**Tate & Renner, attorneys at law**

505 North Wooster Avenue

P.O. Box 8

Dover, Ohio 44622-0008

\(330\) 364-9900

FAX: (330) 364-9901

www.taterenner.com

Email: rrenner@igc.org

*Alfred L. Tate *(1942-1995)

*Richard R. Renner*

*Anthony Touschner *(of counsel)

OSHA Docket Office, Docket No. OSHA-2007-0028

U.S. Department of Labor, Room N-2625

200 Constitution Avenue, NW.

Washington, DC 20210

By Facsimile: (202) 693-1648

** Re: Docket No. OSHA-2007-0028**

Dear Madam or Sir:

**A. Introduction**

Mr. Jason Zuckerman of Washington, DC, and myself submit these comments
to the amended regulations at 29 CFR Part 24, 72 Fed. Reg. 44956,
adopted on Aug. 10, 2007. Together, Mr. Zuckerman and I co-chair the
Whistleblower Committee of the National Employment Lawyers Association.
Mr. Renner has been a lawyer for 25 years, and has practiced before the
US Department of Labor (DOL) since 1996. He has handled over 20
environmental, nuclear and other whistleblower cases before the DOL.
Since 2002, he has also served as Secretary of the National
Whistleblower Center. Mr. Zuckerman is now practicing primarily as Of
Counsel at The Employment Law Group.

**B. The big picture.**

We humbly submit that the amended regulations miss the big picture. The
purpose of the employee protections is to afford protection for those
who help to protect the environment, assist the government in obtaining
compliance, and participate in other activities that promote the
statutory objectives. *Devereux v. Wyoming Association of Rural Water,
*93-ERA-18 (Sec'y, October 1, 1993);* Tyndall v. U.S. Environmental
Protection Agency, *93-CAA-6, 95-CAA-5 (ARB, June 14, 1998). Employees
can play an important role in protecting the public from environmental
and nuclear safety dangers. They can keep managers and government
officials honest by exposing attempts to cover up dangers.
Discrimination against whistleblowers obviously deters such employee
efforts on behalf of the public purposes. Accordingly, the federal
statutes prohibit such discrimination. To achieve the ends of
eliminating discrimination, and protecting complainants from
retaliation, the law mandates that "employees must feel secure that any
action they may take" furthering "Congressional policy and purpose,
especially in the area of public health and safety, will not jeopardize
either their current employment or future employment opportunities."
*Egenrieder v. Metropolitan Edison Co./GPU*, 85-ERA-23, Order of Remand
by SOL, pp. 7-8 (April 20, 1987). The whistleblower protection laws were
passed in order to "encourage" employees to report safety violations and
protect their reporting activity. *English v. General Electric Co.*, 496
U.S. 72, 110 S.Ct. 2270, 2277 (1990); *Wagoner v. Technical Products,
Inc.*, 87-TSC-4, D&O of SOL, p. 6 (November 20, 1990)(the "paramount
purpose" behind the whistleblower statutes is the "protection of
employees"). Accord,* Hill, et al. v. T.V.A.*, 87-ERA-23/24, D&O of
Remand by SOL, pp. 4-5 (May 24, 1989). Consequently, there is a need for
"broad construction" of the statutes in order to effectuate their
purposes. *DeFord v. Secretary of Labor*, 700 F.2d 281,286 (6th Cir.
1983). In *Passaic Valley Sewerage Comm. v. Department of Labor*, 992
F.2d 474, 479 (3rd Cir. 1993), the Third Circuit stated:

. . . from the legislative history and the court and agency precedents .
. . it is clear that Congress intended the 'whistleblower' statutes to
be broadly interpreted to achieve the legislative purpose of encouraging
employees to report hazards to the public and protect the environment by
offering them protection in their employment.

The Energy Policy Act of 2005, Public Law 109-58, was enacted on August
8, 2005. Among other provisions, this new law amended the employee
protection provisions for nuclear whistleblowers under Section 211 of
the ERA, 42 U.S.C. 5851. The 2005 amendment added a provision for *de
novo* review by a United States District Court in the event that the
Secretary has not issued a final decision within one year after the
filing of a complaint, and there is no showing that the delay is due to
the bad faith of the complainant. Congress obviously wanted to expand
the avenues of relief available to nuclear whistleblowers. The *de novo*
process in district courts is available as an option for complainants,
but is not required. As such, rules intend to accomplish the
congressional purpose should respect the complainant's options, and work
in their favor, not to their detriment.

The interim final rule has altered Part 24 to deter complainants from
seeking relief in district courts in a way that hampers all complainants
in the preparation of their cases. We suggest that the Department would
better serve the statutory goals by demonstrating that it is a superior
forum for these specialized cases. The Department should compete on the
quality of its determinations rather than sacrifice quality for the sake
of speed.

**C. ERA burdens should be described correctly.**

The Department's Summary and Discussion of Regulatory Provisions
overgeneralizes when it states, "The burdens of proving a retaliation
claim are the same as those of a standard discrimination claim." In last
year's decision in *Burlington Northern & Santa Fe Railway Co. v.
White*, 126 S. Ct. 2405 (June 22, 2006), the Supreme Court noted how the
purpose of anti-retaliation laws goes beyond the purpose of
anti-discrimination laws. Accordingly, the Court held that a broader
range of adverse actions can be remedied with the anti-retaliation
provision of Title VII than is addressed through its anti-discrimination
provisions (which are limited to adverse employment actions).

Also, Congress has specifically altered the burdens of proof in ERA
cases. The Energy Reorganization Act (ERA), 42 U.S.C. § 5851(b)(3),
provides:

(3)(A) The Secretary shall dismiss a complaint filed under paragraph
(1), and shall not conduct the investigation required under paragraph
(2), unless the complainant has made a prima facie showing that any
behavior described in subparagraphs (A) through (F) of subsection (a)(1)
of this section was a **contributing factor** in the unfavorable
personnel action alleged in the complaint.

\(B\) Notwithstanding a finding by the Secretary that the complainant
has made the showing required by subparagraph (A), no investigation
required under paragraph (2) shall be conducted if the employer
demonstrates, **by clear and convincing evidence**, that it would have
taken the same unfavorable personnel action in the absence of such
behavior.

\(C\) The Secretary may determine that a violation of subsection (a) of
this section has occurred only if the complainant has demonstrated that
any behavior described in subparagraphs (A) through (F) of subsection
(a)(1) of this section was a **contributing factor** in the unfavorable
personnel action alleged in the complaint.

\(D\) Relief may not be ordered under paragraph (2) if the employer
demonstrates **by clear and convincing evidence** that it would have
taken the same unfavorable personnel action in the absence of such
behavior. \[Emphasis added.\]

The 1992 Amendments to the Energy Reorganization Act, Pub.L. 102-486, §
2902(d), added this par. (3), and was made effective by § 2902(i) to
claims filed on or after October 24, 1992. This provision altered the
burdens by requiring a complainant to show only that the protected
activity was a "contributing factor." Thereafter, a respondent can
defeat the claim only be showing "by clear and convincing evidence" that
it would have taken the same unfavorable action even if complainant had
not engaged in protected activity. The* McDonnell Douglas* framework no
longer applies to ERA nuclear whistleblower claims because Congress
provided an independent evidentiary framework for that statute in 1992.
*See* *Doyle v. U.S. Sec. Labor*, 285 F.3d 243, 249-50 & n. 9 (3rd Cir.
2002), *Williams v. Administrative Review Bd.*, 376 F.3d 471, 476 and
n.3 (5th Cir. 2004), *Trimmer v. U.S. Dep't of Labor*, 174 F.3d 1098,
1101 (10th Cir. 1999), and *Stone & Webster Engineering Corp. v.
Herman*, 115 F.3d 1568, 1572 (11th Cir. 1997).

In *Doyle*, 285 F.3d at 249-50, the Court of Appeals for the Third
Circuit reviewed the new evidentiary framework, noting: "\[t\]he Energy
Policy Act of 1992, Pub.L. No. 102-486, 106 Stat. 2776, effective
October 24, 1992, amended section 210 to incorporate a burden-shifting
paradigm whereby the burden of persuasion falls first upon the
complainant to demonstrate that retaliation for his protected activity
was a 'contributing factor' in the unfavorable personnel decision."
"Clear and convincing" is an evidentiary standard that "requires a
burden higher than 'preponderance of the evidence' but lower than
'beyond a reasonable doubt.'" *Getman v. Southwest Securities, Inc*.,
2003-SOX-8, at 10 (ALJ Feb. 2, 2004) (*citing Yule v. Burns Int'l.
Security Service*, 1993-ERA-12 (Sec'y May 24, 1995)); *see also Taylor
v. Express One International, Inc*., 2001-AIR-2 (ALJ Feb. 15, 2002). The
ARB has relied on the Black's Law Dictionary definition: "Clear and
convincing evidence is '\[e\]vidence indicating that the thing to be
proved is highly probable or reasonably certain.'" *Peck v. Safe Air
Int'l, Inc. d/b/a Island Express*, ARB 02-028, 2001-AIR-3 (Jan. 30,
2004).

There appears to be some confusion about the key elements of a
whistleblower retaliation claim, which confusion results in
investigators incorrectly assuming that a complainant must have "smoking
gun" evidence of retaliation, that any reasonable explanation for an
adverse action meets the "clear and convincing evidence" standard, and
that an act of retaliation is actionable only where it has a tangible
economic consequence. Accordingly, we suggest that the Department define
the following terms:

An "unfavorable personnel action" includes any recommended, threatened,
or actual discrimination, including, but not limited to, termination,
demotion, suspension, or reprimand; involuntary transfer, reassignment,
or detail; referral for psychiatric or psychological counseling;
investigation, provision of benefits; taking or failing to take any
personnel action, including failure to promote or hire or take other
favorable personnel action; engaging in any conduct that would dissuade
a reasonable employee from engaging in activities protected by this
statute; or retaliating in any other manner against an employee because
that employee makes a protected disclosure or refuses to comply with an
illegal order.

"Clear and convincing evidence" is evidence indicating that the thing to
be proved is highly probable or reasonably certain and is a higher
burden than preponderance of the evidence.

A "contributing factor" is any factor which, alone or in connection with
other factors, tends to affect in any way the outcome of the decision.

The Department can assist all parties, and its own staff, by making
clear that the burdens of proof for ERA cases are those set out in 42
U.S.C. § 5851(b)(3) and not the burdens of traditional discrimination
claims.

**D. Adoption of interim rule, and non-use of the liaison process.**

We are disappointed that the Department has chosen to issue these
changes as an interim final rule rather than affording all interested
parties the normal opportunity to comment before adoption. Last year, we
helped to initiate a liaison process with the Office of Administrative
Law Judges (OALJ) and with OSHA. We did so on behalf of the
Whistleblower Committee of the National Employment Lawyers Association
(NELA). We had hoped that we would establish avenues of communication
among policy makers, whistleblower groups and employer groups so that we
could better understand each other's interests and develop policy
alternatives that are best suited to the statutory goals. The Department
missed an opportunity to utilize this process to collect information and
make decisions with a better understanding of the interests at stake.

**E. Service of complaint and respondent's response.**

In Section 24.104(b), we suggest that it would be helpful if the
regulation provided that OSHA serve the respondent's response on the
complainant's representative. The practice among OSHA field offices is
uneven on this point. Respondents are entitled to a copy of the
complaint once it is filed. Complainants will have a right to the
response once OSHA closes its investigation and the complainant submits
a FOIA request. However, the complainant could assist OSHA in its
investigation if the complainant has a copy of the respondent's
response. Also, respondents should know that their response will not be
confidential so they are not caught by surprise when their response is
used as an exhibit in the ALJ hearing.

In an effort to promptly complete investigations, some investigators are
inclined to accept whatever justifications for an adverse action that
are offered by the employer without probing whether such justifications
are in fact credible. This approach cannot be considered an
"investigation." To serve the critical objectives of these whistleblower
protection statutes, OSHA investigators should provide a complainant
with the respondent's submissions and should not close the investigation
until the complainant has had an opportunity to respond.

**F. Permitting Witnesses to Meet Privately with OSHA Investigators.**

Employees of respondents are often reluctant to speak candidly, if at
all, to investigators for fear of reprisal. Accordingly, the presence of
a respondent's representative (typically an attorney) at an OSHA
interview can have a chilling effect that prevents the investigator from
discovering important evidence. Investigators should specifically inform
witnesses of the opportunity to meet privately with an OSHA investigator
or to speak with an OSHA investigator by phone.

**G. Service of OSHA determinations on counsel of record.**

In Section 24.105(b), we suggest that the rule should specifically
require service on the attorney of record for each party (if the party
has counsel). Mr. Renner has one case where OSHA sent the determination
directly to a complainant with limited English proficiency, even though
he signed and filed the original complaint. He did not learn about the
determination until OSHA sent him a copy --- more than a month later.
Even though he filed the objection and request for hearing immediately
upon his receipt of the determination, the ALJ dismissed the objection
and request for hearing on grounds that it was not made within thirty
days, counting from the original issuance directly to the complainant.
This case is currently pending at the ARB (ARB Case No. 06-146). We
could avoid these types of problems if the rule specifically required
service on the attorney of record, or alternatively, if the rule allowed
objections within thirty days of the last service when the party and his
or her attorney are served at different times.

**H. Appreciation for increased time to request a hearing.**

Thank you for the provision in Section 24.105(c) expanding the time to
file objections and requests for hearing. This change is long overdue to
help parties get cases decided on the merits, instead of on
technicalities. One of the remaining problems in the environmental
whistleblower cases is the extremely short time limit (30 days) to file
the original complaint with OSHA. It is so sad when we have to turn away
prospective clients because they did not find an attorney with knowledge
of or experience with this time limit until after it had expired. We
appreciate the Department's effort to expand the time limit and maximize
the opportunities for decisions on the merits.

**I. Imposing Undue Limitations on Discovery.**

We particularly object, however, to the last sentence of Section
24.107(b) ("Administrative law judges have broad discretion to limit
discovery in order to expedite the hearing."). It had been well
established that the time limits for adjudication can be extended or
waived to allow for the completion of discovery. *Timmons v. Mattingly
Testing Services*, 95-ERA-40, D&O of Remand by ARB, pp. 5-6 (June 21,
1996). An initial request to extend the time limits is routinely
granted. *Tracanna v. Arctic Slope Inspection Service*, 97-WPC-1, ARB
No. 97-123, D&O of Remand by ARB, at 5 (Nov. 6, 1997). Adequate time is
absolutely necessary to accomplish proper discovery in a manner
consistent with the Federal Rules of Civil Procedure. Accord, *Malpass
v. General Electric Co.,* 85-ERA-38/39, D&O of SOL, slip op. at 12
(March 1, 1994). The Secretary of Labor has stated that parties to DOL
whistleblower proceedings have "all the discovery mechanisms of the Rule
of Practice" available to them to assist in preparing for a hearing.
*Malpass v. General Electric Co.,* 85-ERA-38/39, D&O of SOL, slip op. at
12 (March 1, 1994). In *Holub v. H. Nash Babcock,* *Babcock & King,
Inc.*, 96-ERA-25, Discovery Order of ALJ (March 2, 1994), the ALJ ruled
that "the law is well settled regarding the appropriateness of extensive
discovery in employment discrimination cases. Further, the courts have
held that liberal discovery in these cases is warranted." *Id*., slip
op. at 6. Also see *McDonnell Douglas Corp. v. Green*, 411 U.S. 792,
804-05 (1073) (extensive discovery in employment discrimination cases is
necessary and the refusal to adhere to the "liberal spirit" of discovery
would be an abuse of discretion); *Duke v. University of Texas at El
Paso*, 729 F.2d 994, 997 (5th Cr. 1984) ("procedural technicalities" to
impede liberal discovery are improper)*.* One member of the ARB
explained:

In employment discrimination cases, the courts have held that discovery
should be permitted "unless it is clear that the information sought can
have no possible bearing upon the subject matter of the action."
*Marshall v. Electric Hose & Rubber Co.*, 68 F.R.D. 287, 295 (D.Del.
1975) (citations omitted). "In such cases, the plaintiff must be given
access to information that will assist the plaintiff in establishing the
existence of the alleged discrimination." *Lyoch v. Anheuser-Busch
Companies, Inc.*, 164 F.R.D. 62, 65 (E.D. Mo. 1995) (citations omitted).
*Accord* *Trevino v. Celanese Corp.*, 701 F.2d 397, 405 (5th Cir. 1983)
(vacating protective order which limited discovery in part because,
"imposition of unnecessary limitations on discovery is especially
frowned upon in Title VII cases."); *Flanagan v. Travelers Insurance
Co.*, 111 F.R.D. 42, 45 (W.D.N.Y. 1986) (same). Consistent with this
body of case law, the Secretary of Labor and the ALJs have recognized
the broad scope of discovery to be afforded parties in whistleblower
cases.* See, e.g., Malpass v. General Electric Co.*, Case Nos.
85-ERA-38/39, Sec'y Dec., Mar. 1, 1994, slip op. at 12; *Holub v. Nash,
Babcock, et al.*, Case No. 93-ERA-25, ALJ Disc. Ord., Mar. 2, 1994, slip
op. at 6.* See generally Timmons v. Mattingly Testing Services, Inc.*,
ALJ Case No. 95-ERA-40, ARB Dec. & Ord. of Rem., June 21, 1996, slip op.
at 4-6 (discussing the "full and fair presentation" of a whistleblower
case by the parties).

*Khandelwal v. Southern California Edison*, ARB No. 98-159, ALJ Nos.
1997-ERA-6 (ARB Nov. 30, 2000), concurring opinion of E. Cooper Brown.

It is ironic that Congress created the judicial bypass for ERA cases out
of a perception that the DOL process was not adequate to protect
whistleblower interests, and now the DOL is using the bypass provision
as a basis to make its process even less suitable. We urge the
Department to make its process better so that complainants are
encouraged to bring their claims to the Department and allow the
Department to complete its process.

The 2005 amendment affects only ERA whistleblower complaints. However,
the new Part 24 affects all the environmental whistleblower cases, even
though the complainants there have no right of *de novo* review in
district court. The current legislation provides no logical basis to
restrict their rights of discovery in any way.

If the Department was intent on limited discovery for the sake of speed,
it could make clear that ALJs can make an adverse inference of unlawful
discrimination based on a respondent's failure to make full and complete
discovery responses. Accord, *Malpass v. General Electric Co.,*
85-ERA-38/39, D&O of SOL, slip op. at 12 (March 1, 1994). The Department
could add a requirement for initial disclosures (reference FRCP
26(a)(1)). The Department could expedite discovery by shortening the
time to respond to interrogatories, requests for documents or
admissions.

We specifically suggest that the Department require parties to provide
discovery responses in searchable electronic forms when a party has the
responsive information in such forms. We have noticed numerous parties
printing out emails, for example, and producing the hard copies to
frustrate an opponent's ability to save and search the responsive
documents for key names or phrases. The companies go to extra effort to
make their electronic records harder for complainants to use. The
searchable electronic form is necessary to properly search and manage
the documents. It is not fair that respondent can search the relevant
emails, policy files, and other documents electronically while
complainant and his counsel would have to read through all the of pages
of paper to get the same information. We mention a searchable electronic
form because some respondents' counsels have been converting documents
to PDF forms by scanning the hardcopy or otherwise making the PDF file
non-searchable. That frustrates the purpose of electronic discovery.
Courts that have considered the issue have held that production of
electronic documents in their electronic form is proper. *Armstrong v.
Executive Office of the President*, 1 F.3d 1274 (D.C. Cir. 1993),
reversed on other grounds, 90 F.3d 553 (D.C.Cir. 1996). *See also
Anti-Monopoly, Inc. v. Hasbro, Inc., *1995 U.S. Dist. LEXIS 16355
(S.D.N.Y.) "Production of materials in hard copy form does not preclude
a party from receiving the same information in electronic form."; *see
also Cobell v. Norton, *2002 U.S. Dist. LEXIS 5291 (D.D.C.) (request for
permission to produce emails on paper draws sanctions). Production
electronically is easier for the producing party and more useful to the
receiving party. It is the right thing to do. The ALJ erred in failing
to compel respondent to produce its electronic versions of its
documents.

The modern practice of maintaining electronic records means that
businesses typically have more records than they did in times past. They
will need the time to identify the location of all electronic data, to
retrieve such data, and to prepare the data for production. Limiting the
period for discovery prejudices complainants in that it will effectively
deny them the opportunity to obtain the documents necessary to prove
their claims. ALJs are generally reluctant to impose discovery
sanctions. Limiting the period for discovery gives respondents a
tremendous advantage in that they can spend months withholding documents
and by the time the discovery motions are before an ALJ, the case will
be going to trial and the complainant will not have had access to
documents and information that can prove the claim. DOL precedent
establishes that the reason for encouraging expeditious hearings is to
benefit the complainant. *Johnson v. Transco Prods., Inc.,* 85-ERA-7,
slip. op. of ALJ at 2 (Mar. 5, 1985). The employee is likely to be out
of a job or otherwise economically disadvantaged by the employer's
alleged retaliation. The time limits are not designed to provide the
employer with a means of pressuring or harassing an employee who has
"blown the whistle." *Bullock v. Rochester Gas & Electric Corp.,*
84-ERA-22 (ALJ June 8, 1984) (interim order) (Respondent had opposed
continuance for Complainant to obtain an attorney). DOL appears to have
lost sight of this precedent and appears to be more concerned with
protecting respondents from the burden of discovery than in assuring a
fair adjudication of a complaint. We urge the Department to remove the
sentence that encourages ALJs to limit discovery, and instead specify
that discovery should include initial disclosures, searchable electronic
production of electronic records, and adverse inferences upon a showing
of failure to make timely and complete responses.

**J. Limiting federal court jurisdiction in ERA cases.**

We propose directly stating that DOL's effort to restrict a
complainant's ability to remove a case to federal court contravenes the
plain meaning of the 2005 amendments to the ERA and is outside the scope
of DOL's authority. DOL simply lacks authority to rewrite the 2005
amendments to the ERA by striking the phrase *de novo* and restricting a
complainant's ability to remove a complaint to federal court. We suggest
that DOL policy should respect the complainant's legal right to seek
relief elsewhere, but continue to strive to be a forum that draws
parties in through its reputation for fair adjudications that accomplish
the statutory purposes.

**K. Role of DOL in enforcing whistleblower protection statutes.**

The summary of changes to Section 24.108 states that "in most
whistleblower cases, parties have been ably represented and the public
interest has not required the Department's participation." This
statement is an unfortunate reflection of DOL's stance on whistleblower
protection laws. This orientation has grave consequences for public
health and safety. Just last week, a hearing held by the House Committee
on Education and Labor revealed that the six miners who died in a mine
cave-in on August 6, 2007, had concerns about mine safety issues but
were reluctant to raise them for fear of losing their jobs. Today, the
Nuclear Regulatory Commission (NRC) is concluding that personnel at the
Peach Bottom Atomic Power Station in Pennsylvania did not report
concerns about the sleep inducing conditions for guards because of fear
of retaliation. "If employees are coerced and intimidated into remaining
silent when they should speak out, the result can be catastrophic."
*Rose v. Secretary of Department of Labor* (6th Cir. 1986), 800 F.2d
563, 565. Instead of focusing on limiting discovery in these cases, the
Department should be focused on enforcing whistleblower protection laws
that enable employees to raise concerns without fear of reprisal.
Accordingly, the Department should consider intervening on behalf of
complainants in these cases, especially where a complainant is *pro se*.

Ironically, it appears that under the current Administration, the
Solicitor has intervened in whistleblower cases almost exclusively when
there is an opportunity to narrow or undermine whistleblower protection
laws. For example, *Ambrose v. U.S. Foodservice, Inc.*, ARB Case No.
06-096, the Assistant Secretary submitted a brief proposing that the ARB
construe coverage under the whistleblower provision of the
Sarbanes-Oxley Act very narrowly. The brief proposed a standard that
conflcts with the Department's regulations implementing Section 806 of
SOX and it disregarded the remedial purpose of Section 806 and
Congressional intent. Simiarly, in *Sasse v. Department of Labor, *the
Department submitted a brief to the Sixth Circuit arguing for a narrow
construction of the range of adverse actions that are actionable under
the environmental whistleblower laws. And in *Ede v. Swatch Group, *ARB
No. 05-053, the Assistant Secretary again argued for a narrow
construction of SOX. Hopefully, the Department will reverse this trend.

**L. Deciding cases on the merits.**

Finally, we suggest modifications to Section 24.110 that would further
the goal of deciding cases on their merits. Specifically, the Department
can allow a party to set out sufficient grounds for the ARB review, but
then add additional grounds in the brief. The previous rule had allowed
parties to make a simple request for review, and then set out the
grounds in the brief. In appeals to the federal circuit courts, the
process of writing the brief is when counsel is obligated to review the
entire record to set out the assignments of error. To require that a
party review the entire record to identify all the errors in less than
ten business days (since the ten days run from the date of the decision,
not the date counsel receives it) is unrealistic and unfair. We notice
that in Section 24.105(c), the Department has expanded the time to file
a simple objection and request for *de novo* review from five (5) days
to thirty (30) days. We support this change in Section 24.105(c).
However, it is uneven that parties are allowed thirty (30) days to file
a simple request for hearing, but less than ten (10) days to review the
entire record to identify all the assignments of error. From time to
time, each of us might be in a hearing or take a vacation that is longer
than ten (10) days. We suggest that thirty (30) days would be a better
time limit for Section 24.110(a). To the extent that the ARB needs to
determine that there are good issues present for briefing, this goal can
be achieved without limiting a party to assign only those issues
identified in the petition for review. The Department can require that a
party file a petition that identifies good grounds for the review, and
then permit the party to raise additional assignments of error in their
brief. This later alternative would still allow the ARB to screen the
petitions for meritorious issues for briefing, and preserve the
fundamental goal of deciding cases on their merits instead of adding
more technical grounds to defeat claims.

If Department personnel or other interested parties have any questions
about our comments, they are welcome to call on us.

Very truly yours,

Richard R. Renner

Attorney at Law

Tate & Renner

505 N. Wooster Ave.

PO Box 8

Dover, OH 44622

330-364-9900

330-364-9901 fax

[rrenner@igc.org]{.underline}

[www.taterenner.com]{.underline}

Jason M. Zuckerman

Law Office of Jason M. Zuckerman, PLLC

888 17th Street, NW, Suite 900

Washington, D.C. 20006

Tel: 202.262.8959

Fax: 202.403.3222

[jzuckerman@zuckermanlaw.com]{.underline}

[www.zuckermanlaw.com]{.underline}