[Federal Register Volume 62, Number 50 (Friday, March 14, 1997)]
[Proposed Rules]
[Pages 12134-12137]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-6362]


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OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

29 CFR Parts 2200, 2203, and 2204


Revisions to Procedural Rules Governing Practice Before the 
Occupational Safety and Health Review Commission

AGENCY: Occupational Safety and Health Review Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: This document proposes several revisions to the procedural 
rules governing practice before the Occupational Safety and Health 
Review Commission. Although most of the revisions are technical and 
clarifying in nature, this proposal also contains several significant 
changes to Commission practice and procedure.

DATES: Comments must be received by April 14, 1997.

FOR FURTHER INFORMATION CONTACT: Earl R. Ohman, Jr., General Counsel, 
(202) 606-5410, Occupational Safety and Heath Review Commission, 1120 
20th St., N.W., Ninth Floor, Washington, DC 20036-3419.

SUPPLEMENTARY INFORMATION: This document proposes substantial

[[Page 12135]]

revisions to the procedural rules governing practice before the 
Occupational Safety and Health Review Commission. Generally, revisions 
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 these 
revisions will have some effect upon the nature of practice before the 
Commission and because the Commission values the views of those who 
appear before it, the Commission invites public comment, especially 
from those employers and attorneys who will be most effected by these 
amendments.

1. Service and Notice

    The Commission proposes to amend Rule 7(g) by revising the language 
in the form at the end of the rule to read ``All pleadings relevant to 
this matter may be inspected at:'' This change conforms the form to the 
language in the first paragraph of the rule and should have no 
significant impact on Commission practice.

2. Facsimile Transmission

    The Commission would amend Rule 8(f) to require that a document can 
be filed with the Commission by facsimile transmission only when all of 
the parties are also served by fax. This would prevent confusion 
regarding the time of filing and, therefore, the applicability of the 
3-day mail box rule.

3. Claims of Privilege

    Currently, Rule 11(c) allows a party fifteen days to respond to 
another party's claim of privilege. The Commission finds no reason to 
conclude that more time is required to respond to a claim of privilege 
than to respond to any other motion. Accordingly, the Commission 
proposes to amend its rule to require that the time for responding to 
such claims be ten days, the same as any other motion. Of course, where 
good cause is shown, the Commission and its Judges always have the 
discretion to extend the time for the filing of such responses.

4. Opposition to Motions

    As currently written, Rule 40(a) requires only that the moving 
party state whether it is aware of any opposition to a motion. This 
requirement is not useful, however, unless the moving party is required 
to consult with the opposing party regarding the motion prior to 
filing. Therefore, the Commission proposes to amend the rule to require 
that the moving party contact the other parties to determine whether 
there is any opposition to a motion.

5. Subpoenas

    The Commission would add a new Rule 57(b), to explicitly allow 
subpoenas to be served by certified mail with return receipt, or by 
leaving a copy of the subpoena at the named person's principal place of 
business or residence. Currently, the Commission applies Federal Rule 
of Civil Procedure 45(b)(1) which provides only for personal service. 
It is the opinion of the Commission that any benefit obtained by 
requiring personal service does not justify the additional expense to 
the parties. The Commission notes that the methods of service specified 
on the reverse of its current subpoena forms do not comport with 
Federal Rule of Civil Procedure 45. The Commission's subpoena forms 
would be revised to coincide with new Rule 57(b).

6. Notification of Hearing

    In accord with its desire to shorten, insofar as practicable, the 
time needed to process cases, the Commission proposes to amend Rule 60 
to reduce the minimum time for a notice of hearing from thirty to 
twenty days. This change is proposed to give the Commission's Judges 
more flexibility to resolve simpler cases. The Commission does not 
expect that this change will affect a large number of cases.

7. Elimination of 20-day Transmittal Period for Judges' Decisions

    The Commission proposes to amend Rule 90(b)(2) to eliminate the 
twenty day transmittal period for Judges' decisions. This twenty day 
period was instituted at a time when the Commission's case load was 
substantially heavier and the Commission was burdened by last-minute 
petitions for discretionary review.
    With the reduction in its case load, the Commission finds that this 
interim twenty day period is no longer necessary. The Commission has 
found that petitions filed within twenty days of docketing of the 
Judge's decision, as required by Rule 91(b), receive the full attention 
necessary to determine if Commission review is warranted. While this 
twenty day interim period between transmittal of the decision to the 
party and its official docketing by the Commission gave the parties an 
opportunity to call to the Judge's attention typographical and other 
technical or clerical errors, the Commission believes that such 
corrective action is already authorized by Rule 90(b)(3). In sum, the 
Commission finds that, under current case load conditions, the twenty 
day interim period serves more to delay than to facilitate the 
processing of Commission cases. Rule 91(b) would be amended to conform 
with the elimination of the twenty day interim period.

8. Number of Copies Submitted to the Commission

    The Commission would amend Rules 8(d)(2), 91(h) and 93(h) to 
require that when a case is before the Commission the original plus 
eight copies of a petition for review, brief or other document be 
filed. The Commission has found that the four copies required under the 
current rule are inadequate. As as result, the Commission spends 
considerable time and incurs substantial expense to make the necessary 
copies. This amendment would rectify the situation.

9. Amendments to the Commission's Rules Implementing the Equal 
Access to Justice Act

    To conform to recent amendments to the EAJA, the Commission would 
amend its EAJA Rule 107 to change the hourly rate from $75 per hour to 
$125 per hour.
    The Commission would also amend EAJA Rule 301 to conform to the 
Commission decision in Asbestos Abatement Consultation and Engineering, 
15 BNA OSHC 1252, 1254-56, 1991-93 CCH OSHD para. 29,464, pp. 39,731-32 
(No. 87-1522, 1991), in which it held that applications for EAJA awards 
must be received by the Commission within thirty days of the final 
order date. The current rule requires that the application be filed in 
accordance with Commission Rules 7 and 8, Secs. 2200.7 and 2200.8, and 
Rule 8(e) states that filing is effective upon mailing.
    The holding in Asbestos Abatement relied in large part on federal 
appellate decisions interpreting the filing time limits of EAJA as 
requiring that the applications be actually received by the agency 
within the thirty day deadline. These federal courts based their 
interpretation on both the actual language of the EAJA and the doctrine 
that statutes waiving sovereign immunity be strictly construed. E.g. 
Sonicraft, Inc. v. NLRB, 814 F.2d 385 (7th Cir. 1987); Monark Boat Co. 
v. NLRB, 708 F.2d 1322, 1328-9 (8th Cir. 1983).
    The Commission notes that in Tri-State Steel Constr. Co., 17 BNA 
OSHC 1769, 1996 CCH OSHD para. 31,145 (No. 93-0512, 1996) 
(consolidated), the Commission, relying on the Supreme Court decision 
in Irwin v. Veterans Admin., 498 U.S. 89 (1990), held that

[[Page 12136]]

the filing deadline in the EAJA was not jurisdictional and was subject 
to equitable tolling because the employer there relied, to its 
detriment, on Commission Rule 301 which had not been changed to conform 
to the filing requirements as set forth in Asbestos Abatement. However, 
Asbestos Abatement remains good law and, with this proposed change, the 
rules will be consistent with it.

List of Subjects

29 CFR Part 2200

    Hearing and appeal procedures, Administrative practice and 
procedure.

29 CFR Part 2203

    Sunshine Act, Information, Public meetings.

29 CFR Part 2204

    Administrative practice and procedure, Equal access to justice.

Text of Amendment

    For the reasons set forth in the preamble, the Occupational Safety 
and Health Review Commission proposes to amend Title 29, Chapter XX, 
Parts 2200, 2203 and 2204 of the Code of Federal Regulations as 
follows:

PART 2200--[AMENDED]

    1. The authority citation continues to read as follows:

    Authority: 29 U.S.C. 661(g), unless otherwise noted.

    2. Section 2200.7 is amended by revising paragraph (g) to read as 
follows:


Sec. 2200.7  Service and notice.

    In Sec. 2200.7(g) remove the words ``All papers relevant to this 
matter may be inspected:'' and add in their place the words ``All 
pleadings relevant to this matter may be inspected at:''
    3. Section 2200.8 is amended by revising paragraph (d)(2) and the 
first sentence of paragraph (f)(1) to read as follows:


Sec. 2200.8  Filing.

* * * * *
    (d) Number of copies.
* * * * *
    (2) Number of copies. If a case is before the Commission for 
review, the original and eight copies of a document shall be filed.
* * * * *
    (f) Facsimile transmissions. (1) Any document may be filed with the 
Commission or its Judges by facsimile transmission only if the parties 
are also served by facsimile transmission. * * *
* * * * *
    4. Section 2200.11 is amended by revising the first sentence of 
paragraph (c) to read as follows:


Sec. 2200.11  Protection of claims of privilege.

* * * * *
    (c) Opposition to the claim. A party opposing a claim of privilege, 
or asserting a substantial need for disclosure in the event a qualified 
privilege exists, must do so within the time for responding to motions 
set forth in Sec. 2200.40(c) but, if the motion is made during a 
hearing, the Judge may prescribe a shorter time for a response or 
require that the response be made during the hearing. * * *
* * * * *
    5. Section 2200.40 is amended by revising the last sentence of 
paragraph (a) to read as follows:


Sec. 2200.40  Motions and requests.

    (a) How to make. * * * Prior to filing a motion, the moving party 
shall contact the other parties to the action to determine whether they 
intend to oppose the motion and shall state in the motion any 
opposition of which the moving party is aware.
* * * * *
    6. In Sec. 2200.57 paragraphs (b)-(d) are redesignated (c)-(e) and 
a new paragraph (b) is added to read as follows:


Sec. 2200.57  Issuance of subpoenas; petitions to revoke or modify 
subpoenas; right to inspect or copy data.

* * * * *
    (b) Service of subpoenas. A subpoena may be served by any person 
who is not a party and is not less than 18 years of age. Service of a 
subpoena upon a person named therein may be made by service on the 
person named, by certified mail return receipt requested, or by leaving 
a copy at the person's principal place of business or at the person's 
residence with some person of suitable age and discretion residing 
therein.
* * * * *
    7. Section 2200.60 is amended by revising the first sentence to 
read as follows:


Sec. 2200.60  Notice of hearing; location.

    Except by agreement of the parties, or in an expedited proceeding 
under Sec. 2200.103, notice of the time, place, and nature of the first 
setting of a hearing shall be given to the parties and intervenors at 
least 20 days in advance of the hearing.
* * * * *
    8. Section 2200.90 is amended by revising the first sentence of 
paragraph (b)(2) to read as follows:


Sec. 2200.90  Decisions of judges.

* * * * *
    (b) * * *
    (2) Docketing of Judge's report by Executive Secretary. When the 
Judge transmits the decision to the parties, the Judge shall file a 
report with the Executive Secretary for docketing. * * *
* * * * *
    9. Section 2200.91 is amended by revising paragraphs (b) and (h) to 
read as follows:


Sec. 2200.91  Discretionary review; petitions for discretionary review; 
statements in opposition to petitions.

* * * * *
    (b) Petitions for discretionary review. A party adversely affected 
or aggrieved by the decision of the Judge may seek review by the 
Commission by filing a petition for discretionary review directly with 
the Executive Secretary. A petition shall be filed within 20 days after 
the date of docketing of the Judge's report. * * *
* * * * *
    (h) Number of copies. An original and eight copies of a petition or 
a statement in opposition to a petition shall be filed.
    10. Section 2200.93 is amended by revising paragraph (h) to read as 
follows:


Sec. 2200.93  Briefs before the Commission.

* * * * *
    (h) Number of copies. The original and eight copies of a brief 
shall be filed. See Sec. 2200.8(d)(2).
* * * * *


Secs. 2200.11; 2200.57; 2200.67; 2200.101  [Amended]

    11. All references to ``subpena'' are revised to read ``subpoena'' 
and all references to ``subpenas'' are revised to read ``subpoenas'' in 
the following places:
    (a) Section 2200.11(e);
    (b) Section 2200.57;
    (c) Section 2200.67 (b) and (c);
    (d) Section 2200.101(c)(2)

PART 2203--[AMENDED]

    1. The authority for Part 2203 continues to read as follows:

    Authority: 29 U.S.C. 661(g); 5 U.S.C. 552b(d)(4); 5 U.S.C. 
552b(g)

    2. Part 2203 is amended as follows:


Sec. 2203.3  [Amended]

    Section 2203.3(b)(10) is revised by changing the reference to 
``subpena'' to read ``subpoena.''

PART 2204--[AMENDED]

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


[[Page 12137]]


    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. Section 2204.107 is amended by revising the first sentence of 
paragraph (b) to read:


Sec. 2204.107  Allowable fees and expenses.

* * * * *
    (b) An award for the fee of an attorney or agent under these rules 
shall not exceed $125 per hour, unless the Commission determines by 
regulation that an increase in the cost of living or a special factor, 
such as the limited availability of qualified attorneys or agents for 
Commission proceedings, justifies a higher fee. * * *
* * * * *
    3. Section 2204.301 is revised to read as follows:


Sec. 2204.301  Filing and service of documents.

    An EAJA application is deemed to be filed only when received by the 
Commission. In all other respects, an application for an award and any 
other pleading or document related to an application shall be filed and 
served on all parties to the proceeding in accordance with Secs. 2200.7 
and 2200.8, except as provided in Sec. 2204.202(b) for confidential 
financial information.

    Dated: March 6, 1997.
Stuart E. Weisberg,
Chairman.

    Dated: March 6, 1997.

Velma Montoya,
Commissioner.

    Dated: March 6, 1997.

Daniel Guttman,
Commissioner.
[FR Doc. 97-6362 Filed 3-13-97; 8:45 am]
BILLING CODE 7600-01-M