[Federal Register Volume 62, Number 154 (Monday, August 11, 1997)]
[Proposed Rules]
[Pages 42957-42958]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-21161]


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OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

29 CFR Part 2204


Amendment of the Commission's Equal Access to Justice Rules

AGENCY: Occupational Safety and Health Review Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: This document proposes to add a new paragraph to the 
Commission's procedural rules on eligibility under the Equal Access to 
Justice Act in order to minimize extra unnecessary collateral 
litigation and to bring the Commission into conformity with the 
corresponding rule adopted by most other federal agencies.

DATES: Comments must be received by September 10, 1997.

ADDRESSES: All comments concerning this proposed rule 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: This document proposes to add a paragraph to 
the procedural rules of the Occupational Safety and Health Review 
Commission governing applications for attorney's fees under the Equal 
Access to Justice Act (``EAJA''). Generally, changes to the 
Commission's rules of procedure are not subject to the provisions of 
the Administrative Procedure Act requiring notice and opportunity for 
comment (5 U.S.C. 553(b)(3)(A)). However, because the Commission values 
the views of those who appear before it, the Commission invites public 
comment.
    As announced in the Commission's decision in BFW Construction Co., 
OSHRC Docket No. 91-1214, issued on August 6, 1997, the Commission 
would add a new paragraph (f) to 29 CFR 2204.105, its rule of procedure 
concerning eligibility under the EAJA. This new provision would state 
that the net worth and number of employees of the applicant and all of 
its affiliates shall be aggregated to determine the applicant's 
eligibility under the EAJA. Any individual, corporation, or other 
entity that directly or indirectly controls or owns a majority of the 
voting shares or other interest of the applicant, or any corporation or 
other entity of which the applicant directly or indirectly owns or 
controls a majority of the voting shares or other interest, will be 
considered an affiliate under this part, unless such treatment would be 
unjust and contrary to the purposes of the Act in light of the actual 
relationship between the affiliated entities. In addition, financial 
relationships of the applicant other than those described in this 
paragraph may constitute special circumstances that would make an award 
unjust.
    When the EAJA was enacted, it required each federal agency to adopt 
its own rules implementing the EAJA after consultation with the 
(former) Administrative Conference of the United States (``ACUS''). 5 
U.S.C. 504(c)(1). ACUS suggested model rules for agencies, including 
model rule 0.104(f) on aggregation of net worth for eligibility 
purposes. 46 FR 32900, 32912 (1981). (The EAJA itself is silent on the 
issue of aggregation.) Most federal agencies adopted an aggregation 
rule that closely followed that model rule. See, e.g., 29 CFR 16.105(f) 
(Department of Labor), 29 CFR 102.143(g) (National Labor Relations 
Board), and 29 CFR 2704.104(f) (Federal Mine Safety and Health Review 
Commission). However, the Commission declined to adopt that rule, 
stating instead that it would decide the aggregation issue ``on a case-
by-case basis.'' 46 FR 48078, 48079 (1981), reprinted in 1980-81 CCH 
ESHG New Developments para. 12,365, p. 15,458 (October 6, 1981). 
However, as discussed in BFW Corp., deciding the issue on a case-by-
case basis applying the ``real party in interest'' factors developed by 
federal courts has proven unwieldy and has resulted in extra 
unnecessary collateral litigation, contrary to the intent of the EAJA. 
Therefore, the Commission has taken a ``second look'' at the ACUS model 
rule and has decided to join many of our fellow agencies in adopting a 
rule that closely follows the ACUS model.
    The Commission also proposes to change all references in Part 2204 
to the ``EAJ Act'' to read ``EAJA'' to conform to the common shortened 
reference term for the Equal Access to Justice Act.

List of Subjects in 29 CFR Part 2204

    Claims, Equal access to justice, Lawyers.

    For the reasons set forth in the preamble, the Occupational Safety 
and Health Review Commission proposes to amend Title 29, Chapter XX, 
Part 2204, of the Code of Federal Regulations as follows:

PART 2204--IMPLEMENTATION OF THE EQUAL ACCESS TO JUSTICE ACT IN 
PROCEEDINGS BEFORE THE OCCUPATIONAL SAFETY AND HEALTH REVIEW 
COMMISSION

    1. The authority citation for Part 2204 continues to read as 
follows:

    Authority: Sec. 203(a)(1), Pub. L. 96-481, 94 Stat. 2325 (5 
U.S.C. 504(c)(1)); Pub. L. 99-80, 99 Stat. 183.

    2. All references in Part 2204 to ``EAJ Act'' are revised to read 
``EAJA'' wherever they appear.
    3. A new paragraph (f) is added to Sec. 2204.105 to read as 
follows:


Sec. 2204.105  Eligibility of applicants.

* * * * *
    (f) The net worth and number of employees of the applicant and all 
of its affiliates shall be aggregated to determine eligibility. Any 
individual, corporation, or other entity that directly or indirectly 
controls or owns a majority of the voting shares or other interest of 
the applicant, or any corporation or other entity of which the 
applicant directly or indirectly owns or controls a majority of the 
voting shares or other interest, will be considered an affiliate for 
purposes of this part, unless such treatment would be unjust and 
contrary to the purposes of the EAJA in light of the actual 
relationship between the affiliated entities. In addition, financial

[[Page 42958]]

relationships of the applicant other than those described in this 
paragraph may constitute special circumstances that would make an award 
unjust.

    Dated: August 6, 1997.
Stuart E. Weisburg,
Chairman.
Daniel Guttman,
Commissioner.
[FR Doc. 97-21161 Filed 8-8-97; 8:45 am]
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