[Federal Register Volume 62, Number 128 (Thursday, July 3, 1997)]
[Rules and Regulations]
[Pages 35961-35964]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-17381]


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OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

29 CFR Parts 2200, 2203, 2204


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

AGENCY: Occupational Safety and Health Review Commission.

ACTION: Final rule.

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SUMMARY: This document makes several revisions to the procedural rules 
governing practice before the Occupational Safety and Health Review 
Commission.

DATES: Effective July 3, 1997.

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

SUPPLEMENTARY INFORMATION: On March 14, 1997 the Commission published 
in the Federal Register several proposed changes to its Rules of 
Procedure. 62 FR 12134 (March 14, 1997). The Commission found the 
comments received pursuant to that proposal to be very helpful. As a 
result, several proposals have been modified or eliminated. The 
Commission wishes to thank those who responded for their time and 
interest, and the quality of their comments.

1. Service and Notice

    The Commission proposed amending Rule 7(g) by revising the language 
in the form at the end of the rule from ``All pleadings relevant to 
this matter may be inspected at:'' to ``All papers relevant * * *'' 
This is a technical change that conforms the form to the language in 
the first paragraph of the rule and should have no significant impact 
on Commission practice. The Commission received no comments regarding 
this change and the Commission adopts the amendment as proposed.

2. Facsimile Transmission

    The Commission proposed amending Rule 8(f) to allow a document to 
be filed with the Commission by facsimile transmission only when all of 
the parties are served by fax. The purpose of the amendment was to 
prevent confusion regarding the time of filing and, therefore, the 
applicability of the 3-day mail box.
    All comments addressing this proposed rule were opposed to the 
amendment. The commentators opined that the Commission is addressing a 
nonexistent problem and suggested that there is no confusion regarding 
the date of service when a party is served by mail and the document 
filed with the Commission by fax because dates are calculated from the 
time of service on the parties, not when the document is received by 
the Commission. The commentators also noted that, under the proposal, 
faxing would be prohibited whenever one of the parties (probably a pro 
se) does not have a fax machine.
    The Commission finds the comments to be well-taken and it withdraws 
the proposed amendment.

3. Claims of Privilege

    Currently, Rule 11(c) allows a party fifteen days to respond to 
another party's claim of privilege. The Commission proposed amending 
its rule to require that the time for responding to such claims be ten 
days, the same as other motions.
    While the proposal found no support, four commentators expressed 
similar

[[Page 35962]]

objections. The primary objection to the rule was that by reducing the 
time a party has to object to a claim of privilege, the Commission was 
dramatically increasing the likelihood that the judge would be 
interjected into the discovery process because (1) the parties would no 
longer have the time to work out their dispute, and (2) the requesting 
party would not have the time to determine whether any ``privileged'' 
information requested was sufficiently necessary to require judicial 
intervention. Noting that there is no similar time limit in the Federal 
Rules, the commentators suggested that, rather than reduce the time to 
object, the Commission eliminate the time limit in its entirety. The 
opposition included both the Secretary of Labor and experienced 
practitioners before the Commission. In light of these comments, the 
Commission will reconsider whether to keep the current rule, raise 
rather than reduce the time for responding to a claim of privilege, or 
eliminate the rule in its entirety. Accordingly, the proposed amendment 
is withdrawn.

4. Opposition to Motions

    The Commission proposed amending Rule 40(a) to require that a 
moving party contact the other parties to determine whether there is 
any opposition to a motion.
    Several commentators were concerned about the possible burden the 
rule would place on them, especially where there may be difficulty in 
contacting the other party. While the Commission finds the concern to 
be well-taken, it is the Commission's view that a rule that requires a 
moving party to determine if there is any opposition would help 
streamline Commission practice by allowing judges to rule quickly on 
unopposed motions. However, the proposed rule has been revised to 
address the concerns of the commentators. Accordingly, the moving party 
will be required to make ``reasonable efforts'' to determine whether 
there is any opposition to its motion.
    The Commission was also concerned with a commentator's opinion that 
it would be a waste of time to determine whether there are any 
objections to motions that would obviously be opposed. It is the 
Commission's view that attempts to restrict applicability of the rule 
to those motions that ``might'' encounter opposition would be too 
subjective to be effective.
    Another commentator was concerned that the rule would require the 
moving party to determine not only if the motion will be opposed, but 
also the nature of the opposition. The concern is misplaced. The rule 
does not call on the moving party to determine the nature of or grounds 
for the opposition.

5. Subpoenas

    The Commission proposed a new Rule 57(b) to explicitly allow 
subpoenas to be served either 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 proposal was generally supported by the commentators and the 
rule is adopted as proposed. The Commission's subpoena forms will be 
revised to coincide with new Rule 57(b).

6. Notification of Hearing

    The Commission proposed amending Rule 60 to reduce the minimum time 
for a notice of hearing from thirty to twenty days.
    One commentator suggested that the shorter notice would force 
employers to be rushed and ill-prepared for hearing. Another 
commentator opined that the mail time involved would reduce the 
effective notice to well below twenty days.
    It is the experience of the Commission that the current minimum 
notice period is rarely invoked. Hearing dates must comply with the 
judge's calendar, which almost always dictates that more than 30 days 
notice be given. Simple cases, which may have been more appropriate for 
an early hearing, are now often scheduled under E-Z trial procedures, 
where the 30-day limitation does not apply. Accordingly, the Commission 
will not reduce the minimum 30-day notice period for the initial 
scheduling of the hearing.
    A question, however, arises where the hearing is being rescheduled. 
Under the present rule, at least ten days notice is required for 
previously postponed hearings. The provision does not apply to 
rescheduled hearings that have not been previously postponed. 
Accordingly, such cases cannot be rescheduled in less than thirty days. 
The Commission finds that previously unpostponed hearings should be 
rescheduled on the same basis as previously postponed hearings. 
Accordingly, the proposed rule is revised to allow a minimum of ten 
days notice for all rescheduled hearings.

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

    The Commission proposed amending 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.
    One commentator who supported the idea of eliminating the 20-day 
period opined that the period served a useful purpose by allowing a 
judge to correct mistakes or reconsider decisions. This commentator 
suggested that the judges' discretion to use the period is particularly 
valuable in large and complex cases. The Commission appreciates this 
observation. However, it appears that the Commission's judges have 
rarely been asked to reconsider their decisions during the 20-day 
period.
    The Secretary strongly opposed the proposal. Noting that she is a 
party in every case, the Secretary suggested that elimination of the 
20-day period would constitute a special hardship for her office. The 
Secretary suggested that the proposal, if adopted, would not leave her 
with sufficient time to make an informed decision on whether to seek 
review. This, she contends, would result in the filing of preemptive 
petitions for review, which might, upon further review, be withdrawn.
    While the Commission appreciates the Secretary's schedule problems, 
it notes that it has an obligation to decide cases in a quick and 
efficient manner. The Commission also recognizes, however, that no 
efficiencies will be gained by forcing the Secretary into filing 
preemptory petitions for review.
    Accordingly, in light of the above comments, the Commission will 
reduce the waiting period to 10-days, and will monitor the impact of 
this change to determine whether further reductions in the waiting 
period are practical.

8. Number of Copies Submitted to the Commission

    The Commission proposed amending 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 a result, the Commission spends time 
and incurs expense to make the necessary copies. This amendment would 
rectify the situation.

[[Page 35963]]

    The only objection to these amendments was received from the 
Secretary who, noting that she would be affected in every case, was 
concerned about the cost to her of the additional copies. While the 
Secretary correctly notes that she is a party in every case and that 
the burden and expense of the extra copies will fall harder on her than 
on other parties the Commission observes that it also is involved in 
every case, and must have adequate copies of every document from both 
parties. Therefore, the expense of reproducing the necessary copies 
falls even harder on the Commission. It is the Commission's view that 
the burden of providing the necessary copies of documents is properly 
placed on the parties. Accordingly, the proposed amendments are 
adopted.

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

    To conform to recent amendments to the EAJA, the Commission 
proposed amending its EAJA Rule 107 to change the hourly rate from $75 
per hour to $125 per hour.
    The Commission also proposed amending EAJA Rule 301 to conform to 
its 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), which held that applications for EAJA awards must be 
received by the Commission within thirty days of the final order date.
    The proposed amendments were well-received and the Commission 
adopts them as proposed.

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 amends 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 at:'' 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) to read 
as follows:


Sec. 2200.8  Filing.

* * * * *
    (d) Number of copies.
* * * * *
    (2) If a case is before the Commission for review, the original and 
eight copies of a document shall be filed.
* * * * *
    4. 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 confer or make reasonable efforts to confer with the other 
parties and shall state in the motion if any other party opposes or 
does not oppose the motion.
* * * * *
    5. 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.
* * * * *
    6. Section 2200.60 is amended by revising the second sentence to 
read as follows:


Sec. 2200.60  Notice of hearing; location.

    * * * If a hearing is being rescheduled, or if exigent 
circumstances are present, at least ten days' notice shall be given.* * 
*
    7. 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. On the 
eleventh day after the transmittal of his decision to the parties, the 
Judge shall file his report with the Executive Secretary for 
docketing.* * *
* * * * *
    8. Section 2200.91 is amended by revising the first two sentences 
of paragraphs (b) and all of paragraph (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. Discretionary 
review by the Commission may be sought by filing with the Judge a 
petition for discretionary review within the 10-day period provided by 
Sec. 2200.90(b)(2).* * *
* * * * *
    (h) Number of copies. An original and eight copies of a petition or 
a statement in opposition to a petition shall be filed.
    9. 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]

    10. In Secs. 2200.11, 2200.57, 2200.67, and 2200.101 all references 
to ``subpena'' are revised to read ``subpoena'' and all references to 
``subpenas'' are revised to read ``subpoenas'' wherever they appear.

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

[[Page 35964]]

PART 2204--[AMENDED]

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

    Authority: Section 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: June 26, 1997.
Stuart E. Weisberg,
Chairman.

    Dated: June 26, 1997.
Daniel Guttman,
Commissioner.
[FR Doc. 97-17381 Filed 7-2-97; 8:45 am]
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