Federal Register / Vol. 62, No. 154 / Monday, August 11, 1997 / Proposed Rules 42957

and parallel to the Flagstaff VOR 043° radial

extending clockwise to a point beginning at

lat. 35°00′00′′N, long. 111°36′00′′W; to lat.

34°44′00′′N, long, 111°50′00′′W; to lat.

34°45′00′′N, long. 112°01′00′′W; to lat.

34°54′00′′N, long. 112°05′00′′W; to lat.

35°08′00′′N, long. 111°52′00′′W, thence

eastbound along the Flagstaff VOR 263°

radial to intercept the 3.6-mile radius of the

Flagstaff Pulliam Airport, thence clockwise

to the point of beginning. That airspace

extending upward from 1,200 feet above the

surface within 8.3 miles each side of the

Flagstaff VOR 127° and 307° radials,

extending from 7 miles northwest to 16.5

miles southeast of the Flagstaff VOR and that

airspace bounded by a line beginning at lat.

35°13′32′′N, long. 111°04′31′′W; to lat.

35°17′17′′N, long. 111°02′35′′W; to lat.

35°22′00′′N, long. 111°16′43′′W; to lat.

35°24′00′′N, long. 111°26′16′′W; to lat.

35°18′00′′N, long. 111°35′33′′W, thence

clockwise via a 10-mile radius of the Flagstaff

VOR to lat. 35°16′34′′N, long. 111°32′42′′W;

to lat. 35°19′58′′N, long. 111°24′10′′W; thence

to the point of beginning and that airspace

bounded by a line beginning at lat.

35°03′00′′N, long. 111°21′00′′W; to lat.

35°02′00′′N, long. 111°15′00′′W; to lat.

35°01′00′′N, long. 111°22′00′′W; thence to the

point of beginning, excluding the Sedona,

AZ, Class E airspace area.

* * * * *

Issued in Los Angeles, California, on July

21, 1997.

Thomas L. Parks,

Acting Manager, Air Traffic Division,

Western-Pacific Region.

[FR Doc. 97–21043 Filed 8–8–97; 8:45 am]

BILLING CODE 4910–13–M

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.

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 ¶ 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

§ 2204.105 to read as follows:

§ 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
42958 Federal Register / Vol. 62, No. 154 / Monday, August 11, 1997 / Proposed Rules

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]

BILLING CODE 7600–01–M

POSTAL SERVICE

39 CFR Parts 775, 777 and 778

National Environmental Policy Act

Implementing Procedures

AGENCY: Postal Service (USPS).

ACTION: Proposed rule.

SUMMARY: This proposal would revise

existing procedures and categorical

exclusions governing the Postal

Service’s compliance with the National

Environmental Policy Act (NEPA). The

proposed amendments are based upon

experience with existing regulations and

new policies and infrastructure that

have been implemented since the

restructuring of the Postal Service in

1992. The proposed changes are

intended to comply with the

requirements of NEPA while improving

quality and reducing administrative

processes and preparation.

DATE: Comments must be received by

September 10, 1997.

ADDRESSES: Please submit written

comments to Charles E. Bravo, Manager,

Environmental Management Policy, U.S.

Postal Service, 475 L’Enfant Plaza SW

Room 1P830, Washington, DC 20260–

2810, fax (202) 268–6016.

FOR FURTHER INFORMATION CONTACT:

Charles A. Vidich, Environmental

Coordinator, U.S. Postal Service, 8

Griffin Rd. N., Windsor, CT 06006–

7030, phone (860) 285–7254, or Gary W.

Bigelow, Senior Counsel, Environmental

Law, 4200 Wake Forest Rd., Raleigh, NC

27668–1121, phone (919) 501–9439.

SUPPLEMENTARY INFORMATION:

Historically, the U.S. Postal Service has

implemented the provisions of the

National Environmental Policy Act

(NEPA) through policies and procedures

established by the Postal Service’s

Facilities organization. Certainly, most

of the ‘‘major federal actions’’

undertaken by the Postal Service have

been associated with the construction or

disposal of postal facilities. However, in

recent years it has become increasingly

evident that other postal organizations

also have a role in implementing the

provisions of NEPA. The Postal Service

is revising its regulations to clarify the

scope of the applicability of NEPA.

The proposed changes revise

procedures for implementing the

requirements of NEPA. They require

Postal Service officials to consider

potential impacts of major federal

actions to the human environment. To

properly implement the provisions of

the Act, responsible Postal Service

officials must perform adequate

environmental analyses to determine

whether identified impacts are

significant. An Environmental Impact

Statement (EIS) is required if the

impacts are determined to be

significant; otherwise, an environmental

assessment (EA) is prepared, unless the

action is categorically excluded or there

is no potential for significant impact.

Responsible officials will complete an

environmental checklist to identify

potential environmental concerns

outside of the NEPA process, such as

permitting requirements, and to

determine the need for preparing an EA.

Although NEPA does not require the

preparation of an environmental

checklist, it is Postal Service policy to

use the environmental checklist as a

planning tool to better identify the

environmental consequences of

proposed actions that have potential for

impacts upon the environment.

The proposed changes respond to

numerous suggestions for additional

categorical exclusions (CATEXs),

modifications to existing exclusions,

and clarification of the scope of the

NEPA requirements. The changes are

connected with experience with the

types of actions that generally do not

require an EA or result in a finding of

no significant impact (FONSI). In

addition, the Postal Service reorganized

in 1992 and its missions, programs, and

policies have evolved to meet the

requirements of the competitive market

and to continue to provide a businesslike public service to the American

public. Accordingly, the Postal Service

needs to make changes to its NEPA

regulations consistent with its

restructured operation.

In order to produce an update of the

CATEXs, the Postal Service reviewed

EAs and FONSIs that it has issued. It

also reviewed other federal agency

CATEXs to ensure the appropriateness

of the exclusions. The results form the

basis for the proposed amendments. The

proposed changes are consistent with

guidance provided by the Council on

Environmental Quality (CEQ), which

encourages flexibility in the NEPA

implementing procedures to reduce

administrative burdens and promote

efficiency. The Postal Service has

consulted the CEQ regarding these

proposed amendments. The proposed

CATEXs would not affect the Postal

Service’s responsibility for compliance

with other applicable federal, state, or

local environmental laws, including the

Clean Air Act, Clean Water Act, and

existing postal floodplain and wetland

regulations.

The proposed changes are intended to

adjust the Postal Service’s normal levels

of NEPA review and to add, modify, and

clarify classes of actions based upon

experience in applying NEPA. The

listings do not constitute a conclusive

determination regarding the appropriate

level of review for a proposed action.

The identified categories of CATEXs

and actions that normally require an EA

presume that the level of review is

appropriate. The presumptions do not

apply when unusual or extraordinary

circumstances related to the action that

may affect the significance of the

proposed action. An example of an

extraordinary circumstance could be the

proposed construction of a small

structure in the middle of wetlands that

harbor protected endangered species.

Description of Proposed Amendments

This section describes the proposed

amendments to the Postal Service NEPA

regulations at 39 CFR part 775.

Subchapter K is renamed Environmental

Regulations to more accurately describe

the subchapter that contains NEPA and

wetland and floodplain regulations.

Parts 777 and 778 are redesignated from

Subchapter K to the formerly reserved

Subchapter L, Special Regulations.

Part 775 is similarly renamed

National Environmental Policy Act

Procedures. Section 775.1, Purpose, is

revised by deleting the language in the

second sentence.

Section 775.3(a), Responsibilities, is

revised to indicate that the Chief

Environmental Officer of the Postal

Service is the person responsible for

overall development of policy regarding

NEPA, and each 39 CFR part 4 officer

with responsibility over the proposed

program, project, action, or facility is

responsible for compliance with NEPA

as the responsible official. The officer

who is in charge of the facilities

organization is responsible for the

development of NEPA policy as it

affects real estate and construction or

disposal of postal facilities. Paragraph

(b) is revised to state that environmental

coordinators are designated by postal

management to assist in compliance

with NEPA requirements because the

Postal Service has reorganized and

renamed many of the groups referenced

in the original regulation.