12134 Federal Register / Vol. 62, No. 50 / Friday, March 14, 1997 / Proposed Rules

SUPPLEMENTARY INFORMATION:

I. Background

OSHA has decided to use the

negotiated rulemaking (Neg/Reg)

process to develop a proposed standard

for fire protection covering all shipyard

employment. The shipyard stakeholders

from all sectors strongly support

consensual rulemaking efforts like

negotiated rulemaking. OSHA believes

this process will result in a proposed

standard whose provisions will

effectively protect employees working

throughout the shipyard. (See OSHA’s

Notice of Intent to Form a Negotiated

Rulemaking Committee to Develop a

Proposed Rule on Fire Protection in

Shipyard Employment, 61 FR 28824,

June 6, 1996, for a detailed explanation

of why OSHA is using negotiated

rulemaking to develop its proposed

standard and for general information on

the negotiated rulemaking process). The

goal of this negotiated rulemaking is a

proposed rule and supporting

documentation that all members will

support.

The initial meeting of this Advisory

Committee was held in Portland,

Oregon on October 16 and 17, 1996. The

members were introduced and the

negotiated rulemaking process and the

legal requirements for OSHA

rulemaking were explained to them.

Ground rules for this Committee were

adopted. In addition, the Committee set

forth substantive issues that needed to

be resolved, established work groups

and began discussing scope and

application, fire prevention and fire

fighting.

The last meeting of this Advisory

Committee took place in Jacksonville,

Florida, February 4 through February 6,

1997. The Committee continued with

the issues as developed into work

groups during the first meeting: fire

watches, fire response, safe work

practices, and fire protection.

II. The Key Issues in This Rulemaking

OSHA expects that key issues to be

addressed as part of these negotiations

will include: scope and application;

controls and work practices; fire

brigades; written fire plans;

technological advances; costs of fire

protection; and appendices.

III. Agenda for the April 8–10, 1997,

Meeting

1. The meeting will be opened and the

roll taken.

2. The minutes from the February

1997, Jacksonville, Florida, meeting will

be presented for acceptance by the

Committee.

3. The tentative agenda for this

meeting will be reviewed and changes

made, if necessary.

4. The ‘‘Fire Watches’’ work group

draft will be presented to the

Committee.

5. The ‘‘Scope and Application’’

section of the preamble will be

presented to the Committee for

acceptance.

6. The Work group chairpersons will

report on the status of their assignments.

7. The Committee will break into

work group sessions as needed

throughout the meeting.

8. The Committee will establish the

time and date for the next meeting.

The Advisory Committee’s Facilitator,

relying on the information presented to

him by OSHA as well as the

considerable input from the various

interests during convening efforts, will

identify and present other substantive

issues to be resolved by this Committee,

as time permits. OSHA requests that all

interested parties bring their calendars

to facilitate the development of a

tentative schedule of committee

meetings, site visits and work group

meetings.

IV. Public Participation

All interested parties are invited to

attend this public meeting at the time

and place indicated above. No advance

registration is required. Seating will be

available to the public on a first-come,

first-served basis. Individuals with

disabilities wishing to attend should

contact Ms. Theda Kenney at (202) 219–

8061 to obtain appropriate

accommodations no later than March

21, 1997.

The Facilitator of the Committee will

decide to what extent oral presentations

by members of the public may be

permitted at the meeting. Oral

presentations may include statements of

fact and opinions, but shall not include

any questioning of the Committee

Members or other participants unless

these questions have been specifically

approved by the Facilitator.

Part 1912 of Title 29 of the Code of

Federal Regulations will apply

generally. The reporting requirements of

§ 1912.33 have been changed pursuant

to § 1912.42 to help meet the special

needs of this Committee. Specifically,

§ 1912.33 requires that verbatim

transcripts be kept of all advisory

committee meetings. Producing a

coherent transcript requires a certain

degree of formality. The Assistant

Secretary therefore has determined

pursuant to § 1912.42 that such

formality might interfere with the free

exchange of information and ideas

during the negotiations, and that the

OSH Act would be better served by

simply requiring detailed minutes of the

proceedings without a formal transcript.

Minutes of the meetings and materials

prepared for the Committee will be

available for public inspection at the

OSHA Docket Office, N–2625, 200

Constitution Ave., NW., Washington,

DC 20210; Telephone: 202–219–7894.

Any written comments should be

directed to Docket No. S–051, and sent

in quadruplicate to the following

address: U.S. Department of Labor,

Occupational Safety and Health

Administration, Docket Office, Room N–

2625, 200 Constitution Ave., NW.,

Washington, DC 20210; Telephone 202–

219–7894.

Authority: This document was prepared

under the direction of Greg Watchman,

Acting Assistant Secretary of Labor for

Occupational Safety and Health, U.S.

Department of Labor, 200 Constitution

Avenue, NW., Washington, DC 20210,

pursuant to section 3 of the Negotiated

Rulemaking Act of 1990, 104 Stat. 4969, Title

5 U.S.C. 561 et seq.; and Section 7(b) of the

Occupational Safety and Health Act of 1970,

84 Stat. 1597, Title 29 U.S.C. 656.

Signed at Washington, DC, this 10th day of

March 1997.

Greg Watchman,

Acting Assistant Secretary.

[FR Doc. 97–6515 Filed 3–13–97; 8:45 am]

BILLING CODE 4510–26–M

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.

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
Federal Register / Vol. 62, No. 50 / Friday, March 14, 1997 / Proposed Rules 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 lastminute 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 ¶ 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, §§ 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 TriState Steel Constr. Co., 17 BNA OSHC

1769, 1996 CCH OSHD ¶ 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
12136 Federal Register / Vol. 62, No. 50 / Friday, March 14, 1997 / Proposed Rules

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:

§ 2200.7 Service and notice.

In § 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:

§ 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:

§ 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 § 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:

§ 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 § 2200.57 paragraphs (b)–(d) are

redesignated (c)–(e) and a new

paragraph (b) is added to read as

follows:

§ 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:

§ 2200.60 Notice of hearing; location.

Except by agreement of the parties, or

in an expedited proceeding under

§ 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:

§ 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:

§ 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:

§ 2200.93 Briefs before the Commission.

* * * * *

(h) Number of copies. The original

and eight copies of a brief shall be filed.

See § 2200.8(d)(2).

* * * * *

§§ 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:

§ 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:
Federal Register / Vol. 62, No. 50 / Friday, March 14, 1997 / Proposed Rules 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:

§ 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:

§ 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 §§ 2200.7 and 2200.8,

except as provided in § 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

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 52 and 81

[IN77–1; FRL–5709–2]

Approval and Promulgation of Air

Quality Implementation Plans, and

Designation of Areas for Air Quality

Planning Purposes; Indiana

AGENCY: United States Environmental

Protection Agency (USEPA).

ACTION: Proposed rule.

SUMMARY: The USEPA is proposing to

approve the ozone maintenance plan

submitted as a State Implementation

Plan (SIP) revision request and the

redesignation request submitted by the

State of Indiana for the purpose of

redesignating Vanderburgh County

(Evansville) from marginal

nonattainment to attainment for ozone.

Ground-level ozone, commonly known

as smog, is an air pollutant which forms

on hot summer days and which

harmfully affects lung tissue and

breathing passages. The redesignation to

attainment of the health-based ozone air

quality standard is based on a request

from the State of Indiana to redesignate

this area and approve its maintenance

plan, and on the supporting data the

State has submitted in support of the

requests. Under the Clean Air Act, a

designation can be changed if sufficient

data are available to warrant such a

change, and a maintenance plan is put

in place which is designed to ensure the

area maintains the ozone air quality

standard for the next ten years.

DATES: Comments must be received by

May 13, 1997.

ADDRESSES: Copies of the revision

request and USEPA’s analysis

(Technical Support Documents) are

available for inspection at the following

address:

U.S. Environmental Protection Agency,

Region 5, Air and Radiation Division,

77 West Jackson Boulevard, Chicago,

Illinois 60604. (It is recommended

that you telephone Edward Doty at

(312) 886–6057 before visiting the

Region 5 Office.)

Written comments should be sent to:

J. Elmer Bortzer, Chief, Regulation

Development Section, Air Programs

Branch (AR–18J), U.S. Environmental

Protection Agency, 77 West Jackson

Boulevard, Chicago, Illinois 60604.

FOR FURTHER INFORMATION CONTACT:

Edward Doty at (312) 886–6057.

SUPPLEMENTARY INFORMATION: On

November 15, 1990, the Clean Air Act

Amendments of 1990 were enacted.

Pub. L. 101–549, codified at 42 U.S.C.

7401–7671q. Pursuant to section

107(d)(4)(A) of the Clean Air Act (CAA

or the Act), Vanderburgh County

(Evansville) was designated as

nonattainment for ozone and was

classified as marginal (see 56 FR 56694

(November 6, 1991)).

I. Background

The Indiana Department of

Environmental Management (IDEM)

submitted an ozone redesignation

request and maintenance plan for

Vanderburgh County (Evansville) on

November 4, 1993. On July 8, 1994 (59

FR 35044), the United States

Environmental Protection Agency

(USEPA) published a direct final

rulemaking approving the redesignation

of Vanderburgh County to attainment of

the National Ambient Air Quality

Standard (NAAQS) for ozone. On the

same day, a proposed rulemaking was

also published in the Federal Register

which established a 30-day public

comment period for the redesignation

approval and noted that, if adverse

comments were received regarding the

direct final rulemaking, the USEPA

would withdraw the direct final

rulemaking and would address the

adverse comments through a revised

final rulemaking. The USEPA received

adverse comments, and published a

withdrawal of the direct final

rulemaking on August 26, 1994 (59 FR

44040).

Subsequent to the July 8, 1994 direct

final rulemaking, the USEPA was

informed by the IDEM that a possible

violation of the ozone NAAQS had been

monitored at a privately-operated

industrial site owned by the Aluminum

Corporation of America (Alcoa) in

Warrick County. (At the time IDEM

contacted the USEPA concerning the

possible violation, the State had not yet

completed quality assurance of the data.

The violation, as noted below, was

subsequently quality-assured.) Warrick

County (designated as attainment for

ozone) adjoins Vanderburgh County to

the east. Because Warrick County can be

considered to be a nearby area

downwind of Vanderburgh County on

certain days, the USEPA questioned

whether the monitored violation in

Warrick County should be considered in

any subsequent rulemaking on the

redesignation of Vanderburgh County.

The IDEM indicated its intent to

investigate the high ozone values, and

requested that the USEPA not act on the

redesignation petition pending the

outcome of that technical investigation.

IDEM completed its investigation and

submitted the results to the USEPA on

June 5, 1995. IDEM’s investigation

concluded that the Alcoa data are

unusual, are biased high (relative to

peak ozone concentrations at other

monitors in the area during the May

through June, 1994 time period), and are

not representative of the Vanderburgh

County nonattainment area. IDEM

recommended that the USEPA should

proceed with the redesignation of

Vanderburgh County to attainment so

that the maintenance plan could become

federally enforceable.

The USEPA Technical Support

Document (TSD) for this proposed

rulemaking: (1) summarizes and

evaluates the redesignation request; (2)

analyzes recent State data for monitors

inside and outside of the Evansville

nonattainment area; (3) responds to

public comments on the July 8, 1994