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.

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 paragraph 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: 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 2204.105 to read as follows:

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 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)