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 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.

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:

§ 2200.7 Service and notice.

In § 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:

§ 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:

§ 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 § 2200.57 paragraphs (b)-(d) are redesignated (c)-(e) and a new paragraph (b) is added to read as follows:

§ 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:

§ 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.* *

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7. Section 2200.90 is amended by revising the first sentence of paragraph (b)(2) to read as follows:

§ 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:

§ 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 § 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:

§ 2200.93 Briefs before the Commission.

* * * * *

(h) Number of copies. The original and eight copies of a brief shall be filed. See § 2200.8(d)(2).

* * * * *

§§ 2200.11, 2200.57, 2200.67, 2200.101 [Amended]

10. In §§ 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:

§ 2203.3 [Amended]

Section 2203.(b)(10) is revised by changing the reference to "subpena" to read "subpoena."

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:

§ 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:

§ 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 § 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]

BILLING CODE 7600-01-M

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