OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

29 CFR Part 2200

Rules of Procedure for E-Z Trials

AGENCY: Occupational Safety and Health Review Commission.

ACTION: Notice of proposed rulemaking.

SUMMARY: This document contains revisions to the procedural rules governing the E-Z Trial program. These revisions are intended to assist the E-Z Trial process in meeting its objective of allowing parties in less complex cases to argue their cases before the Commission with as few legal formalities as possible.

DATES: Comments must be received by July 24, 1997.

ADDRESSES: All comments concerning these proposed rules should be addressed to Earl R. Ohman, Jr., General Counsel, Occupational Safety and Health Review Commission, 1120 20th Street NW., 9th Floor, Washington, DC 20036-3419.

FOR FURTHER INFORMATION CONTACT: Earl R. Ohman, Jr., General Counsel, (202) 606-5410.

SUPPLEMENTARY INFORMATION: On August 14, 1995, the Occupational Safety and Health Review Commission published in the Federal Register (60 FR 41805) new procedural rules for a pilot program designed to simplify and accelerate adjudication for those cases appropriate for a less formal process. Designated "E-Z Trial," the pilot program was to run for one year, beginning on October 1, 1995, and terminating on September 30, 1996, under a "sunset provision" unless extended by the Commission. On September 27, 1996, the Commission extended the sunset provision until March 31, 1997, to allow for an evaluation of the pilot program (61 FR 50711). During that period, the Commission held focus groups with parties, including small employers, safety consultants, representatives of employers, and attorneys from the Cleveland office of the Solicitor of Labor, who had participated in E-Z Trial proceedings, The participants were given an opportunity to comment on the E-Z Trial process and to suggest changes that would enable the E-Z Trial program to more effectively achieve its goals. The Commission also solicited comments and experiences from Commission judges who had conducted E-Z Trials. On March 28, 1997, the Commission further extended the sunset provision until July 31, 1997 (62 FR 14821) in order to evaluate the comments it had received about the E-Z Trial program. Based on that evaluation, the Commission has proposed revisions to its procedural rules involving the eligibility of cases for E-Z Trial and mandatory disclosure by the parties. Specifically, the Commission has determined that cases involving fatalities or allegations of repeat violations are not appropriate for E-Z Trial designation, and that cases involving aggregated proposed penalties of more than $10,000, but not more than $20,000, may be designated for E-Z Trial at the discretion of the Chief Administrative Law Judge, if otherwise appropriate. Additionally, the Commission believes that the goal of E-Z Trial is best served by requiring the Secretary to turn over to the employer any photographs or videotapes that the Secretary anticipates using at the hearing. Having received many comments concerning the increased use of videotapes and photographs during inspections, the Commission believes that the disclosure of such evidence will promote fairness and will help expedite the resolution of E-Z Trial cases. The Commission invites comments from the public regarding these proposed changes.

List of Subjects in 29 CFR Part 2200

Administrative practice and procedure, Hearing and appeal procedures.

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

PART 2200 -- RULES OF PROCEDURE

1. The authority citation continues to read as follows:

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

2. Section 2200.202 is revised to read as follows:

§ 2200.202 Eligibility for E-Z Trial.

(1) Those cases selected for E-Z Trial will be those that do not involve complex issues of law or fact. Cases appropriate for E-Z Trial would generally include those with one or more of the following characteristics:

(a) relatively few citation items,

(b) an aggregate proposed penalty of not more than $10,000,

(c) no allegation of willfulness or a repeat violation,

(d) not involving a fatality,

(e) a hearing that is expected to take less than two days, or

(f) a small employer whether appearing pro se or represented by counsel.

(2) Those cases with an aggregate proposed penalty of more than $10,000, but not more than $20,000, if otherwise appropriate, may be selected for E-Z Trial at the discretion of the Chief Administrative Law Judge.

3. Section 2200.206(a) is revised to read as follows:

§ 2200.206 Disclosure of information.

(a) Disclosure to employer. (1) Within 12 working days after a case is designated for E-Z Trial, the Secretary shall provide the employer, free of charge, copies of the narrative (Form OSHA 1-A) and the worksheet (Form OSHA 1-B), or their equivalents.

(2) Within 30 calendar days after a case is designated for E-Z Trial, the Secretary shall provide the employer with reproductions of any photographs or videotapes that the Secretary anticipates using at the hearing.

(3) The Judge shall act expeditiously on any claim by the employer that the Secretary improperly withheld or redacted any portion of the documents, photographs, or videotapes on the grounds of confidentiality or privilege.

4. Section 2200.207(a) is amended by revising the first sentence to read as follows:

§ 2200.207 Pre-hearing conferences.

(a) When held. As early as practicable after the employer has received the documents set forth in § 2200.206(a)(1), the presiding Judge will order and conduct a pre-hearing conference. * * *

* * * * *

Dated: June 18, 1997.

Earl R. Ohman, Jr.,
General Counsel.

[FR Doc. 97-16474 Filed 6-23-97; 8:45 am]

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