Unless otherwise ordered or stated in this part, only the original of a document shall be filed.
(e) Filing date.
(1) Except for the documents listed in paragraph (e)(2) of this section, filing is effective upon mailing, if by mail, upon receipt by the Commission, if filing is by personal delivery, overnight delivery service, facsimile transmission or electronic transmission.
(2) Filing is effective upon receipt for petitions for interlocutory review (§2200.73), petitions for discretionary review (§2200.91), and EAJA applications (§2204.301).
(3) Counsel and the parties shall have sole responsibility for ensuring that the document is timely received by the Commission.
(f) Facsimile transmissions.
(1) Any document may be filed with the Commission or its Judges by facsimile transmission. Filing shall be deemed completed at the time that the facsimile transmission is received by the Commission or the Judge. The filed facsimile shall have the same force and effect as an original.
(2) All facsimile transmissions shall include a facsimile of the appropriate certificate of service.
(3) It is the responsibility of parties desiring to file documents by the use of facsimile transmission equipment to utilize equipment that is compatible with facsimile transmission equipment operated by the Commission. Legibility of the transmitted documents is the responsibility of the serving party.
(g) Electronic filing.
(1) Where all parties consent to electronic service and electronic filing, a document may be filed by electronic transmission with the Commission and its Judges. The certificate of service accompanying the document must state that the other parties consent to filing by electronic transmission. The electronic transmission shall be in the manner specified by the Commission's Web site (https://www.oshrc.gov).
(2) A document filed in conformance with these rules constitutes a written document for the purpose of applying these rules, and a copy printed by the Commission and placed in the case file shall have the same force and effect as the original.
(3) A certificate of service shall accompany each document electronically filed. The certificate shall set forth the dates and manner of filing and service. It is the responsibility of the transmitting party to retain records showing the date of transmission, including receipts.
(4) A party that files a document by an electronic transmission shall utilize equipment and software that is compatible with equipment operated by the Commission and shall be responsible for the legibility of the document.
(5) Information that is sensitive but not privileged shall be filed as follows:
(i) If Social Security numbers must be included in a document, only the last four digits of that number shall be used;
(ii) If names of minor children must be mentioned, only the initials of that child shall be used;
(iii) If dates of birth must be included, only the year shall be used;
(iv) If financial account numbers must be filed, only the last four digits of these numbers shall be used;
(v) If a personal identifying number, such as a driver's license number must be filed, only the last four digits shall be used. 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 certain materials unnecessary to a disposition of the case.
(6) A transmittal letter shall not be filed electronically or by other means when a document is transmitted noting:
(i) The transmittal of a document;
(ii) The inclusion of an attachment;
(iii) A request for a return receipt; or
(iv) A request for additional information concerning the filing.
(7) The signature line of any document shall include the notation “/s/” followed by the typewritten name or graphical duplicate of the handwritten signature of the party representative filing the document. Such representation of the signature shall be deemed to be the original signature of the representative for all purposes unless the party representative shows that such representation of the signature was unauthorized.
(8) Privileged information shall not be filed electronically. Privileged information or information that is asserted by any party to be privileged shall not be filed electronically.
Cases may be consolidated on the motion of any party, 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.
Upon its own motion, or upon motion of any party or intervenor, 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.
§2200.12 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, a citation to either the Bureau of National Affairs' Occupational Safety & Health Cases ("BNA OSHC") or Commerce Clearing House's Occupational Safety and Health Decisions ("CCH OSHD"), the OSHRC docket number and the year of the decision. For example, Clement Food Co., 11 BNA OSHC 2120 (No. 80-607, 1984).
(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 to that effect should 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).
(3) Additional reference to OSAHRC Reports optional. A parallel reference to the Commission's official reporter, OSAHRC Reports, which prints the full text of all Commission and Judges' decisions in microfiche form, may also be included. For example, Texaco, Inc., 80 OSAHRC 74/B1, 8 BNA OSHC 1758 (No. 77-3040, 1980). See generally 29 C.F.R. §2201.4(c) (on OSAHRC Reports).
(b) References to court decisions.
(1) Parallel references to BNA and CCH reporters. When citing a court decision, a parallel reference to either the Bureau of National Affairs' Occupational Safety & Health Cases ("BNA OSHC") or Commerce Clearing House's Occupational Safety and Health Decisions ("CCH OSHD") is desirable. For example, Simplex Time Recorder Co. v. Secretary of Labor, 766 F.2d 575, 12 BNA OSHC 1401 (D.C. Cir. 1985); Deering Milliken, Inc. v. OSHRC, 630 F.2d 1094, 1980 CCH OSHD ¶24,991 (5th Cir. 1980).
(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, 12 BNA OSHC 1310 (7th Cir. 1985); Donovan v. OSHRC (Mobil Oil Corp.), 713 F.2d 918, 1983 CCH OSHD ¶26,627 (2nd Cir. 1983).
Last Updated: January 19, 2010