[Federal Register Volume 86, Number 43 (Monday, March 8, 2021)]
[Proposed Rules]
[Pages 13251-13254]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-04140]


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OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

29 CFR Part 2204


Rules Implementing the Equal Access to Justice Act

AGENCY: Occupational Safety and Health Review Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: This document proposes to amend the Commission's procedural 
rules implementing the Equal Access to Justice Act to closely conform 
with new model rules from the Administrative Conference of the United 
States.

DATES: Comments must be received by April 7, 2021.

ADDRESSES: You may submit comments by any of the following methods:
     Email: [email protected]. Include ``Notice of 
proposed rulemaking, 29 CFR part 2204'' in the subject line of the 
message.
     Fax: 202-606-5417.
     Mail or Hand Delivery/Courier: One Lafayette Centre, 1120 
20th Street NW, Ninth Floor, Washington, DC 20036-3457.
    All submissions must include your name, return address, and email 
address, if applicable. Please clearly label submissions as ``Notice of 
proposed rulemaking, 29 CFR part 2204.''

FOR FURTHER INFORMATION CONTACT: Carter Tellinghuisen, Attorney-
Advisor, Office of the General Counsel, by telephone at (202) 606-5410 
ext. 211, by email at [email protected], or by mail at 1120 20th 
Street NW, Ninth Floor, Washington, DC 20036-3457.

SUPPLEMENTARY INFORMATION:

I. Revisions to Part 2204

    The Occupational Safety and Health Review Commission 
(``Commission'') has established rules of procedure implementing the 
Equal Access to Justice Act (``EAJA''), 5 U.S.C. 504. EAJA directs 
Federal agencies to consult with the Administrative Conference of the 
United States (``ACUS'') to develop procedural rules to implement the 
provisions of the statute. The Commission's existing rules for EAJA 
proceedings are based on model rules ACUS published in 1986. On August 
8, 2019, ACUS published Revised Model Rules for Implementation of the 
Equal Access to Justice Act to reflect subsequent amendments to the law 
and practice, and to promote greater accuracy and clarity. 84 FR 38934 
(August 8, 2019). The Commission has reviewed the Revised Model Rules 
and now proposes amendments to its procedural rules consistent with the 
amendments made by ACUS to the model rules.
    ACUS summarized and explained its amendments in the preamble to the 
amended model rules and in Administrative Conference Recommendation 
2019-4. 84 FR 38934, 38934 (August 8, 2019); 84 FR 38927, 38933 (August 
8, 2019). To the extent applicable, the Commission relies upon the 
rationale ACUS provided in those documents as the basis for the 
proposed amendments to the Commission's rules.
    In addition, the Commission has determined that an adjustment for 
increases in the cost of living is appropriate in considering an 
applicant's request for attorney or agent fees. Accordingly, pursuant 
to 5 U.S.C. 504(b)(1)(A), the Commission proposes revising Sec. Sec.  
2204.303 and 2204.406(c)(2) to allow an applicant to request, with 
supporting documentation, an increase in hourly fees to account for 
inflation as measured by the consumer price index in the relevant 
locality.
    Generally, amendments 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). 
Because the Commission values the views of those who appear before it, 
however, public comment is invited on these proposed amendments.

II. Statutory and Executive Order Reviews

    Executive Orders 12866 and 13132, and the Unfunded Mandates Reform 
Act of 1995: The Review Commission 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: Pursuant to 5 U.S.C. 605(a), a 
regulatory flexibility analysis is not required because these proposed 
rules concern ``interpretative rules, general statements of policy, or 
rules of agency organization, procedure, or practice'' under 5 U.S.C. 
553(b).
    Paperwork Reduction Act of 1995: The Review Commission has 
determined that the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., 
does not apply because these proposed rules do not contain any 
information collection requirements that require the approval of the 
Office of Management and Budget (OMB).
    Congressional Review Act: These proposed revisions do not 
constitute a ``rule,'' as defined by the Congressional Review Act, 5 
U.S.C. 804(3)(C), because they involve changes to agency organization, 
procedure, or practice that do not substantially affect the rights or 
obligations of non-agency parties.

List of Subjects in 29 CFR Part 2204

    Administrative practice and procedure, Equal access to justice.

    For the reasons set forth in the preamble, the Review Commission

[[Page 13252]]

proposes revising 29 CFR part 2204 to read as follows:

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

Subpart A--General Provisions
Sec.
2204.101 Scope of this part.
Subpart B--Definitions
2204.201 Definitions.
Subpart C--EAJA Application
2204.301 Application requirements.
2204.302 Net worth exhibit.
2204.303 Documentation of fees and expenses.
Subpart D--Procedures for Considering Applications
2204.401 Filing and service of documents.
2204.402 Answer to application.
2204.403 Reply.
2204.404 Settlement.
2204.405 Further proceedings.
2204.406 Decision.
2204.407 Commission review.
2204.408 Judicial review.
2204.409 Stay of decision concerning award.
2204.410 Waiver.
2204.411 Payment of award.

    Authority: 5 U.S.C. 504.

Subpart A--General Provisions


Sec.  2204.101   Scope of this part.

    The Equal Access to Justice Act, 5 U.S.C. 504 (called ``EAJA'' in 
this part), provides for the award of attorney or agent fees and other 
expenses to eligible individuals and entities who are parties to 
certain administrative proceedings (called ``adversary adjudications'') 
before the Occupational Safety and Health Review Commission. An 
eligible party may receive an award when it prevails over the Secretary 
of Labor, unless the Secretary's position in the proceeding was 
substantially justified or special circumstances make an award unjust. 
Alternatively, an eligible party, even if not a prevailing party, may 
receive an award under 5 U.S.C. 504(a)(4) when it successfully defends 
against an excessive demand made by the Secretary.

Subpart B--Definitions


Sec.  2204.201   Definitions.

    For the purposes of this part:
    Adversary adjudication means an adjudication under 5 U.S.C. 554 and 
29 U.S.C. 659(c) in which the position of the Secretary is represented 
by counsel or otherwise, subject to certain exclusions set forth in 5 
U.S.C. 504(b)(1)(C).
    Agent means any person other than an attorney who represents a 
party in a proceeding before the Commission pursuant to Sec.  2200.22 
of this chapter.
    Commission means the Occupational Safety and Health Review 
Commission.
    Demand means the express demand of the Secretary which led to the 
adversary adjudication, but does not include a recitation by the 
Secretary of the maximum statutory penalty:
    (1) In the administrative complaint; or
    (2) Elsewhere when accompanied by an express demand for a lesser 
amount.
    Excessive demand means a demand by the Secretary, in an adversary 
adjudication arising from the Secretary's action to enforce a party's 
compliance with a statutory requirement that is substantially in excess 
of the decision of the judge or Commission and is unreasonable when 
compared with such decision, under the facts and circumstances of the 
case.
    Final disposition means the date on which a decision or order 
disposing of the merits of the adversary adjudication or any other 
complete resolution of the adversary adjudication, such as a settlement 
or voluntary dismissal, become final and unappealable, both within the 
agency and to the courts.
    Judge means the Administrative Law Judge appointed under 29 U.S.C. 
661(j) who presided over the adversary adjudication or presides over an 
EAJA proceeding.
    Party means a party, as defined in 5 U.S.C. 551(3), who is:
    (1) An individual whose net worth did not exceed $2,000,000 at the 
time the adversary adjudication was initiated; or
    (2) Any owner of an unincorporated business, or any partnership, 
corporation, association, unit of local government, or organization, 
the net worth of which did not exceed $7,000,000 at the time the 
adversary adjudication was initiated, and which had not more than 500 
employees at the time the adversary adjudication was initiated; except 
that an organization described in section 501(c)(3) of the Internal 
Revenue Code of 1986 exempt from taxation under section 501(a) of such 
Code, or a cooperative association as defined in section 15(a) of the 
Agricultural Marketing Act, may be a party regardless of the net worth 
of such organization or cooperative association. For purposes of 5 
U.S.C. 504(a)(4), ``party'' also includes a small entity as defined in 
5 U.S.C. 601.
    Position of the Secretary means, in addition to the position taken 
by the Secretary in the adversary adjudication, the action or failure 
to act by the Secretary upon which the adversary adjudication is based, 
except that fees and other expenses may not be awarded to a party for 
any portion of the adversary adjudication in which the party has 
unreasonably protracted the proceedings.
    Secretary means the Secretary of Labor.

Subpart C--EAJA Application


Sec.  2204.301   Application requirements.

    (a) A party seeking an award under EAJA shall file an application 
with the judge that conducted the adversarial adjudication within 30 
days after the final disposition of the adversary adjudication.
    (b) The application shall identify the applicant and the proceeding 
for which an award is sought. The application shall show that the 
applicant has prevailed and identify the position of the Secretary that 
the applicant alleges was not substantially justified; or, if the 
applicant has not prevailed, shall show that the Secretary's demand was 
substantially in excess of the decision of the judge or Commission and 
was unreasonable when compared with that decision under the facts and 
circumstances of that case. The application shall also identify the 
Secretary's position(s) in the proceeding that the applicant alleges 
was (were) not substantially justified or the Secretary's demand that 
is alleged to be excessive and unreasonable. Unless the applicant is an 
individual, the application shall also state the number of employees of 
the applicant and briefly describe the type and purpose of its 
organization or business.
    (c) The application shall also show that the applicant meets the 
definition of ``party'' in Sec.  2204.201(h), including adequate 
documentation of its net worth, as set forth in Sec.  2204.302.
    (d) The application shall state the amount of fees and expenses for 
which an award is sought, subject to the requirements and limitations 
as set forth in 5 U.S.C. 504(b)(1)(A), with adequate documentation as 
set forth in Sec.  2204.303.
    (e) The application shall be signed by the applicant or an 
authorized officer, attorney, or agent of the applicant. It shall also 
contain or be accompanied by a written verification under penalty of 
perjury that the information provided in the application is true and 
correct.


Sec.  2204.302   Net worth exhibit.

    (a) Each applicant except a qualified tax-exempt organization, 
cooperative association, or, in the case of an application for an award 
related to an allegedly excessive demand by the

[[Page 13253]]

Secretary, a small entity as that term is defined by 5 U.S.C. 601(6), 
shall provide with its application a detailed exhibit showing the net 
worth of the applicant as required by Sec.  2204.301(c) when the 
proceeding was initiated. The exhibit may be in any form convenient to 
the applicant that provides full disclosure of the applicant's assets 
and liabilities and is sufficient to determine whether the applicant 
qualifies under excessive demand as defined in Sec.  2204.201. The 
judge or Commission may require an applicant to file additional 
information to determine its eligibility for an award.
    (b) Ordinarily, the net worth exhibit will be included in the 
public record of the proceeding. However, an applicant that objects to 
public disclosure of information in any portion of the exhibit and 
believes there are legal grounds for withholding it from disclosure may 
request that the documents be filed under seal or otherwise be treated 
as confidential, pursuant to Sec. Sec.  2200.8 and 2200.52 of this 
chapter.


Sec.  2204.303   Documentation of fees and expenses.

    The application shall be accompanied by adequate documentation of 
the fees and other expenses incurred after the initiation of the 
adversary adjudication, including, but not limited to, the reasonable 
cost of any study, analysis, engineering report, test, or project. An 
application seeking an increase in fees to account for inflation 
pursuant to Sec.  2200.406 of this chapter shall also include adequate 
documentation of the change in the consumer price index for the 
attorney or agent's locality. With respect to a claim for fees and 
expenses involving an excessive demand by the Secretary, the 
application shall be accompanied by adequate documentation of such fees 
and expenses incurred after initiation of the adversary adjudication 
for which an award is sought attributable to the portion of the demand 
alleged to be excessive and unreasonable. A separate itemized statement 
shall be submitted for each professional firm or individual whose 
services are covered by the application, showing the hours spent in 
connection with the proceeding by each individual, a description of the 
specific services performed, the rate at which each fee has been 
computed, any expenses for which reimbursement is sought, the total 
amount claimed, and the total amount paid or payable by the applicant 
or by any other person or entity for the services provided. The judge 
or Commission may require the applicant to provide vouchers, receipts, 
or other substantiation for any fees or expenses claimed.

Subpart D--Procedures for Considering Applications


Sec.  2204.401   Filing and service of documents.

    Any application for an award, or any accompanying documentation 
related to an application shall be filed and served on all parties to 
the proceeding in accordance with Sec. Sec.  2200.7 and 2200.8 of this 
chapter, except as provided in Sec.  2204.302(b) for confidential 
financial information.


Sec.  2204.402   Answer to application.

    (a) Within 30 days after service of an application, the Secretary 
shall file an answer to the application. Unless the Secretary requests 
an extension of time for filing or files a statement of intent to 
negotiate under paragraph (b) of this section, failure to file an 
answer within the 30-day period may be treated as a consent to the 
award requested.
    (b) If the Secretary and the applicant believe that the issues in 
the fee application can be settled, they may jointly file a statement 
of their intent to negotiate a settlement. The filing of this statement 
shall extend the time for filing an answer for an additional 30 days, 
and further extensions may be granted by the judge upon request.
    (c) The answer shall explain in detail any objections to the award 
requested and identify the facts relied on in support of the 
Secretary's position. If the answer is based on any alleged facts not 
already in the record of the proceeding, the Secretary shall include 
with the answer either supporting affidavits or a request for further 
proceedings under Sec.  2204.405.


Sec.  2204.403   Reply.

    Within 15 days after service of an answer, the applicant may file a 
reply. If the reply is based on any alleged facts not already in the 
record of the proceeding, the applicant shall include with the reply 
either supporting affidavits or a request for further proceedings under 
Sec.  2204.405.


Sec.  2204.404   Settlement.

    The applicant and the Secretary may agree on a proposed settlement 
of the award before final action on the application, either in 
connection with a settlement of the underlying adversary adjudication, 
or after the adversary adjudication has been concluded, in accordance 
with the Commission's standard settlement procedures as set forth in 
Sec.  2200.120 of this chapter. If a prevailing party and the Secretary 
agree on a proposed settlement of an award before an application has 
been filed, the application shall be filed with the proposed 
settlement. If a proposed settlement of an underlying proceeding 
provides that each side shall bear its own expenses and the settlement 
is accepted, no application may be filed.


Sec.  2204.405   Further proceedings.

    (a) Ordinarily, the determination of an award will be made on the 
basis of the written record. However, on request of either the 
applicant or the Secretary, or on his or her own initiative, the judge 
presiding over an EAJA proceeding may, if necessary for a full and fair 
decision on the application, order the filing of additional written 
submissions; hold oral argument; or allow for discovery or hold an 
evidentiary hearing, but only as to issues other than whether the 
agency's position was substantially justified (such as those involving 
the applicant's eligibility or substantiation of fees and expenses). 
Any written submissions shall be made, oral argument held, discovery 
conducted, and evidentiary hearing held as promptly as possible so as 
not to delay a decision on the application for fees. Whether or not the 
position of the Secretary was substantially justified shall be 
determined on the basis of the administrative record, as a whole, which 
is made in the adversary adjudication for which fees and other expenses 
are sought.
    (b) A request for further proceedings under this section shall 
specifically identify the information sought or the disputed issues and 
shall explain why the additional proceedings are necessary to resolve 
the issues.


Sec.  2204.406   Decision.

    The preparation and issuance of decision on the fee application 
shall be in accordance with Sec.  2200.90 of this chapter.
    (a) For an application involving a prevailing party. The decision 
shall include written findings and conclusions on the applicant's 
eligibility and status as a prevailing party and an explanation of the 
reasons for any difference between the amount requested and the amount 
awarded. The decision shall also include, if applicable, findings on 
whether the Secretary's position was substantially justified, whether 
the applicant unduly protracted the proceedings, or whether special 
circumstances make an award unjust.
    (b) For an application involving an allegedly excessive agency 
demand. The decision shall include written findings and conclusions on 
the applicant's eligibility and an explanation of the reasons why the 
agency's demand was or was not determined to be

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substantially in excess of the underlying decision in the matter and 
whether the Secretary's demand was or was not unreasonable. That 
determination shall be based upon all the facts and circumstances of 
the case.
    (c) Awards. The judge presiding over an EAJA proceeding or the 
Commission on review may reduce the amount to be awarded, or deny any 
award, to the extent that the party during the course of the 
proceedings engaged in conduct which unduly and unreasonably protracted 
the final resolution of the matter in controversy.
    (1) Awards shall be based on rates customarily charged by persons 
engaged in the business of acting as attorneys, agents and expert 
witnesses, even if the services were made available without charge or 
at a reduced rate to the applicant.
    (2) An award for the fee of an attorney or agent under this part 
shall not exceed the hourly rate specified in 5 U.S.C. 504(b)(1)(A), 
except to account for inflation since the last update of the statute's 
maximum award upon the request of the applicant as documented in the 
application pursuant to Sec.  2204.303. An award to compensate an 
expert witness shall not exceed the highest rate at which the Secretary 
pays expert witnesses. However, an award may include the reasonable 
expenses of the attorney, agent or witness as a separate item, if the 
attorney, agent or witness ordinarily charges clients separately for 
such expenses.
    (3) In determining the reasonableness of the fee sought for an 
attorney, agent, or expert witness, the following shall be considered:
    (i) If the attorney, agent, or witness is in private practice, his 
or her customary fee for similar services, or, if an employee of the 
applicant, the fully allocated cost of the services;
    (ii) The prevailing rate for similar services in the community in 
which the attorney, agent, or witness ordinarily perform services;
    (iii) The time actually spent in the representation of the 
applicant;
    (iv) The time reasonably spent in light of the difficulty or 
complexity of the issues in the proceeding; and
    (v) Such other factors as may bear on the value of the services 
provided.
    (4) The reasonable cost of any study, analysis, engineering report, 
test, project, or similar matter prepared on behalf of the party may be 
awarded, to the extent that the charge for the service does not exceed 
the prevailing rate for similar services, and the study or other matter 
was necessary for preparation of the applicant's case.


Sec.  2204.407   Commission review.

    Either the applicant or the Secretary may seek review of the 
judge's decision on the fee application, and the Commission may grant 
such a petition for review or direct review of the decision on the 
Commission's own initiative. Review by the Commission shall be in 
accordance with Sec. Sec.  2200.91 and 2200.92 of this chapter.


Sec.  2204.408   Judicial review.

    Judicial review of final decisions on awards may be sought as 
provided in 5 U.S.C. 504(c)(2).


Sec.  2204.409   Stay of decision concerning award.

    Any proceedings on an application for fees under this part shall be 
automatically stayed until the adversary adjudication has become a 
final disposition.


Sec.  2204.410   Waiver.

    After reasonable notice to the parties, the judge or the Commission 
may waive, for good cause shown, any provision contained in this part 
as long as the waiver is consistent with the terms and purpose of the 
EAJA.


Sec.  2204.411   Payment of award.

    An applicant seeking payment of an award shall submit to the 
officer designated by the Secretary a copy of the Commission's final 
decision granting the award, accompanied by a certification that the 
applicant will not seek review of the decision in the United States 
courts.

Cynthia L. Attwood,
Chair.
[FR Doc. 2021-04140 Filed 3-5-21; 8:45 am]
BILLING CODE 7600-01-P