E9-28845. 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 [phone], by e-mail at [e-mail], 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OSHRC is making corrections and amendments to outdated and erroneous cross-references in 29 CFR parts 2200 and 2204, and inconsistencies in word choice, citation form, and capitalization, as well as various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 § 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 § 2200.52(d), the word “the” is added before the word “Judge.” Third, the words “judge” and “judges” in the text of §§ 2200.8(g) and .52(d) and the title of §§ 2200.67 and .68 are now capitalized in order to make capitalization of that word consistent throughout part 2200. Fourth, the word “memorandums” in § 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 §§ 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 §§ 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 § 2200.1(b), (i), and (j), as well as § 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 § 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 §§ 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 §§ 2200.203(c), .204(a), and .209(f). Finally, in order to clarify, as stated in § 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 § 2200.73, and the reference to § 2200.73(b) in § 2200.8(e)(2) is changed to § 2200.73.

OSHRC is also making amendments to the following outdated cross-references in this part. First, § 2200.37(d)(4) references § 2200.36(c)(2)-(c)(4), which was re-designated as § 2200.35(b)-(d) in 1992. Rules of Procedure, 57 FR 41676, 41685 (Sept. 11, 1992) (final rule). The reference to § 2200.36(c)(2)-(c)(4) is amended to reflect this re-designation. Second, § 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, § 2200.73(b) references § 2200.36(c), which was re-designated as § 2200.35 in 1992. The reference to § 2200.36(c) is amended to reflect this re-designation. Finally, § 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).

OSHRC is making amendments to §§ 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 § 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 § 2204.105(c). This section cross-references § 2200.34(d), which was re-designated as § 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.

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

PART 2200—RULES OF PROCEDURE

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).

§ 2200.1

[Amended]

2. Section 2200.1 is amended by:

a. Adding “, 29 U.S.C. 652” following the word “Act” in paragraph (b).

b. Adding “, 29 U.S.C. 658(a)” following the word “Act” in paragraph (i).

c. Adding “, 29 U.S.C. 659(a) or (b)” following the word “Act” in paragraph (j).

3. Section 2200.8 is amended by:

a. Revising paragraph (d);

b. Removing “§ 2200.73(b)” in paragraph (e)(2) and adding, in its place, “§ 2200.73”; and

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:

§ 2200.8

Filing.

* * * * *

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

* * * * *

§ 2200.20

[Amended]

4. Section 2200.20 is amended by:

a. Removing the word “ten” in the third sentence of paragraph (a) and adding, in its place, the numeral “10”.

b. Removing the word “ten” in the first and second sentences of paragraph (b) and adding, in their place, the numeral “10”.

§ 2200.21

[Amended]

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”.

§ 2200.37

[Amended]

6. Section 2200.37 is amended by:

a. Adding “, 29 U.S.C. 659(a) and (c)” following the word “Act” in paragraph (c)(3).

b. Removing “§ 2200.36(c)(2)-(c)(4)” in the last sentence of paragraph (d)(4) and adding, in its place, “§ 2200.35(b) through (d)”.

§ 2200.40

[Amended]

7. Section 2200.40 is amended by:

a. Removing the word “twenty” in the first sentence of paragraph (b) and adding, in its place, the numeral “20”.

b. Removing the word “ten” in the first sentence of paragraph (c) and adding, in its place, the numeral “10”.

c. Removing the word “five” in the second sentence of paragraph (c) and adding, in its place, the numeral “5”.

§ 2200.51

[Amended]

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, the words “Federal Rule of Civil Procedure 16”.

§ 2200.52

[Amended]

9. Section 2200.52 is amended by:

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)”.

b. Removing the word “seven” in the second sentence of paragraph (a)(2) and adding, in its place, the numeral “7”.

c. Adding the word “the” before the word “Judge” in the second sentence of paragraph (d).

d. Removing the word “judge” in the last sentence of paragraph (d) and adding, in its place, the word “Judge”.

§ 2200.56

[Amended]

10. Section 2200.56 is amended by:

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”.

b. Removing the word “ten” in both the first and second sentences of paragraph (c) and adding, in their place, the numeral “10”.

c. Removing the apostrophe following the word “days” in paragraph (c).

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”.

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)”.

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)”.

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)”.

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)”.

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)”.

§ 2200.60

[Amended]

11. Section 2200.60 is amended by:

a. Removing the word “thirty” in the first sentence and adding, in its place, the numeral “30”.

b. Removing the apostrophe following the word “days” in the second sentence.

c. Removing the word “ten” in the second sentence and adding, in its place, the numeral “10”.

§ 2200.61

[Amended]

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”.

§ 2200.62

[Amended]

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”.

§ 2200.64

[Amended]

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

§ 2200.67

[Amended]

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

§ 2200.68

[Amended]

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

§ 2200.70

[Amended]

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”.

18. Section 2200.73 is amended by:

a. Removing the word “five” in the first and second sentences of paragraph (b) and adding, in their place, the numeral “5”.

b. Removing “§ 2200.36(c)” in the fifth sentence of paragraph (b) and adding, in its place, “§ 2200.35”.

c. Adding paragraph (g) to read as follows:

§ 2200.73

Interlocutory review.

* * * * *

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

§ 2200.74

[Amended]

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”.

§ 2200.91

[Amended]

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

§ 2200.93

[Amended]

21. Section 2200.93 is amended by:

a. Removing the word “memorandums” in both the first and second sentences in paragraph (e) and adding, in their place, the word “memoranda”.

b. Removing paragraph (h).

c. Removing “(b) through (h)” in paragraph (i) and adding, in its place, “(b) through (g)”.

d. Redesignating paragraph (i) as paragraph (h).

§ 2200.95

[Amended]

22. Section 2200.95 is amended by:

a. Removing the word “seven” in paragraph (c)(1) and adding, in its place, the numeral “7”.

b. Removing the word “five” in the third sentence of paragraph (h)(1) and adding, in its place, the numeral “5”.

§ 2200.104

[Amended]

23. Section 2200.104 is amended by:

a. Removing the word “five” in the first sentence of paragraph (b)(2) and adding, in its place, the numeral “5”.

b. Removing the words “or Judge” from paragraph (d).

§ 2200.120

[Amended]

24. Section 2200.120 is amended by:

a. Adding “section 12(g) of the Act,” before the citation “ 29 U.S.C. 661(g)” in the first sentence of paragraph (e).

b. Removing “section 661(g)” in the first sentence of paragraph (e) and adding, in its place, “section 12(g)”.

§ 2200.202

[Amended]

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

§ 2200.203

[Amended]

26. Section 2200.203 is amended by:

a. Removing the word “twenty” in the first sentence of paragraph (b) and adding, in its place, the numeral “20”.

b. Removing the words “Chief Judge” in the first sentence of paragraph (c) and adding, in their place, the words “Chief Administrative Law Judge”.

c. Removing the word “fifteen” in the second sentence of paragraph (c) and adding, in its place, the numeral “15”.

§ 2200.204

[Amended]

27. Section 2200.204 is amended by:

a. Removing the words “Chief Judge” in the last sentence of paragraph (a) and adding, in their place, the words “Chief Administrative Law Judge”.

b. Removing the word “seven” in the third sentence of paragraph (b) and adding, in its place, the numeral “7”.

§ 2200.209

[Amended]

28. Section 2200.209 is amended by:

a. Removing the word “Chief” in the last sentence of paragraph (f) and adding, in its place, the words “Chief Administrative Law Judge”.

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

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).

§ 2203.2

[Amended]

30. Section 2203.2 is amended by removing “, the Deputy General Counsel,” in the definition of “General Counsel.”

§ 2203.3

[Amended]

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

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.

§ 2204.102

[Amended]

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

§ 2204.105

[Amended]

34. Section 2204.105 is amended by removing “§ 2200.34(d)” in paragraph (c) and adding, in its place, “§ 2200.37(d)”.

§ 2204.108

[Amended]

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