Home Page


Immigration Daily

Archives

Processing times

Immigration forms

Discussion board

Resources

Blogs

Twitter feed

Immigrant Nation

Attorney2Attorney

CLE Workshops

Immigration books

Advertise on ILW

VIP Network

EB-5

移民日报

About ILW.COM

Connect to us

Make us Homepage

Questions/Comments


SUBSCRIBE





The leading
immigration law
publisher - over
50000 pages of
free information!
Copyright
1995-
ILW.COM,
American
Immigration LLC.

  • News: DOL Final Rule on Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges

    Federal Register, Volume 80 Issue 96 (Tuesday, May 19, 2015)
    [Federal Register Volume 80, Number 96 (Tuesday, May 19, 2015)]
    [Rules and Regulations]
    [Pages 28767-28802]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 2015-11586]
    
    
    
    [[Page 28767]]
    
    Vol. 80
    
    Tuesday,
    
    No. 96
    
    May 19, 2015
    
    Part II
    
    
    
    
    
    Department of Labor
    
    
    
    
    
    -----------------------------------------------------------------------
    
    
    
    
    
    Office of the Secretary
    
    
    
    
    
    -----------------------------------------------------------------------
    
    
    
    
    
    29 CFR Part 18
    
    
    
    
    
    Rules of Practice and Procedure for Administrative Hearings Before the 
    Office of Administrative Law Judges; Final Rule
    
    Federal Register / Vol. 80 , No. 96 / Tuesday, May 19, 2015 / Rules 
    and Regulations
    
    [[Page 28768]]
    
    
    -----------------------------------------------------------------------
    
    DEPARTMENT OF LABOR
    
    Office of the Secretary
    
    29 CFR Part 18
    
    RIN 1290-AA26
    
    
    Rules of Practice and Procedure for Administrative Hearings 
    Before the Office of Administrative Law Judges
    
    AGENCY: Office of the Secretary, Labor.
    
    ACTION: Final rule.
    
    -----------------------------------------------------------------------
    
    SUMMARY: This is the final text of regulations governing practice and 
    procedure for proceedings before the United States Department of Labor, 
    Office of Administrative Law Judges (OALJ). The regulations were first 
    published as a final rule in 1983 and were modeled on the Federal Rules 
    of Civil Procedure (FRCP). A Notice of Proposed Rulemaking was 
    published in the Federal Register on December 4, 2012 requesting public 
    comment on proposed revisions to and reorganization of these 
    regulations. The revisions make the regulations more accessible and 
    useful to parties. The revisions also harmonize administrative hearing 
    procedures with the current FRCP and with the types of claims now heard 
    by OALJ, which increasingly involve whistleblower and other workplace 
    retaliation claims, in addition to a longstanding caseload of 
    occupational disease and injury claims. The Department received sixteen 
    comments to the proposed rule. This rule responds to those comments and 
    establishes the final text of the revised regulations.
    
    DATES: 
        Effective Date: This rule is effective June 18, 2015.
        Compliance Date: This rule is effective June 18, 2015.
    
    FOR FURTHER INFORMATION CONTACT: Todd Smyth at the U.S. Department of 
    Labor, Office of Administrative Law Judges, 800 K Street NW., Suite 
    400-North, Washington, DC 20001-8002; telephone (202) 693-7300.
    
    SUPPLEMENTARY INFORMATION:
    
    I. Background
    
        On December 4, 2012, the Department published a Notice of Proposed 
    Rulemaking (NPRM) with a request for comments amending 29 CFR part 18, 
    subpart A. Rules of Practice and Procedure for Hearings Before the 
    Office of Administrative Law Judge, 77 FR 72142 (Dec. 4, 2012). The 
    Department proposed to amend comprehensively its procedural rules to 
    reflect the changes to civil litigation since the OALJ promulgated its 
    rules in 1983. Moreover, the need to update the OALJ's procedural rules 
    was evident as the OALJ's authority to hear whistleblower cases 
    increased. The new procedural rules are analogous to the FRCP used in 
    the United States district courts and are intended to provide more 
    guidance and clarity to parties practicing before the OALJ.
        The Department provided an opportunity for the public to comment 
    even though the changes are to rules of agency organization, procedure 
    and practice, which are exempt from the notice and public comment 
    requirements of the Administrative Procedure Act (APA). See 5 U.S.C. 
    553(b)(3)(A). The comment period ended on February 4, 2013. The 
    Department reviewed and responded to each pertinent comment submitted. 
    See infra Part 3. Accordingly, the NPRM amending 29 CFR part 18, 
    subpart A, that was published on December 4, 2012, is being adopted as 
    a final rule with the changes made below.
        The Department has found that a handful of departmental specific 
    program regulations reference these rules, and that these references 
    may now be inaccurate due to shifts in numbering. The Department plans 
    to correct these references in the near future through technical 
    corrections, which will be published in the Federal Register.
    
    II. Summary of General Comments on the Notice of Proposed Rulemaking
    
        The Department received several general comments regarding the 
    proposed changes to the OALJ rules of practice and procedure. Each 
    comment is addressed as follows:
        Compliance with the APA. The Department stated in the NPRM that 
    while the proposed changes consist of amendments to rules of agency 
    organization, procedure and practice that are exempt from the notice 
    and public comment requirements of the APA, the Department wished to 
    provide the public with an opportunity to comment on any aspect of the 
    proposed rule. Accordingly, the proposed changes were published in the 
    Federal Register, and public comment was invited. Two commenters 
    challenged the Department's reference to the APA's procedural rules 
    exception and claimed that the Department thus misinformed the public 
    and chilled the pool of public comment on the proposed rule changes. 
    These commenters asserted that the public harm resulting from this 
    alleged error could only be remedied by withdrawing the proposed rules 
    and reissuing them in conformity with the full notice and comment 
    protections of the APA. One commenter argued that because the rules 
    contain provisions for sanctions, they ``substantially alter the rights 
    and interests of parties'' which triggers the APA's requirements for 
    public notice and comment. This comment principally relied on the 
    vacated decision of the Court of Appeals for the District of Columbia 
    in Air Transp. ***'n of Am. v. Dep't of Transp., 900 F.2d 369 (1990), 
    cert. granted, 498 U.S. 1023 (1991), vacated, 933 F.2d 1043 (1991). The 
    other commenter stated that the OALJ rules of practice and procedure 
    constitute agency rules with the ``force and effect of law'' that must 
    be published for public comment in accordance with the Supreme Court's 
    decisions in United States v. Mead Corp., 533 U.S. 218 (2001), and 
    Christensen v. Harris Cnty., 529 U.S. 576 (2000).
        The Department disagrees with these claims. In decisions issued 
    subsequent to its vacated ruling in Air Transp. ***'n of Am., the D.C. 
    Circuit has stressed that the `` `critical feature' '' of a rule that 
    satisfies the so-called ``procedural exception `is that it covers 
    agency actions that do not themselves alter the rights or interests of 
    parties, although it may alter the manner in which the parties present 
    themselves or their viewpoints to the agency.' '' James V. Hurson 
    Assoc., Inc. v. Glickman, 229 F.3d 277, 280 (2000) (quoting JEM Broad 
    Co. v. FCC, 22 F.3d 320, 326 (D.C. Cir. 1994)). The Court further held 
    in Hurson that ``an otherwise procedural rule does not become a 
    substantive one, for notice and comment purposes, simply because it 
    imposes a burden on regulated parties.'' Id. at 281. As nothing in the 
    new rules alters the ``substantive criteria'' by which claims and 
    complaints are adjudicated in the hearing before the OALJ, they are 
    within the procedural rules exemption. See id. at 280-81; JEM Broad 
    Co., 22 F.3d at 237; Nat'l Whistleblower Ctr. v. Nuclear Regulatory 
    Comm'n, 208 F.3d 256, 262 (D.C. Cir. 2000), cert. denied, 531 U.S. 1070 
    (2001). The Supreme Court's decisions in Mead Corp. and Christensen 
    cited by the other commenter respectively address whether a U.S. 
    Customs Service classification ruling and Department of Labor opinion 
    letter, neither of which were issued after APA notice and comment 
    rulemaking, are entitled to deference under Chevron, U.S.A., Inc. v. 
    Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). These decisions 
    do not address the scope of the APA's procedural rules exception.
        The Department moreover voluntarily published the rule changes in
    
    [[Page 28769]]
    
    accordance with the notice and comment requirements of the APA 
    consistent with the procedure recommended by the Administrative 
    Conference of the United States to avoid controversy over the scope of 
    the APA's notice and comment exceptions. See The Procedural and 
    Practice Rule Exemption from the APA Notice-and-Comment Rulemaking 
    Requirements, 1 CFR 305.92-1 (1995) (ACUS Recommendation 92-1, 
    available at www.acus.gov/sites/default/files/documents/92-1/pdf). The 
    commenters provided no evidence to support their claim that the 
    Department's voluntary compliance with the APA's notice and comment 
    requirements in accordance with the ACUS recommendation in any manner 
    chilled or otherwise influenced public comment. They also cited no 
    legal authority for their position that the Department's mere reference 
    to the procedural rules exception vitiated the NPRM. The Department's 
    receipt of multiple comments indicates that the public was neither 
    ``chilled'' nor deterred from submitting items for consideration. Thus, 
    there is no basis for withdrawing and reissuing the rules changes.
        Conflicts with the LHWCA and BLBA. Two commenters argued that 
    several provisions in the new rules providing for imposition of 
    sanctions conflict with provisions of the Longshore and Harbor Workers' 
    Compensation Act (LHWCA), 33 U.S.C. 901-950, which are also applicable 
    to claims adjudicated under the Black Lung Benefits Act (BLBA), 30 
    U.S.C. 901-945, and therefore those provisions should either be deleted 
    or rewritten to specifically state that they are not applicable to 
    proceedings under the LHWCA and BLBA. The commenters identified 
    sections 926, 927(b) and 931 of the LHWCA, 33 U.S.C. 926, 927(b), 931, 
    as conflicting with the new rules containing sanction provisions. One 
    commenter also suggested that some of the new rules may contravene 
    section 923(a) of the LHWCA, 33 U.S.C. 923(a). The Department believes 
    however that any conflicts between the rules and the LHWCA and, for 
    that matter, any other statute governing administrative hearing 
    proceedings before the OALJ, are already addressed appropriately in the 
    rules and do not warrant either wholesale rescission or rewriting. The 
    Department also believes that the commenters overstated the alleged 
    conflicts between the new rules and the LHWCA.
        Section 923(a) of the LHWCA provides that officials conducting 
    hearings ``shall not be bound by common law or statutory rules of 
    evidence or by technical or formal rules of procedure, except as 
    provided by this chapter; but may make such investigation or inquiry or 
    conduct such hearing in such manner as to best ascertain the rights of 
    the parties.'' 33 U.S.C. 923(a). See also 20 CFR 702.339, 725.455(b). 
    The Benefits Review Board (BRB) and courts of appeals have nevertheless 
    applied provisions of the OALJ Rules of Practice and Procedure, 
    particularly in regard to discovery issues, in proceedings governed by 
    section 923(a) of the LHWCA in the absence of any conflict with a 
    particular LHWCA or BLBA rule. See, e.g., Johnson v. Royal Coal Co., 
    326 F.3d 421, 426 (4th Cir. 2003); Keener v. Peerless Eagle Coal Co., 
    23 Black Lung Rep. (Juris) 1-229, 1-243 (Ben. Rev. Bd. 2007) (en banc); 
    Cline v. Westmoreland Coal Co., 21 Black Lung Rep. (Juris) 1-69, 1-76 
    (Ben. Rev. Bd. 1997); see also Prince v. Island Creek Coal Co., BRB No. 
    01-0448 BLA, 2002 WL 34707263 (Ben. Rev. Bd. Jan. 24, 2002) (reading 29 
    CFR 18.14 and 20 CFR 725.455 as complementary rules providing the ALJ 
    with broad discretion to direct discovery), aff'd, 76 Fed.Appx. 67, 
    2003 WL 22176988 (6th Cir. Sept. 19, 2003). It would be inappropriate 
    and contrary to well-established precedent to add a textual exception 
    to all of the proposed disclosure and discovery rules for LHWCA and 
    BLBA cases. Moreover, Sec.  18.10(a) provides that ``[t]o the extent 
    that these rules may be inconsistent with a governing statute, 
    regulation, or executive order, the latter controls.'' 29 CFR 18.10(a).
        Section 926 of the LHWCA provides that ``[i]f the court having 
    jurisdiction of proceedings in respect of any claim or compensation 
    order determines that the proceedings in respect of such claim or order 
    have been instituted or continued without reasonable ground, the costs 
    of such proceedings shall be assessed against the party who has so 
    instituted or continued such proceedings.'' 33 U.S.C. 926. Congress 
    intended claimants to be subject to costs ``if they brought their 
    unreasonable claims into court'' when it enacted section 926. Metro. 
    Stevedore Co. v. Brickner, 11 F.3d 887, 890 (9th Cir. 1993). The 
    Department recognizes that federal courts have the exclusive power to 
    impose section 926 sanctions when a party brings a frivolous claim 
    under the LHWCA. Id. at 890-91; see also Boland Marine & Mfg. Co. v. 
    Rihner, 41 F.3d 997, 1004 (5th Cir. 1995). However, to the extent that 
    any of the new rules conflict with section 926, the latter controls. 
    See 29 CFR 18.10(a). There is therefore no conflict between section 926 
    and any of the new rules.
        Section 927(b) in relevant part provides that if any person in a 
    LHWCA proceeding ``disobeys or resists any lawful order or process, or 
    misbehaves during a hearing or so near the place thereof as to obstruct 
    the same, or neglects to produce, after having been ordered to do so, 
    any pertinent book, paper, or document, or refuses to appear after 
    having been subpoenaed, or upon appearing refuses to take the oath as a 
    witness, or after having taken the oath refuses to be examined 
    according to law,'' the adjudicatory official ``shall certify the facts 
    to the district court having jurisdiction in the place in which he is 
    sitting (or to the United States District Court for the District of 
    Columbia'' for summary contempt proceedings). 33 U.S.C. 927(b). The 
    Department agrees with the commenters that section 927(b) provides the 
    district courts with the exclusive power to punish contumacious conduct 
    consisting of a refusal to comply with a judge's order, lawful process 
    or subpoena, or hearing room misbehavior in proceedings under the 
    LHWCA. See Goicochea v. Wards Cove Packing Co., 37 Ben. Rev. Bd. Serv. 
    (MB) 4, 6 (2003) (vacating dismissal of claim as sanction for 
    claimant's refusal to comply with a judge's discovery order). To the 
    extent that any of the new rules conflict with section 927(b), the 
    latter controls. See 29 CFR 18.10(a). However, there are several 
    situations addressed by the new rules involving conduct that likely 
    would fall outside the categories of contumacy requiring certification 
    to a district court for a section 927(b) summary contempt proceeding. 
    See A-Z Intn'l v. Phillips, 323 F.3d 1141, 1146-47 (9th Cir. 2003) 
    (holding that the district court lacked section 927(b) jurisdiction 
    over conduct that did not involve a refusal ``to comply with a summons, 
    writ, warrant, or mandate issued by the ALJ''). See, e.g., 29 CFR 
    18.35(c) (sanctions for violations of Sec.  18.35(b) relating to the 
    representations made when presenting a motion or other paper to the 
    judge), 18.50(d)(3) (sanctions for violations of Sec.  18.50(d)(1) 
    pertaining to certifications made when signing disclosures and 
    discovery requests, responses and objections), 18.56(d)(1) (sanctions 
    for violations of the duty under Sec.  18.56(c)(1) to protect a person 
    subject to a subpoena from undue burden), 18.57(c) (sanctions for 
    failures to disclose information, supplement an earlier response or to 
    admit as required by Sec. Sec.  18.50(c), 18.53 and 18.63(a)), 18.57(d) 
    (sanctions for a party's failure to attend its own deposition, serve
    
    [[Page 28770]]
    
    answers to interrogatories, or respond to a request for inspection), 
    18.64(d)(2) (sanctions for impeding, delaying or frustrating a 
    deposition), 18.64(g) (sanctions for failing to attend or proceed with 
    a deposition or serve a subpoena on a non-party deponent when another 
    party, expecting the deposition to be taken, attends), 18.72(h) 
    (sanctions for submitting in bad faith an affidavit or declaration in 
    support of or in opposition to a motion for summary decision). To the 
    extent these provisions address violations of the procedural rules 
    falling outside the scope of section 927(b), there is no conflict with 
    the statute.
        The Department also rejects the commenters' argument that section 
    927(b) provides the exclusive remedy for any misconduct or rules 
    violation occurring in LHWCA and BLBA proceedings. Section 927(b), 44 
    Stat. 1438 (Mar. 4, 1927) (codified as amended at 33 U.S.C. 927), was 
    originally enacted in 1927, decades before the passage of the APA which 
    also governs adjudications under the LHWCA and the BLBA. 33 U.S.C. 
    919(d); 30 U.S.C. 932(a); Dir., OWCP, Dep't of Labor v. Greenwich 
    Collieries, 512 U.S. 267, 280-81 (1994); see also Lane v. Hollow Coal 
    Co. v. Dir., OWCP, Dep't of Labor, 137 F.3d 799, 802-03 (4th Cir. 1998) 
    (requiring ALJ's decision to contain findings and conclusions, in 
    accordance with 5 U.S.C. 557(c)(3)(A)); Cole v. East Kentucky 
    Collieries, 20 Black Lung Rep. (Juris) 1-50, 1-54 (Ben. Rev. Bd. 1996) 
    (discussing statutory mechanism whereby APA applies to BLBA claims); 
    Toyer v. Bethlehem Steel Corp., 28 Ben. Rev. Bd. Serv. (MB) 347, 351 
    (1994) (emphasizing APA applicability in all LHWCA adjudications). 
    Notably, the APA's grant of authority to ``regulate the course of the 
    hearing,'' 5 U.S.C. 556(c)(5), provides a judge with an independent 
    basis to take such actions as are necessary to ensure parties a fair 
    and impartial adjudication. Such authority includes the power to compel 
    discovery and impose sanctions for non-compliance pursuant to the OALJ 
    rules of practice and procedure. See Williams v. Consolidation Coal 
    Co., BRB No. 04-0756 BLA, 2005 WL 6748152, at *8 (Ben. Rev. Bd. Aug. 8, 
    2005), appeal denied, 453 F.3d 609 (4th Cir. 2006), cert. denied, 549 
    U.S. 1278 (2007). The bifurcation of general adjudicatory authority and 
    contempt powers between administrative law judges and the district 
    courts under the LHWCA is analogous to adjudication in the federal 
    courts after passage of the Federal Magistrates Act, 28 U.S.C. 604, 
    631-39, under which magistrate judges have general authority to order 
    non-dispositive discovery sanctions while contempt charges must be 
    referred to a district court judge. See Grimes v. City and County of 
    San Francisco, 951 F. 2d 236, 240-41 (9th Cir. 1991) (discussing the 
    scope and limits of magistrate judges' sanction authority); see also 
    Dodd v. Crown Cent. Petroleum Corp., 36 Ben. Rev. Bd. Serv. (MB) 85, 89 
    n.6 (2002) (affirming, as not inconsistent with section 927(b), judge's 
    imposition of sanctions pursuant to 29 CFR 18.6(d)(2) for claimant's 
    noncompliance with a discovery order). The Department therefore 
    believes that the commenters' proposal to exempt LHWCA and BLBA 
    proceedings from the judge's authority under the APA to regulate the 
    course of the hearing is neither warranted by the statute nor 
    consistent with the efficient and impartial conduct of administrative 
    hearings.
        Section 931(a)(1) of the LHWCA provides that ``[a]ny claimant or 
    representative of a claimant who knowingly and willfully makes a false 
    statement or representation for the purpose of obtaining a benefit or 
    payment under this chapter shall be guilty of a felony, and on 
    conviction thereof shall be punished by a fine not to exceed $10,000, 
    by imprisonment not to exceed five years, or by both.'' 33 U.S.C. 
    931(a)(1). Section 931(c) similarly provides that ``[a] person 
    including, but not limited to, an employer, his duly authorized agent, 
    or an employee of an insurance carrier who knowingly and willfully 
    makes a false statement or representation for the purpose of reducing, 
    denying, or terminating benefits to an injured employee, or his 
    dependents pursuant to section 909 of this title if the injury results 
    in death, shall be punished by a fine not to exceed $10,000, by 
    imprisonment not to exceed five years, or by both.'' 33 U.S.C. 931(c). 
    As there is no provision in the new rules that authorizes a judge to 
    impose a fine or other penalty for a knowing and willfully false 
    statement or representation for the purpose of obtaining or opposing a 
    benefit under the LHWCA, there is no conflict between section 931 and 
    any of the new rules.
        Authority to Regulate the Conduct of Administrative Proceedings; 
    Sanctions. The Department announced in the NPRM that it intended to 
    bring the OALJ rules of practice and procedure into closer alignment 
    with the FRCP. Doing so takes advantage of the mature precedent the 
    federal courts have developed and the broad experience they have in 
    applying the FRCP. Choosing which portions to adopt and which to omit 
    allows for flexible case management, given the less formal nature of 
    administrative proceedings, which never involve juries. These changes 
    offer greater clarity and uniformity so parties can focus on the merits 
    of their disputes with less distraction from litigating points of 
    procedure. To attain these objectives, the new rules contain a number 
    of provisions, similar to their FRCP counterparts, which authorize 
    judges to take actions necessary to regulate and ensure the integrity 
    of the hearing process. See 29 CFR 18.12(b)(10), 18.35(c), 18.50(d)(3), 
    18.56(c)(1), 18.57(a)(2)(A), 18.57(b), 18.57(c), 18.57(d)(1), 
    18.57(d)(3), 18.57(e), 18.57(f), 18.64(d)(2), 18.64(g), 18.72(h), 
    18.87. Two commenters asserted that these litigation sanction 
    provisions exceed a judge's authority under the APA, and attempt to 
    arrogate contempt power and claim ``inherent judicial authority'' that 
    is vested exclusively in the Article III courts. The Department 
    believes these assertions misunderstand the challenged rules and their 
    intent.
        The prior rules authorized judges to sanction a broad range of 
    inappropriate conduct during the course of an administrative 
    proceeding. A judge could overrule an objection to a discovery request 
    (such as request for admission or an interrogatory) and compel a 
    response. 29 CFR 18.6(d)(1). If that objecting party thereafter failed 
    to answer or answered evasively, the judge could order that a matter be 
    treated as admitted. Id. If a party failed to comply with a subpoena, 
    discovery order or any other order, the judge could take other just 
    actions, including (i) drawing adverse inferences; (ii) ruling that the 
    matter concerning which the subpoena or order was issued be taken as 
    established adversely to a non-complying party; (iii) excluding 
    evidence a non-complying party offered; (iv) ruling that a non-
    complying party could not object to the use of secondary evidence to 
    establish what evidence it withheld should have shown; or (v) ruling 
    that all or part of a pleading be stricken, or that a decision be 
    rendered against the non-complying party. 29 CFR 18.6(d)(2). The prior 
    rules also recognized that judges have ``all powers necessary to the 
    conduct of fair and impartial hearings including, but not limited to . 
    . . [w]here applicable, take any appropriate action authorized by the 
    Rules of Civil Procedure for the United States District Courts, issued 
    from time to time and amended pursuant to 28 U.S.C. 2072. . . .'' 29 
    CFR 18.29(a)(8). The new rules preserve
    
    [[Page 28771]]
    
    this longstanding authority to impose appropriate litigation sanctions, 
    see 29 CFR 18.12(b)(10), 18.57(b), and additional provisions for 
    sanctions were made as discussed above in Sec. Sec.  18.35(c), 
    18.50(d)(3), 18.56(c)(1), 18.57(c), 18.57(d), 18.64(d)(2), 18.64(g), 
    18.72(h). The new rules provide greater clarity and direction on the 
    scope and limitations on a judge's authority to sanction a party's 
    unjustified failure to carry out duties that the procedural rules 
    establish.
        The Department's appellate boards and judges have no Article III 
    status or powers. See, e.g., Temp. Emp't Serv. v. Trinity Marine Group, 
    Inc., 261 F.3d 456, 460-61 (5th Cir. 2001); Schmit v. ITT Fed. Elec. 
    Int'l, 986 F.2d 1103, 1109-10 (7th Cir. 1993); Gibas v. Saginaw Mining 
    Co., 748 F.2d 1112, 1117 (6th Cir. 1984). The APA vests no contempt 
    powers in ALJs. The Department acknowledges that FRCP 11 itself does 
    not vest ALJs with authority to impose the sanctions embodied in that 
    rule because it is a rule of the Article III trial courts. Nor was it 
    clear whether FRCP 11 had been generally incorporated into the prior 
    rules by 29 CFR 18.1(a). Metro. Stevedore Co. v. Brickner, 11 F.3d 887, 
    891 (9th Cir. 1993) (expressing in dicta doubts about incorporation). 
    FRCP 11 was unavailable for incorporation in Longshore claims, however. 
    Boland Marine & Mfg. Co. v. Rihner, 41 F.3d 997 (5th Cir. 1995) 
    (Section 26 of the Longshore Act confines an award of costs when 
    proceedings are ``instituted or continued without reasonable grounds'' 
    to proceedings that have made their way into the Article III courts. 
    Therefore, neither FRCP 11 nor section 26(f) may be incorporated into 
    Longshore Act proceedings at the Department through the text of 29 CFR 
    18.1(a) on the theory that the ``situation [is] not provided for or 
    controlled by statute.''); Metro. Stevedore Co., 11 F.3d at 891 
    (finding that under section 26 of the Longshore Act only courts can 
    assess costs against a claimant who institutes or continues a 
    proceeding in the courts without reasonable grounds); R.S. [Simons] v. 
    Va. Int'l Terminals, 42 Ben. Rev. Bd. Serv. (MB) 11, 14 (2008) 
    (rejecting an argument that an ALJ could assess attorney's fees against 
    an employer that were unavailable under section 28 of the Longshore Act 
    by using FRCP 11 instead); Valdez v. Crosby & Overton, 34 Ben. Rev. Bd. 
    Serv. (MB) 69, 77 (2000) (applying the holdings in Boland Marine & Mfg. 
    Co. and Metro. Stevedore Co.); Crum v. Wolf Creek Collieries, 18 Black 
    Lung Rep. (Juris) 1-80, 1-83 (Ben. Rev. Bd. 1994). Though the new rules 
    use the term ``sanction'' to describe remedies that can be applied when 
    a party fails to fulfill its duties, these remedies do not extend to 
    the full panoply of powers available to Article III judges under their 
    inherent powers or under FRCP 11, which encompass the authority to 
    require an errant lawyer to participate in seminars or education 
    programs, or order a fine payable to the court. See Fed. R. Civ. P. 11 
    advisory committee's note (discussion of 1993 amendments).
        Nonetheless, the APA empowers ALJs, ``[s]ubject to published rules 
    of the agency and within its powers . . . to regulate the course of a 
    hearing.'' 5 U.S.C. 556(a)(3), (c)(5). That authority is statutorily 
    explicit. The appellate courts moreover have upheld orders that impose 
    litigation sanctions on parties who violate an administrative agency's 
    procedural rules. See Roadway Exp., Inc. v. U.S. Dept. of Labor, 495 
    F.3d 477, 484 (7th Cir. 2007) (``[A]gency's rules unambiguously permit 
    the ALJ to impose, as a discovery sanction, an order excluding evidence 
    that a non-complying party wishes to introduce in support of its 
    claim.''); In re Bogese, 303 F.3d 1362, 1367-68 (Fed. Cir. 2002) 
    (Patent and Trademark Office, like other administrative agencies, may 
    impose reasonable deadlines and requirements on parties appearing 
    before it and has broad authority to sanction undue delay by holding a 
    patent unenforceable); Atlantic Richfield Co. v. U.S. Dep't of Energy, 
    769 F.2d 771, 793 (D.C. Cir. 1984) (rejecting argument that 
    administrative agency ``cannot impose evidentiary sanctions--of course, 
    short of a fine or imprisonment--when necessary to preserve the 
    integrity of an authorized adjudicative proceeding''). As the court of 
    appeals in Atlantic Richfield Co. stated,
    
        It seems to us incongruous to grant an agency authority to 
    adjudicate--which involves vitally the power to find the material 
    facts--and yet deny authority to assure the soundness of the fact 
    finding process. Without an adequate evidentiary sanction, a party 
    served with a discovery order in the course of an administrative 
    adjudicatory proceeding has no incentive to comply, and often times 
    has every incentive to refuse to comply.
    
    769 F.2d at 796. The adjudicatory duties of an ALJ are in many ways 
    ``functionally comparable'' to those of a federal district court judge. 
    Butz v. Economou, 438 U.S. 478, 513-14 (1978). It would be incongruous 
    to deprive an ALJ of any procedural tools that assure the integrity and 
    soundness of the adjudicative process. The tools include the authority 
    to impose litigation sanctions that do not conflict with the 
    substantive statute applicable to the proceeding for procedural 
    violations that frustrate efficient administrative adjudication. The 
    Department's ALJs used a broad range of sanctions for the nearly 30 
    years under the prior rules, including the dismissal of a claim or 
    defense, as well as lesser evidentiary sanctions. Curley v. Grand 
    Rapids Iron & Metal Co., ARB No. 00-013, ALJ No. 1999-STA-39 (ARB Feb. 
    9, 1999) (affirming ALJ's authority to dismiss employment protection 
    claim for abandonment, based on complainant's failure to participate in 
    prehearing conference or reply to order to show cause why the matter 
    should not be dismissed for failure to comply with a lawful order); see 
    also Dodd v. Crown Cent. Petroleum Corp., BRB No. 02-0821, slip op. at 
    9-10 (Ben. Rev. Bd. Aug. 7, 2003) (affirming the dismissal for 
    abandonment of a pro se litigant's claim under the authority of 29 CFR 
    18.29(a), which affords ALJs ``all necessary powers to conduct fair and 
    impartial hearings and to take any appropriate action authorized by the 
    Federal Rules of Civil Procedure,'' where claimant failed to attend the 
    final hearing, stated he would not participate, sustained objections to 
    discovery the claimant sought, and denied the claimant's motion to 
    recuse the ALJ); Matthews v. LaBarge, Inc., ARB No. 08-038, ALJ No. 
    2007-SOX-56 (ARB Nov. 26, 2008) (adopting ALJ's decision to dismiss 
    under 29 CFR 18.6(d)(2) because ALJ found that pro se complainant 
    failed to comply with discovery orders repeatedly, willfully, 
    intentionally, and in bad faith); Administrator v. Global Horizons 
    Manpower, Inc., ARB No. 09-016, ALJ No. 2008-TAE-3 (ARB Dec. 21, 2010) 
    (affirming ALJ's order granting, as a discovery sanction under 29 CFR 
    18.6(d)(2)(v) and 18.29(a)(8), all the back pay and civil penalties the 
    Administrator of the Wage and Hour Division had sought against employer 
    for ``willful, contumacious disregard of the discovery process as well 
    as disregard of the ALJ's multiple warnings and orders''); 
    Administrator v. Global Horizons, Inc., ARB No. 11-058, ALJ No. 2005-
    TAE-1 & 2005-TLC-6, 2013 WL 2450031, at *4-8 (DOL Admin. Rev. Bd. May 
    31, 2013) (affirming an ALJ's summary judgment awarding worker's back 
    pay, repayment of impermissible deductions from pay, and awarding the 
    Administrator civil penalties, which were based in large part on 145 
    factual allegations deemed admitted as the result of three orders that 
    imposed sanctions for misconduct in discovery). But see Goichochea v. 
    Wards Cove
    
    [[Page 28772]]
    
    Packing Co., 37 Ben. Rev. Bd. Serv. (MB) 4, 7 (2003) (holding that in a 
    claim for Longshore disability compensation benefits, the remedy for 
    disobeying an order compelling discovery is the procedure described in 
    section 27(b) of the Longshore Act).
        The Department kept in mind the limits on the authority of an 
    administrative agency to impose sanctions when it fashioned the 
    litigation sanction provisions. Section 558(b) of the APA, cited by 
    some commenters, states that ``[a] sanction may not be imposed or a 
    substantive rule or order issued except within the jurisdiction 
    delegated to the agency and authorized by law.'' 5 U.S.C. 558(b); see 
    also Am. Bus. ***'n v. Slater, 231 F.3d 1, 7 (D.C. Cir. 2000) (holding 
    that the Department of Transportation lacked statutory authority to 
    require a bus company to pay monetary damages to disabled passengers 
    they failed to accommodate); Windhauser v. Trane, ARB No. 05-127, OALJ 
    No. 2005-SOX-17, 2007 WL 7139497, at *2-3 (DOL Admin. Rev. Bd. Oct 31, 
    2007) (reversing ALJs imposition of monetary sanctions against 
    whistleblower complainant because such sanctions ``are, by statute, in 
    the jurisdiction of the federal district courts''). The Slater court 
    distinguished between sanctions that require express statutory 
    authority under section 558(d) of the APA because they are directed at 
    modifying ``primary conduct,'' such as a bus company's failure to 
    accommodate disabled passengers, and litigation sanctions designed to 
    protect the integrity of the agency's administrative processes. Id. The 
    Slater court recognized an agency has ``a limited power to impose 
    sanctions that are not expressly authorized by statute, but only ones 
    designed to `protect the integrity of its own processes.' '' Id. 
    (quoting Touche Ross & Co. v. SEC, 609 F.2d 570, 582 (2d Cir. 1979)); 
    see also Davy v. SEC, 792 F.2d 1418, 1421 (9th Cir. 1986). The 
    provisions for the limited sanctions in the new rules are not directed 
    to any party's primary conduct--which would be the subject matter of 
    the proceeding--but to violations of procedural rules that compromise 
    the integrity of the administrative hearing process. These litigation 
    sanctions are consistent with the Department's regulatory authority 
    under section 556(c)(5) of the APA, do not require additional express 
    statutory authorization under section 558(b) of the APA, and do not 
    amount to an exercise of Article III courts' contempt or sanction 
    powers.
        Remedial Purpose of Whistleblower Adjudications. The Department 
    received a comment regarding whistleblower adjudications generally, 
    which suggested that the procedural rules should reflect the remedial 
    purpose of the whistleblower statutes under the OALJ's jurisdiction. 
    The Department notes that the new rules are procedural rules intended 
    to apply to all proceedings before OALJ and not any specific class of 
    proceeding. To the extent a particular agency seeks the application of 
    specific procedural rules, it is incumbent on that agency to 
    incorporate such rules into its own regulations. For instance, 
    proceedings under the Employee Retirement Income Security Act of 1974 
    (ERISA), 29 U.S.C. 1132, define specific procedures at 29 CFR 2570, 
    subpart C.
        The Department received a similar comment suggesting that the OALJ 
    ``should strive for better whistleblower protection than U.S. District 
    Courts'' because the OALJ has garnered specialized knowledge and the 
    process is less formal in an agency adjudication. The comment however 
    did not offer any concrete proposal for changes to the text of the new 
    rules. Any program-specific change moreover should be addressed to the 
    particular agency charged with administering the particular program.
        Effect on Pro Se Litigants. One commenter asserted that the new 
    rules will make litigation of whistleblower claims harder on pro se 
    parties. The commenter noted that, although the OALJ rules of practice 
    and procedure are analogous to the FRCP, there are some differences: 
    For example, whistleblowers do not ordinarily have to plead a claim 
    through a complaint. The commenter remarked that the Administrative 
    Review Board (ARB) and other appellate authorities have construed pro 
    se complainants' positions liberally and with a degree of judicial 
    latitude. The commenter also suggested that the Department's comments 
    should make clear that decisions on the merits are the goal, and 
    compliance with procedural rules should ``bend where necessary to meet 
    that goal.''
        The Department agrees that concerns relating to the ability of pro 
    se litigants to submit and litigate complaints deserve consideration. 
    As the ARB has enunciated, a pro se litigant's presumed lack of 
    familiarity with litigation procedures may require accommodation. For 
    example, a pro se litigant must be informed of the consequences of 
    failing to respond to dispositive motions, Motarjemi v. Metro. Council, 
    Metro. Transit Div., ARB No. 08-135, ALJ No. 2008-NTS-2 (ARB Sept. 17, 
    2010), and an untimely filing may be considered, Wallum v. Bell 
    Helicopter Textron, Inc., ARB No. 12-110, ALJ No. 2009-AIR-20 (Sept. 
    19, 2012). The new rules provide uniform procedures for case 
    management, but simultaneously permit judges the flexibility to tailor 
    procedures to specific cases through appropriate orders. So, for 
    example, where a pro se complainant requires additional guidance, under 
    the new rule the judge may issue more focused or detailed orders, as 
    necessary. The new rules provide more detailed procedural information 
    (particularly regarding discovery and other pre-hearing requirements) 
    than had been the case previously. The Department therefore declines to 
    adopt the commenter's suggestion.
        Discovery Rules Regarding Electronically Stored Information. One 
    commenter voiced some general concerns that the rules should clarify 
    issues related to discovery of electronically stored information (ESI), 
    specifically providing that both sides have access to discovery of ESI 
    and that ESI is treated the same as paper documents. The Department 
    believes those concerns are adequately addressed in Sec.  18.61, which 
    states that there is no differentiation in the access to ESI or paper 
    discovery. Thus, the rule provides the ALJ with the ability to manage 
    discovery and minimize gamesmanship in discovery of both paper 
    documents and ESI.
        Electronic Filing. One commenter urged that the OALJ adopt and 
    implement electronic case filing (ECF) or, in the alternative, allow 
    facsimile filing and remove the maximum page limitation on faxes. Those 
    concerns were also specifically raised in the comments to proposed 
    Sec.  18.30 and are fully addressed in that response. However, the 
    general answer is that the implementation of ECF is a resource 
    constrained policy decision. Until the Department implements ECF, 
    promulgating rules about ECF would lead to confusion.
        Offer of Judgment. One commenter suggested that the OALJ's rules 
    should include one analogous to FRCP 68, Offer of Judgment, and should 
    expressly cut off attorney's fees and other litigation costs when a 
    claimant refuses an offer and fails to obtain a more favorable result.
        The Department declines to adopt the commenter's suggestion. An 
    offer of judgment is significant matter that could affect an otherwise 
    successful complainant's right to recover attorneys' fees as costs. 
    Marek v. Chesny, 473 U.S. 1 (1985). No analog to FRCP 68 appears in the 
    OALJ's previous rules. The Department stated its intention to align
    
    [[Page 28773]]
    
    its procedural rules more closely with the FRCP, but did not give any 
    notice that an offer of judgment rule was contemplated. The Department 
    believes the final rule should not include an offer of judgment 
    provision for three interrelated reasons.
        First, doing so would not have given interested parties sufficient 
    notice that such a rule was contemplated, and it is unclear that doing 
    so now could be regarded a logical outgrowth of the rules proposed. See 
    5 U.S.C. 553(b)(3); ***'n of Private Sector Colls. & Univs. v. Duncan, 
    681 F.3d 427, 461 (D.C. Cir. 2012). Second, the OALJ issues no 
    judgments; it is not a court, although it shares many attributes with 
    Article III federal courts. FRCP 68 would have to be substantially 
    altered to adapt to the context of administrative adjudication, as 
    there is no clerk who could enter a judgment in the way FRCP 68(a) 
    contemplates (``The clerk must then enter judgment.''). Finally, FRCP 
    68 is subject to varying interpretations in the courts of appeals on 
    how the defense should address attorney's fees in the text of an offer, 
    when the substantive statute at issue directs the adjudicator to assess 
    those fees as an item of costs. See Charles Alan Wright et al., Federal 
    practice and Procedure Sec.  3005.1 (3d ed. 2014). Any rule the 
    Department adopts should make a choice between the competing theories, 
    to make the rule nationally uniform, and as useful to litigants as 
    possible. Those choices will not be made without the benefit of public 
    comment.
    
    III. Summary of Specific Comments on the Notice of Proposed Rulemaking
    
        The Department received several comments regarding specific 
    sections in the NPRM. Each comment is addressed as follows:
        Sec.  18.10 Scope and purpose. One commenter expressed concern that 
    the principles expressed in section 923 of the LHWCA, providing that 
    the LHWCA hearing process is not bound by formal rules of evidence but 
    conducted in a manner to best ascertain the rights of the parties, may 
    be circumvented by procedural rules not addressed in the LHWCA and BLBA 
    and respective implementing regulations. The commenter suggested part 
    18 explains what sections do not apply to LHWCA or BLBA proceedings 
    ``to avoid confusion.'' Another commenter suggested adding a paragraph 
    ``(d)'' to Sec.  18.10, which would specifically state that in 
    proceedings under the LHWCA and BLBA the following list of proposed 
    rules would not apply: Sec. Sec.  18.12, 18.23, 18.35, 18.50, 18.56, 
    18.57, 18.64, 18.70, 18.72, 18.80, and 18.87.
        Future statutory and regulatory changes in the numerous 
    administered programs, including the LHWCA, BLBA, employment 
    discrimination, ``whistleblower'' and immigration cannot be foreseen. 
    For instance, recent litigation has highlighted a BLBA-specific issue--
    one involving the disclosure of non-testifying expert opinions--that 
    may deserve further consideration. See generally Fox v. Elk Run Coal 
    Co., 739 F.3d 131 (4th Cir. 2014). Nothing in these rules would prevent 
    the Department from adopting a procedural rule that applies only in 
    BLBA claim adjudications or other program-specific contexts. Moreover, 
    listing variations in procedural requirements for the numerous programs 
    in each new rule defeats the purpose of the new rules and would require 
    constant rulemaking activity to reflect legislative changes. The 
    Department thus disagrees with the submitted proposals to individually 
    identify superseding statutory, regulatory or executive order 
    provisions collectively in the new Sec.  18.10 or separately in those 
    new rules where a conflict may exist.
        One commenter suggested that the lack of an appeal process in 
    regard to a judge's decision to modify, waive or suspend a procedural 
    rule in new Sec.  18.10(c) ``appears arbitrary and capricious.'' The 
    Department disagrees. First, while the case is at the OALJ, no rule may 
    be waived, modified or suspended without notice to the parties. Second, 
    doing so requires the judge to make two determinations: That the 
    specific alteration of the rule ``will not prejudice a party,'' and 
    ``will serve the ends of justice.'' Finally, a party may raise before 
    the appropriate appellate authority on direct review of the final order 
    any error in modifying a rule.
        Sec.  18.12 Proceedings before administrative law judge. The 
    Department combined the designation provisions of prior Sec.  18.25 and 
    the authority provisions of prior Sec.  18.29(a). The Department 
    specifically clarified in the NPRM that the enumerated powers mirrored 
    those set forth in section 556 of the APA and that the enforcement 
    provision of prior Sec.  18.29(b) was deleted due to its contents of 
    referring contumacious conduct to an appropriate federal court is set 
    forth in applicable statutes, such as Section 927(b) of the LHWCA.
        One commenter proposed that prior Sec.  18.29(b) should not be 
    deleted ``even though the content is contained in applicable statutes 
    [because] this provision clearly delineates an administrative law 
    judge's restricted powers, especially under statutes like the LHWCA.'' 
    The Department disagrees with the comment that the provision on 
    referring contumacious conduct to federal court should be retained in 
    the new rules since controlling program statutes provide for such 
    referral action when appropriate. See, e.g., 20 CFR 725.351(c).
        The commenter also proposed deleting Sec.  18.12(b)(10) listing the 
    authority of an ALJ to ``take actions authorized by the FRCP'' because 
    the language would include all sanctions authorized by the FRCP and 
    penalty sanctioning authority is reserved to the federal courts by the 
    LHWCA and BLBA. Section 18.12(b)(10) was a succinct restatement of 
    prior Sec.  18.29(a)(8). The Department agrees that the brevity in 
    which prior Sec.  18.29(a)(8) was restated could be construed as 
    excessively broad. To ensure consistency, the new Sec.  18.12(b)(10) is 
    rewritten to closely align with prior Sec.  18.29(a)(8) by returning 
    the words ``where applicable'' to the rule.
        Sec.  18.22 Representatives. The Department narrowed the rule on 
    representatives appearing before OALJ to reflect the two classes of 
    representatives who routinely appear--attorneys and non-attorney 
    representatives. The rule sets forth the qualifications required to 
    appear as a representative of a party, the minimum duties required of a 
    representative, and prohibited actions of any representative. One 
    comment suggested that the proposed rule setting forth the 
    qualifications for an attorney representative is overreaching and 
    conflicts with 5 U.S.C. 500(b). That provision states in relevant part: 
    ``An individual who is a member in good standing of the bar of the 
    highest court of a State may represent a person before an agency on 
    filing with the agency a written declaration that he is currently 
    qualified as provided by this subsection and is authorized to represent 
    the particular person in whose behalf he acts.'' Id. The commenter 
    suggested nothing more should be required of an attorney representative 
    seeking to represent a party before OALJ. The commenter believed that 
    the proposed Sec.  18.22 (a)-(d) imposed additional requirements 
    inconsistent with 5 U.S.C. 500(b).
        The Department has made revisions to the new rule in response to 
    this comment. The Department deleted the following sentence from Sec.  
    18.22(a): ``The notice of appearance shall also include the statements 
    and documentation required for admission to appear for the applicable 
    category of representation found in subdivision (b) of this section.''
    
    [[Page 28774]]
    
    The Department has added the following in its place: ``Any attorney 
    representative must include in the notice of appearance the license 
    registration number(s) assigned to the attorney.'' Essentially the only 
    requirement that an attorney representative must follow in order to 
    represent a party before the Department is to file a notice of 
    appearance and include the appropriate attorney license registration 
    number. Filing the notice of appearance by the attorney representative 
    will constitute an attestation that: (a) The attorney is a member of a 
    bar in good standing of the highest court of a State, Commonwealth, or 
    Territory of the United States, or the District of Columbia; and (b) no 
    disciplinary proceeding is pending against the attorney in any 
    jurisdiction where the attorney is licensed to practice law. The 
    Department has amended Sec.  18.22(b)(1)(i) to reflect this change.
        The Department disagrees with the comment that sections (c) and (d) 
    conflict with 5 U.S.C. 500. Section (c) sets forth the minimum 
    requirements expected of any representative during the course of a 
    proceeding before the Department, and section (d) delineates prohibited 
    actions of any representative appearing in a proceeding before the 
    Department. Neither section prescribes any additional requirements for 
    an attorney representative to appear on behalf of a party before the 
    Department.
        The Department set forth the minimum duties required of all 
    representatives appearing before the OALJ in Sec.  18.22(c). These 
    duties originate from the rules of conduct and standards of 
    responsibility imposed by the Social Security Administration (SSA) on 
    representatives appearing before the SSA. See 20 CFR 404.1740(b). While 
    the Department realizes that the non-adversarial nature of SSA hearings 
    may require more detailed procedures, the basic duties included in the 
    new rule are elementary to any hearing process and serve as a baseline 
    foundation for conducting hearings promptly, efficiently, and fairly. 
    The new rule also states that an attorney representative must adhere to 
    the rules of conduct applicable where the attorney is licensed to 
    practice law. In setting forth this standard, the Department 
    understands that hearings often occur outside of a jurisdiction where 
    an attorney may be licensed to practice law, and imposing an unfamiliar 
    standard of conduct on an attorney would not be ideal.
        One comment suggested that paragraph (c) should be stricken because 
    requiring attorneys to adhere to the rules of conduct in their 
    licensing jurisdictions ``could result in the different standards for 
    the submission of evidence, discovery, and other substantive and 
    procedural matters.'' The Department disagrees. Rules of professional 
    conduct are generally considered rules of reason and should be 
    interpreted with reference to the law itself. Different rules of 
    conduct should not apply based on specific substantive or procedural 
    law. At a minimum, attorneys should always be held to the standards of 
    conduct where they are licensed to practice law. The Department 
    declines to strike the paragraph.
        The new rule also defines prohibited actions of all representatives 
    appearing before the Department in paragraph (d). The prohibited 
    actions include such things as: threatening, coercing or intimidating a 
    party; knowingly making false or misleading statements; or causing 
    unreasonable delay. These again derive from the SSA regulations. 20 CFR 
    404.1740(c). One comment suggested that the paragraph should be 
    stricken because it adds confusion and may require attorneys to act 
    contrary to the interests of their clients or the rules of conduct 
    required by their licensing jurisdictions. The Department declines to 
    strike the paragraph.
        Sec.  18.23 Disqualification and discipline of representatives. The 
    proposed rule contemplated two paths for disqualification and 
    disciplinary proceedings of attorney representatives appearing before 
    the OALJ. One path regulated lawyers who were authorized to practice 
    before the Department through admission to the bar of the highest court 
    of a state or similar governmental unit, but lost the right to practice 
    law in their licensing jurisdiction because of a criminal conviction or 
    proven professional misconduct. The second path involved misconduct of 
    a representative before the OALJ. One comment questioned the 
    Department's authority to initiate disciplinary proceedings at all. The 
    NPRM spells out the Department's authority to discipline attorneys in 
    great detail and need not be restated herein. The Supreme Court has 
    recognized such authority as early as 1923 in a case involving the 
    Board of Tax Appeals where it upheld the Board's power to adopt rules 
    of practice for professionals to protect the integrity of its 
    administrative procedures and the public generally. See Goldsmith v. 
    United States Bd. of Tax Appeals, 270 U.S. 117 (1926). Other comments 
    suggested that the wording of the rule was not clear and suggested that 
    as drafted, it appeared that the OALJ would be making the initial 
    determination as to whether an attorney had committed any enumerated 
    criminal act or professional misconduct.
        The Department considered the comments and has amended the rule by 
    consolidating the grounds upon which an attorney or representative may 
    be disqualified or disciplined into one section--new Sec.  18.23(a)(1). 
    New Sec.  18.23(a)(1) now sets forth three distinct grounds for 
    disqualification: (1) suspension of a license to practice law by any 
    court or agency of the United States, or by the highest court of a 
    State or similar governmental unit; (2) disbarment from the practice of 
    law by consent or resignation from the bar of a court or agency while 
    an investigation into allegations of misconduct is pending; or (3) 
    committing an act, omission, or contumacious conduct that violates the 
    procedural rules, an applicable statute, an applicable regulation, or a 
    judge's order(s). Accordingly, the previous sections providing for 
    disqualification upon conviction of a felony (proposed Sec.  
    18.23(a)(1)(i)) or certain enumerated misdemeanors (proposed Sec.  
    18.23(a)(1)(ii)) are removed from the new rule. Such conduct however 
    may still be grounds for disqualification in the new rules to the 
    extent that new Sec.  18.23(a)(1)(i) through (iii) apply.
        The Department also consolidated the disqualification and 
    discipline procedure into one section--new Sec.  18.23(a)(2). The new 
    consolidated ``Disqualification procedure'' states that in all 
    instances the Chief Judge provides notice and an opportunity to be 
    heard prior to taking any action. The provision deletes language 
    pertaining to requests for hearing but also recognizes that, in 
    appropriate instances, additional proceedings may be necessary, within 
    the Chief Judge's discretion.
        Other comments questioned the timeline for disciplinary proceedings 
    and the status of cases while disciplinary proceedings are pending 
    against an attorney. The Department notes that the new rule 
    contemplates a fast track with an initial response time of 21 days. The 
    Department believes that the Chief Judge should have the discretion to 
    decide whether an attorney can continue to represent a party before the 
    Department during the pendency of any disciplinary proceeding on a 
    case-by-case basis.
        Two commenters suggested that the Department maintain a national 
    database of non-attorney representatives disciplined by the Department. 
    The Department declines to amend the part 18 regulations to establish 
    such a database because OALJ already
    
    [[Page 28775]]
    
    publishes formal disciplinary decisions on its Web site in the same 
    manner as other judge decisions. See, e.g., In the Matter of the 
    Qualifications of Edwin H. Rivera, 2009-MIS-2 (ALJ Feb. 6, 2009) 
    (denying non-attorney representative the authority to appear in a 
    representative capacity before OALJ).
        Sec.  18.24 Briefs from amicus curiae. The proposed rule sets forth 
    the general procedure for accepting a brief from an amicus curiae. The 
    Department received two comments suggesting that the deadline for an 
    amicus brief is too short. The proposed rule required such briefs by 
    the close of the hearing unless otherwise directed by the presiding 
    judge. The comments pointed out that no transcript is immediately 
    available when the hearing closes and it may be better for an amicus 
    curiae to review the brief of the party the amicus supports to allow 
    the amicus curiae to focus on new arguments. The Department considered 
    the comments and agrees that setting the deadline at the close of the 
    hearing is impractical. The Department has amended the new rule by 
    deleting any specific deadline for an amicus brief, and instead states 
    that the deadline will be set by the presiding judge.
        The Department has also received comments suggesting that it 
    require amicus curiae to make disclosures similar to those found in 
    U.S. Supreme Court Rule 37.4. Such disclosures include whether counsel 
    for a party authored any part of an amicus brief and the identity of 
    anyone who made monetary contributions to the preparation of the brief 
    other than the amicus curiae or its members. The Department declines to 
    adopt the specialized disclosure requirements. Any specialized 
    requirement can be considered by the presiding judge and made part of a 
    briefing order depending on the facts of any particular case.
        Sec.  18.30 Service and filing. Commenters suggested that the list 
    of documents not to be filed until used in the proceeding or ordered by 
    a judge (Sec.  18.30(b)(1)) should be amended to add the notice and 
    copy of ``documents only'' subpoenas that are required to be served on 
    other parties by Sec.  18.56(b)(1). That suggested change is consistent 
    with the purpose of both the prior and proposed rule and reflects 
    current common practice. The new rule is thus changed to add paragraph 
    (b)(1)(vi) with the following language: ``the notice (and the related 
    copy of the subpoena) that must be served on parties under rule 
    18.56(b)(1) before a `documents only' subpoena may be served on the 
    person commanded to produce the material.''
        Several commenters argued that the OALJ's rules do not adequately 
    accommodate electronic filing and service, which is now commonplace in 
    federal courts and adjudicatory agencies. Commenters urged that the 
    OALJ adopt an electronic filing system, or at least adopt a more 
    liberal stance toward accepting email and facsimile transmissions.
        The Department acknowledges that implementation of a dedicated 
    electronic filing system and electronic service system for OALJ 
    adjudications would be beneficial. However, because the OALJ does not 
    have a dedicated electronic filing and service system, the rules of 
    practice and procedure necessarily focus on traditional filing and 
    service.
        Several commenters urged that, in the absence of the availability 
    of electronic filing, OALJ accept documents filed by email. The 
    Department declines to adopt a regulation that permits filing by email 
    for routine filings with the OALJ. Email is not a substitute for a 
    dedicated electronic filing system in which administrative issues such 
    as document management, storage, security, and access can be 
    systematically addressed. The proposed regulation at Sec.  18.30(b)(4) 
    accommodates special circumstances by authorizing the judge to ``allow 
    papers to be filed, signed, or verified by electronic means.''
        Alternatively, several commenters urged that the OALJ accept 
    documents filed by facsimile transmission without a page limitation. 
    The Department declines to adopt a regulation that permits filing by 
    facsimile for routine filings with the OALJ. Facsimile technology is 
    not a substitute for traditional mail or hand delivery of filings or 
    for a dedicated electronic filing system. When Sec.  18.3 of the prior 
    rules was amended in 1994 to permit filing by facsimile in certain 
    circumstances, the Department discussed why, although the use of 
    facsimile machines is often convenient to parties, it is not 
    administratively practical for routine matters. See Amendment of Filing 
    and Service Requirements in Proceedings Before the Office of 
    Administrative Law Judges, 59 FR 41874 (Aug. 15, 1994). Although 
    information technology has advanced considerably since 1994, it is 
    still true that most filings before the OALJ are not time sensitive and 
    that the Department is not in a position to bear the cost of receiving 
    and printing large numbers of facsimile transmissions. The new rule at 
    Sec.  18.30(b)(3)(i) accommodates special circumstances by allowing a 
    party to file by facsimile if permitted by the judge.
        One commenter stated a concern that a judge could reject a 
    facsimile filing that exceeded 12 pages. The 12 page limitation stated 
    in Sec.  18.30(b)(3)(i)(A) is confined to situations in which the party 
    is unable to obtain prior permission to file by facsimile because the 
    judge is unavailable. The 12 page limitation is a sensible limitation 
    to discourage reliance on last hour filings by facsimile. Thus, the 
    Department declines to revise Sec.  18.30(b)(3)(i)(A) to remove the 12 
    page limitation on facsimile filings made without the judge's 
    permission.
        One commenter suggested that the OALJ's rules of practice and 
    procedure provide for electronic service between parties, stating that 
    if a representative wishes to receive all service by email, that 
    individual should be able to so state in the record and then receive 
    all subsequent service by email. Section 18.30(a)(2)(ii)(E) already 
    accommodates this suggestion. That regulation states that ``[a] paper 
    is served under this section by . . . sending it by electronic means if 
    the person consented in writing--in which event service is complete 
    upon transmission, but is not effective if the serving party learns 
    that it did not reach the person to be served . . . .''
        One commenter stated that the rule, as written, creates a paradox 
    that a time sensitive filing could be filed with the OALJ by facsimile, 
    but served by mail on the opposing party. This commenter suggested that 
    adopting a service requirement that allows for email service would 
    resolve this problem. As noted above, the regulation permits parties to 
    agree to receipt of service of papers by electronic means. The 
    Department declines to revise the rule to require electronic service on 
    another party in situations where the filing party was granted 
    permission to file a paper with the OALJ electronically.
        Sec.  18.31 Privacy protection for filings and exhibits. One 
    commenter suggested that the privacy requirement should be inapplicable 
    to any document created prior to the effective date of the final rule 
    in BLBA cases. The commenter stated that medical records containing 
    social security numbers and other protected information are created 
    long before a claim is filed and it would be burdensome to redact this 
    information.
        The FRCP Advisory Committee noted in its comments to FRCP 5.2 that 
    ``[i]t is electronic availability, not the form of the initial filing, 
    that raises the privacy and security concerns addressed in the E-
    Government Act.'' Fed. R. Civ. P. 5.2 advisory committee's note 
    (discussion of 2007 amendments). The FRCP focuses on electronic 
    records, but applies the same restrictions to hard-copy documentation, 
    reasoning that the
    
    [[Page 28776]]
    
    number of paper filings will diminish over time.
        The Department declines to adopt the commenter's suggestion. The 
    privacy interests of individuals whose personal records appear before 
    the OALJ outweigh the burden placed on those who represent them. Many 
    of these records can be scanned and searched for the sensitive 
    information, reducing the time and effort required to complete this 
    redaction. The commenter's suggestion that this rule apply only to 
    records created after the effective date of the final rule would 
    severely limit its utility. The parties may choose to waive the 
    protection of the rule if it would be unduly burdensome to redact the 
    records, or the parties may petition the judge for a waiver of the 
    rule.
        Sec.  18.32 Computing and extending time. Commenters noted that 
    setting 4:30 p.m. as the default deadline for filing on a specific date 
    is inconsistent with other rules of practice and sets a trap for the 
    unwary practitioner who may reasonably expect that the deadline would 
    be 11:59 p.m. They suggested changing the time to 11:59 p.m.
        The FRCP allows for electronic filing up to 11:59 p.m., but still 
    sets the close of local business hours as the deadline for hardcopy 
    delivery. The commenters' suggestions primarily relate to online and 
    facsimile filing. The OALJ continues to rely on hardcopy delivery as 
    the default authorized means of filing and allows electronic or 
    facsimile filing only as authorized by order or regulation. Since both 
    e-filing and facsimile filing include time stamps that show exactly 
    when a document arrived at the facsimile machine or server of the 
    recipient, the office need not be open to determine when a document 
    arrives. Since e-filing or facsimile filing is only allowed with the 
    permission of the judge, counsel can request extended filing hours when 
    they request permission to file in that manner. The Department 
    therefore declines to adopt the suggestion.
        Commenters also observed that the language at (a)(4) including as a 
    legal holiday any other day declared a holiday by the President or 
    Congress is overly broad and should be amended to include in the 
    definition the provision that federal offices are closed to normal 
    business. They suggested providing for extensions where a party is 
    prevented from filing or requesting an extension by local 
    circumstances, such as natural disasters or other events that require 
    closure of government facilities.
        FRCP 6(a)(3) addresses the problem by including a provision for the 
    inaccessibility of the clerk's office. The new rules allow for judges 
    to grant ex post facto delays in such cases. However, changing the term 
    ``legal holiday'' to include any day on which the district office in 
    which the document is to be filed is closed or otherwise inaccessible 
    to the filing party would provide a clearer standard and avoid 
    uncertainty over whether an ex post facto delay may be granted. The new 
    rule is thus changed as follows:
    
        (4) ``Legal holiday'' defined. ``Legal holiday'' means the day 
    set aside by statute for observing New Year's Day, Martin Luther 
    King Jr.'s Birthday, Washington's Birthday, Memorial Day, 
    Independence Day, Labor Day, Columbus Day, Veterans' Day, 
    Thanksgiving Day, or Christmas Day, any day declared a holiday by 
    the President or Congress, and any day on which the office in which 
    the document is to be filed is closed or otherwise inaccessible.
    
        Sec.  18.35 Signing motions and other papers; representations to 
    the judge; sanctions. New Sec.  18.35 is modeled after FRCP 11. It 
    states the standards attorneys and parties must meet when filing 
    motions or other documents with OALJ and provides sanctioning authority 
    for violations of this section.
        Several commenters pointed out that the LHWCA and BLBA contain 
    specific statutory provisions dealing with resistance to an order, 
    misconduct during hearings, and discovery violations. They suggest 
    amending Sec.  18.35(c) to state that the sanctions provisions are not 
    applicable to LHWCA and BLBA cases. The Department declines to adopt 
    the commenters' suggestion for the reasons detailed above in section 
    II, ``Conflicts with the LHWCA and BLBA.''
        Several commenters objected to Sec.  18.35(c) in its entirety, 
    suggesting that the section is essentially an attempt by the OALJ to 
    exercise contempt power, which is limited to courts and may not be 
    conferred upon administrative agencies. Section 18.35(c) however is not 
    identical to FRCP 11(c)(4) and does not seek to invest OALJ judges with 
    powers beyond the APA's grant of authority to impose appropriate 
    sanctions where necessary to regulate and ensure the integrity of the 
    hearing process. Thus, for the reasons detailed above in section II, 
    ``Authority to Regulate the Conduct of Administrative Proceedings; 
    Sanctions,'' the Department declines to delete Sec.  18.35(c).
        One commenter argued that there is no authority to hold a law firm 
    jointly responsible for a violation committed by its partner, 
    associate, or employee and failing to further define the circumstance 
    that would justify an exception. The provision for law firm joint 
    responsibility in Sec.  18.35(c)(1) is taken directly from the 
    corresponding federal rule, which was revised in 1993 after the U.S. 
    Supreme Court ruled that the previous language could not be interpreted 
    to include a named offender's firm. Pavelic & LeFlore v. Marvel Entm't 
    Grp., 493 U.S. 120 (1989). Thus, the provision is in accord with 
    federal practice and the Department declines to strike or modify the 
    provision in Sec.  18.35(c)(1) concerning law firm joint 
    responsibility.
        One commenter observed that Sec.  18.35(c)(4) provides no guidance 
    as to what type of sanction ``suffices to deter repetition of the 
    conduct or comparable conduct.'' The Department agrees that Sec.  
    18.35(c)(4) should be amended to provide more specific guidance. 
    Paragraph (c)(4) of the rule is revised, containing the following 
    language: ``A sanction imposed under this section may include, but is 
    not limited to, striking part or all of the offending document, 
    forbidding the filing of any further documents, excluding related 
    evidence, admonishment, referral of counsel misconduct to the 
    appropriate licensing authority, and including the sanctioned activity 
    in assessing the quality of representation when determining an 
    appropriate hourly rate and billable hours when adjudicating attorney 
    fees.''
        Sec.  18.50 General provisions governing disclosure and discovery. 
    Under the new rule, a party may seek discovery at any time after a 
    judge issues an initial notice or order and, unless the judge on motion 
    orders otherwise, the methods of discovery may be used in any sequence 
    regardless of the discovery conducted by other parties. The parties' 
    required initial disclosures would be made within 21 days after entry 
    of an initial notice or order acknowledging that the case has been 
    docketed for adjudication, and the rule includes a provision exempting 
    certain proceedings and parties from the initial disclosure 
    requirements. The Department received two comments focusing on the 
    timing of disclosures and discovery in LHWCA and BLBA cases. One 
    commenter urged that discovery should be available following transfer 
    of the case to the OALJ or at any time upon stipulation of the parties, 
    asserting that initial notices and orders have historically taken three 
    months to issue and that discovery during this period of time will be 
    unavailable under the new rule, resulting in unnecessary delay. This 
    commenter also suggested that the timing for initial disclosures be set 
    at 35 days following transfer of the case to the OALJ. Citing similar 
    concerns about delay, the other commenter suggested that discovery 
    should be available at any time after a claim is filed.
    
    [[Page 28777]]
    
        The Department disagrees with these proposals. The use of a judge's 
    initial notice or order as the case event allowing parties to commence 
    discovery promotes uniformity and predictability as it is the first 
    reliable indication to the parties that the case is actually before the 
    OALJ. The Department believes that use of the date of transfer from the 
    District Director, Office of Workers' Compensation Programs is 
    potentially confusing because this procedure is only applicable in 
    LHWCA and BLBA cases. See 20 CFR 702.317, 725.421. The transfer or 
    referral is an internal administrative function that lacks the clarity 
    of the initial notice of order from the judge in terms of informing 
    parties that a case has been docketed for adjudication. The Department 
    further believes that allowing discovery at any time after a claim is 
    filed is problematic as this would inevitably lead to development of 
    discovery disputes before the case is assigned to a judge. While the 
    Department is sensitive to the expressed concern regarding delays in 
    the issuance of an initial notice or order, this is a matter that is 
    better addressed through internal policy directives rather than 
    creation of a special rule of procedure or exception. Finally, the 
    Department believes that the new disclosure and discovery rules, taken 
    as a whole, provide parties with sufficient flexibility to ensure that 
    all authorized and appropriate discovery will be available prior to 
    adjudication.
        One comment raised a concern with the sequence of discovery in 
    LHWCA cases by asserting that the logical first step is for a claimant 
    to produce a medical report followed by the deposition of the report's 
    author. The commenter suggested that the new rule could allow a 
    claimant to manipulate the discovery process by delaying production of 
    a medical report which might result in a respondent having insufficient 
    time to identify a rebuttal expert. To blunt this potential tactic, the 
    commenter proposed that the rule require a claimant to produce a 
    medical report and disclose any experts early in the process. The 
    Department believes that this concern is adequately addressed in the 
    provisions of the rule governing disclosure of experts, see 29 CFR 
    18.50(c)(2)and through the judge's broad discretion to oversee 
    disclosure and discovery in an impartial manner that affords all 
    parties a full and fair opportunity to be heard. Moreover, adoption of 
    this proposal would create a special rule, applicable only in benefit 
    cases such as those arising under the LHWCA and BLBA, which is 
    inconsistent with the Department's objective of promulgating a uniform 
    set of procedural rules.
        One comment proposes that pro se parties be included in the list of 
    parties who are exempted from the required initial disclosures under 
    paragraph (c)(1)(iii) unless an ALJ orders the party to provide 
    disclosures. The Department rejects this proposal as inconsistent with 
    the efficient, impartial and fair adjudication of cases. The FRCP 
    provides no such exemption for pro se litigants aside from those 
    persons in government custody. See Fed. R. Civ. P. 26(a)(1)(B)(iii). 
    Having a separate set of rules for unrepresented parties or requiring a 
    judge to provide them with legal guidance is inappropriate. See Pik v. 
    Credit Suisse AG, ARB No. 11-034, ALJ No. 2011-SOX-6 (ARB May 31, 2012) 
    (citing Rays Lawn & Cleaning Sys., ARB No. 06-112, ALJ No. 2005-SCA-7 
    (ARB Aug. 29, 2008)); Olsen v. Triple A Mach. Shops, Inc., 25 Ben. Rev. 
    Bd. Serv. (MB) 40, 46 n.4 (1991), aff'd mem. sub nom. Olsen v. Dir., 
    OWCP, 996 F.2d 1226 (9th Cir. 1993).
        Two comments expressed a concern that it is burdensome and/or 
    irrelevant to require an expert witness's written report to list all 
    other cases in which the witness testified as an expert during the 
    previous four years and the amount he or she was paid. See General 
    Provisions Governing Disclosure and Discovery, 77 FR 72159 (proposed 
    Dec. 4, 2014) (proposed Sec.  18.50(c)(2)(ii)(E) and (F)). These 
    commentators stated that parties are not likely to have this 
    information. The Department disagrees. While the parties themselves may 
    not have such information, surely an expert witness would. Moreover, 
    the rule allows for an exception to this requirement where stipulated 
    or ordered by the judge. This exception could be invoked in those 
    unusual cases where the required information might not be reasonably 
    obtainable. These requirements track FRCP 26(a)(2)(B), and the 
    Department is not persuaded by these comments that any deviation in the 
    OALJ rules is justified.
        Two commenters urged adoption of a rule that would require parties 
    to provide ESI in a searchable electronic format rather than paper 
    copies when the requested information is available in electronic form. 
    The commentators cited federal case law in support, stating that 
    parties have been required to provide ESI in electronic format when 
    requested in that form. While acknowledging the cited precedent, the 
    Department rejects the proposal for a rule mandating production of ESI 
    in electronic format whenever requested in that form. First, such a 
    rule may violate the principle recognized in the NPRM that discovery of 
    ESI should be proportional to what is at stake in the litigation. 77 FR 
    72146 (citing FRCP 26(b)(2)(C)(iii)) (citing The Sedona Conference, The 
    Sedona Principles: Second Edition, Best Practices Recommendations & 
    Principles for Addressing Electronic Document Production 17 (Jonathan 
    M. Redgrave et al. ed., 2d ed. 2007) (``Electronic discovery burdens 
    should be proportional to the amount in controversy and the nature of 
    the case. Otherwise, transaction costs due to electronic discovery will 
    overwhelm the ability to resolve disputes fairly in litigation.'')). 
    Second, the proposal would override paragraph (b)(3)(iii), which is 
    based on FRCP 26(f)(3)(C) making any issues about disclosure or 
    discovery of ESI, including the form or forms in which it should be 
    produced, a required item in discovery plans. This proposal also 
    conflicts with Sec.  18.51(b)(2) which, like FRCP 26(b)(2)(B) upon 
    which it is based, provides that ESI discovery issues are to be 
    determined by the judge on a motion to compel or for protective order. 
    In sum, the Department's new rules on disclosure and discovery of ESI 
    track the provisions in the FRCP which were developed after 
    consideration of the competing interests at stake with regard to ESI, 
    and the Department is not persuaded that a different approach is 
    necessary or desirable in proceedings before the OALJ.
        The Department received one comment concerning the timing of 
    initial disclosures for parties who are served or joined later. The 
    commenter proposed adding the following sentence to the end of 
    paragraph (c)(1)(v): ``Copies of all prior disclosures shall be served 
    on the newly joined party within 14 days of the joinder.'' Such an 
    addition is helpful because it is common in LHWCA and BLBA cases for 
    additional parties to be joined after the commencement of the OALJ 
    proceeding. Therefore, the Department has added the following sentence 
    to the end of paragraph (c)(1)(v) in the final rule: Copies of all 
    prior disclosures must be served on a newly served or joined party 
    within 21 days of the service or joinder.
        Two comments advocated adoption of early discovery protocols 
    similar to the pilot project that has been implemented by some federal 
    district courts to streamline discovery and reduce costs in certain 
    employment discrimination cases. See Federal Judicial Center, Pilot 
    Project Regarding Initial Discovery Protocols for Employment Cases 
    Alleging Adverse Action (2011), available at www.fjc.gov/public/
    pdf.nsf/lookup/discempl.pdf/$file/discempl.pdf. Incorporating a pilot
    
    [[Page 28778]]
    
    project designed for a limited class of cases into a set of uniform 
    rules of practice and procedure is not desirable. To the extent such 
    initiatives may be beneficial in certain cases, the Department has 
    concluded that the determination to adopt such procedures is best left 
    to the discretion of individual judges and/or discovery plans developed 
    by parties pursuant to paragraph (b)(3).
        One comment proposed that paragraph (d)(3) should be revised to 
    explicitly state that it does not apply to LHWCA and BLBA proceedings 
    because 33 U.S.C. 927(b) expressly provides a procedure (i.e., 
    certification of facts to a federal district court for summary contempt 
    proceedings) for addressing discovery violations. A party's failure to 
    comply with the certification requirements likely would not involve 
    refusal to comply with an order and, therefore would not be cognizable 
    as contempt subject to section 927(b). See A-Z Intn'l v. Phillips, 323 
    F.3d 1141, 1146-47 (9th Cir. 2003) (holding that the district court 
    lacked section 927(b) jurisdiction over conduct that did not involve a 
    refusal ``to comply with a summons, writ, warrant, or mandate issued by 
    the ALJ.''). The Department therefore rejects this proposal and has not 
    made any change to paragraph (d)(3).
        Sec.  18.51 Discovery scope and limits. One comment suggested that 
    the language of paragraph (a) defining the scope of discovery could be 
    read as precluding discovery of prior medical records. The commenter 
    focused this concern on the second sentence of the rule which states 
    that ``the judge may order discovery of any matter relevant to the 
    subject matter involved in the proceeding.'' The commenter preferred 
    language limiting discovery to matters ``relevant to the subject matter 
    of the proceeding'' and, alternatively, suggested that the record 
    should clearly state that prior medical records are relevant to a 
    party's claim or defense when medical questions are at issue. The 
    Department rejects this proposal as essentially seeking a substantive 
    determination that prior medical records are discoverable without 
    limitation in all proceedings as long as there is some medical issue in 
    play. While such records may well be relevant and discoverable in many 
    cases where medical issues are raised, it is not difficult to foresee 
    situations where production of a person's prior medical records might 
    not be required. In the Department's view, determinations as to the 
    scope of discovery with respect to specific categories of information 
    cannot be properly addressed in a general procedural rule and, instead, 
    must be left to case-by-case adjudication.
        Another comment stated that the exceptions established by paragraph 
    (d)(3)(i) through (iii) to the general rule embodied in paragraphs 
    (c)(1) and (2) which protect against disclosure of communications 
    between a party's representative and an expert witness are not adequate 
    to ensure access to evidence of fraud, abuse or influence such as a 
    party's attorney writing the expert's report. The commenter suggested 
    that the exceptions should be broadened to ensure disclosure of such 
    evidence or that paragraphs (c)(1) and (c)(2) should be eliminated. The 
    Department's new rules addressing disclosure of communications between 
    a party's representative and an expert track the provisions of FRCP 
    26(b)(3) and (4), which were revised in 2010. While the Civil Rules 
    Advisory Committee stated that the revisions to FRCP 26 were intended 
    to alter pre-amendment case law that required disclosure of all 
    attorney-expert communications and draft reports in favor of limiting 
    disclosure to communications of a factual nature in order to protect 
    the theories and mental impressions of counsel, the Advisory Committee 
    emphasized that the ``facts or data'' exception should be interpreted 
    broadly to require disclosure of ``any facts or data `considered' by 
    the expert in forming the opinions to be expressed, not only those 
    relied upon by the expert.'' Fed. R. Civ. P. 26 advisory committee's 
    note (discussion of 2010 amendments); see also Sara Lee Corp. v. Kraft 
    Foods, Inc., 273 FRD. 416, 419 (N.D. Ill. 2011); Fialkowski v. Perry, 
    No. 11-5139, 2012 WL 2527020, at *5 (E.D. Pa. Jun. 29, 2012) (holding 
    that even if the requested documents are considered ``communications'' 
    between a party's attorney and an expert within the meaning of FRCP 
    26(b)(4)(C), they are discoverable to the extent that they fall within 
    the exceptions listed in FRCP 26(b) (4)(C)(ii) and (iii), for ``facts 
    and data'' that the expert considered and for ``assumptions'' that the 
    expert relied on). The Department believes that the rule adequately 
    addresses the concern raised in the comment, and no change has been 
    made in the final rule.
        The Department received a comment stating that some of the 
    commentary in the NPRM relating to limitations on the scope of 
    discovery could lead judges to believe that limiting discovery is more 
    important than providing whistleblower complainants with access to the 
    evidence they need to prove their claims. This commenter pointed out 
    that discovery is critical in whistleblower litigation where ``smoking 
    gun'' evidence of unlawful motivation is rare, and he suggests that it 
    would be helpful if the comments accompanying the final rule are 
    balanced to recognize that while judges have discretion to limit 
    unnecessary discovery, they also have a duty to enforce discovery when 
    it is necessary to prove a relevant point. The commenter did not 
    suggest any change in the proposed rule establishing the scope of 
    discovery and its limits. The Department notes that the discussion of 
    the changes in the disclosure and discovery rules in the NPRM contains 
    several references to limitations on the scope of discovery which were 
    necessitated by recent changes in the FRCP that were incorporated into 
    the new Sec.  18.51. However, the Department believes the new rule, 
    like FRCP 26(b) upon which it is based, appropriately balances 
    competing discovery interests.
        Another commenter similarly suggested with respect to whistleblower 
    cases that the rules should encourage early exchange of discoverable 
    information, prompt resolution of discovery disputes and broad 
    discovery of probative information. This commenter also did not 
    advocate any particular change in the proposed rule. The Department 
    believes that the new disclosure and discovery rules, taken as a whole, 
    are designed to accomplish the commenter's recommended objectives in a 
    fair and impartial manner. The Department further believes that 
    adoption of special disclosure and discovery rules for a particular 
    category of cases is neither necessary nor desirable as judges have 
    discretion to resolve discovery disputes in a manner that is consistent 
    with the requirements of the particular governing statute and 
    implementing regulations. The Department therefore has not made any 
    change to the new rules based on this comment.
        Sec.  18.55 Using depositions at hearings. Two commenters suggested 
    that the new rule should be revised to permit wider use of depositions 
    at hearings. One commenter proposed addition of a paragraph that would 
    permit unconditional use of depositions at hearings in the absence of 
    any objection. The commenter submitted that this revision would better 
    align the rule with current practice and procedure. Another commenter 
    urged deletion of the requirement of showing unavailability as a pre-
    condition to the admission of deposition testimony from a lay or non-
    expert witness. This commenter asserted that the unavailability 
    requirement is overly burdensome and particularly so for benefits 
    claimants who have fewer
    
    [[Page 28779]]
    
    resources to pay witnesses to attend hearings. The Department agrees. 
    Allowing unconditional use of depositions in the absence of an 
    objection comports with current practice and procedure and reduces the 
    potential financial burden of producing live witnesses on all parties. 
    While the proponent of using the deposition of a non-expert witness at 
    hearing would still be required to demonstrate unavailability in the 
    face of an objection, the Department believes that the unavailability 
    provisions of the rule, which track FRCP 32(a)(4), are sufficiently 
    broad to minimize the burden of producing live witnesses. Accordingly, 
    the new rule has been revised and renumbered to add a new paragraph 
    allowing unconditional use of depositions at hearings in the absence of 
    an objection.
        Sec.  18.56 Subpoenas. The Department received two comments 
    regarding the provisions of paragraph (a) relating to issuance of 
    subpoenas. One of the commenters proposed that the rule state that any 
    attorney authorized to practice under the rules may issue subpoenas and 
    that the judge may issue subpoenas on written application of a non-
    attorney. The other comment urged that paragraph (a)(3), which would 
    permit a judge by order in a specific proceeding to authorize an 
    attorney representative to issue and sign subpoenas, be revised to 
    exempt LHWCA and BLBA proceedings because 33 U.S.C. 927(a) expressly 
    delegates subpoena issuance authority to judges who cannot sub-delegate 
    such authority to persons outside the Department. The Department is 
    persuaded by this latter argument that the authority to issue subpoenas 
    should remain with the judge. The comment cited two cases--FTC v. 
    Gibson, 460 F.2d 605 (5th Cir. 1972), and United States v. Marshall 
    Durbin & Co. of Haleyville, 363 F.2d 1 (5th Cir. 1966),--where sub-
    delegation of statutory subpoena authority to subordinate employees of 
    an agency was upheld based on reorganization plans, authorized by the 
    Reorganization Act of 1949, 5 U.S.C. 901-912, that specifically 
    provided for the challenged sub-delegation of subpoena power. See also 
    Lewis v. NLRB, 357 U.S. 10, 14-15 (1958) (upholding sub-delegation of 
    subpoena authority to the Board's regional directors). Unlike the cited 
    cases, there is no reorganization plan under which the Department's 
    judges have been authorized to sub-delegate statutory subpoena 
    authority. Consequently, a question exists as to whether the sub-
    delegation authorized by paragraph (a)(3) would withstand legal 
    scrutiny. The Department has therefore deleted paragraph (a)(3) from 
    the new rule. This revision renders moot the concerns raised by the 
    other commenter about the need for additional protective procedures to 
    protect parties from abusive subpoena practices by parties' 
    representatives in the event they were authorized to issue subpoenas.
        The Department received a comment that paragraph (b)(1) dealing 
    with service of subpoenas be revised to track a change in FRCP 
    45(a)(4), upon which the rule is patterned, that was recommended to the 
    U.S. Supreme Court by the Committee on Rules of Practice and Procedure 
    of the Judicial Conference of the United States in its report of 
    September 2012. See Federal Rules of Practice & Procedure, Report of 
    the Judicial Conference Committee on Rules of Practice and Procedure to 
    the Chief Justice of the United States and Members of the Judicial 
    Conference of the United States 23 (2012), available at 
    www.uscourts.gov/uscourts/RulesAndPolicies/rules/Reports/ST09-2012.pdf. 
    To maintain harmony with the FRCP, the commenter proposed that 
    paragraph (b)(1) be amended to read as follows:
    
        By whom; tendering fees; serving a copy of certain subpoenas. 
    Any person who is at least 18 years old and not a party may serve a 
    subpoena. Serving a subpoena requires delivering a copy to the named 
    person and, if the subpoena requires that person's attendance, 
    tendering with it the fees for 1 day's attendance and the mileage 
    allowed by law. Service may also be made by certified mail with 
    return receipt. Fees and mileage need not be tendered when the 
    subpoena issues on behalf of the United States or any of its 
    officers or agencies. If the subpoena commands the production of 
    documents, electronically stored information, or tangible things or 
    the inspection of premises before the formal hearing, then before it 
    is served on the person to whom it is directed, a notice and a copy 
    of the subpoena must be served on each party.
    
    The Department adopts this proposal as consistent with the objective of 
    bringing the OALJ rules of practice and procedure into alignment with 
    the FRCP where appropriate. Paragraph (b)(1) in the final rule has been 
    amended accordingly.
        The Department received two additional comments regarding paragraph 
    (b)(1). One commenter raised a concern that the phrase ``allowed by 
    law'' is vague and should be replaced by a reference to the particular 
    controlling law. The language in question is taken verbatim from FRCP 
    45(a)(4) and is intended to be interpreted in a manner consistent with 
    the federal rule under which witness fees and expenses are currently 
    controlled by 28 U.S.C. 1821. See Dishman v. Cleary, 279 FRD. 460, 466 
    (N.D. Ill. 2012); Fisher v. Ford Motor Co., 178 FRD. 195, 197 (N.D. 
    Ohio 1998). The Department does not believe that it is prudent to 
    incorporate specific statutory references into the rule as statutory 
    provisions are subject to change which would lead to potential 
    confusion until the rule could be amended. Further, the Department 
    notes that the discovery subcommittee to the Civil Rules Advisory 
    Committee undertook an exhaustive survey of published commentary 
    regarding FRCP 45. See Federal Rules of Practice & Procedure, Survey of 
    Issues Regarding Federal Rule of Civil Procedure 45 (2009), available 
    at www.uscourts.gov/uscourts/RulesAndPolicies/rules/MemoreRule45issues.pdf. Review of the survey discloses no published 
    concern or comment or other criticism related to the use of ``allowed 
    by law.''
        The second commenter proposed a requirement that notice of a 
    subpoena(s) relating to medical or financial information include a 
    statement certifying that the information will not be used or disclosed 
    for any purpose other than the litigation or proceeding for which the 
    information was requested and will be destroyed or returned at the end 
    of the litigation or proceeding. The commenter stated that this 
    additional provision is necessary to protect against inadvertent 
    disclosure of sensitive information. The Department rejects this 
    proposal, noting that the handling of sensitive information obtained 
    during discovery should be addressed in parties' discovery plans under 
    Sec.  18.50(b)(3) and that any unresolved issues relating to sensitive 
    information may more appropriately be addressed by the judge on a case-
    by-case basis under the protective order procedures in Sec.  18.52.
        One commenter proposed that paragraph (c)(1), requiring a judge to 
    impose an appropriate sanction on a party or representative who 
    violates the duty to avoid imposing an undue burden on a person subject 
    to a subpoena, be revised to explicitly state that it does not apply to 
    LHWCA and BLBA proceedings which are subject to the summary contempt 
    procedure established by 33 U.S.C. 927(b). The Department declines to 
    adopt the commenter's suggestion for the reasons detailed above in 
    section II, ``Conflicts with the LHWCA and BLBA.''
        Sec.  18.57 Failure to make disclosures or to cooperate in 
    discovery; sanctions. Two comments proposed revising the rule to 
    specifically exempt LHWCA and BLBA cases from the sanction provisions 
    which, the commenters
    
    [[Page 28780]]
    
    argued, are preempted by section 927(b) of the LHWCA. One of the 
    commenters additionally argued that these sanction provisions violate 
    the ``separation of powers'' doctrine by usurping contempt powers 
    solely vested in the Article III courts. The Department declines to 
    adopt the commenters' suggestions for the reasons detailed above in 
    section II, ``Conflicts with the LHWCA and BLBA.''
        Sec.  18.62 Physical and Mental Examinations. One commenter 
    suggested that Sec.  18.62(a)(1) should be amended to restrict an 
    examination to the mental or physical ``condition in controversy.''
        The Department declines to adopt the commenter's suggestion. The 
    suggested text would offer no meaningful limit because the medical 
    examiner does not know how the issues have been framed in litigation. 
    The party who retains an examiner and notices the examination however 
    knows the scope of the report it retains an examiner to prepare. The 
    Department believes it is preferable to rely on the language taken from 
    FRCP 35(a), which requires the party who notices an examination to 
    specify the ``time, place, manner, conditions, and scope of the 
    examination,'' and to disclose the ``person or persons who will perform 
    it.'' The notice must also describe the examination in a way that 
    informs the party to be examined of its scope. That party may object if 
    the conditions or scope of the examination stray into areas that are 
    not in controversy.
        Two commenters argued that the final rule should retain the 30-day 
    notice requirement found in previous Sec.  18.19(4)(d). One commenter 
    stated that the new 14-day notice requirement would unreasonably burden 
    the claimant. Specifically, the shorter notice period would make it 
    harder for the claimant to arrange for time off from work, travel 
    plans, and other matters. The commenters also asserted that Sec.  
    18.62(a)(4) would not give sufficient time to object to the examination 
    notice with particularity. The person to be examined may have to 
    consult with others (such as experts or a treating physician) to frame 
    and serve a specific objection.
        The Department agrees with the commenters' suggestions. Therefore, 
    Sec.  18.62(a)(3) is amended to provide a notice period of 30 days in 
    advance of an examination when the parties do not agree to a shorter 
    notice in their proposed discovery plan, by stipulation, or through 
    informal discussion. Section 18.62(a)(4) is amended to extend the time 
    to serve an objection from 7 days to 14 days.
        One commenter suggested that the text of the rule on physical and 
    mental examinations should mandate a three-step procedure before an 
    examination can be noticed: (1) The parties must attempt to resolve all 
    issues informally before an examination is noticed; (2) if agreement 
    cannot be reached, the party that intends to notice an examination must 
    request a telephone or other prehearing conference with the judge to 
    discuss whether an examination is needed, and any specific procedure or 
    limitations on the examination that may be appropriate; and (3) before 
    the prehearing conference, the party proposing the examination must 
    state with particularity why the examination is needed, why the 
    deposition of the party to be examined is insufficient to address the 
    issues the examination would address, and describe what will occur at 
    the examination.
        The Department declines to adopt the commenter's proposal. First, 
    the parties ordinarily should have discussed whether an examination is 
    appropriate, and its scope, when they frame the proposed discovery plan 
    early in the case, just as happens in the U.S. district courts. Second, 
    the claims at the OALJ frequently involve a physical or mental 
    condition that serves as one of the bases raised for relief--an issue 
    that is litigated less often in U.S. district courts. It makes sense 
    therefore for the default assumption in the rules to be that an 
    examination is appropriate in cases before the OALJ, even though FRCP 
    35 allows such examinations only upon motion for good cause before the 
    U.S. district courts.
        One commenter suggested that Sec.  18.62(c)(1) be amended to 
    require that the examination report (1) be delivered to the examined 
    party within 21 days, (2) be delivered no fewer than 45 days before the 
    hearing, and (3) fulfill the requirements of expert testimony found in 
    proposed Sec.  18.50(c)(2)(ii) [required for witnesses who must provide 
    a written report].
        The Department declines to adopt these additional requirements. 
    Section 18.62 establishes a procedure to set an examination. It should 
    not be conflated with the separate disclosures a party must make before 
    final hearing, particularly about the testimony of experts. The 
    examiner may not be a trial witness. The examination report may be only 
    a portion of the data an expert witness who testifies at final hearing 
    rely on to reach an opinion. Section 18.50(c)(2)(ii) has an independent 
    effect. With respect to the timing of reports, the parties should build 
    into the discovery plan an appropriate period for the examiner to write 
    and serve a report, which can be incorporated into a prehearing order. 
    To ensure the party examined has the examination report promptly, 
    however the Department agrees that the party who retained the examiner 
    and receives the examination report must serve a copy of the 
    examination report on the party examined no later than seven days after 
    it receives the report.
        Sec.  18.64 Depositions by oral examination. One commenter asserted 
    that an ALJ cannot impose the sanctions enumerated in Sec.  18.57 in 
    LHWCA and BLBA adjudications for the types of misconduct described in 
    Sec.  18.64(d)(2) and (g). Therefore, the commenter suggested that the 
    Department add an exception to the rules for these cases. The 
    Department declines to amend Sec.  18.64 to provide such an exception 
    for the reasons detailed above in section II, ``Authority to Regulate 
    the Conduct of Administrative Proceedings; Sanctions'' and ``Conflicts 
    with the LHWCA and BLBA.''
        Sec.  18.64 Depositions by oral examination and Sec.  18.65 
    Depositions by written questions. One commenter stated that proposed 
    Sec. Sec.  18.64 and 18.65 refer to an ``officer,'' but do not clarify 
    the ``officer's'' relations to the deposition proceeding. FRCP 30(b)(5) 
    and 31(b) use the term ``officer'' to describe the court reporter who 
    administers the oath, takes and certifies the testimony, states that 
    the deposition is complete when it ends, and reads the written 
    deposition questions. The Department agrees with the commenter that the 
    title to Sec. Sec.  18.64(b)(5) and 18.65(b) should be altered to 
    clarify that the ``officer'' is the ``deposition officer.''
        Sec.  18.70 Motions for dispositive action. One commenter objected 
    generally to the use of motions to dismiss in proceedings where there 
    are shifting burdens of proof or where the claimant benefits from legal 
    presumptions. The commenter argued specifically that Sec.  18.70(c) 
    should be stricken or made not applicable to cases under the LHWCA 
    because such a rule would require claimants to plead with more 
    specificity than required under the Act, and noted that an injury and 
    timely filing are presumed. The Department declines to strike or modify 
    Sec.  18.70(c). That section states that a party is permitted to move 
    to dismiss part or all of the matter ``for reasons recognized under 
    controlling law.'' The new section is not intended to modify existing 
    law controlling the standard for dispositive motions, including motions 
    challenging the sufficiency of a pleading. Moreover, Sec.  18.10(a) 
    states that ``[t]o the extent that these rules may be inconsistent with 
    a governing statute, regulation, or
    
    [[Page 28781]]
    
    executive order, the latter controls.'' Thus, a party's motion to 
    dismiss under Sec.  18.70(c) does not upset any statutory or regulatory 
    presumptions or shifting burdens of proof.
        Sec.  18.72 Summary decision. One commenter argued for the 
    development of a rule that would allow ALJs to enter summary decision 
    in a condensed order that is compliant with the APA, but which does not 
    require a complete recitation of all evidence. The commenter argued 
    that such a summary ruling would minimize judges' workload and allow 
    for quicker adjudications. The commenter suggested that the rules 
    permit such a summary ruling upon agreement of the parties because 
    without such a provision in the rules, parties will have concerns about 
    whether such an order would be deemed deficient by the BRB. Because the 
    APA specifies what must be included in an ALJ's decision and order, the 
    Department declines to modify Sec.  18.72 to provide for a condensed 
    decision on summary decision. Section 18.72(a) provides that the judge 
    should state on the record the reasons for granting or denying a motion 
    for summary decision or partial summary decision.
        Two commenters stated that the use of summary adjudications is 
    inconsistent with the goal of fair administrative proceedings for 
    whistleblowers and should be rarely, if ever, used. The commenters 
    argued that summary decisions based on written submissions favor 
    employers over employees and increase costs. The commenters argued that 
    summary decisions deprive the ALJ of the opportunity to determine the 
    credibility of the witnesses, which is important in cases where motive 
    and intent are critical issues. The commenters recommended that Sec.  
    18.72 state that summary judgment is generally considered inappropriate 
    in administrative proceedings.
        The Department declines to revise Sec.  18.72 to state that summary 
    decision is inappropriate in administrative proceedings, in general, or 
    in whistleblower proceedings, in particular. The utility of a summary 
    decision procedure for agencies having a substantial caseload of formal 
    adjudications has long been recognized. See Summary Decision in Agency 
    Adjudication,1 CFR 305.70-3 (1995) (ACUS Recommendation 70-3, available 
    at www.acus.gov/sites/default/files/documents/70-3.pdf). Section 18.72 
    is a procedural rule applicable to the many types of adjudications 
    conducted by the OALJ, and is neutral on the question of whether 
    summary decision as a procedural mechanism is disproportionately 
    adverse to the interests of whistleblower complainants. Any rulemaking 
    proposing a regulation discouraging summary decision in whistleblower 
    cases is within the responsibility and purview of the agency which has 
    programmatic and policy responsibility over whistleblower cases, and 
    not the OALJ, whose role is adjudicatory. Moreover, the ARB has issued 
    several decisions that provide ample guidance to the public and to 
    judges on the standards specific to summary decision motions in 
    whistleblower cases. See Evans v. E.P.A., ARB No. 08-059, ALJ No. 2008-
    CAA-3 (ARB Apr. 30, 2010); Hasan v. Enercon Serv., Inc., ARB No. 10-
    061, ALJ Nos. 2004-ERA-22 and 27 (ARB July 28, 2011); Lee v. Parker-
    Hannifin Corp., Advanced Prod. Bus. Unit, ARB No. 10-021, ALJ No. 2009-
    SWD-3 (ARB Feb. 29, 2012); Franchini v. Argonne Nat'l Lab., ARB No. 11-
    006, ALJ No. 2009-ERA-14 (ARB Sept. 26, 2012); see also Guillory v. 
    Domtar Indus., 95 F.3d 1320, 1326 (5th Cir. 1996) (``Though summary 
    judgment is rarely proper when an issue of intent is involved, the 
    presence of an intent issue does not automatically preclude summary 
    judgment; the case must be evaluated like any other to determine 
    whether a genuine issue of material fact exists.'').
        Another commenter objected that motions for summary judgment allow 
    cases to be framed by the party that does not have the burden of proof 
    at trial, and that under Sec.  18.72, the moving party gets the last 
    word. The commenter described complainants being ``sandbagged'' by 
    primary briefs that provide abbreviated or unclear statements of facts 
    or arguments, which are tactically written to prevent cogent or 
    complete responses. Then, complainants are faced with reply briefs that 
    clarify or even add arguments and provide additional authorities in 
    support of those arguments. The commenter stated that many circuit 
    courts deal with this problem by allowing surreply briefs, or by 
    expressly limiting reply briefs to the four corners of the arguments 
    made by the non-moving party in opposition to summary judgment. Thus, 
    the commenter suggested a rule that specifically allows for a surreply, 
    makes clear that the reply and surreply may only respond to material in 
    the opposing submission, and states that all ``new'' material be 
    disregarded by the court.
        The Department declines to revise Sec.  18.72 to expressly allow 
    surreply briefs, or to expressly limit reply briefs to the four corners 
    of the arguments made by the non-moving party in opposition to summary 
    judgment. OALJ judges have the power necessary to conduct fair and 
    impartial proceedings, and are capable of dealing with a parties' 
    raising of new arguments in reply briefs without a specific rule. For 
    example, in Du Jardin v. Morrison Knudsen Corp., 1993-TSC-3 (ALJ Nov. 
    29, 1993), the ALJ refused to consider new arguments raised by the 
    respondent in a reply brief to the complainant's response to the 
    respondent's motion for summary decision. In Inman v. Fannie Mae, 2007-
    SOX-47 (ALJ Mar. 5, 2008), rev'd and remanded on other grounds, Inman 
    v. Fannie Mae, ARB No. 08-060, ALJ No. 2007-SOX-47 (ARB June 28, 2011), 
    the ALJ permitted the complainant to file a surreply on a motion for 
    summary decision. The Department notes that under FRCP 56, on which 
    Sec.  18.72 is modeled, there is no right to file a surreply. Although 
    the commenter stated that many circuit courts allow surreply briefs, it 
    did not identify those circuits. Our review of federal appellate court 
    rules and circuit court local rules found that the rules generally do 
    not mention surreply briefs, or only allow them upon leave of the 
    court. See, e.g., Dist. N.M. Local R. Civ. P. 7.4(b) (2013); Dist. N.H. 
    Local R. 7.1e(3) (2013).
        Two commenters suggested that the timing aspects of Sec.  18.72 
    will be troublesome for whistleblower complainants, for whom the 
    efficiency and cost of opposing motions for summary judgment is of 
    paramount importance. Motions for summary decision are usually filed by 
    respondents, and consequently, when such motions are filed near to the 
    hearing date, complainants are disadvantaged because they are severely 
    burdened by the need to respond to the motion and prepare for the 
    evidentiary hearing within a short time period. The commenters 
    recommended that: (1) Substantive summary motions aimed at eliminating 
    claims or types of damages should be filed no later than 90 days prior 
    to a hearing date; (2) counsel responding to such motions should have 
    21 to 30 days to file their responsive pleadings; and (3) all such 
    motions should be resolved at least 30 days prior to a hearing date.
        The Department declines to revise Sec.  18.72 to require summary 
    decision motions be filed no later than 90 days prior to a hearing 
    date. Prior Sec.  18.40(a) provided that a party may file a motion for 
    summary decision at least 20 days before the date fixed for any 
    hearing. With the new Sec.  18.72, the Department increased the 
    timeframe for filing motions for summary decision to 30 days before the 
    date fixed for the formal
    
    [[Page 28782]]
    
    hearing. In the OALJ's experience, this timeframe would generally 
    afford sufficient time for all parties and the judge to address the 
    motion. As noted in the new Sec.  18.10(a), the OALJ rules of practice 
    and procedure are to be administered to secure the just, speedy, and 
    inexpensive determination of every proceeding. In whistleblower cases, 
    in particular, the regulations direct that hearings are to commence 
    expeditiously. See, e.g., 20 CFR 1979.107(b). Moreover, if necessary, 
    Sec.  18.72 gives the ALJ the discretion to adjust deadlines, as 
    appropriate.
        One comment argued that Sec.  18.72(h) should be revised to 
    explicitly state that it does not apply in proceedings under the LHWCA 
    and the BLBA because 33 U.S.C. 927(b) expressly provides a procedure 
    (i.e., certification of facts to a federal district court for summary 
    contempt proceedings) for resistance of a lawful order, misconduct 
    during hearings, and discovery violations. The commenter thus argued 
    that the sanctions listed in the Sec.  18.72(h) are unavailable to ALJs 
    presiding in hearings under the LHWCA or BLBA. The Department declines 
    to adopt the commenters' suggestion for the reasons detailed above in 
    section II, ``Conflicts with the LHWCA and BLBA.''
        Sec.  18.80 Prehearing statement. The Department added a 
    requirement that a participating party file a prehearing statement at 
    least 21 days prior to the date set for hearing. Prior Sec.  18.7 did 
    not have a requirement for filing prehearing statements.
        A commenter proposed that the time for filing the prehearing 
    statement be extended to 45 days prior to hearing to allow the parties 
    time to ascertain if additional discovery is needed, and to prevent the 
    need for continuances to conduct discovery on witnesses and evidence 
    not timely disclosed. The commenter argued that the additional time 
    will preclude post trial depositions to rectify untimely disclosed 
    information. The Department declines to extend the date for submission 
    of the prehearing statement and notes that the rule allows for the 
    judge to order a different time frame, if appropriate.
        A commenter objected to the statement in the NPRM that the 
    Department proposed to add a new regulation at Sec.  18.80(e) requiring 
    a party to file objections to an opposing party's proposed exhibits or 
    use of deposition testimony within 14 days of being served, and that 
    failure to object waives an objection unless the judge finds good cause 
    for failure to object. The NPRM is in error. The new rule does not 
    include such a provision.
        Sec.  18.84 Official notice. The Department clarifies procedures in 
    Sec.  18.84 that a judge may follow when taking judicial notice. The 
    rule provides that official notice may be taken of any adjudicative 
    fact or other matter subject to judicial notice, and the parties must 
    be given an adequate opportunity to show the contrary of the matter 
    noticed.
        A commenter objected to a practice by ALJs in BLBA claims of taking 
    official notice of the Dictionary of Occupational Titles (4th ed. Rev. 
    1991). He contended that such practice invades upon the province of a 
    medical expert who must consider job duties and tasks in assessing 
    whether a pulmonary impairment would or would not prevent the 
    performance of such tasks. Although the Department agrees with the 
    commenter that a matter subject to judicial notice is a matter whose 
    accuracy cannot be reasonably questioned, it declines to identify 
    specific matters for which official notice is not appropriate. The rule 
    states that parties must be given an adequate opportunity to show the 
    contrary of the matter noted. The Department accordingly declines to 
    amend this provision.
        Sec.  18.87 Standards of conduct. The Department relocated the 
    prior Sec.  18.36 to Sec.  18.87 and divided the prior paragraph (b) 
    into two paragraphs: (b) Exclusion for misconduct, and (c) Review of 
    representative's exclusion. A commenter contended that the rule should 
    be revised to explicitly state that Sec.  18.87 does not apply in 
    proceedings under the LHWCA and BLBA. The commenter reasoned that rules 
    of procedure apply only to the extent that they are consistent with the 
    BLBA or its implementing regulations, and since the LHWCA and BLBA 
    contain a specific statutory provision dealing with the resistance of 
    an order, misconduct during hearings, and discovery violations, 33 
    U.S.C. 927(b), the sanction provisions under either the Rules of 
    Practice and Procedure before the OALJ or the FRCP do not apply. The 
    commenter also objected to the rule because Congress did not vest the 
    OALJ with contempt powers. The Department declines to adopt the 
    commenters' suggestion for the reasons detailed above in section II, 
    ``Conflicts with the LHWCA and BLBA.''
        Sec.  18.88 Transcript of proceedings. Section 18.88(b) of the new 
    rule states that motions to correct the official transcript must be 
    filed within 14 days of the receipt of the transcript unless the judge 
    permits additional time. A commenter suggested that motions to correct 
    be filed seven days after filing of the post-hearing brief. The 
    commenter reasoned that attorneys typically review the transcript as 
    they write the brief, and that counsel can be more helpful in this 
    regard after they have reviewed the transcript in preparation for their 
    brief. The Department declines to extend the date for motions to 
    correct. The Department contemplates that parties would have a 
    corrected transcript at the time they prepare their brief. Also, the 
    rule allows for correction of errors discovered during preparation of a 
    brief, as the rule provides that a judge may correct errors in the 
    transcript at any time before issuing a decision and upon notice to the 
    parties.
        Sec.  18.92 Decision and order. The Department revised the prior 
    Sec.  18.57 into two sections, Sec.  18.91, Post-hearing Briefs; and 
    Sec.  18.92, Decision and Order. The language that the Department 
    deleted stated that the ALJ was to issue a decision within a 
    ``reasonable time'' after receiving the parties' filings or within 30 
    days after receiving the parties' consent findings. Two commenters 
    submitted concerns about the new Sec.  18.92. They observed that, under 
    the current practice, parties ``have no mechanism or ability to know 
    when decisions will be issued,'' and expressed concern that delays 
    adversely impact both employers and employees. The Department has 
    determined that questions about how long it takes the OALJ's judges to 
    issue their decisions are best handled as matters of policy and 
    resource allocation. The Department therefore declines to adopt the 
    commenters' suggestions that Sec.  18.92 be amended to include a 
    timeframe for issuance of a judge's decision.
        Sec.  18.93 Motion for reconsideration. The prior rule contained no 
    general provision on motions for reconsideration of decisions and 
    orders. The Department added a new provision stating that motions for 
    reconsideration of a decision and order must be filed within 10 days 
    after service of the decision on the moving party.
        One commenter suggested that the provision be amended to permit 
    motions for reconsideration to be filed within 30 days, instead of the 
    10 days in the new rule. The commenter stated that the BLBA regulation 
    permits such motions to be filed within 30 days. 20 CFR 725.479(b). In 
    the commenter's view, its proposal will provide for uniformity among 
    all types of cases. The commenter also indicated that a longer time 
    period for such motions will obviate the need to submit motions for 
    extensions of time to file motions for reconsideration, and will 
    provide practitioners and their clients with sufficient time to make 
    informed
    
    [[Page 28783]]
    
    decisions about whether to even file motions for reconsideration. Broad 
    motions aimed at all issues will thus be avoided and the resulting 
    burden on ALJs will be reduced.
        As the commenter correctly indicated, and as mentioned in the NPRM, 
    the new rule is modeled after FRCP 59(e), which gives parties 28 days 
    from the date of entry of a judgment to file a motion to alter or amend 
    the judgment. A motion for reconsideration may be filed in BLBA cases 
    within 30 days. 20 CFR 725.479(b). Compensation orders in LHWCA cases 
    similarly are final 30 days after filing unless other proceedings are 
    instituted.
        The Department considered other timeframes for motions for 
    reconsideration that were more in line with FRCP 59(e) or 20 CFR 
    725.479(b). However, some of the Department's regulations pertaining to 
    specific statutes within the OALJ's purview state that the ALJ's 
    decision and order is final, unless a petition for review is filed with 
    the ARB within a specific time, less than 30 days from service of the 
    ALJ's decision and order. See, e.g., 29 CFR 1978.109(e)(specifying 14 
    days for cases under the Surface Transportation Assistance Act); 29 CFR 
    1980.110(e) (specifying 10 days for cases under the Sarbanes-Oxley 
    Act); 29 CFR 1992.110(a)(specifying 10 days for cases under the 
    National Transit Systems Security Act/Federal Railroad Safety Act). 
    Permitting a party to move for reconsideration after the date that a 
    petition for review must be filed with the ARB would be inconsistent 
    with the Department's position regarding finality of ALJ decisions in 
    such cases. Additionally, if the deadline for submitting a motion for 
    reconsideration is after the deadline for submitting a petition for 
    review, if a motion for reconsideration is not submitted, a party may 
    thereby inadvertently foreclose its options regarding appeal. The 
    Department therefore declines to adopt the commenter's suggestion 
    regarding the number of days within which motions for reconsideration 
    can be filed.
    
    IV. Cross Referencing Chart
    
        To assist in the transition to the revised Subpart A, the chart 
    below provides cross references between the new section and section 
    title, and the old section and section title of each rule. The chart 
    also provides cross references to the corresponding FRCP rule, where 
    applicable. Finally, the chart lists the sections from the old Subpart 
    A that have been deleted.
    
    Part 18, Subpart A--Cross Referencing Chart
    
    ----------------------------------------------------------------------------------------------------------------
                                                                   Old section
        New section     New section title      Old section            title         Federal Rule of Civil Procedure
    ----------------------------------------------------------------------------------------------------------------
                                                   General Provisions
    ----------------------------------------------------------------------------------------------------------------
    18.10.............  Scope and purpose  18.1/18.26.........  Scope of rules    Fed. R. Civ. P. 1.
                                                                 and conduct of
                                                                 hearings.
    18.11.............  Definitions......  18.2...............  Definitions.....
    18.12.............  Proceedings        18.25/18.29(a).....  Proceedings
                         before                                  before
                         administrative                          administrative
                         law judge.                              law judge/
                                                                 authority of
                                                                 the
                                                                 administrative
                                                                 law judge.
    18.13.............  Settlement judge   18.9...............  Consent order or
                         procedure.                              settlement;
                                                                 settlement
                                                                 judge procedure.
    18.14.............  Ex parte           18.38..............  Ex parte
                         communication.                          communications.
    18.15.............  Substitution of    18.30..............  Unavailability    Fed. R. Civ. P. 63.
                         administrative                          of
                         law judge.                              administrative
                                                                 law judge.
    18.16.............  Disqualification.  18.31..............  Disqualification
    18.17.............  Legal assistance.  18.35..............  Legal assistance
    ----------------------------------------------------------------------------------------------------------------
                                               Parties and Representatives
    ----------------------------------------------------------------------------------------------------------------
    18.20.............  Parties to a       18.10..............  Parties, how
                         proceeding.                             designated.
    18.21.............  Party appearance   18.39/18.34(a).....  18.39, Waiver of
                         and                                     right to appear
                         participation.                          and failure to
                                                                 participate or
                                                                 to appear--text
                                                                 was
                                                                 incorporated
                                                                 into proposed
                                                                 ``participation
                                                                 '' rule.
    18.22.............  Representatives..  18.34..............  Representatives.
    18.23.............  Disqualification
                         of
                         representatives.
    18.24.............  Briefs from        18.12..............  Amicus curiae...
                         amicus curiae.
    ----------------------------------------------------------------------------------------------------------------
                                 Service, Format and Timing of Filings and Other Papers
    ----------------------------------------------------------------------------------------------------------------
    18.30.............  Service and        18.3...............  Service and       Fed. R. Civ. P. 5.
                         filing.                                 filing.
    18.31.............  Privacy            ...................  ................  Fed. R. Civ. P. 5.2.
                         protection for
                         filings and
                         exhibits.
    18.32.............  Computing and      18.4...............  Time              Fed. R. Civ. P. 6.
                         extending time.                         computations.
    18.33.............  Motions and other  18.6...............  Motions and       Fed. R. Civ. P. 7(b) & 43(c).
                         papers.                                 requests.
    18.34.............  Format of papers
                         filed.
    18.35.............  Signing motions    ...................  ................  Fed. R. Civ. P. 11.
                         and other
                         papers;
                         representations
                         to the judge;
                         sanctions.
    18.36.............  Amendments after   18.5...............  Responsive
                         referral to the                         pleadings--answ
                         Office of                               er and request
                         Administrative                          for hearings.
                         Law Judges.
    ----------------------------------------------------------------------------------------------------------------
                                                  Prehearing Procedure
    ----------------------------------------------------------------------------------------------------------------
    18.40.............  Notice of hearing  18.27..............  Notice of
                                                                 hearing.
    18.41.............  Continuances and   18.28..............  Continuances....
                         changes in place
                         of hearing.
    18.42.............  Expedited          18.42..............  Expedited
                         proceedings.                            proceedings.
    18.43.............  Consolidation;     18.11..............  Consolidation of  Fed. R. Civ. P. 42.
                         separate                                hearings.
                         hearings.
    
    [[Page 28784]]
    
     
    18.44.............  Prehearing         18.8...............  Prehearing        Fed. R. Civ. P. 16.
                         conference.                             conferences.
    ----------------------------------------------------------------------------------------------------------------
                                                Disclosure and Discovery
    ----------------------------------------------------------------------------------------------------------------
    18.50.............  General            ...................  ................  Fed. R. Civ. P. 26 (a), (d), (f),
                         provisions                                                (g).
                         governing
                         disclosure and
                         discovery.
    18.51.............  Discovery scope    18.14..............  Scope of          Fed. R. Civ. P. 26 (b).
                         and limits.                             discovery.
    18.52.............  Protective orders  18.15..............  Protective        Fed. R. Civ. P. 26 (c).
                                                                 orders.
    18.53.............  Supplementing      18.16..............  Supplementation   Fed. R. Civ. P.26 (e).
                         disclosures and                         of responses.
                         responses.
    18.54.............  Stipulations       18.17..............  Stipulations      Fed. R. Civ. P. 29.
                         about discovery                         regarding
                         and procedure.                          discovery.
    18.55.............  Using depositions  18.23..............  Use of            Fed. R. Civ. P. 32.
                         at hearings.                            depositions at
                                                                 hearings.
    18.56.............  Subpoena.........  18.24..............  Subpoenas.......  Fed. R. Civ. P. 45.
    18.57.............  Failure to make    18.21..............  Motion to compel  Fed. R. Civ. P. 37.
                         disclosures or                          discovery.
                         to cooperate in
                         discovery;
                         sanctions.
    ----------------------------------------------------------------------------------------------------------------
                                                   Types of Discovery
    ----------------------------------------------------------------------------------------------------------------
    18.60.............  Interrogatories    18.18..............  Written           Fed. R. Civ. P. 33.
                         to parties.                             interrogatories
                                                                 to parties/.
    18.61.............  Producing          18.19..............  Production of     Fed. R. Civ. P. 34.
                         documents,                              documents and
                         electronically                          other evidence;
                         stored                                  entry upon land
                         information, and                        for inspection
                         tangible things,                        and other
                         or entering onto                        purposes; and
                         land, for                               physical and
                         inspection and                          mental
                         other purposes.                         examination.
    18.62.............  Physical and       18.19..............  Production of     Fed. R. Civ. P. 35.
                         mental                                  documents and
                         examinations.                           other evidence;
                                                                 entry upon land
                                                                 for inspection
                                                                 and other
                                                                 purposes; and
                                                                 physical and
                                                                 mental
                                                                 examination.
    18.63.............  Requests for       18.20..............  Admissions......  Fed. R. Civ. P. 36.
                         admission.
    18.64.............  Depositions by     18.22..............  Depositions by    Fed. R. Civ. P. 30.
                         oral examination.                       oral
                                                                 examinations.
    18.65.............  Depositions by     ...................  ................  Fed. R. Civ. P. 31.
                         written
                         questions.
    ----------------------------------------------------------------------------------------------------------------
                                               Disposition Without Hearing
    ----------------------------------------------------------------------------------------------------------------
    18.70.............  Motions for
                         dispositive
                         action.
    18.71.............  Approval of        18.9...............
                         settlement or
                         consent findings.
    18.72.............  Summary decision.  18.40/18.41........  18.40, Motion     Fed. R. Civ. P. 56.
                                                                 for summary
                                                                 decision merged
                                                                 with 18.41,
                                                                 Summary
                                                                 decision.
    ----------------------------------------------------------------------------------------------------------------
                                                         Hearing
    ----------------------------------------------------------------------------------------------------------------
    18.80.............  Prehearing         18.7...............  Prehearing
                         statement.                              statements.
    18.81.............  Formal hearing...  18.43..............  Formal hearings.  Fed. R. Civ. P. 43(a).
    18.82.............  Exhibits.........  18.47/18.48 18.49/   Exhibits/records
                                            18.50.               in other
                                                                 proceedings/
                                                                 designation of
                                                                 parts of
                                                                 documents/
                                                                 authenticity.
    18.83.............  Stipulations.....  18.51..............  Stipulations....
    18.84.............  Official notice..  18.45..............  Official notice.
    18.85.............  Privileged,        18.46/18.56........  In camera and
                         sensitive, or                           protective
                         classified                              orders/
                         material.                               restricted
                                                                 access.
    18.86.............  Hearing room       18.37..............  Hearing room
                         conduct.                                conduct.
    18.87.............  Standards of       18.36..............  Standards of
                         conduct.                                conduct.
    18.88.............  Transcript of      18.52..............  Record of
                         proceedings.                            hearings.
    ----------------------------------------------------------------------------------------------------------------
                                                      Post Hearing
    ----------------------------------------------------------------------------------------------------------------
    18.90.............  Closing the        18.54/18.55........  Closing the
                         record;                                 record /receipt
                         subsequent                              of documents
                         motions.                                after hearing.
    18.91.............  Post-hearing       18.57..............  Decision of the
                         brief.                                  administrative
                                                                 law judge and
                                                                 post-hearing
                                                                 briefs.
    18.92.............  Decision and       18.57..............  Decision of the
                         order.                                  administrative
                                                                 law judge and
                                                                 post-hearing
                                                                 briefs.
    18.93.............  Motion for         ...................  ................  Fed. R. Civ. P. 59 (e).
                         reconsideration.
    18.94.............  Indicative ruling  ...................  ................  Fed. R. Civ. P. 62.1.
                         on a motion for
                         relief that is
                         barred by a
                         pending petition
                         for review.
    18.95.............  Review of          18.58..............  Appeals.........
                         Decision.
    ----------------------------------------------------------------------------------------------------------------
                                                    Deleted Sections
    ----------------------------------------------------------------------------------------------------------------
                        Deleted..........  18.13..............  Discovery
                                                                 methods.
                        Deleted..........  18.32..............  Separation of
                                                                 functions.
    
    [[Page 28785]]
    
     
                        Deleted..........  18.33..............  Expedition......
                        Deleted..........  18.53..............  Closing of
                                                                 hearings.
                        Deleted..........  18.59..............  Certification of
                                                                 official record.
    ----------------------------------------------------------------------------------------------------------------
    
    List of Subjects in 29 CFR Part 18
    
        Administrative practice and procedure, Labor.
    
        Signed: At Washington, DC, this 7th of May, 2015.
    Thomas E. Perez,
    Secretary of Labor.
    
        For the reasons set forth in the preamble, amend part 18 of title 
    29 of the Code of Federal Regulations as follows:
    
    PART 18--RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE 
    HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES
    
    0
    1. The authority citation for part 18 continues to read as follows:
    
    
        Authority: 5 U.S.C. 301; 5 U.S.C. 551-553; 5 U.S.C. 571 note; 
    E.O. 12778; 57 FR 7292.
    
    0
    2. Revise subpart A to read as follows:
    
    Subpart A--General
    
    Sec.
    
    General Provisions
    
    18.10 Scope and purpose.
    18.11 Definitions.
    18.12 Proceedings before administrative law judge.
    18.13 Settlement judge procedure.
    18.14 Ex parte communication.
    18.15 Substitution of administrative law judge.
    18.16 Disqualification.
    18.17 Legal assistance.
    
    Parties and Representatives
    
    18.20 Parties to a proceeding.
    18.21 Party appearance and participation.
    18.22 Representatives.
    18.23 Disqualification of representatives.
    18.24 Briefs from amicus curiae.
    
    Service, Format, and Timing of Filings and Other Papers
    
    18.30 Service and filing.
    18.31 Privacy protection for filings and exhibits.
    18.32 Computing and extending time.
    18.33 Motions and other papers.
    18.34 Format of papers filed.
    18.35 Signing motions and other papers; representations to the 
    judge; sanctions.
    18.36 Amendments after referral to the Office of Administrative Law 
    Judges.
    
    Prehearing Procedure
    
    18.40 Notice of hearing.
    18.41 Continuances and changes in place of hearing.
    18.42 Expedited proceedings.
    18.43 Consolidation; separate hearings.
    18.44 Prehearing conference.
    
    Disclosure and Discovery
    
    18.50 General provisions governing disclosure and discovery.
    18.51 Discovery scope and limits.
    18.52 Protective orders.
    18.53 Supplementing disclosures and responses.
    18.54 Stipulations about discovery procedure.
    18.55 Using depositions at hearings.
    18.56 Subpoena.
    18.57 Failure to make disclosures or to cooperate in discovery; 
    sanctions.
    
    Types of Discovery
    
    18.60 Interrogatories to parties.
    18.61 Producing documents, electronically stored information, and 
    tangible things, or entering onto land, for inspection and other 
    purposes.
    18.62 Physical and mental examinations.
    18.63 Requests for admission.
    18.64 Depositions by oral examination.
    18.65 Depositions by written questions.
    
    Disposition Without Hearing
    
    18.70 Motions for dispositive action.
    18.71 Approval of settlement or consent findings.
    18.72 Summary decision.
    
    Hearing
    
    18.80 Prehearing statement.
    18.81 Formal hearing.
    18.82 Exhibits.
    18.83 Stipulations.
    18.84 Official notice.
    18.85 Privileged, sensitive, or classified material.
    18.86 Hearing room conduct.
    18.87 Standards of conduct.
    18.88 Transcript of proceedings.
    
    Post Hearing
    
    18.90 Closing the record; subsequent motions.
    18.91 Post-hearing brief.
    18.92 Decision and order.
    18.93 Motion for reconsideration.
    18.94 Indicative ruling on a motion for relief that is barred by a 
    pending petition for review.
    18.95 Review of decision
    
    General Provisions
    
    
    Sec.  18.10  Scope and purpose.
    
        (a) In general. These rules govern the procedure in proceedings 
    before the United States Department of Labor, Office of Administrative 
    Law Judges. They should be construed and administered to secure the 
    just, speedy, and inexpensive determination of every proceeding. To the 
    extent that these rules may be inconsistent with a governing statute, 
    regulation, or executive order, the latter controls. If a specific 
    Department of Labor regulation governs a proceeding, the provisions of 
    that regulation apply, and these rules apply to situations not 
    addressed in the governing regulation. The Federal Rules of Civil 
    Procedure (FRCP) apply in any situation not provided for or controlled 
    by these rules, or a governing statute, regulation, or executive order.
        (b) Type of proceeding. Unless the governing statute, regulation, 
    or executive order prescribes a different procedure, proceedings follow 
    the Administrative Procedure Act, 5 U.S.C. 551 through 559.
        (c) Waiver, modification, and suspension. Upon notice to all 
    parties, the presiding judge may waive, modify, or suspend any rule 
    under this subpart when doing so will not prejudice a party and will 
    serve the ends of justice.
    
    
    Sec.  18.11  Definitions.
    
        For purposes of these rules, these definitions supplement the 
    definitions in the Administrative Procedure Act, 5 U.S.C. 551.
        Calendar call means a meeting in which the judge calls cases 
    awaiting hearings, determines case status, and assigns a hearing date 
    and time.
        Chief Judge means the Chief Administrative Law Judge of the United 
    States Department of Labor Office of Administrative Law Judges and 
    judges to whom the Chief Judge delegates authority.
        Docket clerk means the Chief Docket Clerk at the Office of 
    Administrative Law Judges in Washington, DC. But once a case is 
    assigned to a judge in a district office, docket clerk means the docket 
    staff in that office.
        Hearing means that part of a proceeding consisting of a session to 
    decide issues of fact or law that is recorded and transcribed and 
    provides the opportunity to present evidence or argument.
        Judge means an administrative law judge appointed under the 
    provisions of 5 U.S.C. 3105.
        Order means the judge's disposition of one or more procedural or 
    substantive issues, or of the entire matter.
        Proceeding means an action before the Office of Administrative Law 
    Judges
    
    [[Page 28786]]
    
    that creates a record leading to an adjudication or order.
        Representative means any person permitted to represent another in a 
    proceeding before the Office of Administrative Law Judges.
    
    
    Sec.  18.12  Proceedings before administrative law judge.
    
        (a) Designation. The Chief Judge designates the presiding judge for 
    all proceedings.
        (b) Authority. In all proceedings under this part, the judge has 
    all powers necessary to conduct fair and impartial proceedings, 
    including those described in the Administrative Procedure Act, 5 U.S.C. 
    556. Among them is the power to:
        (1) Regulate the course of proceedings in accordance with 
    applicable statute, regulation or executive order;
        (2) Administer oaths and affirmations and examine witnesses;
        (3) Compel the production of documents and appearance of witnesses 
    within a party's control;
        (4) Issue subpoenas authorized by law;
        (5) Rule on offers of proof and receive relevant evidence;
        (6) Dispose of procedural requests and similar matters;
        (7) Terminate proceedings through dismissal or remand when not 
    inconsistent with statute, regulation, or executive order;
        (8) Issue decisions and orders;
        (9) Exercise powers vested in the Secretary of Labor that relate to 
    proceedings before the Office of Administrative Law Judges; and
        (10) Where applicable take any appropriate action authorized by the 
    FRCP.
    
    
    Sec.  18.13  Settlement judge procedure.
    
        (a) How initiated. The Office of Administrative Law Judges provides 
    settlement judges to aid the parties in resolving the matter that is 
    the subject of the controversy. Upon a joint request by the parties or 
    upon referral by the judge when no party objects, the Chief Judge may 
    appoint a settlement judge. A settlement judge will not be appointed 
    when settlement proceedings would be inconsistent with a statute, 
    regulation, or executive order.
        (b) Appointment. The Chief Judge has discretion to appoint a 
    settlement judge, who must be an active or retired judge. The 
    settlement judge will not be appointed to hear and decide the case or 
    approve the settlement without the parties' consent and the approval of 
    the Chief Judge.
        (c) Duration of settlement proceeding. Unless the Chief Judge 
    directs otherwise, settlement negotiations under this section must be 
    completed within 60 days from the date of the settlement judge's 
    appointment. The settlement judge may request that the Chief Judge 
    extend the appointment. The negotiations will be terminated if a party 
    withdraws from participation, or if the settlement judge determines 
    that further negotiations would be unproductive or inappropriate.
        (d) Powers of the settlement judge. The settlement judge may 
    convene settlement conferences; require the parties or their 
    representatives to attend with full authority to settle any disputes; 
    and impose other reasonable requirements to expedite an amicable 
    resolution of the case.
        (e) Stay of proceedings before presiding judge. The appointment of 
    a settlement judge does not stay any aspect of the proceeding before 
    the presiding judge. Any motion to stay must be directed to the 
    presiding judge.
        (f) Settlement conferences. Settlement conferences may be conducted 
    by telephone, videoconference or in person at the discretion of the 
    settlement judge after considering the nature of the case, location of 
    the participants, availability of technology, and efficiency of 
    administration.
        (g) Confidentiality. All discussions with the settlement judge are 
    confidential; none may be recorded or transcribed. The settlement judge 
    must not disclose any confidential communications made during 
    settlement proceedings, except as required by statute, executive order, 
    or court order. The settlement judge may not be subpoenaed or called as 
    a witness in any hearing of the case or any subsequent administrative 
    proceedings before the Department to testify to statements made or 
    conduct during the settlement discussions.
        (h) Report. The parties must promptly inform the presiding judge of 
    the outcome of the settlement negotiations. If a settlement is reached, 
    the parties must submit the required documents to the presiding judge 
    within 14 days of the conclusion of settlement discussions unless the 
    presiding judge orders otherwise.
        (i) Non-reviewable decisions. Whether a settlement judge should be 
    appointed, the selection of a particular settlement judge, and the 
    termination of proceedings under this section are matters not subject 
    to review by Department officials.
    
    
    Sec.  18.14  Ex parte communication.
    
        The parties, their representatives, or other interested persons 
    must not engage in ex parte communications on the merits of a case with 
    the judge.
    
    
    Sec.  18.15  Substitution of administrative law judge.
    
        (a) Substitution during hearing. If the judge is unable to complete 
    a hearing, a successor judge designated pursuant to Sec.  18.12 may 
    proceed upon certifying familiarity with the record and determining 
    that the case may be completed without prejudice to the parties. The 
    successor judge must, at a party's request, recall any witness whose 
    testimony is material and disputed and who is available to testify 
    again without undue burden. The successor judge may also recall any 
    other witness.
        (b) Substitution following hearing. If the judge is unable to 
    proceed after the hearing is concluded, the successor judge appointed 
    pursuant to Sec.  18.12 may issue a decision and order based upon the 
    existing record after notifying the parties and giving them an 
    opportunity to respond. Within 14 days of receipt of the judge's 
    notice, a party may file an objection to the judge issuing a decision 
    based on the existing record. If no objection is filed, the objection 
    is considered waived. Upon good cause shown, the judge may order 
    supplemental proceedings.
    
    
    Sec.  18.16  Disqualification.
    
        (a) Disqualification on judge's initiative. A judge must withdraw 
    from a proceeding whenever he or she considers himself or herself 
    disqualified.
        (b) Request for disqualification. A party may file a motion to 
    disqualify the judge. The motion must allege grounds for 
    disqualification, and include any appropriate supporting affidavits, 
    declarations or other documents. The presiding judge must rule on the 
    motion in a written order that states the grounds for the ruling.
    
    
    Sec.  18.17  Legal assistance.
    
        The Office of Administrative Law Judges does not appoint 
    representatives, refer parties to representatives, or provide legal 
    assistance.
    
    Parties and Representatives
    
    
    Sec.  18.20  Parties to a proceeding.
    
        A party seeking original relief or action is designated a 
    complainant, claimant or plaintiff, as appropriate. A party against 
    whom relief or other action is sought is designated a respondent or 
    defendant, as appropriate. When participating in a proceeding, the 
    applicable Department of Labor's agency is a party or party-in-
    interest.
    
    [[Page 28787]]
    
    Sec.  18.21  Party appearance and participation.
    
        (a) In general. A party may appear and participate in the 
    proceeding in person or through a representative.
        (b) Waiver of participation. By filing notice with the judge, a 
    party may waive the right to participate in the hearing or the entire 
    proceeding. When all parties waive the right to participate in the 
    hearing, the judge may issue a decision and order based on the 
    pleadings, evidence, and briefs.
        (c) Failure to appear. When a party has not waived the right to 
    participate in a hearing, conference or proceeding but fails to appear 
    at a scheduled hearing or conference, the judge may, after notice and 
    an opportunity to be heard, dismiss the proceeding or enter a decision 
    and order without further proceedings if the party fails to establish 
    good cause for its failure to appear.
    
    
    Sec.  18.22  Representatives.
    
        (a) Notice of appearance. When first making an appearance, each 
    representative must file a notice of appearance that indicates on whose 
    behalf the appearance is made and the proceeding name and docket 
    number. Any attorney representative must include in the notice of 
    appearance the license registration number(s) assigned to the attorney.
        (b) Categories of representation; admission standards--(1) Attorney 
    representative. Under these rules, ``attorney'' or ``attorney 
    representative'' means an individual who has been admitted to the bar 
    of the highest court of a State, Commonwealth, or Territory of the 
    United States, or the District of Columbia.
        (i) Attorney in good standing. An attorney who is in good standing 
    in his or her licensing jurisdiction may represent a party or 
    subpoenaed witness before the Office of Administrative Law Judges. The 
    filing of the Notice of Appearance required in paragraph (a) of this 
    section constitutes an attestation that:
        (A) The attorney is a member of a bar in good standing of the 
    highest court of a State, Commonwealth, or Territory of the United 
    States, or the District of Columbia where the attorney has been 
    licensed to practice law; and
        (B) No disciplinary proceeding is pending against the attorney in 
    any jurisdiction where the attorney is licensed to practice law.
        (ii) Attorney not in good standing. An attorney who is not in good 
    standing in his or her licensing jurisdiction may not represent a party 
    or subpoenaed witness before the Office of Administrative Law Judges, 
    unless he or she obtains the judge's approval. Such an attorney must 
    file a written statement that establishes why the failure to maintain 
    good standing is not disqualifying. The judge may deny approval for the 
    appearance of such an attorney after providing notice and an 
    opportunity to be heard.
        (iii) Disclosure of discipline. An attorney representative must 
    promptly disclose to the judge any action suspending, enjoining, 
    restraining, disbarring, or otherwise currently restricting the 
    attorney in the practice of law in any jurisdiction where the attorney 
    is licensed to practice law.
        (2) Non-attorney representative. An individual who is not an 
    attorney as defined by paragraph (b)(1) of this section may represent a 
    party or subpoenaed witness upon the judge's approval. The individual 
    must file a written request to serve as a non-attorney representative 
    that sets forth the name of the party or subpoenaed witness represented 
    and certifies that the party or subpoenaed witness desires the 
    representation. The judge may require that the representative establish 
    that he or she is subject to the laws of the United States and 
    possesses communication skills, knowledge, character, thoroughness and 
    preparation reasonably necessary to render appropriate assistance. The 
    judge may inquire as to the qualification or ability of a non-attorney 
    representative to render assistance at any time. The judge may deny the 
    request to serve as non-attorney representative after providing the 
    party or subpoenaed witness with notice and an opportunity to be heard.
        (c) Duties. A representative must be diligent, prompt, and 
    forthright when dealing with parties, representatives and the judge, 
    and act in a manner that furthers the efficient, fair and orderly 
    conduct of the proceeding. An attorney representative must adhere to 
    the applicable rules of conduct for the jurisdiction(s) in which the 
    attorney is admitted to practice.
        (d) Prohibited actions. A representative must not:
        (1) Threaten, coerce, intimidate, deceive or knowingly mislead a 
    party, representative, witness, potential witness, judge, or anyone 
    participating in the proceeding regarding any matter related to the 
    proceeding;
        (2) Knowingly make or present false or misleading statements, 
    assertions or representations about a material fact or law related to 
    the proceeding;
        (3) Unreasonably delay, or cause to be delayed without good cause, 
    any proceeding; or
        (4) Engage in any other action or behavior prejudicial to the fair 
    and orderly conduct of the proceeding.
        (e) Withdrawal of appearance. A representative who desires to 
    withdraw after filing a notice of appearance or a party desiring to 
    withdraw the appearance of a representative must file a motion with the 
    judge. The motion must state that notice of the withdrawal has been 
    given to the party, client or representative. The judge may deny a 
    representative's motion to withdraw when necessary to avoid undue delay 
    or prejudice to the rights of a party.
    
    
    Sec.  18.23  Disqualification of representatives.
    
        (a) Disqualification--(1) Grounds for disqualification. 
    Representatives qualified under Sec.  18.22 may be disqualified for:
        (i) Suspension of a license to practice law or disbarment from the 
    practice of law by any court or agency of the United States, highest 
    court of a State, Commonwealth, or Territory of the United States, or 
    the District of Columbia;
        (ii) Disbarment from the practice of law on consent or resignation 
    from the bar of a court or agency while an investigation into an 
    allegation of misconduct is pending; or
        (iii) Committing an act, omission, or contumacious conduct that 
    violates these rules, an applicable statute, an applicable regulation, 
    or the judge's order(s).
        (2) Disqualification procedure. The Chief Judge must provide notice 
    and an opportunity to be heard as to why the representative should not 
    be disqualified from practice before the Office of Administrative Law 
    Judges. The notice will include a copy of the document that provides 
    the grounds for the disqualification. Unless otherwise directed, any 
    response must be filed within 21 days of service of the notice. The 
    Chief Judge's determination must be based on the reliable, probative 
    and substantial evidence of record, including the notice and response.
        (b) Notification of disqualification action. When an attorney 
    representative is disqualified, the Chief Judge will notify the 
    jurisdiction(s) in which the attorney is licensed to practice and the 
    National Lawyer Regulatory Data Bank maintained by the American Bar 
    Association Standing Committee on Professional Discipline, by providing 
    a copy of the decision and order.
        (c) Application for reinstatement. A representative disqualified 
    under this section may be reinstated by the Chief Judge upon 
    application. At the discretion of the Chief Judge, consideration of an 
    application for reinstatement may be limited to written submissions or 
    may be referred for
    
    [[Page 28788]]
    
    further proceedings before the Chief Judge.
    
    
    Sec.  18.24  Briefs from amicus curiae.
    
        The United States or an officer or agency thereof, or a State, 
    Territory, Commonwealth, or the District of Columbia may file an amicus 
    brief without the consent of the parties or leave of the judge. Any 
    other amicus curiae may file a brief only by leave of the judge, upon 
    the judge's request, or if the brief states that all parties have 
    consented to its filing. A request for leave to file an amicus brief 
    must be made by written motion that states the interest of the movant 
    in the proceeding. The deadline for submission of an amicus brief will 
    be set by the presiding judge.
    
    Service, Format, and Timing of Filings and Other Papers
    
    
    Sec.  18.30  Service and filing.
    
        (a) Service on parties--(1) In general. Unless these rules provide 
    otherwise, all papers filed with OALJ or with the judge must be served 
    on every party.
        (2) Service: how made--(i) Serving a party's representative. If a 
    party is represented, service under this section must be made on the 
    representative. The judge also may order service on the party.
        (ii) Service in general. A paper is served under this section by:
        (A) Handing it to the person;
        (B) Leaving it;
        (1) At the person's office with a clerk or other person in charge 
    or, if no one is in charge, in a conspicuous place in the office; or
        (2) If the person has no office or the office is closed, at the 
    person's dwelling or usual place of abode with someone of suitable age 
    and discretion who resides there.
        (C) Mailing it to the person's last known address--in which event 
    service is complete upon mailing;
        (D) Leaving it with the docket clerk if the person has no known 
    address;
        (E) Sending it by electronic means if the person consented in 
    writing--in which event service is complete upon transmission, but is 
    not effective if the serving party learns that it did not reach the 
    person to be served; or
        (F) Delivering it by any other means that the person consented to 
    in writing--in which event service is complete when the person making 
    service delivers it to the agency designated to make delivery.
        (3) Certificate of service. A certificate of service is a signed 
    written statement that the paper was served on all parties. The 
    statement must include:
        (i) The title of the document;
        (ii) The name and address of each person or representative being 
    served;
        (iii) The name of the party filing the paper and the party's 
    representative, if any;
        (iv) The date of service; and
        (v) How the paper was served.
        (b) Filing with Office of Administrative Law Judges--(1) Required 
    filings. Any paper that is required to be served must be filed within a 
    reasonable time after service with a certificate of service. But 
    disclosures under Sec.  18.50(c) and the following discovery requests 
    and responses must not be filed until they are used in the proceeding 
    or the judge orders filing:
        (i) Notices of deposition,
        (ii) Depositions,
        (iii) Interrogatories,
        (iv) Requests for documents or tangible things or to permit entry 
    onto land;
        (v) Requests for admission, and
        (vi) The notice (and the related copy of the subpoena) that must be 
    served on the parties under rule 18.56(b)(1) before a ``documents 
    only'' subpoena may be served on the person commended to produce the 
    material.
        (2) Filing: when made--in general. A paper is filed when received 
    by the docket clerk or the judge during a hearing.
        (3) Filing how made. A paper may be filed by mail, courier service, 
    hand delivery, facsimile or electronic delivery.
        (i) Filing by facsimile--(A) When permitted. A party may file by 
    facsimile only as directed or permitted by the judge. If a party cannot 
    obtain prior permission because the judge is unavailable, a party may 
    file by facsimile up to 12 pages, including a statement of the 
    circumstances precluding filing by delivery or mail. Based on the 
    statement, the judge may later accept the document as properly filed at 
    the time transmitted.
        (B) Cover sheet. Filings by facsimile must include a cover sheet 
    that identifies the sender, the total number of pages transmitted, and 
    the matter's docket number and the document's title.
        (C) Retention of the original document. The original signed 
    document will not be substituted into the record unless required by law 
    or the judge.
        (ii) Any party filing a facsimile of a document must maintain the 
    original document and transmission record until the case is final. A 
    transmission record is a paper printed by the transmitting facsimile 
    machine that states the telephone number of the receiving machine, the 
    number of pages sent, the transmission time and an indication that no 
    error in transmission occurred.
        (iii) Upon a party's request or judge's order, the filing party 
    must provide for review the original transmitted document from which 
    the facsimile was produced.
        (4) Electronic filing, signing, or verification. A judge may allow 
    papers to be filed, signed, or verified by electronic means.
    
    
    Sec.  18.31  Privacy protection for filings and exhibits.
    
        (a) Redacted filings and exhibits. Unless the judge orders 
    otherwise, in an electronic or paper filing or exhibit that contains an 
    individual's social-security number, taxpayer-identification number, or 
    birth date, the name of an individual known to be a minor, or a 
    financial-account number, the party or nonparty making the filing must 
    redact all such information, except:
        (1) The last four digits of the social-security number and 
    taxpayer-identification number;
        (2) The year of the individual's birth;
        (3) The minor's initials; and
        (4) The last four digits of the financial-account number.
        (b) Exemptions from the redaction requirement. The redaction 
    requirement does not apply to the following:
        (1) The record of an administrative or agency proceeding;
        (2) The official record of a state-court proceeding;
        (3) The record of a court or tribunal, if that record was not 
    subject to the redaction requirement when originally filed; and
        (4) A filing or exhibit covered by paragraph (c) of this section.
        (c) Option for filing a reference list. A filing that contains 
    redacted information may be filed together with a reference list that 
    identifies each item of redacted information and specifies an 
    appropriate identifier that uniquely corresponds to each item listed. 
    The reference list must be filed under seal and may be amended as of 
    right. Any reference in the case to a listed identifier will be 
    construed to refer to the corresponding item of information.
        (d) Waiver of protection of identifiers. A person waives the 
    protection of paragraph (a) of this section as to the person's own 
    information by filing or offering it without redaction and not under 
    seal.
        (e) Protection of material. For good cause, the judge may order 
    protection of material pursuant to Sec. Sec.  18.85 and 18.52.
    
    
    Sec.  18.32  Computing and extending time.
    
        (a) Computing time. The following rules apply in computing any time
    
    [[Page 28789]]
    
    period specified in these rules, a judge's order, or in any statute, 
    regulation, or executive order that does not specify a method of 
    computing time.
        (1) When the period is stated in days or a longer unit of time:
        (i) Exclude the day of the event that triggers the period;
        (ii) Count every day, including intermediate Saturdays, Sundays, 
    and legal holidays; and
        (iii) Include the last day of the period, but if the last day is a 
    Saturday, Sunday, or legal holiday, the period continues to run until 
    the end of the next day that is not a Saturday, Sunday, or legal 
    holiday.
        (2) ``Last day'' defined. Unless a different time is set by a 
    statute, regulation, executive order, or judge's order, the ``last 
    day'' ends at 4:30 p.m. local time where the event is to occur.
        (3) ``Next day'' defined. The ``next day'' is determined by 
    continuing to count forward when the period is measured after an event 
    and backward when measured before an event.
        (4) ``Legal holiday'' defined. ``Legal holiday'' means the day set 
    aside by statute for observing New Year's Day, Martin Luther King Jr.'s 
    Birthday, Washington's Birthday, Memorial Day, Independence Day, Labor 
    Day, Columbus Day, Veterans' Day, Thanksgiving Day, or Christmas Day; 
    and any day on which the district office in which the document is to be 
    filed is closed or otherwise inaccessible.
        (b) Extending time. When an act may or must be done within a 
    specified time, the judge may, for good cause, extend the time:
        (1) With or without motion or notice if the judge acts, or if a 
    request is made, before the original time or its extension expires; or
        (2) On motion made after the time has expired if the party failed 
    to act because of excusable neglect.
        (c) Additional time after certain kinds of service. When a party 
    may or must act within a specified time after service and service is 
    made under Sec.  18.30(a)(2)(B)(iii) or (iv), 3 days are added after 
    the period would otherwise expire under paragraph (a) of this section.
    
    
    Sec.  18.33  Motions and other papers.
    
        (a) In general. A request for an order must be made by motion. The 
    motion must:
        (1) Be in writing, unless made during a hearing;
        (2) State with particularity the grounds for seeking the order;
        (3) State the relief sought;
        (4) Unless the relief sought has been agreed to by all parties, be 
    accompanied by affidavits, declarations, or other evidence; and
        (5) If required by paragraph (c)(4) of this section, include a 
    memorandum of points and authority supporting the movant's position.
        (b) Form. The rules governing captions and other matters of form 
    apply to motions and other requests.
        (c) Written motion before hearing. (1) A written motion before a 
    hearing must be served with supporting papers, at least 21 days before 
    the time specified for the hearing, with the following exceptions:
        (i) When the motion may be heard ex parte;
        (ii) When these rules or an appropriate statute, regulation, or 
    executive order set a different time; or
        (iii) When an order sets a different time.
        (2) A written motion served within 21 days before the hearing must 
    state why the motion was not made earlier.
        (3) A written motion before hearing must state that counsel 
    conferred, or attempted to confer, with opposing counsel in a good 
    faith effort to resolve the motion's subject matter, and whether the 
    motion is opposed or unopposed. A statement of consultation is not 
    required with pro se litigants or with the following motions:
        (i) To dismiss;
        (ii) For summary decision; and
        (iii) Any motion filed as ``joint,'' ``agreed,'' or ``unopposed.''
        (4) Unless the motion is unopposed, the supporting papers must 
    include affidavits, declarations or other proof to establish the 
    factual basis for the relief. For a dispositive motion and a motion 
    relating to discovery, a memorandum of points and authority must also 
    be submitted. A judge may direct the parties file additional documents 
    in support of any motion.
        (d) Opposition or other response to a motion filed prior to 
    hearing. A party to the proceeding may file an opposition or other 
    response to the motion within 14 days after the motion is served. The 
    opposition or response may be accompanied by affidavits, declarations, 
    or other evidence, and a memorandum of the points and authorities 
    supporting the party's position. Failure to file an opposition or 
    response within 14 days after the motion is served may result in the 
    requested relief being granted. Unless the judge directs otherwise, no 
    further reply is permitted and no oral argument will be heard prior to 
    hearing.
        (e) A motions made at hearing. A motion made at a hearing may be 
    stated orally unless the judge determines that a written motion or 
    response would best serve the ends of justice.
        (f) Renewed or repeated motions. A motion seeking the same or 
    substantially similar relief previously denied, in whole or in part, 
    must include the following information:
        (1) The earlier motion(s),
        (2) When the respective motion was made,
        (3) The judge to whom the motion was made,
        (4) The earlier ruling(s), and
        (5) The basis for the current motion.
        (g) Motion hearing. The judge may order a hearing to take evidence 
    or oral argument on a motion.
    
    
    Sec.  18.34  Format of papers filed.
    
        Every paper filed must be printed in black ink on 8.5 x 11-inch 
    opaque white paper and begin with a caption that includes:
        (a) The parties' names,
        (b) A title that describes the paper's purpose, and
        (c) The docket number assigned by the Office of Administrative Law 
    Judges. If the Office has not assigned a docket number, the paper must 
    bear the case number assigned by the Department of Labor agency where 
    the matter originated. If the case number is an individual's Social 
    Security number then only the last four digits may be used. See Sec.  
    18.31(a)(1).
    
    
    Sec.  18.35  Signing motions and other papers; representations to the 
    judge; sanctions.
    
        (a) Date and signature. Every written motion and other paper filed 
    with OALJ must be dated and signed by at least one representative of 
    record in the representative's name--or by a party personally if the 
    party is unrepresented. The paper must state the signer's address, 
    telephone number, facsimile number and email address, if any. The judge 
    must strike an unsigned paper unless the omission is promptly corrected 
    after being called to the representative's or party's attention.
        (b) Representations to the judge. By presenting to the judge a 
    written motion or other paper--whether by signing, filing, submitting, 
    or later advocating it--the representative or unrepresented party 
    certifies that to the best of the person's knowledge, information, and 
    belief, formed after an inquiry reasonable under the circumstances:
        (1) It is not being presented for any improper purpose, such as to 
    harass, cause unnecessary delay, or needlessly increase the cost of the 
    proceedings;
        (2) The claims, defenses, and other legal contentions are warranted 
    by existing law or by a nonfrivolous argument for extending, modifying, 
    or reversing existing law or for establishing new law;
    
    [[Page 28790]]
    
        (3) The factual contentions have evidentiary support or, if 
    specifically so identified, will likely have evidentiary support after 
    a reasonable opportunity for further investigation or discovery; and
        (4) The denials of factual contentions are warranted on the 
    evidence or, if specifically so identified, are reasonably based on 
    belief or a lack of information.
        (c) Sanctions--(1) In general. If, after notice and a reasonable 
    opportunity to respond, the judge determines that paragraph (b) of this 
    section has been violated, the judge may impose an appropriate sanction 
    on any representative, law firm, or party that violated the rule or is 
    responsible for the violation. Absent exceptional circumstances, a law 
    firm must be held jointly responsible for a violation committed by its 
    partner, associate, or employee.
        (2) Motion for sanctions. A motion for sanctions must be made 
    separately from any other motion and must describe the specific conduct 
    that allegedly violates paragraph (b) of this section. The motion must 
    be served under Sec.  18.30(a), but it must not be filed or be 
    presented to the judge if the challenged paper, claim, defense, 
    contention, or denial is withdrawn or appropriately corrected within 21 
    days after service or within another time the judge sets.
        (3) On the judge's initiative. On his or her own, the judge may 
    order a representative, law firm, or party to show cause why conduct 
    specifically described in the order has not violated paragraph (b) of 
    this section.
        (4) Nature of a sanction. A sanction imposed under this section may 
    include, but is not limited to, striking part or all of the offending 
    document, forbidding the filing of any further documents, excluding 
    related evidence, admonishment, referral of counsel misconduct to the 
    appropriate licensing authority, and including the sanctioned activity 
    in assessing the quality of representation when determining an 
    appropriate hourly rate and billable hours when adjudicating attorney 
    fees.
        (5) Requirements for an order. An order imposing a sanction must 
    describe the sanctioned conduct and explain the basis for the sanction.
        (d) Inapplicability to discovery. This section does not apply to 
    disclosures and discovery requests, responses, objections, and motions 
    under Sec. Sec.  18.50 through 18.65.
    
    
    Sec.  18.36  Amendments after referral to the Office of Administrative 
    Law Judges.
    
        The judge may allow parties to amend and supplement their filings.
    
    Prehearing Procedure
    
    
    Sec.  18.40  Notice of hearing.
    
        (a) In general. Except when the hearing is scheduled by calendar 
    call, the judge must notify the parties of the hearing's date, time, 
    and place at least 14 days before the hearing. The notice is sent by 
    regular, first-class mail, unless the judge determines that 
    circumstances require service by certified mail or other means. The 
    parties may agree to waive the 14-day notice for the hearing.
        (b) Date, time, and place. The judge must consider the convenience 
    and necessity of the parties and the witnesses in selecting the date, 
    time, and place of the hearing.
    
    
    Sec.  18.41  Continuances and changes in place of hearing.
    
        (a) By the judge. Upon reasonable notice to the parties, the judge 
    may change the time, date, and place of the hearing.
        (b) By a party's motion. A request by a party to continue a hearing 
    or to change the place of the hearing must be made by motion.
        (1) Continuances. A motion for continuance must be filed promptly 
    after the party becomes aware of the circumstances supporting the 
    continuance. In exceptional circumstances, a party may orally request a 
    continuance and must immediately notify the other parties of the 
    continuance request.
        (2) Change in place of hearing. A motion to change the place of a 
    hearing must be filed promptly.
    
    
    Sec.  18.42  Expedited proceedings.
    
        A party may move to expedite the proceeding. The motion must 
    demonstrate the specific harm that would result if the proceeding is 
    not expedited. If the motion is granted, the formal hearing ordinarily 
    will not be scheduled with less than 7 days notice to the parties, 
    unless all parties consent to an earlier hearing.
    
    
    Sec.  18.43  Consolidation; separate hearings.
    
        (a) Consolidation. If separate proceedings before the Office of the 
    Administrative Law Judges involve a common question of law or fact, a 
    judge may:
        (1) Join for hearing any or all matters at issue in the 
    proceedings;
        (2) Consolidate the proceedings; or
        (3) Issue any other orders to avoid unnecessary cost or delay.
        (b) Separate hearings. For convenience, to avoid prejudice, or to 
    expedite and economize, the judge may order a separate hearing of one 
    or more issues.
    
    
    Sec.  18.44  Prehearing conference.
    
        (a) In general. The judge, with or without a motion, may order one 
    or more prehearing conferences for such purposes as:
        (1) Expediting disposition of the proceeding;
        (2) Establishing early and continuing control so that the case will 
    not be protracted because of lack of management;
        (3) Discouraging wasteful prehearing activities;
        (4) Improving the quality of the hearing through more thorough 
    preparation; and
        (5) Facilitating settlement.
        (b) Scheduling. Prehearing conferences may be conducted in person, 
    by telephone, or other means after reasonable notice of time, place and 
    manner of conference has been given.
        (c) Participation. All parties must participate in prehearing 
    conferences as directed by the judge. A represented party must 
    authorize at least one of its attorneys or representatives to make 
    stipulations and admissions about all matters that can reasonably be 
    anticipated for discussion at the prehearing conference, including 
    possible settlement.
        (d) Matters for consideration. At the conference, the judge may 
    consider and take appropriate actions on the following matters:
        (1) Formulating and simplifying the issues, and eliminating 
    frivolous claims or defenses;
        (2) Amending the papers that had framed the issues before the 
    matter was referred for hearing;
        (3) Obtaining admissions and stipulations about facts and documents 
    to avoid unnecessary proof, and ruling in advance on the admissibility 
    of evidence;
        (4) Avoiding unnecessary proof and cumulative evidence, and 
    limiting the number of expert or other witnesses;
        (5) Determining the appropriateness and timing of dispositive 
    motions under Sec. Sec.  18.70 and 18.72;
        (6) Controlling and scheduling discovery, including orders 
    affecting disclosures and discovery under Sec. Sec.  18.50 through 
    18.65;
        (7) Identifying witnesses and documents, scheduling the filing and 
    exchange of any exhibits and prehearing submissions, and setting dates 
    for further conferences and for the hearing;
        (8) Referring matters to a special master;
        (9) Settling the case and using special procedures to assist in 
    resolving the dispute such as the settlement judge procedure under 
    Sec.  18.13, private
    
    [[Page 28791]]
    
    mediation, and other means authorized by statute or regulation;
        (10) Determining the form and content of prehearing orders;
        (11) Disposing of pending motions;
        (12) Adopting special procedures for managing potentially difficult 
    or protracted proceedings that may involve complex issues, multiple 
    parties, difficult legal questions, or unusual proof problems;
        (13) Consolidating or ordering separate hearings under Sec.  18.43;
        (14) Ordering the presentation of evidence early in the proceeding 
    on a manageable issue that might, on the evidence, be the basis for 
    disposing of the proceeding;
        (15) Establishing a reasonable limit on the time allowed to present 
    evidence; and
        (16) Facilitating in other ways the just, speedy, and inexpensive 
    disposition of the proceeding.
        (e) Reporting. The judge may direct that the prehearing conference 
    be recorded and transcribed. If the conference is not recorded, the 
    judge should summarize the conference proceedings on the record at the 
    hearing or by separate prehearing notice or order.
    
    Disclosure and Discovery
    
    
    Sec.  18.50  General provisions governing disclosure and discovery.
    
        (a) Timing and sequence of discovery--(1) Timing. A party may seek 
    discovery at any time after a judge issues an initial notice or order. 
    But if the judge orders the parties to confer under paragraph (b) of 
    this section:
        (i) The time to respond to any pending discovery requests is 
    extended until the time agreed in the discovery plan, or that the judge 
    sets in resolving disputes about the discovery plan, and
        (ii) No party may seek additional discovery from any source before 
    the parties have conferred as required by paragraph (b) of this 
    section, except by stipulation.
        (2) Sequence. Unless, on motion, the judge orders otherwise for the 
    parties' and witnesses' convenience and in the interests of justice:
        (i) Methods of discovery may be used in any sequence; and
        (ii) Discovery by one party does not require any other party to 
    delay its discovery.
        (b) Conference of the parties; planning for discovery--(1) In 
    general. The judge may order the parties to confer on the matters 
    described in paragraphs (b)(2) and (3) of this section.
        (2) Conference content; parties' responsibilities. In conferring, 
    the parties must consider the nature and basis of their claims and 
    defenses and the possibilities for promptly settling or resolving the 
    case; make or arrange for the disclosures required by paragraph (c) of 
    this section; discuss any issues about preserving discoverable 
    information; and develop a proposed discovery plan. The representatives 
    of record and all unrepresented parties that have appeared in the case 
    are jointly responsible for arranging the conference, for attempting in 
    good faith to agree on the proposed discovery plan, and for submitting 
    to the judge within 14 days after the conference a written report 
    outlining the plan. The judge may order the parties or representatives 
    to attend the conference in person.
        (3) Discovery plan. A discovery plan must state the parties' views 
    and proposals on:
        (i) What changes should be made in the timing, form, or requirement 
    for disclosures under paragraph (c) of this section, including a 
    statement of when initial disclosures were made or will be made;
        (ii) The subjects on which discovery may be needed, when discovery 
    should be completed, and whether discovery should be conducted in 
    phases or be limited to or focused on particular issues;
        (iii) Any issues about disclosure or discovery of electronically 
    stored information, including the form or forms in which it should be 
    produced;
        (iv) Any issues about claims of privilege or of protection as 
    hearing-preparation materials, including--if the parties agree on a 
    procedure to assert these claims after production--whether to ask the 
    judge to include their agreement in an order;
        (v) What changes should be made in the limitations on discovery 
    imposed under these rules and what other limitations should be imposed; 
    and
        (vi) Any other orders that the judge should issue under Sec.  18.52 
    or Sec.  18.44.
        (c) Required disclosures--(1) Initial disclosure--(i) In general. 
    Except as exempted by paragraph (c)(1)(ii) of this section or otherwise 
    ordered by the judge, a party must, without awaiting a discovery 
    request, provide to the other parties:
        (A) The name and, if known, the address and telephone number of 
    each individual likely to have discoverable information--along with the 
    subjects of that information--that the disclosing party may use to 
    support its claims or defenses, unless the use would be solely for 
    impeachment;
        (B) A copy--or a description by category and location--of all 
    documents, electronically stored information, and tangible things that 
    the disclosing party has in its possession, custody, or control and may 
    use to support its claims or defenses, unless the use would be solely 
    for impeachment; and
        (C) A computation of each category of damages claimed by the 
    disclosing party--who must also make available for inspection and 
    copying as under Sec.  18.61 the documents or other evidentiary 
    material, unless privileged or protected from disclosure, on which each 
    computation is based, including materials bearing on the nature and 
    extent of injuries suffered.
        (ii) Proceedings exempt from initial disclosure. The following 
    proceedings are exempt from initial disclosure:
        (A) A proceeding under 29 CFR part 20 for review of an agency 
    determination regarding the existence or amount of a debt, or the 
    repayment schedule proposed by the agency;
        (B) A proceeding before the Board of Alien Labor Certification 
    Appeals under the Immigration and Nationality Act; and
        (C) A proceeding under the regulations governing certification of 
    H-2 non-immigrant temporary agricultural employment at 20 CFR part 655, 
    subpart B;
        (D) A rulemaking proceeding under the Occupational Safety and 
    Health Act of 1970; and
        (E) A proceeding for civil penalty assessments under Employee 
    Retirement Income Security Act of 1974, 29 U.S.C. 1132.
        (iii) Parties exempt from initial disclosure. The following parties 
    are exempt from initial disclosure:
        (A) In a Black Lung benefits proceeding under 30 U.S.C. 901 et 
    seq., the representative of the Office of Workers' Compensation 
    Programs of the Department of Labor, if an employer has been identified 
    as the Responsible Operator and is a party to the proceeding, see 20 
    CFR 725.418(d); and
        (B) In a proceeding under the Longshore and Harbor Workers' 
    Compensation Act, 33 U.S.C. 901-950, or an associated statute such as 
    the Defense Base Act, 42 U.S.C. 1651-1654, the representative of the 
    Office of Workers' Compensation Programs of the Department of Labor, 
    unless the Solicitor of Labor or the Solicitor's designee has elected 
    to participate in the proceeding under 20 CFR 702.333(b), or unless an 
    employer or carrier has applied for relief under the special fund, as 
    defined in 33 U.S.C. 908(f).
        (iv) Time for initial disclosures--in general. A party must make 
    the initial disclosures required by paragraph
    
    [[Page 28792]]
    
    (c)(1)(i) of this section within 21 days after an initial notice or 
    order is entered acknowledging that the proceeding has been docketed at 
    the OALJ unless a different time is set by stipulation or a judge's 
    order, or a party objects during the conference that initial 
    disclosures are not appropriate in the proceeding and states the 
    objection in the proposed discovery plan. In ruling on the objection, 
    the judge must determine what disclosures, if any, are to be made and 
    must set the time for disclosure.
        (v) Time for initial disclosures--for parties served or joined 
    later. A party that is first served or otherwise joined later in the 
    proceeding must make the initial disclosures within 21 days after being 
    served or joined, unless a different time is set by stipulation or the 
    judge's order. Copies of all prior disclosures must be served on a 
    newly served or joined party within 21 days of the service or joinder.
        (vi) Basis for initial disclosure; unacceptable excuses. A party 
    must make its initial disclosures based on the information then 
    reasonably available to it. A party is not excused from making its 
    disclosures because it has not fully investigated the case or because 
    it challenges the sufficiency of another party's disclosures or because 
    another party has not made its disclosures.
        (2) Disclosure of expert testimony--(i) In general. A party must 
    disclose to the other parties the identity of any witness who may 
    testify at hearing, either live or by deposition. The judge should set 
    the time for the disclosure by prehearing order.
        (ii) Witnesses who must provide a written report. Unless otherwise 
    stipulated or ordered by the judge, this disclosure must be accompanied 
    by a written report--prepared and signed by the witness--if the witness 
    is one retained or specially employed to provide expert testimony in 
    the case or one whose duties as the party's employee regularly involve 
    giving expert testimony. The report must contain:
        (A) A complete statement of all opinions the witness will express 
    and the basis and reasons for them;
        (B) The facts or data considered by the witness in forming them;
        (C) Any exhibits that will be used to summarize or support them;
        (D) The witness's qualifications, including a list of all 
    publications authored in the previous 10 years;
        (E) A list of all other cases in which, during the previous 4 
    years, the witness testified as an expert at trial, a hearing, or by 
    deposition; and
        (F) A statement of the compensation to be paid for the study and 
    testimony in the case.
        (iii) Witnesses who do not provide a written report. Unless 
    otherwise stipulated or ordered by the judge that the witness is not 
    required to provide a written report, this disclosure must state:
        (A) The subject matter on which the witness is expected to present 
    expert opinion evidence; and
        (B) A summary of the facts and opinions to which the witness is 
    expected to testify.
        (iv) Supplementing the disclosure. The parties must supplement 
    these disclosures when required under Sec.  18.53.
        (3) Prehearing disclosures. In addition to the disclosures required 
    by paragraphs (c)(1) and (2) of this section, a party must provide to 
    the other parties and promptly file the prehearing disclosures 
    described in Sec.  18.80.
        (4) Form of disclosures. Unless the judge orders otherwise, all 
    disclosures under this paragraph (c) must be in writing, signed, and 
    served.
        (d) Signing disclosures and discovery requests, responses, and 
    objections--(1) Signature required; effect of signature. Every 
    disclosure under paragraph (c) of this section and every discovery 
    request, response, or objection must be signed by at least one of the 
    party's representatives in the representative's own name, or by the 
    party personally if unrepresented, and must state the signer's address, 
    telephone number, facsimile number, and email address, if any. By 
    signing, a representative or party certifies that to the best of the 
    person's knowledge, information, and belief formed after a reasonable 
    inquiry:
        (i) With respect to a disclosure, it is complete and correct as of 
    the time it is made; and
        (ii) With respect to a discovery request, response, or objection, 
    it is:
        (A) Consistent with these rules and warranted by existing law or by 
    a nonfrivolous argument for extending, modifying, or reversing existing 
    law, or for establishing new law;
        (B) Not interposed for any improper purpose, such as to harass, 
    cause unnecessary delay, or needlessly increase the cost of litigation; 
    and
        (C) Neither unreasonable nor unduly burdensome or expensive, 
    considering the needs of the case, prior discovery in the case, the 
    amount in controversy, and the importance of the issues at stake in the 
    action.
        (2) Failure to sign. Other parties have no duty to act on an 
    unsigned disclosure, request, response, or objection until it is 
    signed, and the judge must strike it unless a signature is promptly 
    supplied after the omission is called to the representative's or 
    party's attention.
        (3) Sanction for improper certification. If a certification 
    violates this section without substantial justification, the judge, on 
    motion or on his or her own, must impose an appropriate sanction, as 
    provided in Sec.  18.57, on the signer, the party on whose behalf the 
    signer was acting, or both.
    
    
    Sec.  18.51  Discovery scope and limits.
    
        (a) Scope in general. Unless otherwise limited by a judge's order, 
    the scope of discovery is as follows: Parties may obtain discovery 
    regarding any nonprivileged matter that is relevant to any party's 
    claim or defense--including the existence, description, nature, 
    custody, condition, and location of any documents or other tangible 
    things and the identity and location of persons who know of any 
    discoverable matter. For good cause, the judge may order discovery of 
    any matter relevant to the subject matter involved in the proceeding. 
    Relevant information need not be admissible at the hearing if the 
    discovery appears reasonably calculated to lead to the discovery of 
    admissible evidence. All discovery is subject to the limitations 
    imposed by paragraph (b)(4) of this section.
        (b) Limitations on frequency and extent--(1) When permitted. By 
    order, the judge may alter the limits in these rules on the number of 
    depositions and interrogatories or on the length of depositions under 
    Sec.  18.64. The judge's order may also limit the number of requests 
    under Sec.  18.63.
        (2) Specific limitations on electronically stored information. A 
    party need not provide discovery of electronically stored information 
    from sources that the party identifies as not reasonably accessible 
    because of undue burden or cost. On motion to compel discovery or for a 
    protective order, the party from whom discovery is sought must show 
    that the information is not reasonably accessible because of undue 
    burden or cost. If that showing is made, the judge may nonetheless 
    order discovery from such sources if the requesting party shows good 
    cause, considering the limitations of paragraph (b)(4) of this section. 
    The judge may specify conditions for the discovery.
        (3) Inadvertently disclosed privileged or protected information. By 
    requesting electronically stored information, a party consents to the 
    application of Federal Rule of Evidence 502 with regard to 
    inadvertently disclosed privileged or protected information.
    
    [[Page 28793]]
    
        (4) When required. On motion or on his or her own, the judge must 
    limit the frequency or extent of discovery otherwise allowed by these 
    rules when:
        (i) The discovery sought is unreasonably cumulative or duplicative, 
    or can be obtained from some other source that is more convenient, less 
    burdensome, or less expensive;
        (ii) The party seeking discovery has had ample opportunity to 
    obtain the information by discovery in the action; or
        (iii) The burden or expense of the proposed discovery outweighs its 
    likely benefit, considering the needs of the case, the amount in 
    controversy, the parties' resources, the importance of the issues at 
    stake in the action, and the importance of the discovery in resolving 
    the issues.
        (c) Hearing preparation: Materials--(1) Documents and tangible 
    things. Ordinarily, a party may not discover documents and tangible 
    things that are prepared in anticipation of litigation or for hearing 
    by or for another party or its representative (including the other 
    party's attorney, consultant, surety, indemnitor, insurer, or agent). 
    But, subject to paragraph (d) of this section, those materials may be 
    discovered if:
        (i) They are otherwise discoverable under paragraph (a) of this 
    section; and
        (ii) The party shows that it has substantial need for the materials 
    to prepare its case and cannot, without undue hardship, obtain their 
    substantial equivalent by other means.
        (2) Protection against disclosure. A judge who orders discovery of 
    those materials must protect against disclosure of the mental 
    impressions, conclusions, opinions, or legal theories of a party's 
    representative concerning the litigation.
        (3) Previous statement. Any party or other person may, on request 
    and without the required showing, obtain the person's own previous 
    statement about the action or its subject matter. If the request is 
    refused, the person may move for a judge's order. A previous statement 
    is either:
        (i) A written statement that the person has signed or otherwise 
    adopted or approved; or
        (ii) A contemporaneous stenographic, mechanical, electrical, or 
    other recording--or a transcription of it--that recites substantially 
    verbatim the person's oral statement.
        (d) Hearing preparation: experts--(1) Deposition of an expert who 
    may testify. A party may depose any person who has been identified as 
    an expert whose opinions may be presented at trial. If Sec.  
    18.50(c)(2)(B) requires a report from the expert the deposition may be 
    conducted only after the report is provided, unless the parties 
    stipulate otherwise.
        (2) Hearing-preparation protection for draft reports or 
    disclosures. Paragraphs (c)(1) and (2) of this section protect drafts 
    of any report or disclosure required under Sec.  18.50(c)(2), 
    regardless of the form in which the draft is recorded.
        (3) Hearing-preparation protection for communications between a 
    party's representative and expert witnesses. Paragraphs (c)(1) and (2) 
    under this section protect communications between the party's 
    representative and any witness required to provide a report under Sec.  
    18.50(c)(2)(B), regardless of the form of the communications, except to 
    the extent that the communications:
        (i) Relate to compensation for the expert's study or testimony;
        (ii) Identify facts or data that the party's representative 
    provided and that the expert considered in forming the opinions to be 
    expressed; or
        (iii) Identify assumptions that the party's representative provided 
    and that the expert relied on in forming the opinions to be expressed.
        (4) Expert employed only for hearing preparation. Ordinarily, a 
    party may not, by interrogatories or deposition, discover facts known 
    or opinions held by an expert who has been retained or specially 
    employed by another party in anticipation of litigation or to prepare 
    for hearing and whose testimony is not anticipated to be used at the 
    hearing. But a party may do so only:
        (i) As provided in Sec.  18.62(c); or
        (ii) On showing exceptional circumstances under which it is 
    impracticable for the party to obtain facts or opinions on the same 
    subject by other means.
        (e) Claiming privilege or protecting hearing-preparation 
    materials--(1) Information withheld. When a party withholds information 
    otherwise discoverable by claiming that the information is privileged 
    or subject to protection as hearing-preparation material, the party 
    must:
        (i) Expressly make the claim; and
        (ii) Describe the nature of the documents, communications, or 
    tangible things not produced or disclosed--and do so in a manner that, 
    without revealing information itself privileged or protected, will 
    enable other parties to assess the claim.
        (2) Information produced. If information produced in discovery is 
    subject to a claim of privilege or of protection as hearing-preparation 
    material, the party making the claim must notify any party that 
    received the information of the claim and the basis for it. After being 
    notified, a party must promptly return, sequester, or destroy the 
    specified information and any copies it has; must not use or disclose 
    the information until the claim is resolved; must take reasonable steps 
    to retrieve the information if the party disclosed it before being 
    notified; and may promptly present the information to the judge for an 
    in camera determination of the claim. The producing party must preserve 
    the information until the claim is resolved.
    
    
    Sec.  18.52  Protective orders.
    
        (a) In general. A party or any person from whom discovery is sought 
    may file a written motion for a protective order. The motion must 
    include a certification that the movant has in good faith conferred or 
    attempted to confer with other affected parties in an effort to resolve 
    the dispute without the judge's action. The judge may, for good cause, 
    issue an order to protect a party or person from annoyance, 
    embarrassment, oppression, or undue burden or expense, including one or 
    more of the following:
        (1) Forbidding the disclosure or discovery;
        (2) Specifying terms, including time and place, for the disclosure 
    or discovery;
        (3) Prescribing a discovery method other than the one selected by 
    the party seeking discovery;
        (4) Forbidding inquiry into certain matters, or limiting the scope 
    of disclosure or discovery to certain matters;
        (5) Designating the persons who may be present while the discovery 
    is conducted;
        (6) Requiring that a deposition be sealed and opened only on the 
    judge's order;
        (7) Requiring that a trade secret or other confidential research, 
    development, or commercial information not be revealed or be revealed 
    only in a specified way;
        and
        (8) Requiring that the parties simultaneously file specified 
    documents or information in sealed envelopes, to be opened as the judge 
    directs.
        (b) Ordering discovery. If a motion for a protective order is 
    wholly or partly denied, the judge may, on just terms, order that any 
    party or person provide or permit discovery.
    
    
    Sec.  18.53  Supplementing disclosures and responses.
    
        (a) In general. A party who has made a disclosure under Sec.  
    18.50(c)--or who has responded to an interrogatory, request for 
    production, or request for
    
    [[Page 28794]]
    
    admission--must supplement or correct its disclosure or response:
        (1) In a timely manner if the party learns that in some material 
    respect the disclosure or response is incomplete or incorrect, and if 
    the additional or corrective information has not otherwise been made 
    known to the other parties during the discovery process or in writing; 
    or
        (2) As ordered by the judge.
        (b) Expert witness. For an expert whose report must be disclosed 
    under Sec.  18.50(c)(2)(B), the party's duty to supplement extends both 
    to information included in the report and to information given during 
    the expert's deposition. Any additions or changes to this information 
    must be disclosed by the time the party's prehearing disclosures under 
    Sec.  18.50(c)(3) are due.
    
    
    Sec.  18.54  Stipulations about discovery procedure.
    
        Unless the judge orders otherwise, the parties may stipulate that:
        (a) A deposition may be taken before any person, at any time or 
    place, on any notice, and in the manner specified--in which event it 
    may be used in the same way as any other deposition; and
        (b) Other procedures governing or limiting discovery be modified-- 
    but a stipulation extending the time for any form of discovery must 
    have the judge's approval if it would interfere with the time set for 
    completing discovery, for hearing a motion, or for hearing.
    
    
    Sec.  18.55  Using depositions at hearings.
    
        (a) Using depositions--(1) In general. If there is no objection, 
    all or part of a deposition may be used at a hearing to the extent it 
    would be admissible under the applicable rules of evidence as if the 
    deponent were present and testifying.
        (2) Over objection. Notwithstanding any objection, all or part of a 
    deposition may be used at a hearing against a party on these 
    conditions:
        (i) The party was present or represented at the taking of the 
    deposition or had reasonable notice of it;
        (ii) It is used to the extent it would be admissible under the 
    applicable rules of evidence if the deponent were present and 
    testifying; and
        (iii) The use is allowed by paragraphs (a)(3) through (9) of this 
    section.
        (3) Impeachment and other uses. Any party may use a deposition to 
    contradict or impeach the testimony given by the deponent as a witness, 
    or for any other purpose allowed by the applicable rules of evidence.
        (4) Deposition of party, agent, or designee. An adverse party may 
    use for any purpose the deposition of a party or anyone who, when 
    deposed, was the party's officer, director, managing agent, or designee 
    under Sec.  18.64(b)(6) or Sec.  18.65(a)(4).
        (5) Deposition of expert, treating physician, or examining 
    physician. A party may use for any purpose the deposition of an expert 
    witness, treating physician or examining physician.
        (6) Unavailable witness. A party may use for any purpose the 
    deposition of a witness, whether or not a party, if the judge finds:
        (i) That the witness is dead;
        (ii) That the witness is more than 100 miles from the place of 
    hearing or is outside the United States, unless it appears that the 
    witness's absence was procured by the party offering the deposition;
        (iii) That the witness cannot attend or testify because of age, 
    illness, infirmity, or imprisonment;
        (iv) That the party offering the deposition could not procure the 
    witness's attendance by subpoena; or
        (v) on motion and notice, that exceptional circumstances make it 
    desirable--in the interests of justice and with due regard to the 
    importance of live testimony in an open hearing--to permit the 
    deposition to be used.
        (7) Limitations on use--(i) Deposition taken on short notice. A 
    deposition must not be used against a party who, having received less 
    than 14 days' notice of the deposition, promptly moved for a protective 
    order under Sec.  18.52(a)(2) requesting that it not be taken or be 
    taken at a different time or place--and this motion was still pending 
    when the deposition was taken.
        (ii) Unavailable deponent; party could not obtain a representative. 
    A deposition taken without leave of the judge under the unavailability 
    provision of Sec.  18.64(a)(2)(i)(C) must not be used against a party 
    who shows that, when served with the notice, it could not, despite 
    diligent efforts, obtain a representative to represent it at the 
    deposition.
        (8) Using part of a deposition. If a party offers in evidence only 
    part of a deposition, an adverse party may require the offeror to 
    introduce other parts that in fairness should be considered with the 
    part introduced, and any party may itself introduce any other parts.
        (9) Deposition taken in an earlier action. A deposition lawfully 
    taken may be used in a later action involving the same subject matter 
    between the same parties, or their representatives or successors in 
    interest, to the same extent as if taken in the later action. A 
    deposition previously taken may also be used as allowed by the 
    applicable rules of evidence.
        (b) Objections to admissibility. Subject to paragraph (d)(3) of 
    this section, an objection may be made at a hearing to the admission of 
    any deposition testimony that would be inadmissible if the witness were 
    present and testifying.
        (c) Form of presentation. Unless the judge orders otherwise, a 
    party must provide a transcript of any deposition testimony the party 
    offers, but the judge may receive the testimony in nontranscript form 
    as well.
        (d) Waiver of objections--(1) To the notice. An objection to an 
    error or irregularity in a deposition notice is waived unless promptly 
    served in writing on the party giving the notice.
        (2) To the officer's qualification. An objection based on 
    disqualification of the officer before whom a deposition is to be taken 
    is waived if not made:
        (i) Before the deposition begins; or
        (ii) Promptly after the basis for disqualification becomes known 
    or, with reasonable diligence, could have been known.
        (3) To the taking of the deposition--(i) Objection to competence, 
    relevance, or materiality. An objection to a deponent's competence--or 
    to the competence, relevance, or materiality of testimony--is not 
    waived by a failure to make the objection before or during the 
    deposition, unless the ground for it might have been corrected at that 
    time.
        (ii) Objection to an error or irregularity. An objection to an 
    error or irregularity at an oral examination is waived if:
        (A) It relates to the manner of taking the deposition, the form of 
    a question or answer, the oath or affirmation, a party's conduct, or 
    other matters that might have been corrected at that time; and
        (B) It is not timely made during the deposition.
        (iii) Objection to a written question. An objection to the form of 
    a written question under Sec.  18.65 is waived if not served in writing 
    on the party submitting the question within the time for serving 
    responsive questions or, if the question is a recross-question, within 
    7 days after being served with it.
        (4) To completing and returning the deposition. An objection to how 
    the officer transcribed the testimony--or prepared, signed, certified, 
    sealed, endorsed, sent, or otherwise dealt with the deposition--is 
    waived unless a motion to suppress is made promptly after the error or 
    irregularity becomes known or, with reasonable diligence, could have 
    been known.
    
    
    Sec.  18.56  Subpoena.
    
        (a) In general. (1) Upon written application of a party the judge 
    may
    
    [[Page 28795]]
    
    issue a subpoena authorized by statute or law that requires a witness 
    to attend and to produce relevant papers, books, documents, or tangible 
    things in the witness' possession or under the witness' control.
        (2) Form and contents--(i) Requirements--in general. Every subpoena 
    must:
        (A) State the title of the matter and show the case number assigned 
    by the Office of Administrative Law Judges or the Office of Worker's 
    Compensation Programs. In the event that the case number is an 
    individual's Social Security number only the last four numbers may be 
    used. See Sec.  18.31(a)(1);
        (B) Bear the signature of the issuing judge;
        (C) Command each person to whom it is directed to do the following 
    at a specified time and place: attend and testify; produce designated 
    documents, electronically stored information, or tangible things in 
    that person's possession, custody, or control; or permit the inspection 
    of premises; and
        (D) Set out the text of paragraphs (c) and (d) of this section.
        (ii) Command to attend a deposition--notice of the recording 
    method. A subpoena commanding attendance at a deposition must state the 
    method for recording the testimony.
        (iii) Combining or separating a command to produce or to permit 
    inspection; specifying the form for electronically stored information. 
    A command to produce documents, electronically stored information, or 
    tangible things or to permit the inspection of premises may be included 
    in a subpoena commanding attendance at a deposition or hearing, or may 
    be set out in a separate subpoena. A subpoena may specify the form or 
    forms in which electronically stored information is to be produced.
        (iv) Command to produce; included obligations. A command in a 
    subpoena to produce documents, electronically stored information, or 
    tangible things requires the responding party to permit inspection, 
    copying, testing, or sampling of the materials.
        (b) Service--(1) By whom; tendering fees; serving a copy of certain 
    subpoenas. Any person who is at least 18 years old and not a party may 
    serve a subpoena. Serving a subpoena requires delivering a copy to the 
    named person and, if the subpoena requires that person's attendance, 
    tendering with it the fees for 1 day's attendance and the mileage 
    allowed by law. Service may also be made by certified mail with return 
    receipt. Fees and mileage need not be tendered when the subpoena issues 
    on behalf of the United States or any of its officers or agencies. If 
    the subpoena commands the production of documents, electronically 
    stored information, or tangible things or the inspection of premises 
    before the formal hearing, then before it is served on the person to 
    whom it is directed, a notice and copy of the subpoena must be served 
    on each party.
        (2) Service in the United States. Subject to paragraph (c)(3)(i)(B) 
    of this section, a subpoena may be served at any place within a State, 
    Commonwealth, or Territory of the United States, or the District of 
    Columbia.
        (3) Service in a foreign country. 28 U.S.C. 1783 governs issuing 
    and serving a subpoena directed to a United States national or resident 
    who is in a foreign country.
        (4) Proof of service. Proving service, when necessary, requires 
    filing with the judge a statement showing the date and manner of 
    service and the names of the persons served. The statement must be 
    certified by the server.
        (c) Protecting a person subject to a subpoena--(1) Avoiding undue 
    burden; sanctions. A party or representative responsible for 
    requesting, issuing, or serving a subpoena must take reasonable steps 
    to avoid imposing undue burden on a person subject to the subpoena. The 
    judge must enforce this duty and impose an appropriate sanction.
        (2) Command to produce materials or permit inspection--(i) 
    Appearance not required. A person commanded to produce documents, 
    electronically stored information, or tangible things, or to permit the 
    inspection of premises, need not appear in person at the place of 
    production or inspection unless also commanded to appear for a 
    deposition or hearing.
        (ii) Objections. A person commanded to produce documents or 
    tangible things or to permit inspection may serve on the party or 
    representative designated in the subpoena a written objection to 
    inspecting, copying, testing or sampling any or all of the materials or 
    to inspecting the premises--or to producing electronically stored 
    information in the form or forms requested. The objection must be 
    served before the earlier of the time specified for compliance or 14 
    days after the subpoena is served. If an objection is made, the 
    following rules apply:
        (A) At any time, on notice to the commanded person, the serving 
    party may move the judge for an order compelling production or 
    inspection.
        (B) These acts may be required only as directed in the order, and 
    the order must protect a person who is neither a party nor a party's 
    officer from significant expense resulting from compliance.
        (3) Quashing or modifying a subpoena--(i) When required. On timely 
    motion, the judge must quash or modify a subpoena that:
        (A) Fails to allow a reasonable time to comply;
        (B) Requires a person who is neither a party nor a party's officer 
    to travel more than 100 miles from where that person resides, is 
    employed, or regularly transacts business in person--except that, 
    subject to paragraph (c)(3)(ii)(C) of this section, the person may be 
    commanded to attend the formal hearing;
        (C) Requires disclosure of privileged or other protected matter, if 
    no exception or waiver applies; or
        (D) Subjects a person to undue burden.
        (ii) When permitted. To protect a person subject to or otherwise 
    affected by a subpoena, the judge may, on motion, quash or modify the 
    subpoena if it requires:
        (A) Disclosing a trade secret or other confidential research, 
    development, or commercial information;
        (B) Disclosing an unretained expert's opinion or information that 
    does not describe specific occurrences in dispute and results from the 
    expert's study that was not requested by a party; or
        (C) A person who is neither a party nor a party's officer to incur 
    substantial expense to travel more than 100 miles to attend the formal 
    hearing.
        (iii) Specifying conditions as an alternative. In the circumstances 
    described in paragraph (c)(3)(ii) of this section, the judge may, 
    instead of quashing or modifying a subpoena, order appearance or 
    production under specified conditions if the serving party:
        (A) Shows a substantial need for the testimony or material that 
    cannot be otherwise met without undue hardship; and
        (B) Ensures that the subpoenaed person will be reasonably 
    compensated.
        (d) Duties in responding to a subpoena--(1) Producing documents or 
    electronically stored information. These procedures apply to producing 
    documents or electronically stored information:
        (i) Documents. A person responding to a subpoena to produce 
    documents must produce them as they are kept in the ordinary course of 
    business or must organize and label them to correspond to the 
    categories in the demand.
        (ii) Form for producing electronically stored information not 
    specified. If a subpoena does not specify a form for producing 
    electronically stored information, the person responding
    
    [[Page 28796]]
    
    must produce it in a form or forms in which it is ordinarily maintained 
    or in a reasonably usable form or forms.
        (iii) Electronically stored information produced in only one form. 
    The person responding need not produce the same electronically stored 
    information in more than one form.
        (iv) Inaccessible electronically stored information. The person 
    responding need not provide discovery of electronically stored 
    information from sources that the person identifies as not reasonably 
    accessible because of undue burden or cost. On motion to compel 
    discovery or for a protective order, the person responding must show 
    that the information is not reasonably accessible because of undue 
    burden or cost. If that showing is made, the judge may nonetheless 
    order discovery from such sources if the requesting party shows good 
    cause, considering the limitations of Sec.  18.51(b)(4)(iii). The judge 
    may specify conditions for the discovery.
        (2) Claiming privilege or protection--(i) Information withheld. A 
    person withholding subpoenaed information under a claim that it is 
    privileged or subject to protection as hearing-preparation material 
    must:
        (A) Expressly make the claim; and
        (B) Describe the nature of the withheld documents, communications, 
    or tangible things in a manner that, without revealing information 
    itself privileged or protected, will enable the parties to assess the 
    claim.
        (ii) Information produced. If information produced in response to a 
    subpoena is subject to a claim of privilege or of protection as 
    hearing-preparation material, the person making the claim may notify 
    any party that received the information of the claim and the basis for 
    it. After being notified, a party must promptly return, sequester, or 
    destroy the specified information and any copies it has; must not use 
    or disclose the information until the claim is resolved; must take 
    reasonable steps to retrieve the information if the party disclosed it 
    before being notified; and may promptly present the information to the 
    judge in camera for a determination of the claim. The person who 
    produced the information must preserve the information until the claim 
    is resolved.
        (e) Failure to obey. When a person fails to obey a subpoena, the 
    party adversely affected by the failure may, when authorized by statute 
    or by law, apply to the appropriate district court to enforce the 
    subpoena.
    
    
    Sec.  18.57  Failure to make disclosures or to cooperate in discovery; 
    sanctions.
    
        (a) Motion for an order compelling disclosure or discovery--(1) In 
    general. On notice to other parties and all affected persons, a party 
    may move for an order compelling disclosure or discovery. The motion 
    must include a certification that the movant has in good faith 
    conferred or attempted to confer with the person or party failing to 
    make disclosure or discovery in an effort to obtain it without the 
    judge's action.
        (2) Specific motions--(i) To compel disclosure. If a party fails to 
    make a disclosure required by Sec.  18.50(c), any other party may move 
    to compel disclosure and for appropriate sanctions.
        (ii) To compel a discovery response. A party seeking discovery may 
    move for an order compelling an answer, designation, production, or 
    inspection. This motion may be made if:
        (A) A deponent fails to answer a question asked under Sec. Sec.  
    18.64 and 18.65;
        (B) A corporation or other entity fails to make a designation under 
    Sec. Sec.  18.64(b)(6) and 18.65(a)(4);
        (C) A party fails to answer an interrogatory submitted under Sec.  
    18.60; or
        (D) A party fails to respond that inspection will be permitted--or 
    fails to permit inspection--as requested under Sec.  18.61.
        (iii) Related to a deposition. When taking an oral deposition, the 
    party asking a question may complete or adjourn the examination before 
    moving for an order.
        (3) Evasive or incomplete disclosure, answer, or response. For 
    purposes of paragraph (a) of this section, an evasive or incomplete 
    disclosure, answer, or response must be treated as a failure to 
    disclose, answer, or respond.
        (b) Failure to comply with a judge's order--(1) For not obeying a 
    discovery order. If a party or a party's officer, director, or managing 
    agent--or a witness designated under Sec. Sec.  18.64(b)(6) and 
    18.65(a)(4)--fails to obey an order to provide or permit discovery, 
    including an order under Sec.  18.50(b) or paragraph (a) of this 
    section, the judge may issue further just orders. They may include the 
    following:
        (i) Directing that the matters embraced in the order or other 
    designated facts be taken as established for purposes of the 
    proceeding, as the prevailing party claims;
        (ii) Prohibiting the disobedient party from supporting or opposing 
    designated claims or defenses, or from introducing designated matters 
    in evidence;
        (iii) Striking claims or defenses in whole or in part;
        (iv) Staying further proceedings until the order is obeyed;
        (v) Dismissing the proceeding in whole or in part; or
        (vi) Rendering a default decision and order against the disobedient 
    party;
        (2) For not producing a person for examination. If a party fails to 
    comply with an order under Sec.  18.62 requiring it to produce another 
    person for examination, the judge may issue any of the orders listed in 
    paragraph (b)(1) of this section, unless the disobedient party shows 
    that it cannot produce the other person.
        (c) Failure to disclose, to supplement an earlier response, or to 
    admit. If a party fails to provide information or identify a witness as 
    required by Sec. Sec.  18.50(c) and 18.53, or if a party fails to admit 
    what is requested under Sec.  18.63(a) and the requesting party later 
    proves a document to be genuine or the matter true, the party is not 
    allowed to use that information or witness to supply evidence on a 
    motion or at a hearing, unless the failure was substantially justified 
    or is harmless. In addition to or instead of this sanction, the judge, 
    on motion and after giving an opportunity to be heard may impose other 
    appropriate sanctions, including any of the orders listed in paragraph 
    (b)(1) of this section.
        (d) Party's failure to attend its own deposition, serve answers to 
    interrogatories, or respond to a request for inspection--(1) In 
    general--(i) Motion; grounds for sanctions. The judge may, on motion, 
    order sanctions if:
        (A) A party or a party's officer, director, or managing agent--or a 
    person designated under Sec. Sec.  18.64(b)(6) and 18.65(a)(4)--fails, 
    after being served with proper notice, to appear for that person's 
    deposition; or
        (B) A party, after being properly served with interrogatories under 
    Sec.  18.60 or a request for inspection under Sec.  18.61, fails to 
    serve its answers, objections, or written response.
        (ii) Certification. A motion for sanctions for failing to answer or 
    respond must include a certification that the movant has in good faith 
    conferred or attempted to confer with the party failing to act in an 
    effort to obtain the answer or response without the judge's action.
        (2) Unacceptable excuse for failing to act. A failure described in 
    paragraph (d)(1)(i) of this section is not excused on the ground that 
    the discovery sought was objectionable, unless the party failing to act 
    has a pending motion for a protective order under Sec.  18.52(a).
    
    [[Page 28797]]
    
        (3) Types of sanctions. Sanctions may include any of the orders 
    listed in paragraph (b)(1) of this section.
        (e) Failure to provide electronically stored information. Absent 
    exceptional circumstances, a judge may not impose sanctions under these 
    rules on a party for failing to provide electronically stored 
    information lost as a result of the routine, good-faith operation of an 
    electronic information system.
        (f) Procedure. A judge may impose sanctions under this section 
    upon:
        (1) A separately filed motion; or
        (2) Notice from the judge followed by a reasonable opportunity to 
    be heard.
    
    Types of Discovery
    
    
    Sec.  18.60  Interrogatories to parties.
    
        (a) In general--(1) Number. Unless otherwise stipulated or ordered 
    by the judge, a party may serve on any other party no more than 25 
    written interrogatories, including all discrete subparts. Leave to 
    serve additional interrogatories may be granted to the extent 
    consistent with Sec.  18.51.
        (2) Scope. An interrogatory may relate to any matter that may be 
    inquired into under Sec.  18.51. An interrogatory is not objectionable 
    merely because it asks for an opinion or contention that relates to 
    fact or the application of law to fact, but the judge may order that 
    the interrogatory need not be answered until designated discovery is 
    complete, or until a prehearing conference or some other time.
        (b) Answers and objections--(1) Responding party. The 
    interrogatories must be answered:
        (i) By the party to whom they are directed; or
        (ii) If that party is a public or private corporation, a 
    partnership, an association, or a governmental agency, by any officer 
    or agent, who must furnish the information available to the party.
        (2) Time to respond. The responding party must serve its answers 
    and any objections within 30 days after being served with the 
    interrogatories. A shorter or longer time may be stipulated to under 
    Sec.  18.54 or be ordered by the judge.
        (3) Answering each interrogatory. Each interrogatory must, to the 
    extent it is not objected to, be answered separately and fully in 
    writing under oath.
        (4) Objections. The grounds for objecting to an interrogatory must 
    be stated with specificity. Any ground not stated in a timely objection 
    is waived unless the judge, for good cause, excuses the failure.
        (5) Signature. The person who makes the answers must sign them, and 
    the attorney or non-attorney representative who objects must sign any 
    objections.
        (c) Use. An answer to an interrogatory may be used to the extent 
    allowed by the applicable rules of evidence.
        (d) Option to produce business records. If the answer to an 
    interrogatory may be determined by examining, auditing, compiling, 
    abstracting, or summarizing a party's business records (including 
    electronically stored information), and if the burden of deriving or 
    ascertaining the answer will be substantially the same for either 
    party, the responding party may answer by:
        (1) Specifying the records that must be reviewed, in sufficient 
    detail to enable the interrogating party to locate and identify them as 
    readily as the responding party could; and
        (2) Giving the interrogating party a reasonable opportunity to 
    examine and audit the records and to make copies, compilations, 
    abstracts, or summaries.
    
    
    Sec.  18.61  Producing documents, electronically stored information, 
    and tangible things, or entering onto land, for inspection and other 
    purposes.
    
        (a) In general. A party may serve on any other party a request 
    within the scope of Sec.  18.51:
        (1) To produce and permit the requesting party or its 
    representative to inspect, copy, test, or sample the following items in 
    the responding party's possession, custody, or control:
        (i) Any designated documents or electronically stored information--
    including writings, drawings, graphs, charts, photographs, sound 
    recordings, images, and other data or data compilations--stored in any 
    medium from which information can be obtained either directly or, if 
    necessary, after translation by the responding party into a reasonably 
    usable form; or
        (ii) Any designated tangible things; or
        (2) To permit entry onto designated land or other property 
    possessed or controlled by the responding party, so that the requesting 
    party may inspect, measure, survey, photograph, test, or sample the 
    property or any designated object or operation on it.
        (b) Procedure--(1) Contents of the request. The request:
        (i) Must describe with reasonable particularity each item or 
    category of items to be inspected;
        (ii) Must specify a reasonable time, place, and manner for the 
    inspection and for performing the related acts; and
        (iii) May specify the form or forms in which electronically stored 
    information is to be produced.
        (2) Responses and objections--(i) Time to respond. The party to 
    whom the request is directed must respond in writing within 30 days 
    after being served. A shorter or longer time may be stipulated to under 
    Sec.  18.54 or be ordered by the judge.
        (ii) Responding to each item. For each item or category, the 
    response must either state that inspection and related activities will 
    be permitted as requested or state an objection to the request, 
    including the reasons.
        (iii) Objections. An objection to part of a request must specify 
    the part and permit inspection of the rest.
        (iv) Responding to a request for production of electronically 
    stored information. The response may state an objection to a requested 
    form for producing electronically stored information. If the responding 
    party objects to a requested form--or if no form was specified in the 
    request--the party must state the form or forms it intends to use.
        (v) Producing the documents or electronically stored information. 
    Unless otherwise stipulated or ordered by the judge, these procedures 
    apply to producing documents or electronically stored information:
        (A) A party must produce documents as they are kept in the usual 
    course of business or must organize and label them to correspond to the 
    categories in the request;
        (B) If a request does not specify a form for producing 
    electronically stored information, a party must produce it in a form or 
    forms in which it is ordinarily maintained or in a reasonably usable 
    form or forms; and
        (C) A party need not produce the same electronically stored 
    information in more than one form.
        (c) Nonparties. As provided in Sec.  18.56, a nonparty may be 
    compelled to produce documents and tangible things or to permit an 
    inspection.
    
    
    Sec.  18.62  Physical and mental examinations.
    
        (a) Examination by notice--(1) In general. A party may serve upon 
    another party whose mental or physical condition is in controversy a 
    notice to attend and submit to an examination by a suitably licensed or 
    certified examiner.
        (2) Contents of the notice. The notice must specify:
        (i) The legal basis for the examination;
        (ii) The time, place, manner, conditions, and scope of the 
    examination, as well as the person or persons who will perform it; and
        (iii) How the reasonable transportation expenses were calculated.
        (3) Service of notice. Unless otherwise agreed by the parties, the 
    notice must be
    
    [[Page 28798]]
    
    served no fewer than 30 days before the examination date.
        (4) Objection. The person to be examined must serve any objection 
    to the notice no later than 14 days after the notice is served. The 
    objection must be stated with particularity.
        (b) Examination by motion. Upon objection by the person to be 
    examined the requesting party may file a motion to compel a physical or 
    mental examination. The motion must include the elements required by 
    paragraph (a)(2) of this section.
        (c) Examiner's report--(1) Delivery of the report. The party who 
    initiated the examination must deliver a complete copy of the 
    examination report to the party examined no later than seven days after 
    it receives the report, together with like reports of all earlier 
    examinations of the same condition.
        (2) Contents. The examiner's report must be in writing and must set 
    out in detail the examiner's findings, including diagnoses, 
    conclusions, and the results of any tests.
    
    
    Sec.  18.63  Requests for admission.
    
        (a) Scope and procedure--(1) Scope. A party may serve on any other 
    party a written request to admit, for purposes of the pending action 
    only, the truth of any matters within the scope of Sec.  18.51 relating 
    to:
        (i) Facts, the application of law to fact, or opinions about 
    either; and
        (ii) The genuineness of any described documents.
        (2) Form; copy of a document. Each matter must be separately 
    stated. A request to admit the genuineness of a document must be 
    accompanied by a copy of the document unless it is, or has been, 
    otherwise furnished or made available for inspection and copying.
        (3) Time to respond; effect of not responding. A matter is admitted 
    unless, within 30 days after being served, the party to whom the 
    request is directed serves on the requesting party a written answer or 
    objection addressed to the matter and signed by the party or its 
    attorney. A shorter or longer time for responding may be stipulated to 
    under Sec.  18.54 or be ordered by the judge.
        (4) Answer. If a matter is not admitted, the answer must 
    specifically deny it or state in detail why the answering party cannot 
    truthfully admit or deny it. A denial must fairly respond to the 
    substance of the matter; and when good faith requires that a party 
    qualify an answer or deny only a part of a matter, the answer must 
    specify the part admitted and qualify or deny the rest. The answering 
    party may assert lack of knowledge or information as a reason for 
    failing to admit or deny only if the party states that it has made 
    reasonable inquiry and that the information it knows or can readily 
    obtain is insufficient to enable it to admit or deny.
        (5) Objections. The grounds for objecting to a request must be 
    stated. A party must not object solely on the ground that the request 
    presents a genuine issue for hearing.
        (6) Motion regarding the sufficiency of an answer or objection. The 
    requesting party may move to determine the sufficiency of an answer or 
    objection. Unless the judge finds an objection justified, the judge 
    must order that an answer be served. On finding that an answer does not 
    comply with this section, the judge may order either that the matter is 
    admitted or that an amended answer be served. The judge may defer final 
    decision until a prehearing conference or a specified time before the 
    hearing.
        (b) Effect of an admission; withdrawing or amending it. A matter 
    admitted under this section is conclusively established unless the 
    judge, on motion, permits the admission to be withdrawn or amended. The 
    judge may permit withdrawal or amendment if it would promote the 
    presentation of the merits of the action and if the judge is not 
    persuaded that it would prejudice the requesting party in maintaining 
    or defending the action on the merits. An admission under this section 
    is not an admission for any other purpose and cannot be used against 
    the party in any other proceeding.
    
    
    Sec.  18.64  Depositions by oral examination.
    
        (a) When a deposition may be taken--(1) Without leave. A party may, 
    by oral questions, depose any person, including a party, without leave 
    of the judge except as provided in paragraph (a)(2) of this section. 
    The deponent's attendance may be compelled by subpoena under Sec.  
    18.56.
        (2) With leave. A party must obtain leave of the judge, and the 
    judge must grant leave to the extent consistent with Sec.  18.51(b):
        (i) If the parties have not stipulated to the deposition and:
        (A) The deposition would result in more than 10 depositions being 
    taken under this section or Sec.  18.65 by one of the parties;
        (B) The deponent has already been deposed in the case; or
        (C) The party seeks to take the deposition before the time 
    specified in Sec.  18.50(a), unless the party certifies in the notice, 
    with supporting facts, that the deponent is expected to leave the 
    United States and be unavailable for examination in this country after 
    that time; or
        (ii) If the deponent is confined in prison.
        (b) Notice of the deposition; other formal requirements--(1) Notice 
    in general. Except as stipulated or otherwise ordered by the judge, a 
    party who wants to depose a person by oral questions must give 
    reasonable written notice to every other party of no fewer than 14 
    days. The notice must state the time and place of the deposition and, 
    if known, the deponent's name and address. If the name is unknown, the 
    notice must provide a general description sufficient to identify the 
    person or the particular class or group to which the person belongs.
        (2) Producing documents. If a subpoena duces tecum is to be served 
    on the deponent, the materials designated for production, as set out in 
    the subpoena, must be listed in the notice or in an attachment. If the 
    notice to a party deponent is accompanied by a request for production 
    under Sec.  18.61, the notice must comply with the requirements of 
    Sec.  18.61(b).
        (3) Method of recording--(i) Method stated in the notice. The party 
    who notices the deposition must state in the notice the method for 
    recording the testimony. Unless the judge orders otherwise, testimony 
    may be recorded by audio, audiovisual, or stenographic means. The 
    noticing party bears the recording costs. Any party may arrange to 
    transcribe a deposition.
        (ii) Additional method. With prior notice to the deponent and other 
    parties, any party may designate another method for recording the 
    testimony in addition to that specified in the original notice. That 
    party bears the expense of the additional record or transcript unless 
    the judge orders otherwise.
        (4) By remote means. The parties may stipulate--or the judge may on 
    motion order--that a deposition be taken by telephone or other remote 
    means. For the purpose of this section, the deposition takes place 
    where the deponent answers the questions.
        (5) Deposition officer's duties--(i) Before the deposition. Unless 
    the parties stipulate otherwise, a deposition must be conducted before 
    a person having power to administer oaths. The officer must begin the 
    deposition with an on-the-record statement that includes:
        (A) The officer's name and business address;
        (B) The date, time, and place of the deposition;
        (C) The deponent's name;
        (D) The officer's administration of the oath or affirmation to the 
    deponent;
    
    [[Page 28799]]
    
        (E) The identity of all persons present; and
        (F) The date and method of service of the notice of deposition.
        (ii) Conducting the deposition; avoiding distortion. If the 
    deposition is recorded nonstenographically, the officer must repeat the 
    items in paragraphs (b)(5)(i)(A) and (B) of this section at the 
    beginning of each unit of the recording medium. The deponent's and 
    attorneys' appearance or demeanor must not be distorted through 
    recording techniques.
        (iii) After the deposition. At the end of a deposition, the officer 
    must state on the record that the deposition is complete and must set 
    out any stipulations made by the attorneys about custody of the 
    transcript or recording and of the exhibits, or about any other 
    pertinent matters.
        (6) Notice or subpoena directed to an organization. In its notice 
    or subpoena, a party may name as the deponent a public or private 
    corporation, a partnership, an association, a governmental agency, or 
    other entity and must describe with reasonable particularity the 
    matters for examination. The named organization must then designate one 
    or more officers, directors, or managing agents, or designate other 
    persons who consent to testify on its behalf; and it may set out the 
    matters on which each person designated will testify. A subpoena must 
    advise a nonparty organization of its duty to make this designation. 
    The persons designated must testify about information known or 
    reasonably available to the organization. This paragraph (b)(6) does 
    not preclude a deposition by any other procedure allowed by these 
    rules.
        (c) Examination and cross-examination; record of the examination; 
    objections; written questions--(1) Examination and cross-examination. 
    The examination and cross-examination of a deponent proceed as they 
    would at the hearing under the applicable rules of evidence. After 
    putting the deponent under oath or affirmation, the officer must record 
    the testimony by the method designated under paragraph (b)(3)(i) of 
    this section. The testimony must be recorded by the officer personally 
    or by a person acting in the presence and under the direction of the 
    officer.
        (2) Objections. An objection at the time of the examination--
    whether to evidence, to a party's conduct, to the officer's 
    qualifications, to the manner of taking the deposition, or to any other 
    aspect of the deposition--must be noted on the record, but the 
    examination still proceeds; the testimony is taken subject to any 
    objection. An objection must be stated concisely in a nonargumentative 
    and nonsuggestive manner. A person may instruct a deponent not to 
    answer only when necessary to preserve a privilege, to enforce a 
    limitation ordered by the judge, or to present a motion under paragraph 
    (d)(3) of this section.
        (3) Participating through written questions. Instead of 
    participating in the oral examination, a party may serve written 
    questions in a sealed envelope on the party noticing the deposition, 
    who must deliver them to the officer. The officer must ask the deponent 
    those questions and record the answers verbatim.
        (d) Duration; sanction; motion to terminate or limit--(1) Duration. 
    Unless otherwise stipulated or ordered by the judge, a deposition is 
    limited to 1 day of 7 hours. The judge must allow additional time 
    consistent with Sec.  18.51(b) if needed to fairly examine the deponent 
    or if the deponent, another person, or any other circumstance impedes 
    or delays the examination.
        (2) Sanction. The judge may impose an appropriate sanction, in 
    accordance with Sec.  18.57, on a person who impedes, delays, or 
    frustrates the fair examination of the deponent.
        (3) Motion to terminate or limit--(i) Grounds. At any time during a 
    deposition, the deponent or a party may move to terminate or limit it 
    on the ground that it is being conducted in bad faith or in a manner 
    that unreasonably annoys, embarrasses, or oppresses the deponent or 
    party. If the objecting deponent or party so demands, the deposition 
    must be suspended for the time necessary to obtain an order.
        (ii) Order. The judge may order that the deposition be terminated 
    or may limit its scope and manner as provided in Sec.  18.52. If 
    terminated, the deposition may be resumed only by the judge's order.
        (e) Review by the witness; changes--(1) Review; statement of 
    changes. On request by the deponent or a party before the deposition is 
    completed, the deponent must be allowed 30 days after being notified by 
    the officer that the transcript or recording is available in which:
        (i) To review the transcript or recording; and
        (ii) If there are changes in form or substance, to sign a statement 
    listing the changes and the reasons for making them.
        (2) Changes indicated in the officer's certificate. The officer 
    must note in the certificate prescribed by paragraph (f)(1) of this 
    section whether a review was requested and, if so, must attach any 
    changes the deponent makes during the 30-day period.
        (f) Certification and delivery; exhibits; copies of the transcript 
    or recording; filing--(1) Certification and delivery. The officer must 
    certify in writing that the witness was duly sworn and that the 
    deposition accurately records the witness's testimony. The certificate 
    must accompany the record of the deposition. Unless the judge orders 
    otherwise, the officer must seal the deposition in an envelope or 
    package bearing the title of the action and marked ``Deposition of 
    [witness's name]'' and must promptly send it to the party or the 
    party's representative who arranged for the transcript or recording. 
    The party or the party's representative must store it under conditions 
    that will protect it against loss, destruction, tampering, or 
    deterioration.
        (2) Documents and tangible things--(i) Originals and copies. 
    Documents and tangible things produced for inspection during a 
    deposition must, on a party's request, be marked for identification and 
    attached to the deposition. Any party may inspect and copy them. But if 
    the person who produced them wants to keep the originals, the person 
    may:
        (A) Offer copies to be marked, attached to the deposition, and then 
    used as originals--after giving all parties a fair opportunity to 
    verify the copies by comparing them with the originals; or
        (B) Give all parties a fair opportunity to inspect and copy the 
    originals after they are marked--in which event the originals may be 
    used as if attached to the deposition.
        (ii) Order regarding the originals. Any party may move for an order 
    that the originals be attached to the deposition pending final 
    disposition of the proceeding.
        (3) Copies of the transcript or recording. Unless otherwise 
    stipulated or ordered by the judge, the officer must retain the 
    stenographic notes of a deposition taken stenographically or a copy of 
    the recording of a deposition taken by another method. When paid 
    reasonable charges, the officer must furnish a copy of the transcript 
    or recording to any party or the deponent.
        (4) Notice of filing. A party who files the deposition must 
    promptly notify all other parties of the filing.
        (g) Failure to attend a deposition or serve a subpoena. A judge may 
    order sanctions, in accordance with Sec.  18.57, if a party who, 
    expecting a deposition to be taken, attends in person or by an 
    attorney, and the noticing party failed to:
        (1) Attend and proceed with the deposition; or
    
    [[Page 28800]]
    
        (2) Serve a subpoena on a nonparty deponent, who consequently did 
    not attend.
    
    
    Sec.  18.65  Depositions by written questions.
    
        (a) When a deposition may be taken--(1) Without leave. A party may, 
    by written questions, depose any person, including a party, without 
    leave of the judge except as provided in paragraph (a)(2) of this 
    section. The deponent's attendance may be compelled by subpoena under 
    Sec.  18.56.
        (2) With leave. A party must obtain leave of the judge, and the 
    judge must grant leave to the extent consistent with Sec.  18.51(b):
        (i) If the parties have not stipulated to the deposition and:
        (A) The deposition would result in more than 10 depositions being 
    taken under this section or Sec.  18.64 by a party;
        (B) The deponent has already been deposed in the case; or
        (C) The party seeks to take a deposition before the time specified 
    in Sec.  18.50(a); or
        (ii) If the deponent is confined in prison.
        (3) Service; required notice. A party who wants to depose a person 
    by written questions must serve them on every other party, with a 
    notice stating, if known, the deponent's name and address. If the name 
    is unknown, the notice must provide a general description sufficient to 
    identify the person or the particular class or group to which the 
    person belongs. The notice must also state the name or descriptive 
    title and the address of the officer before whom the deposition will be 
    taken.
        (4) Questions directed to an organization. A public or private 
    corporation, a partnership, an association, or a governmental agency 
    may be deposed by written questions in accordance with Sec.  
    18.64(b)(6).
        (5) Questions from other parties. Any questions to the deponent 
    from other parties must be served on all parties as follows: cross-
    questions, within 14 days after being served with the notice and direct 
    questions; redirect questions, within 7 days after being served with 
    cross-questions; and recross-questions, within 7 days after being 
    served with redirect questions. The judge may, for good cause, extend 
    or shorten these times.
        (b) Delivery to the deposition officer; officer's duties. Unless a 
    different procedure is ordered by the judge, the party who noticed the 
    deposition must deliver to the officer a copy of all the questions 
    served and of the notice. The officer must promptly proceed in the 
    manner provided in Sec.  18.64(c), (e), and (f) to:
        (1) Take the deponent's testimony in response to the questions;
        (2) Prepare and certify the deposition; and
        (3) Send it to the party, attaching a copy of the questions and of 
    the notice.
        (c) Notice of completion or filing--(1) Completion. The party who 
    noticed the deposition must notify all other parties when it is 
    completed.
        (2) Filing. A party who files the deposition must promptly notify 
    all other parties of the filing.
    
    Disposition Without Hearing
    
    
    Sec.  18.70  Motions for dispositive action.
    
        (a) In general. When consistent with statute, regulation or 
    executive order, any party may move under Sec.  18.33 for disposition 
    of the pending proceeding. If the judge determines at any time that 
    subject matter jurisdiction is lacking, the judge must dismiss the 
    matter.
        (b) Motion to remand. A party may move to remand the matter to the 
    referring agency. A remand order must include any terms or conditions 
    and should state the reason for the remand.
        (c) Motion to dismiss. A party may move to dismiss part or all of 
    the matter for reasons recognized under controlling law, such as lack 
    of subject matter jurisdiction, failure to state a claim upon which 
    relief can be granted, or untimeliness. If the opposing party fails to 
    respond, the judge may consider the motion unopposed.
        (d) Motion for decision on the record. When the parties agree that 
    an evidentiary hearing is not needed, they may move for a decision 
    based on stipulations of fact or a stipulated record.
    
    
    Sec.  18.71  Approval of settlement or consent findings.
    
        (a) Motion for approval of settlement agreement. When the 
    applicable statute or regulation requires it, the parties must submit a 
    settlement agreement for the judge's review and approval.
        (b) Motion for consent findings and order. Parties may file a 
    motion to accept and adopt consent findings. Any agreement that 
    contains consent findings and an order that disposes of all or part of 
    a matter must include:
        (1) A statement that the order has the same effect as one made 
    after a full hearing;
        (2) A statement that the order is based on a record that consists 
    of the paper that began the proceeding (such as a complaint, order of 
    reference, or notice of administrative determination), as it may have 
    been amended, and the agreement;
        (3) A waiver of any further procedural steps before the judge; and
        (4) A waiver of any right to challenge or contest the validity of 
    the order entered into in accordance with the agreement.
    
    
    Sec.  18.72  Summary decision.
    
        (a) Motion for summary decision or partial summary decision. A 
    party may move for summary decision, identifying each claim or 
    defense--or the part of each claim or defense--on which summary 
    decision is sought. The judge shall grant summary decision if the 
    movant shows that there is no genuine dispute as to any material fact 
    and the movant is entitled to decision as a matter of law. The judge 
    should state on the record the reasons for granting or denying the 
    motion.
        (b) Time to file a motion. Unless the judge orders otherwise, a 
    party may file a motion for summary decision at any time until 30 days 
    before the date fixed for the formal hearing.
        (c) Procedures--(1) Supporting factual positions. A party asserting 
    that a fact cannot be or is genuinely disputed must support the 
    assertion by:
        (i) Citing to particular parts of materials in the record, 
    including depositions, documents, electronically stored information, 
    affidavits or declarations, stipulations (including those made for 
    purposes of the motion only), admissions, interrogatory answers, or 
    other materials; or
        (ii) Showing that the materials cited do not establish the absence 
    or presence of a genuine dispute, or that an adverse party cannot 
    produce admissible evidence to support the fact.
        (2) Objection that a fact is not supported by admissible evidence. 
    A party may object that the material cited to support or dispute a fact 
    cannot be presented in a form that would be admissible in evidence.
        (3) Materials not cited. The judge need consider only the cited 
    materials, but the judge may consider other materials in the record.
        (4) Affidavits or declarations. An affidavit or declaration used to 
    support or oppose a motion must be made on personal knowledge, set out 
    facts that would be admissible in evidence, and show that the affiant 
    or declarant is competent to testify on the matters stated.
        (d) When facts are unavailable to the nonmovant. If a nonmovant 
    shows by affidavit or declaration that, for specified reasons, it 
    cannot present facts essential to justify its opposition, the judge 
    may:
        (1) Defer considering the motion or deny it;
        (2) Allow time to obtain affidavits or declarations or to take 
    discovery; or
    
    [[Page 28801]]
    
        (3) Issue any other appropriate order.
        (e) Failing to properly support or address a fact. If a party fails 
    to properly support an assertion of fact or fails to properly address 
    another party's assertion of fact as required by paragraph (c) of this 
    section, the judge may:
        (1) Give an opportunity to properly support or address the fact;
        (2) Consider the fact undisputed for purposes of the motion;
        (3) Grant summary decision if the motion and supporting materials--
    including the facts considered undisputed--show that the movant is 
    entitled to it; or
        (4) Issue any other appropriate order.
        (f) Decision independent of the motion. After giving notice and a 
    reasonable time to respond, the judge may:
        (1) Grant summary decision for a nonmovant;
        (2) Grant the motion on grounds not raised by a party; or
        (3) Consider summary decision on the judge's own after identifying 
    for the parties material facts that may not be genuinely in dispute.
        (g) Failing to grant all the requested relief. If the judge does 
    not grant all the relief requested by the motion, the judge may enter 
    an order stating any material fact--including an item of damages or 
    other relief--that is not genuinely in dispute and treating the fact as 
    established in the case.
        (h) Affidavit or declaration submitted in bad faith. If satisfied 
    that an affidavit or declaration under this section is submitted in bad 
    faith or solely for delay, the judge--after notice and a reasonable 
    time to respond--may order sanctions or other relief as authorized by 
    law.
    
    Hearing
    
    
    Sec.  18.80  Prehearing statement.
    
        (a) Time for filing. Unless the judge orders otherwise, at least 21 
    days before the hearing, each participating party must file a 
    prehearing statement.
        (b) Required conference. Before filing a prehearing statement, the 
    party must confer with all other parties in good faith to:
        (1) Stipulate to the facts to the fullest extent possible; and
        (2) Revise exhibit lists, eliminate duplicative exhibits, prepare 
    joint exhibits, and attempt to resolve any objections to exhibits.
        (c) Contents. Unless ordered otherwise, the prehearing statement 
    must state:
        (1) The party's name;
        (2) The issues of law to be determined with reference to the 
    appropriate statute, regulation, or case law;
        (3) A precise statement of the relief sought;
        (4) The stipulated facts that require no proof;
        (5) The facts disputed by the parties;
        (6) A list of witnesses the party expects to call;
        (7) A list of the joint exhibits;
        (8) A list of the party's exhibits;
        (9) An estimate of the time required for the party to present its 
    case-in-chief; and
        (10) Any additional information that may aid the parties' 
    preparation for the hearing or the disposition of the proceeding, such 
    as the need for specialized equipment at the hearing.
        (d) Joint prehearing statement. The judge may require the parties 
    to file a joint prehearing statement rather than individual prehearing 
    statements.
        (e) Signature. The prehearing statement must be in writing and 
    signed. By signing, an attorney, representative, or party makes the 
    certifications described in Sec.  18.50(d).
    
    
    Sec.  18.81  Formal hearing.
    
        (a) Public. Hearings are open to the public. But, when authorized 
    by law and only to the minimum extent necessary, the judge may order a 
    hearing or any part of a hearing closed to the public, including 
    anticipated witnesses. The order closing all or part of the hearing 
    must state findings and explain why the reasons for closure outweigh 
    the presumption of public access. The order and any objection must be 
    part of the record.
        (b) Taking testimony. Unless a closure order is issued under 
    paragraph (a) of this section, the witnesses' testimony must be taken 
    in an open hearing. For good cause and with appropriate safeguards, the 
    judge may permit testimony in an open hearing by contemporaneous 
    transmission from a different location.
        (c) Party participation. For good cause and with appropriate 
    safeguards, the judge may permit a party to participate in an open 
    hearing by contemporaneous transmission from a different location.
    
    
    Sec.  18.82  Exhibits.
    
        (a) Identification. All exhibits offered in evidence must be marked 
    with a designation identifying the party offering the exhibit and must 
    be numbered and paginated as the judge orders.
        (b) Electronic data. By order the judge may prescribe the format 
    for the submission of data that is in electronic form.
        (c) Exchange of exhibits. When written exhibits are offered in 
    evidence, one copy must be furnished to the judge and to each of the 
    parties at the hearing, unless copies were previously furnished with 
    the list of proposed exhibits or the judge directs otherwise. If the 
    judge does not fix a date for the exchange of exhibits, the parties 
    must exchange copies of exhibits at the earliest practicable time 
    before the hearing begins.
        (d) Authenticity. The authenticity of a document identified in a 
    pre-hearing exhibit list is admitted unless a party files a written 
    objection to authenticity at least 7 days before the hearing. The judge 
    may permit a party to challenge a document's authenticity if the party 
    establishes good cause for its failure to file a timely written 
    objection.
        (e) Substitution of copies for original exhibits. The judge may 
    permit a party to withdraw original documents offered in evidence and 
    substitute accurate copies of the originals.
        (f) Designation of parts of documents. When only a portion of a 
    document contains relevant matter, the offering party must exclude the 
    irrelevant parts to the greatest extent practicable.
        (g) Records in other proceedings. Portions of the record of other 
    administrative proceedings, civil actions or criminal prosecutions may 
    be received in evidence, when the offering party shows the copies are 
    accurate.
    
    
    Sec.  18.83  Stipulations.
    
        (a) The parties may stipulate to any facts in writing at any stage 
    of the proceeding or orally on the record at a deposition or at a 
    hearing. These stipulations bind the parties unless the judge 
    disapproves them.
        (b) Every stipulation that requests or requires a judge's action 
    must be written and signed by all affected parties or their 
    representatives. Any stipulation to extend time must state the reason 
    for the date change.
        (c) A proposed form of order may be submitted with the stipulation; 
    it may consist of an endorsement on the stipulation of the words, 
    ``Pursuant to stipulation, it is so ordered,'' with spaces designated 
    for the date and the signature of the judge.
    
    
    Sec.  18.84  Official notice.
    
        On motion of a party or on the judge's own, official notice may be 
    taken of any adjudicative fact or other matter subject to judicial 
    notice. The parties must be given an adequate opportunity to show the 
    contrary of the matter noticed.
    
    [[Page 28802]]
    
    Sec.  18.85  Privileged, sensitive, or classified material.
    
        (a) Exclusion. On motion of any interested person or the judge's 
    own, the judge may limit the introduction of material into the record 
    or issue orders to protect against undue disclosure of privileged 
    communications, or sensitive or classified matters. The judge may admit 
    into the record a summary or extract that omits the privileged, 
    sensitive or classified material.
        (b) Sealing the record. (1) On motion of any interested person or 
    the judge's own, the judge may order any material that is in the record 
    to be sealed from public access. The motion must propose the fewest 
    redactions possible that will protect the interest offered as the basis 
    for the motion. A redacted copy or summary of any material sealed must 
    be made part of the public record unless the necessary redactions would 
    be so extensive that the public version would be meaningless, or making 
    even a redacted version or summary available would defeat the reason 
    the original is sealed.
        (2) An order that seals material must state findings and explain 
    why the reasons to seal adjudicatory records outweigh the presumption 
    of public access. Sealed materials must be placed in a clearly marked, 
    separate part of the record. Notwithstanding the judge's order, all 
    parts of the record remain subject to statutes and regulations 
    pertaining to public access to agency records.
    
    
    Sec.  18.86  Hearing room conduct.
    
        Participants must conduct themselves in an orderly manner. The 
    consumption of food or beverage, and rearranging courtroom furniture 
    are prohibited, unless specifically authorized by the judge. Electronic 
    devices must be silenced and must not disrupt the proceedings. Parties, 
    witnesses and spectators are prohibited from using video or audio 
    recording devices to record hearings.
    
    
    Sec.  18.87  Standards of conduct.
    
        (a) In general. All persons appearing in proceedings must act with 
    integrity and in an ethical manner.
        (b) Exclusion for misconduct. During the course of a proceeding, 
    the judge may exclude any person--including a party or a party's 
    attorney or non-attorney representative--for contumacious conduct such 
    as refusal to comply with directions, continued use of dilatory 
    tactics, refusal to adhere to reasonable standards of orderly or 
    ethical conduct, failure to act in good faith, or violation of the 
    prohibition against ex parte communications. The judge must state the 
    basis for the exclusion.
        (c) Review of representative's exclusion. Any representative 
    excluded from a proceeding may appeal to the Chief Judge for 
    reinstatement within 7 days of the exclusion. The exclusion order is 
    reviewed for abuse of discretion. The proceeding from which the 
    representative was excluded will not be delayed or suspended pending 
    review by the Chief Judge, except for a reasonable delay to enable the 
    party to obtain another representative.
    
    
    Sec.  18.88  Transcript of proceedings.
    
        (a) Hearing transcript. All hearings must be recorded and 
    transcribed. The parties and the public may obtain copies of the 
    transcript from the official reporter at rates not to exceed the 
    applicable rates fixed by the contract with the reporter.
        (b) Corrections to the transcript. A party may file a motion to 
    correct the official transcript. Motions for correction must be filed 
    within 14 days of the receipt of the transcript unless the judge 
    permits additional time. The judge may grant the motion in whole or 
    part if the corrections involve substantive errors. At any time before 
    issuing a decision and upon notice to the parties, the judge may 
    correct errors in the transcript.
    
    Post Hearing
    
    
    Sec.  18.90  Closing the record; subsequent motions.
    
        (a) In general. The record of a hearing closes when the hearing 
    concludes, unless the judge directs otherwise. If any party waives a 
    hearing, the record closes on the date the judge sets for the filing of 
    the parties' submissions.
        (b) Motion to reopen the record. (1) A motion to reopen the record 
    must be made promptly after the additional evidence is discovered. No 
    additional evidence may be admitted unless the offering party shows 
    that new and material evidence has become available that could not have 
    been discovered with reasonable diligence before the record closed. 
    Each new item must be designated as an exhibit under Sec.  18.82(a) and 
    accompanied by proof that copies have been served on all parties.
        (2) If the record is reopened, the other parties must have an 
    opportunity to offer responsive evidence, and a new evidentiary hearing 
    may be set.
        (c) Motions after the decision. After the decision and order is 
    issued, the judge retains jurisdiction to dispose of appropriate 
    motions, such as a motion to award attorney's fees and expenses, a 
    motion to correct the transcript, or a motion for reconsideration.
    
    
    Sec.  18.91  Post-hearing brief.
    
        The judge may grant a party time to file a post-hearing brief with 
    proposed findings of fact, conclusions of law, and the specific relief 
    sought. The brief must refer to all portions of the record and 
    authorities relied upon in support of each assertion.
    
    
    Sec.  18.92  Decision and order.
    
        At the conclusion of the proceeding, the judge must issue a written 
    decision and order.
    
    
    Sec.  18.93  Motion for reconsideration.
    
        A motion for reconsideration of a decision and order must be filed 
    no later than 10 days after service of the decision on the moving 
    party.
    
    
    Sec.  18.94  Indicative ruling on a motion for relief that is barred by 
    a pending petition for review.
    
        (a) Relief pending review. If a timely motion is made for relief 
    that the judge lacks authority to grant because a petition for review 
    has been docketed and is pending, the judge may:
        (1) Defer considering the motion;
        (2) Deny the motion; or
        (3) State either that the judge would grant the motion if the 
    reviewing body remands for that purpose or that the motion raises a 
    substantial issue.
        (b) Notice to reviewing body. The movant must promptly notify the 
    clerk of the reviewing body if the judge states that he or she would 
    grant the motion or that the motion raises a substantial issue.
        (c) Remand. The judge may decide the motion if the reviewing body 
    remands for that purpose.
    
    
    Sec.  18.95  Review of decision.
    
        The statute or regulation that conferred hearing jurisdiction 
    provides the procedure for review of a judge's decision. If the statute 
    or regulation does not provide a procedure, the judge's decision 
    becomes the Secretary's final administrative decision.
    
    [FR Doc. 2015-11586 Filed 5-18-15; 8:45 am]
     BILLING CODE 4510-20-P
    
    
    
Put Free Immigration Law Headlines On Your Website

Immigration Daily: the news source for legal professionals. Free! Join 35000+ readers Enter your email address here: