[Federal Register Volume 62, Number 154 (Monday, August 11, 1997)]
[Proposed Rules]
[Pages 42957-42958]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-21161]
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OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
29 CFR Part 2204
Amendment of the Commission's Equal Access to Justice Rules
AGENCY: Occupational Safety and Health Review Commission.
ACTION: Notice of proposed rulemaking.
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SUMMARY: This document proposes to add a new paragraph to the
Commission's procedural rules on eligibility under the Equal Access to
Justice Act in order to minimize extra unnecessary collateral
litigation and to bring the Commission into conformity with the
corresponding rule adopted by most other federal agencies.
DATES: Comments must be received by September 10, 1997.
ADDRESSES: All comments concerning this proposed rule should be
addressed to Earl R. Ohman, Jr., General Counsel, Occupational Safety
and Health Review Commission, 1120 20th Street, NW, 9th Floor,
Washington, DC 20036-3419.
FOR FURTHER INFORMATION CONTACT:
Earl R. Ohman, Jr., General Counsel, (202) 606-5410.
SUPPLEMENTARY INFORMATION: This document proposes to add a paragraph to
the procedural rules of the Occupational Safety and Health Review
Commission governing applications for attorney's fees under the Equal
Access to Justice Act (``EAJA''). Generally, changes 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 the Commission values
the views of those who appear before it, the Commission invites public
comment.
As announced in the Commission's decision in BFW Construction Co.,
OSHRC Docket No. 91-1214, issued on August 6, 1997, the Commission
would add a new paragraph (f) to 29 CFR 2204.105, its rule of procedure
concerning eligibility under the EAJA. This new provision would state
that the net worth and number of employees of the applicant and all of
its affiliates shall be aggregated to determine the applicant's
eligibility under the EAJA. Any individual, corporation, or other
entity that directly or indirectly controls or owns a majority of the
voting shares or other interest of the applicant, or any corporation or
other entity of which the applicant directly or indirectly owns or
controls a majority of the voting shares or other interest, will be
considered an affiliate under this part, unless such treatment would be
unjust and contrary to the purposes of the Act in light of the actual
relationship between the affiliated entities. In addition, financial
relationships of the applicant other than those described in this
paragraph may constitute special circumstances that would make an award
unjust.
When the EAJA was enacted, it required each federal agency to adopt
its own rules implementing the EAJA after consultation with the
(former) Administrative Conference of the United States (``ACUS''). 5
U.S.C. 504(c)(1). ACUS suggested model rules for agencies, including
model rule 0.104(f) on aggregation of net worth for eligibility
purposes. 46 FR 32900, 32912 (1981). (The EAJA itself is silent on the
issue of aggregation.) Most federal agencies adopted an aggregation
rule that closely followed that model rule. See, e.g., 29 CFR 16.105(f)
(Department of Labor), 29 CFR 102.143(g) (National Labor Relations
Board), and 29 CFR 2704.104(f) (Federal Mine Safety and Health Review
Commission). However, the Commission declined to adopt that rule,
stating instead that it would decide the aggregation issue ``on a case-
by-case basis.'' 46 FR 48078, 48079 (1981), reprinted in 1980-81 CCH
ESHG New Developments para. 12,365, p. 15,458 (October 6, 1981).
However, as discussed in BFW Corp., deciding the issue on a case-by-
case basis applying the ``real party in interest'' factors developed by
federal courts has proven unwieldy and has resulted in extra
unnecessary collateral litigation, contrary to the intent of the EAJA.
Therefore, the Commission has taken a ``second look'' at the ACUS model
rule and has decided to join many of our fellow agencies in adopting a
rule that closely follows the ACUS model.
The Commission also proposes to change all references in Part 2204
to the ``EAJ Act'' to read ``EAJA'' to conform to the common shortened
reference term for the Equal Access to Justice Act.
List of Subjects in 29 CFR Part 2204
Claims, Equal access to justice, Lawyers.
For the reasons set forth in the preamble, the Occupational Safety
and Health Review Commission proposes to amend Title 29, Chapter XX,
Part 2204, of the Code of Federal Regulations as follows:
PART 2204--IMPLEMENTATION OF THE EQUAL ACCESS TO JUSTICE ACT IN
PROCEEDINGS BEFORE THE OCCUPATIONAL SAFETY AND HEALTH REVIEW
COMMISSION
1. 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.
2. All references in Part 2204 to ``EAJ Act'' are revised to read
``EAJA'' wherever they appear.
3. A new paragraph (f) is added to Sec. 2204.105 to read as
follows:
Sec. 2204.105 Eligibility of applicants.
* * * * *
(f) The net worth and number of employees of the applicant and all
of its affiliates shall be aggregated to determine eligibility. Any
individual, corporation, or other entity that directly or indirectly
controls or owns a majority of the voting shares or other interest of
the applicant, or any corporation or other entity of which the
applicant directly or indirectly owns or controls a majority of the
voting shares or other interest, will be considered an affiliate for
purposes of this part, unless such treatment would be unjust and
contrary to the purposes of the EAJA in light of the actual
relationship between the affiliated entities. In addition, financial
[[Page 42958]]
relationships of the applicant other than those described in this
paragraph may constitute special circumstances that would make an award
unjust.
Dated: August 6, 1997.
Stuart E. Weisburg,
Chairman.
Daniel Guttman,
Commissioner.
[FR Doc. 97-21161 Filed 8-8-97; 8:45 am]
BILLING CODE 7600-01-M
