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: Final rule.

SUMMARY: This document amends the Occupational Safety and Health Review Commission's procedural rules on eligibility under the equal Access to Justice Act by adding a paragraph requiring that the net worth and number of employees of an applicant shall be aggregated with those of its affiliates, unless to do so would be unfair and contrary to the purposes of the Equal Access to Justice Act. This amendment will minimize extra unnecessary collateral litigation and bring the Commission into conformity with the corresponding rule adopted by most other federal agencies. This document also changes the shortened reference to the Equal Access to Justice Act used in this Part to read, as it is commonly referred to, "EAJA."

DATES: Effective November 4, 1997.

FOR FURTHER INFORMATION CONTACT: Earl R. Ohman, Jr., General Counsel, (202) 606-5410, Occupational Safety and Health Review Commission, 1120 20th Street, N.W., Ninth Floor, Washington, DC 20036-3419.

SUPPLEMENTARY INFORMATION: On August 11, 1997, the Commission published in the Federal Register a proposed new paragraph (f) to add to 29 CFR 2204.105 containing its Rules of Procedure concerning eligibility under the Equal Access to Justice Act, 62 FR 42957 (August 11, 1997). The new paragraph is based on the model rule of the (former) Administrative Conference of the United States, adopted in large part by most federal agencies, concerning aggregation of the net worth and number of employees of the applicant with those of its affiliates. At the same time, the Commission also proposed to change all references to the "EAJ Act" in 29 CFR Part 2204 to read "EAJA" to conform to the common shortened reference term for the Equal Access to Justice Act. The only comments that the Commission received were from the Office of the Solicitor, U.S. Department of Labor, which supports the changes as proposed. The Commission thanks that office for its time and interest.

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 amends Title 29, Chapter XX, Part 2204 of the Code of Federal Regulations to read 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.

PART 2204 -- [AMENDED]

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: October 29, 1997.

Stuart E. Weisberg,
Chairman.

Daniel Guttman,
Commissioner.

[FR Doc. 97-29101 Filed 11-3-97; 8:45 am)