[Federal Register Volume 74, Number 233 (Monday, December 7, 2009)]
[Rules and Regulations]
[Pages 63985-63988]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-28845]


=======================================================================
-----------------------------------------------------------------------

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

29 CFR Parts 2200, 2203, and 2204


Rules of Procedure; Regulations Implementing the Government in 
the Sunshine Act; Implementation of the Equal Access to Justice Act in 
Proceedings Before the Occupational Safety and Health Review Commission

AGENCY: Occupational Safety and Health Review Commission.

ACTION: Final rule; corrections and technical amendments.

-----------------------------------------------------------------------

SUMMARY: The Occupational Safety and Health Review Commission 
(``OSHRC'') is making various corrections and technical amendments to 
its rules of procedure and regulations which implement the Government 
in the Sunshine Act and the Equal Access to Justice Act in proceedings 
before OSHRC.

DATES: Effective on December 7, 2009.

FOR FURTHER INFORMATION CONTACT: Ron Bailey, Attorney-Advisor, Office 
of the General Counsel, by telephone at (202) 606-5410, by e-mail at 
[email protected], or by mail at: 1120-20th Street, NW., Ninth Floor, 
Washington, DC 20036-3457.

SUPPLEMENTARY INFORMATION: 

I. Background

    OSHRC is making corrections and amendments to outdated and 
erroneous cross-references in 29 CFR parts 2200 and 2204, and 
inconsistencies in word choice, citation form, and capitalization, as 
well as various grammatical errors, in 29 CFR parts 2200 and 2203. 
OSHRC is also amending its rule regarding interlocutory review to 
clarify, as stated elsewhere in the rules, that a petition for 
interlocutory review is considered filed when received by the 
Commission. Finally, OSHRC is amending its procedure regarding the 
filing of documents in cases on review before the Commission to require 
the filing of only original documents, thus saving paper and easing the 
parties' filing burden.

Part 2200

    OSHRC is making various grammatical corrections and technical 
amendments to part 2200. First, in Sec.  2200.209(g), the phrase ``the 
21 day period'' is amended to include a hyphen between ``21'' and 
``day.'' Second, in the second sentence of Sec.  2200.52(d), the word 
``the'' is added before the word ``Judge.'' Third, the words ``judge'' 
and ``judges'' in the text of Sec. Sec.  2200.8(g) and .52(d) and the 
title of Sec. Sec.  2200.67 and .68 are now capitalized in order to 
make capitalization of that word consistent throughout part 2200. 
Fourth, the word ``memorandums'' in Sec.  2200.93(e) is amended to 
``memoranda,'' which is used elsewhere in the Commission rules. Fifth, 
the apostrophes in the phrases ``ten days' written notice'' and ``ten 
days' notice,'' appearing in Sec. Sec.  2200.56(c) and .60, are deleted 
because apostrophes are not used in other similar phrases throughout 
the rules. Sixth, for the sake of consistency, except where a number is 
the first word of a sentence, the numeral rather than the spelled-out 
word is now used when the number pertains to a period of time. This 
change results in amendments to Sec. Sec.  2200.20(a) and (b), .21(a), 
.40(b) and (c), .52(a)(2), .56(c), .60, .62(c), .64(b), .70(f), .73(b), 
.74(b), .95(c)(1) and (h)(1), .104(b)(2), .202(a)(5), .203(b) and (c), 
and .204(b). Seventh, also for the sake of consistency, parallel cites 
to the United States Code are now included when referencing the 
Occupational Safety and Health Act (``Act''), 29 U.S.C. 651-678. This 
change results in amendments to Sec.  2200.1(b), (i), and (j), as well 
as Sec.  2200.37(c)(3). Similarly, citation to the Act is now included 
when referencing the relevant provisions in the United States Code. 
This change results in amendments to Sec.  2200.120(e). Eighth, when 
referencing a specific federal rule, the phrase ``Federal Rule of Civil 
Procedure'' now precedes the number of the rule. This change results in 
amendments to Sec. Sec.  2200.51(b); .52(a)(1)(iii); .56(a), (e), (f), 
(g), and (h); and .61. Ninth, in most of the procedural rules, the 
Chief Administrative Law Judge is referred to by his or her full title, 
even when mentioned multiple times in a section. All references to this 
position are now amended to read ``Chief Administrative Law Judge,'' 
which results in amendments to Sec. Sec.  2200.203(c), .204(a), and 
.209(f). Finally, in order to clarify, as stated in Sec.  2200.8(e)(2), 
that a petition for interlocutory review is deemed filed when it is 
received by the Commission, a new paragraph including this requirement 
is added to Sec.  2200.73, and the reference to Sec.  2200.73(b) in 
Sec.  2200.8(e)(2) is changed to Sec.  2200.73.
    OSHRC is also making amendments to the following outdated cross-
references in this part. First, Sec.  2200.37(d)(4) references Sec.  
2200.36(c)(2)-(c)(4), which was re-designated as Sec.  2200.35(b)-(d) 
in 1992. Rules of Procedure, 57 FR 41676, 41685 (Sept. 11, 1992) (final 
rule). The reference to Sec.  2200.36(c)(2)-(c)(4) is amended to 
reflect this re-designation. Second, Sec.  2200.56(g) and (h) reference 
Federal Rules of Civil Procedure 30(b)(7) and (b)(4), respectively, 
which were re-designated as Rule 30(b)(4) and (b)(3) in the 1993 
Revisions to the Federal Rules of Civil Procedure. The references to 
Rule 30 are amended to reflect these re-designations. Third, Sec.  
2200.73(b) references Sec.  2200.36(c), which was re-designated as 
Sec.  2200.35 in 1992. The reference to Sec.  2200.36(c) is amended to 
reflect this re-designation. Finally, Sec.  2200.104(d) states, ``All 
show cause orders issued by the Commission or Judge under paragraph (c) 
of this section.'' However, paragraph (c) only refers to action by the 
Commission. Paragraph (b), which refers to action by the Judge, does 
not appear to require a show cause order. The words ``or Judge'' are 
therefore deleted from paragraph (d).

[[Page 63986]]

    OSHRC is making amendments to Sec. Sec.  2200.8(d)(2), .91(h), and 
.93(h), all of which require that parties provide the Commission with 
``the original and eight copies'' of any petitions for discretionary 
review and statements in opposition to such petitions, briefs, and any 
other filings. These provisions are now amended to require that parties 
file only the original document. These amendments will minimize the 
amount of paper waste associated with Commission proceedings and ease 
the parties' filing burden.

Part 2203

    OSHRC is making a grammatical correction and a technical amendment 
to part 2203. Section 2203.3(b) presently states that a Commission 
meeting may be closed to the public ``where the Commission determines 
that the meeting, or part of the meeting, or information about the 
meeting, is likely to: * * * (4) Disclose trade secrets and commercial 
or financial information obtained from a person are privileged or 
confidential.'' In order to clarify the meaning of paragraph (4), the 
word ``that'' is added between the words ``person'' and ``are.'' 
Additionally, OSHRC is deleting the reference to ``Deputy General 
Counsel'' in Sec.  2203.2 because that position no longer exists.

Part 2204

    OSHRC is making two typographical corrections and one technical 
amendment to part 2204. Sections 2204.102(d) and 2204.108 incorrectly 
reference paragraph (i) of 29 U.S.C. 661, rather than paragraph (j) of 
that statutory provision. OSHRC is correcting these typographical 
errors. OSHRC is also amending an outdated cross-reference in Sec.  
2204.105(c). This section cross-references Sec.  2200.34(d), which was 
re-designated as Sec.  2200.37(d) in 1986. Rules of Procedure, 51 FR 
32002, 32008 (Sept. 8, 1986) (final rule); Rule of Procedure, 51 FR 
23184, 23187 (June 25, 1986) (proposed rule).

II. Statutory and Executive Order Reviews

    Waiver of Proposed Rulemaking: The technical amendments and 
corrections to the affected sections are merely procedural in nature 
and propose no substantive changes on which public comment could be 
solicited. OSHRC therefore finds that prior notice and opportunity for 
comment on these changes are unnecessary pursuant to 5 U.S.C. 
553(b)(3)(A).
    Waiver of 30-Day Delayed Effective Date Requirement: OSHRC finds 
that good cause exists for the final rule to be exempt from the 30-day 
delayed effective date requirement of 5 U.S.C. 553(d) because a delay 
in clarifying these rules would be contrary to the public interest.
    Executive Orders 12866 and 13132, and the Unfunded Mandates Reform 
Act of 1995: OSHRC is an independent regulatory agency and, as such, is 
not subject to the requirements of E.O. 12866, E.O. 13132, or the 
Unfunded Mandates Reform Act, 2 U.S.C. 1501 et seq.
    Regulatory Flexibility Act: OSHRC has determined that this 
rulemaking is exempt from the requirements of the Regulatory 
Flexibility Act, 5 U.S.C. 604(a), because, as noted, a general notice 
of proposed rulemaking is not required under 5 U.S.C. 553(b).
    Paperwork Reduction Act of 1995: OSHRC has determined that the 
Paperwork Reduction Act, 44 U.S.C. 3501 et seq., does not apply because 
this final rule does not contain any information collection 
requirements that require the approval of OMB.
    Congressional Notification: OSHRC has determined that the 
Congressional Review Act, 5 U.S.C. 801, is not applicable here because, 
pursuant to 5 U.S.C. 804(3)(C), this final rule ``does not 
substantially affect the rights or obligations of non-agency parties.''

List of Subjects

29 CFR Part 2200

    Administrative practice and procedure, Hearing and appeal 
procedures.

29 CFR Part 2203

    Sunshine Act.

29 CFR Part 2204

    Administrative practice and procedure, Equal access to justice.

    Signed at Washington, DC, on the 24th day of November 2009.
Thomasina V. Rogers,
Chairman.
Horace A. Thompson III,
Commissioner.


0
Accordingly, 29 CFR parts 2200, 2203, and 2204 are amended as follows:

PART 2200--RULES OF PROCEDURE

0
1. The authority citation for part 2200 continues to read as follows:

    Authority: 29 U.S.C. 661(g), unless otherwise noted. Section 
2200.96 is also issued under 28 U.S.C. 2112(a).


Sec.  2200.1  [Amended]

0
2. Section 2200.1 is amended by:
0
a. Adding ``, 29 U.S.C. 652'' following the word ``Act'' in paragraph 
(b).
0
b. Adding ``, 29 U.S.C. 658(a)'' following the word ``Act'' in 
paragraph (i).
0
c. Adding ``, 29 U.S.C. 659(a) or (b)'' following the word ``Act'' in 
paragraph (j).

0
3. Section 2200.8 is amended by:
0
a. Revising paragraph (d);
0
b. Removing ``Sec.  2200.73(b)'' in paragraph (e)(2) and adding, in its 
place, ``Sec.  2200.73''; and
0
c. Removing the word ``judges'' in the first sentence of paragraph 
(g)(1) and adding, in its place, the word ``Judges''.
    The revision reads as follows:


Sec.  2200.8  Filing.

* * * * *
    (d) Number of copies. Unless otherwise ordered or stated in this 
part, only the original of a document shall be filed.
* * * * *


Sec.  2200.20  [Amended]

0
4. Section 2200.20 is amended by:
0
a. Removing the word ``ten'' in the third sentence of paragraph (a) and 
adding, in its place, the numeral ``10''.
0
b. Removing the word ``ten'' in the first and second sentences of 
paragraph (b) and adding, in their place, the numeral ``10''.


Sec.  2200.21  [Amended]

0
5. Section 2200.21 is amended by removing the word ``ten'' in both the 
first and second sentences of paragraph (a), and adding, in their 
place, the numeral ``10''.


Sec.  2200.37  [Amended]

0
6. Section 2200.37 is amended by:
0
a. Adding ``, 29 U.S.C. 659(a) and (c)'' following the word ``Act'' in 
paragraph (c)(3).
0
b. Removing ``Sec.  2200.36(c)(2)-(c)(4)'' in the last sentence of 
paragraph (d)(4) and adding, in its place, ``Sec.  2200.35(b) through 
(d)''.


Sec.  2200.40  [Amended]

0
7. Section 2200.40 is amended by:
0
a. Removing the word ``twenty'' in the first sentence of paragraph (b) 
and adding, in its place, the numeral ``20''.
0
b. Removing the word ``ten'' in the first sentence of paragraph (c) and 
adding, in its place, the numeral ``10''.
0
c. Removing the word ``five'' in the second sentence of paragraph (c) 
and adding, in its place, the numeral ``5''.


Sec.  2200.51  [Amended]

0
8. Section 2200.51 is amended by removing the words ``Rule 16 of the 
Federal Rules of Civil Procedure'' in paragraph (b) and adding, in 
their place,

[[Page 63987]]

the words ``Federal Rule of Civil Procedure 16''.


Sec.  2200.52  [Amended]

0
9. Section 2200.52 is amended by:
0
a. Removing the words ``Rule 26(a) of the Federal Rules of Civil 
Procedure'' in paragraph (a)(1)(iii) and adding, in their place, the 
words ``Federal Rule of Civil Procedure 26(a)''.
0
b. Removing the word ``seven'' in the second sentence of paragraph 
(a)(2) and adding, in its place, the numeral ``7''.
0
c. Adding the word ``the'' before the word ``Judge'' in the second 
sentence of paragraph (d).
0
d. Removing the word ``judge'' in the last sentence of paragraph (d) 
and adding, in its place, the word ``Judge''.


Sec.  2200.56  [Amended]

0
10. Section 2200.56 is amended by:
0
a. Removing the citation ``Fed.R.Civ.P. 30'' in paragraph (a) and 
adding, in its place, the words ``Federal Rule of Civil Procedure 30''.
0
b. Removing the word ``ten'' in both the first and second sentences of 
paragraph (c) and adding, in their place, the numeral ``10''.
0
c. Removing the apostrophe following the word ``days'' in paragraph 
(c).
0
d. Removing the citation ``Fed.R.Civ.P. 32'' in paragraph (e) and 
adding, in its place, the words ``Federal Rule of Civil Procedure 32''.
0
e. Removing the words ``Rule 32(a)(4) of the Federal Rules of Civil 
Procedure'' in paragraph (f) and adding, in their place, the words 
``Federal Rule of Civil Procedure 32(a)(4)''.
0
f. Removing the words ``Rule 30(b)(7) of the Federal Rules of Civil 
Procedure'' in paragraph (g)(1) and adding, in their place, the words 
``Federal Rule of Civil Procedure 30(b)(4)''.
0
g. Removing the words ``Rule 30(b)(4) of the Federal Rules of Civil 
Procedure'' in paragraph (h) and adding, in their place, the words 
``Federal Rule of Civil Procedure 30(b)(3)''.
0
h. Removing the words ``Rule 30(e) (submission to witness) of the 
Federal Rules of Civil Procedure'' in paragraph (h)(1) and adding, in 
their place, the words ``Federal Rule of Civil Procedure 30(e) 
(submission to witness)''.
0
i. Removing the words ``Rule 28(c) of the Federal Rules of Civil 
Procedure'' in paragraph (h)(3) and adding, in their place, the words 
``Federal Rule of Civil Procedure 28 (c)''.


Sec.  2200.60  [Amended]

0
11. Section 2200.60 is amended by:
0
a. Removing the word ``thirty'' in the first sentence and adding, in 
its place, the numeral ``30''.
0
b. Removing the apostrophe following the word ``days'' in the second 
sentence.
0
c. Removing the word ``ten'' in the second sentence and adding, in its 
place, the numeral ``10''.


Sec.  2200.61  [Amended]

0
12. Section 2200.61 is amended by removing the citation ``Fed.R.Civ.P. 
56'' and adding, in its place, the words ``Federal Rule of Civil 
Procedure 56''.


Sec.  2200.62  [Amended]

0
13. Section 2200.62 is amended by removing the word ``seven'' in the 
first and second sentences of paragraph (c) and adding, in their place, 
the numeral ``7''.


Sec.  2200.64  [Amended]

0
14. Section 2200.64 is amended by removing the word ``five'' in 
paragraph (b) and adding, in its place, the numeral ``5''.


Sec.  2200.67  [Amended]

0
15. Section 2200.67 is amended by removing the word ``judges'' in that 
section's heading and adding, in its place, the word ``Judges''.


Sec.  2200.68  [Amended]

0
16. Section 2200.68 is amended by removing the word ``judge'' in that 
section's heading and adding, in its place, the word ``Judge''.


Sec.  2200.70  [Amended]

0
17. Section 2200.70 is amended by removing the word ``six'' in the 
fourth sentence of paragraph (f) and adding, in its place, the numeral 
``6''.


0
18. Section 2200.73 is amended by:
0
a. Removing the word ``five'' in the first and second sentences of 
paragraph (b) and adding, in their place, the numeral ``5''.
0
b. Removing ``Sec.  2200.36(c)'' in the fifth sentence of paragraph (b) 
and adding, in its place, ``Sec.  2200.35''.
0
c. Adding paragraph (g) to read as follows:


Sec.  2200.73  Interlocutory review.

* * * * *
    (g) When filing effective. A petition for interlocutory review is 
deemed to be filed only when received by the Commission.


Sec.  2200.74  [Amended]

0
19. Section 2200.74 is amended by removing the word ``three'' in the 
second sentence of paragraph (b) and adding, in its place, the numeral 
``3''.


Sec.  2200.91  [Amended]

0
20. Section 2200.91 is amended by removing paragraph (h).


Sec.  2200.93  [Amended]

0
21. Section 2200.93 is amended by:
0
a. Removing the word ``memorandums'' in both the first and second 
sentences in paragraph (e) and adding, in their place, the word 
``memoranda''.
0
b. Removing paragraph (h).
0
c. Removing ``(b) through (h)'' in paragraph (i) and adding, in its 
place, ``(b) through (g)''.
0
d. Redesignating paragraph (i) as paragraph (h).


Sec.  2200.95  [Amended]

0
22. Section 2200.95 is amended by:
0
a. Removing the word ``seven'' in paragraph (c)(1) and adding, in its 
place, the numeral ``7''.
0
b. Removing the word ``five'' in the third sentence of paragraph (h)(1) 
and adding, in its place, the numeral ``5''.


Sec.  2200.104  [Amended]

0
23. Section 2200.104 is amended by:
0
a. Removing the word ``five'' in the first sentence of paragraph (b)(2) 
and adding, in its place, the numeral ``5''.
0
b. Removing the words ``or Judge'' from paragraph (d).


Sec.  2200.120  [Amended]

0
24. Section 2200.120 is amended by:
0
a. Adding ``section 12(g) of the Act,'' before the citation ``29 U.S.C. 
661(g)'' in the first sentence of paragraph (e).
0
b. Removing ``section 661(g)'' in the first sentence of paragraph (e) 
and adding, in its place, ``section 12(g)''.


Sec.  2200.202  [Amended]

0
25. Section 2200.202 is amended by removing the word ``two'' in 
paragraph (a)(5) and adding, in its place, the numeral ``2''.


Sec.  2200.203  [Amended]

0
26. Section 2200.203 is amended by:
0
a. Removing the word ``twenty'' in the first sentence of paragraph (b) 
and adding, in its place, the numeral ``20''.
0
b. Removing the words ``Chief Judge'' in the first sentence of 
paragraph (c) and adding, in their place, the words ``Chief 
Administrative Law Judge''.
0
c. Removing the word ``fifteen'' in the second sentence of paragraph 
(c) and adding, in its place, the numeral ``15''.


Sec.  2200.204  [Amended]

0
27. Section 2200.204 is amended by:
0
a. Removing the words ``Chief Judge'' in the last sentence of paragraph 
(a) and adding, in their place, the words ``Chief Administrative Law 
Judge''.
0
b. Removing the word ``seven'' in the third sentence of paragraph (b) 
and adding, in its place, the numeral ``7''.

[[Page 63988]]

Sec.  2200.209  [Amended]

0
28. Section 2200.209 is amended by:
0
a. Removing the word ``Chief'' in the last sentence of paragraph (f) 
and adding, in its place, the words ``Chief Administrative Law Judge''.
0
b. Adding a hyphen between the numeral ``21'' and the word ``day'' in 
the last sentence of paragraph (g).

PART 2203--REGULATIONS IMPLEMENTING THE GOVERNMENT IN THE SUNSHINE 
ACT

0
29. The authority citation 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).


Sec.  2203.2  [Amended]

0
30. Section 2203.2 is amended by removing ``, the Deputy General 
Counsel,'' in the definition of ``General Counsel.''


Sec.  2203.3  [Amended]

0
31. Section 2203.3 is amended by adding the word ``that'' between the 
words ``person'' and ``are'' in paragraph (b)(4).

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

0
32. 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.


Sec.  2204.102  [Amended]

0
33. Section 2204.102 is amended by removing ``661(i)'' in paragraph (d) 
and adding, in its place, ``661(j)''.


Sec.  2204.105  [Amended]

0
34. Section 2204.105 is amended by removing ``Sec.  2200.34(d)'' in 
paragraph (c) and adding, in its place, ``Sec.  2200.37(d)''.


Sec.  2204.108  [Amended]

0
35. Section 2204.108 is amended by removing ``661(i)'' in the first 
sentence and adding, in its place, ``661(j)''.

[FR Doc. E9-28845 Filed 12-4-09; 8:45 am]
BILLING CODE P