[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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