Daily Rules, Proposed Rules, and Notices of the Federal Government
In addition to revising the regulations to conform to modern legal procedure, the rules need to be modified to reflect the types of claims now heard by OALJ. When the rules were promulgated in 1983, OALJ primarily adjudicated occupational disease and injury cases. Presently, and looking ahead to the future, OALJ is and will be increasingly tasked with hearing whistleblower and other workplace retaliation claims, in addition to the occupational disease and injury cases. These types of cases require more structured management and oversight by the presiding administrative law judge and more sophisticated motions and discovery procedures than the current regulations provide. In order to best manage the complexities of whistleblower and discrimination claims, OALJ needs to update its rules to address the procedural questions that arise in these cases.
Administrative law judges at the Office of Administrative Law Judges (OALJ), United States Department of Labor (Department), conduct formal hearings under the Administrative Procedure Act, 5 U.S.C. 554 through 557. An administrative law judge manages hearings that mirror federal civil litigation, is bound by applicable rules of evidence and procedure, and is insulated from political influence.
The current Rules of Practice and Procedure for Administrative Hearings before the Office of Administrative Law Judges, 29 CFR part 18, subpart A (Part 18, Subpart A), were published on July 15, 1983.
The OALJ rules of practice and procedure are analogous to the Federal Rules of Civil Procedure used in the United States District Courts. Congress authorized the Supreme Court to prescribe rules for the United States District Courts in 1934, under the Rules Enabling Act, 28 U.S.C. 2072. The original version of those rules became effective on September 16, 1938.
The disputes that comprise the docket at OALJ have also changed with time. When the rules of practice and procedure were first published, OALJ's judges mainly (but not exclusively) were devoting their efforts to deciding benefit claims under two broad statutory categories:
• The Black Lung Benefits Act, subchapter 4 of the Federal Coal Mine Health and Safety Act of 1969, as amended, 30 U.S.C. 901
• The Longshore Act and its extensions, which included the Nonappropriated Fund Instrumentalities Act, 5 U.S.C. 8171 (1927); the Outer Continental Shelf Lands Act, 43 U.S.C. 1333 (1953); and the Defense Base Act, as amended, 42 U.S.C. 1651 (1941).
Over the last nearly two decades, Congress charged the Department of Labor (and consequently the OALJ) with the responsibility to hear and decide matters under many new statutes. Most relate to complaints by employees who assert their employers retaliated against them after they engaged in whistleblower activity. Some of these statutes for example are:
• Section 110 of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. 9610, Public Law 96-510, 94 Stat. 2787, enacted on December 11, 1980;
• Section 405 of the Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C. 31105, Public Law 97-424, 96 Stat. 2097, 2157-58, first enacted on January 6, 1983 (and originally codified as 49 U.S.C. 2301
• Section 212(n)(2)(C)(iv) of the Immigration and Nationality Act, 8 U.S.C. 1182(n)(2)(C)(iv), as amended by the American Competitiveness and Workforce Improvement Act of 1998, which was part of the Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1998, Public Law 105-277, div. C, tit. IV, sec. 411(a), 112 Stat. 2681-641 to 2681-657, enacted on October 21,1998;
• Section 519 of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21), 49 U.S.C. 42121, Public Law 106-181, 114 Stat. 145, enacted on April 5, 2000;
• Section 6(a) of the Pipeline Safety Improvement Act of 2002, 49 U.S.C. 60129, Public Law 107-355, 116 Stat. 2989, enacted on December 17, 2002;
• Section 806 of the Corporate and Criminal Fraud Accountability Act of 2002 (the Sarbanes-Oxley Act), 18 U.S.C. 1514A, Public Law 107-204, 116 Stat. 802, first enacted on July 30, 2002, and last amended by sec. 929A of the Dodd-Frank Wall Street Reform and Consumer Protection Act, Public Law 111-203, 124 Stat. 1848, 1852, enacted on July 21, 2010;
• Section 1413 of the Implementing Recommendations of the 9/11 Commission Act of 2007, 6 U.S.C. 1142, Public Law 100-53, 121 Stat. 414, that amended the National Transit Systems Security Act on August 3, 2007; and
• Section 1521 of the Implementing Recommendations of the 9/11 Commission Act of 2007, 49 U.S.C. 20109, Public Law 100-53, 121 Stat. 444, that amended the Federal Railroad Safety Act on August 3, 2007.
Congress remains active in the area of whistleblower protection. On July 21, 2010, Congress created and expanded whistleblower protection for employees in the financial services industry under the Dodd-Frank Wall Street Reform and Consumer Protection Act, Public Law 111-203. On October 15, 2010, it amended another employment protection program that includes the opportunity for a hearing before an administrative law judge at the OALJ.
The substantive program regulations the Department has published to implement many of the statutes that grant workers and employers formal hearings on claims of workplace retaliation offer limited guidance about the procedures those adjudications should follow. Regulations often incorporate instead the procedural rules of Part 18, Subpart A.
The growth in whistleblower jurisdiction has led OALJ to search for ways to manage those proceedings efficiently. Implementing procedures the federal district courts have developed or refined since 1983 will improve the current Part 18, Subpart A rules.
For example, several regulations that govern whistleblower claims explicitly grant the presiding judge “broad discretion to limit discovery” as a way to “expedite the hearing.” 29 CFR 1979.107(b), 1980.107(b), 1981.107(b). The Department's discussion when it published the final rules on Sarbanes-Oxley matters offered as an illustration that the judge may “limit the number of interrogatories, requests for production of documents or depositions allowed.” 69 FR 52104, 52110, Aug. 24, 2004. Other program regulations, such as those that govern disputes under the Energy Reorganization Act and six environmental statutes that cover whistleblowers in the nuclear and environmental industries published at 29 CFR part 24, incorporate the Part 18, Subpart A regulations without an explicit reference to a judge's authority to control discovery.
A 2010 study surveyed lawyers who were the attorneys of record in federal civil cases that terminated in the last quarter of 2008 about their satisfaction with the current FRCP. Lawyers from the Litigation Section of the American Bar Association and from the National Employment Lawyers Association were sampled too. The survey instrument had been developed jointly by the American
Updating the Part 18, Subpart A regulations has value beyond whistleblower litigation. Regulations for the Longshore and Harbor Workers' Compensation Act published at 20 CFR 702.331 through 702.351 predate Part 18, Subpart A. They sketch out only broad outlines of how hearings should proceed, so the parties and judges fall back on the Part 18, Subpart A rules in cases brought under the Longshore Act and its extensions. Workers, their employers, and insurance carriers also will profit from updated procedures that avoid the need to serve discovery to learn basic information, and allow more focused case management.
The Department believes that in many instances the current Part 18, Subpart A rules provide limited guidance. Judges have addressed the current rules' limitations by managing procedural matters through orders, often directing parties to follow aspects of the various updates to the FRCP. The consequent variety in approaches to case management has troubled some lawyers, especially those with nationwide client bases who routinely practice before different judges throughout the nation.
Lastly, the Department recognizes that the current Part 18, Subpart A rules can be stated more clearly, something the 2007 style amendments to the FRCP highlight. The style amendments were the first comprehensive overhaul since the FRCP were adopted in 1938. Taking more than four years to complete, they aspired to simplify and clarify federal procedure. The more austere sentence structure used throughout the restyled FRCP made them shorter, easier to read and more clearly articulated. The amendments proposed to Part 18, Subpart A emulate those improvements.
The Department's principal goals in revising Part 18, Subpart A were to:
• Bring the rules into closer alignment with the current FRCP;
• Revise the rules to aid the development of facts germane to additional sorts of adjudications the Department's judges handle;
• Enhance procedural uniformity, while allowing judges to manage cases flexibly, because (a) An administrative proceeding is meant to be less formal than a jury trial; (b) local trial practice in different regions of the country should be accommodated when doing so does not affect substantive rights; and (c) governing statutes and substantive regulations may impose their own specific procedural requirements; and
• Make the rules clearer and easier to understand through the use of consistent terminology, structure, and formatting.
The decisions and orders that judges enter to resolve cases under sec. 556 and 557 of the Administrative Procedure Act resemble findings of fact and conclusions of law federal district and magistrate judges enter in non-jury cases under Fed. R. Civ. P. 52. Matters proceed before OALJ much the way non-jury cases move through the federal courts.
Using language similar or identical to the applicable FRCP gains the advantage of the broad experience of the federal courts and the well-developed precedent they have created to guide litigants, judges, and reviewing authorities within the Department on procedure. Parties and judges obtain the additional advantage of focusing primarily on the substance of the administrative disputes, spending less time on the distraction of litigating about procedure.
Part 18, Subpart A currently provides that the “Rules of Civil Procedure for the District Courts of the United States shall be applied in any situation not provided for or controlled by these rules, or by any statute, executive order or regulation.” 29 CFR 18.1(a). Experienced practitioners know to consult the FRCP for guidance in circumstances the current Part 18, Subpart A rules do not explicitly cover. Given the developments in the FRCP since 1983, parties and judges switch back and forth between two different sources of procedure (the Part 18, Subpart A rules and the FRCP). This is a less than ideal situation. The proposed revision continues the current practice of looking to the federal civil rules to resolve procedural questions that the revised Part 18, Subpart A rules do not explicitly cover, a principle that § 18.1(a) has embodied for over twenty-five years.
Pretrial procedures under the FRCP have significantly changed since Part 18, Subpart A was published in 1983. Some of the most significant changes have encompassed:
• The scope of pretrial discovery;
• How time is computed under the FRCP;
• The innovation of early mandatory disclosures about documentary proof and lay and expert witness testimony that were unknown to litigation practice in 1983, the related discovery plans the parties now negotiate, and the ongoing duty parties now bear to supplement their mandatory disclosures and discovery responses;
• Alterations to the rule on pretrial conferences to encourage judges to manage cases, and give them the tools to do so;
• Imposing presumptive limitations on aspects of discovery;
• Adding rules on the discovery of electronically stored information, a rare source of information in the early 1980's that has become ubiquitous today; and
• The procedure, but not the standard, for granting summary judgment under Fed. R. Civ. P. 56 that was substantially revised in 2010.
The 2007 style amendments to the FRCP in some instances altered the original numbering of provisions that first came into being after 1983. The current rule numbers from the 2010 edition of the FRCP are used in the following discussion of significant changes in litigation practice since 1983.
The scope of discovery has changed. The formulation used in current Part 18, Subpart A at § 18.14 extends discovery to “any matter, not privileged, which is relevant to the subject matter involved in the proceeding.” The FRCP now permits parties the somewhat narrower opportunity to learn about unprivileged matters “relevant to a party's claim or defense.” Advisory Committee Notes to the 2000 Amendments to Fed. R. Civ. P. 26(b)(1); Jeffery W. Stemple & David F. Herr,
Litigation requires timely filings and actions. The way time is calculated under Fed. R. Civ. P. 6 changed in 2009. In the Department's view, the Part 18, Subpart A rules should be harmonized with the FRCP so parties and their lawyers use the simpler, clearer, and more consistent way federal courts now
Time periods in the FRCP shorter than 30 days also were revised to multiples of 7 days, to reduce the likelihood of ending on weekends. Other changes to the FRCP time-computation rules affect how to tell when the last day of a period ends, and how to compute backward-counted periods that end on a weekend or holiday.
The Department believes that the success the federal courts have had with requiring parties to exchange elementary information early in the dispute, without the need for a formal discovery demand, should be incorporated into OALJ's procedures for most cases. The same is true for the way the federal courts require parties to disclose the opinions of experts, and to supplement disclosures and discovery responses.
Disclosures of information relevant to the claims or defenses a party may raise in the litigation were required in the 1993 amendments to the FRCP.
The disclosure obligation was narrowed in 2000 to embrace only information the party would use to support its claims or defenses at a pretrial conference, to support a motion, to question a witness during a discovery deposition, or at trial. Advisory Committee Notes to the 2000 Amendments to Fed. R. Civ. P. 26(a). These mandatory disclosures cover basic information needed to prepare most cases for trial or to make an informed decision about settlement. Advisory Committee Notes to the 1993 Amendments to Fed. R. Civ. P. 26(a). They must be exchanged at the outset of the proceeding, even before the opponent issues any discovery request, and for the most part there is a moratorium on discovery until the automatic disclosures are made. Fed. R. Civ. P. 26(d)(1). Few excuses for failing to make timely disclosures are countenanced. Fed. R. Civ. P. 26(a)(1)(E). These prompt initial disclosures lead to an early conference where the parties discuss whether the case can be settled and negotiate a proposed discovery schedule they report to the judge. Fed. R. Civ. P. 26(f)(2).
Other amendments enhanced the pretrial disclosure of the opinions of an expert witness. A party now is required to:
• Provide a detailed written report, signed by an expert who is retained or specially employed to give expert testimony, under Fed. R. Civ. P. 26(a)(2)(B);
• Deliver the report before the expert is deposed, under Fed. R. Civ. P. 26(b)(4); and
• Prepare and serve a disclosure of the expert's testimony if the expert was not retained or specially employed to testify (and so not required to write and sign a report), under Fed. R. Civ. P. 26(a)(2)(C).
By signing and serving a required disclosure (or any discovery response), the lawyer attests that it is complete and correct; consistent with the rules; not interposed for an improper purpose; and not unreasonable nor unduly burdensome or expensive, given the needs and prior discovery in the case, the amount in controversy, and the importance of the issues at stake. Fed. R. Civ. P. 26(g).
A required disclosure that turns out to have been incomplete or incorrect in some material respect must be supplemented “in a timely manner.” Fed. R. Civ. P. 26(e). The duty to supplement extends to a required report or disclosure about expert witness testimony and to a discovery response.
The amendments to Fed. R. Civ. P. 16 made in 1993 enhanced a judge's authority to manage litigation with the goal of achieving the just, speedy, and inexpensive determination of a matter through the use of scheduling orders under Fed. R. Civ. P. 16(b) and pretrial conferences under Fed. R. Civ. P. 16(c). Those revisions to Fed. R. Civ. P. 16 expanded the judge's authority to “take appropriate action” in a civil case. Charles R. Ritchey,
A pretrial conference offers the opportunity to appropriately control the extent and timing of discovery. At a conference the parties and judge may consider ways to avoid unnecessary proof and cumulative evidence at trial (including expert testimony) under what is now Fed. R. Civ. P. 16(c)(2)(D). Determining whether a motion for summary adjudication is even appropriate, and setting the time to file it, may be discussed under Fed. R. Civ. P. 16(b)(3)(A), (c)(2)(E).
Discovery practice in federal court litigation has been altered since 1983 in a number of ways. The amendments were not meant to block needed discovery, but to provide judicial supervision to curtail excessive discovery. Advisory Committee Note to the 1993 Amendments to Fed. R. Civ. P. 33(a). The FRCP now presumptively limit the number of interrogatories a party may serve, including “all discrete subparts;” the number of depositions taken by oral examination or on written questions; taking the deposition of a
These presumptive limitations are adjusted as a case requires, often through the scheduling order the judge enters on the discovery plan the parties propose after their initial conference. Fed. R. Civ. P. 26(b)(2)(A), (f)(3)(E);
Parties also must seek to resolve discovery disputes informally before filing a motion. Fed. R. Civ. P. 26(c)(1);
E-discovery provisions that recognize how pervasive digital information has become were incorporated into the FRCP in 2006. Richard L. Marcus,
Digital information is so omnipresent that federal courts now deride as “frankly ludicrous” arguments that a trial lawyer who claims to be “computer illiterate” should be excused from fulfilling the rules' e-discovery obligations.
In addition, the parties should discuss and agree at the initial conference on how to handle inadvertent disclosure of digital information that otherwise would enjoy attorney-client privilege or work product protection. Fed. R. Civ. P. 26(f)(3)(D). Their agreement plays a pivotal role under recently enacted Fed. R. Evid. 502(b), (d), and (e). They avoid a waiver of privilege or work product protection when their agreement is incorporated into a scheduling order or another order.
The current FRCP not only guide the resolution of discovery disputes, but also set standards for allocating the potentially high cost of discovery among the parties when the sources of digital data are not readily accessible. Advisory Committee Notes to 2006 Amendments to Fed. R. Civ. P. 26(b)(2) (“The conditions [the judge imposes] may also include payment by the requesting party of part or all of the reasonable costs of obtaining information from sources that are not reasonably accessible.”)
A motion for summary adjudication carries the potential to dispose of an entire claim or portions of it with finality but without a trial, so it plays a key role in litigation. The procedure ought to be the same at the OALJ as in U.S. district courts; any divergence creates an incentive for a party to prefer the forum with the summary decision régime most favorable to its position. This matters because under many statutes whistleblower litigation begins at OALJ, but the complainant may proceed in U.S. district court if a final order has not been entered within a relatively short time after the claim is first brought to the attention of the Department.
Federal Rule of Civil Procedure 56 was recently revised effective December 1, 2010. It now instructs the judge to state a reason for granting or denying the motion, usually by identifying the central issues, which can help the parties focus any further proceedings. Advisory Committee Notes to 2010 Amendments to Fed. R. Civ. P. 56(a). The judge is not obliged to search the record independently to determine whether there is a factual dispute for trial, but nonetheless may consider record materials the parties never called to the judge's attention. Advisory Committee Notes to 2010 Amendments to Fed. R. Civ. P. 56(c)(3). A formal affidavit is not required to support the motion; an unsworn declaration signed under penalty of perjury suffices, recognizing the status 28 U.S.C. 1746 gives to those statements. Fed. R. Civ. P. 56(c)(4). Even if the motion is not granted, or granted only in part, the judge may find that certain facts are undisputed and treat them as established. Fed. R. Civ. P. 56(g). Invoking this authority demands care, however. To limit litigation expenses, a nonmovant who feels confident a genuine dispute as to one or a few facts will defeat the motion may choose not to file a detailed response to all facts the movant stated. That choice should not expose the party to the risk that the additional facts will be treated as established under subdivision (g). Advisory Committee Notes to 2010 Amendments to Fed. R. Civ. P. 56(h).
The judge may sanction a party who submits an affidavit or declaration with its motion papers in bad faith or solely for delay. Fed. R. Civ. P. 56(h).
Other portions of the FRCP have also undergone significant changes, including rules on the subjects of:
• Sanctions under Fed. R. Civ. P. 11 in 1993,
• Subpoenas under Fed. R. Civ. P. 45 in 1991,
The proposed revisions to Part 18, Subpart A reflect the general tenor of these amendments.
Congress has vested the Department (and therefore OALJ) with the responsibility to conduct formal hearings pursuant to more than 60 laws, including at least 19 that protect employees from retaliation for whistleblowing.
The bulk of hearings conducted by OALJ involve longshore workers' compensation and black lung benefits claims. This was true when OALJ's rules of practice were published in 1983 and is still true today.
Moreover, intensive litigation is typical in cases arising under the Defense Base Act. Although the Defense Base Act has been in existence since World War II, increasing use of contract services by the military and other parts of the federal government has resulted in significantly more hearings conducted by OALJ under that law in recent years. These cases tend not to settle, and therefore require more case management by judges as compared with other workers' compensation cases adjudicated by OALJ. OALJ also now conducts hearings involving labor condition applications of employers who employ H-1B nonimmigrant workers. OALJ's experience is that many of these cases do not settle; they also involve extensive procedural motions and multi-day hearings.
Thus, the change in the case mix before OALJ has heightened the need for procedural rules that are clearly written, permit improved and more consistent case management by judges, and are familiar to the national legal community under current federal court practice.
Notwithstanding the variety of statutes and regulations that generate disputes at OALJ, the provisions of the Administrative Procedure Act at 5 U.S.C. 556 offer broad guidance to administrative law judges about how to conduct proceedings. Flexibility in applying procedural rules is desirable, so that judges manage litigation according to the needs of an individual case. The Department's opportunity to review the decision of its administrative law judges under 5 U.S.C. 557(b) safeguards a party from an abuse of that discretion.
Some cases by their nature need special management. For example, applying a general rule that sets the time to respond to formal discovery demands may be inappropriate in a case that demands expedited handling. A striking illustration of an expedited proceeding is one to review a denial of an employer's application to the Office of Foreign Labor Certification under 20 CFR 655.103 to certify the use of non-immigrant workers in temporary agricultural employment under the H-2A visa program of the Immigration & Nationality Act, 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1188(e). In such cases, the employer only has five business days to seek review of an application's denial under 20 CFR 655.141(b)(4) and 655.142(c). Where the employer requests administrative review, the judge has only five business days after receipt of the administrative file from the Office of Foreign Labor Certification to render a decision. 20 CFR 655.171(a) (2011). Where the employer requests de novo review, the Part 18, Subpart A rules apply, but the hearing must be convened within five business days after the administrative law judge receives the administrative file, and the decision must follow within ten calendar days. 20 CFR 655.171(b). Additionally, for some types of cases—for example, those adjudicated under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. 901
The proposed rules have been drafted to authorize a judge to tailor procedures to the case, through a prehearing order. A judge may take a broad range of actions under proposed § 18.50(b)(2) and (3). Parties may be ordered to confer about settlement early in the case, required to make prehearing disclosures without any formal discovery demand from the other party, and directed to draft a discovery plan. Yet the judge also may relieve the parties from the obligation to make initial disclosures, and alter the general limitations on the number of interrogatories and the number and length of depositions. This flexibility permits a judge to address, in an individualized way, the needs of any specific case. The judge also may address any regional differences in litigation practices that may require direction or clarification.
The FRCP underwent a complete revision that culminated in 2007 to improve their style and clarity. Restyled Federal Rules of Appellate Procedure took effect in 1998, as the restyled Federal Rules of Criminal Procedure did in 2002. Sources that guided drafting, usage, and style for all three revisions included the
The drafting guidelines the authors of the 2007 style amendments used to
• Executive Order 12866 (1993), which requires that regulations be “simple and easy to understand, with the goal of minimizing uncertainty and litigation * * * ” 58 FR 51735, sec. 1(b)(12), Sept. 30, 1993 (amended 2002 & 2007); and
• Executive Order 12988 (1996), which requires that regulations be written in “clear language.” 61 FR 4729, sec. 3(b)(2) (Feb. 5, 1996).
The Plain Writing Act of 2010, 5 U.S.C. 301, Public Law 111-274, 124 Stat. 2861 (2010), while not directly applicable to regulations, recognizes the value of plain writing in government documents by requiring clear, concise, and well-organized publications. The Office of Management and Budget has published a “Best Practices Guide for Regulations” available on the internet.
Section 6(a) of Executive Order 13,563 (dated January 18, 2011), states: “To facilitate the periodic review of existing significant regulations, agencies shall consider how best to promote retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned.” 76 FR at 3821. The Executive Order also requires each agency to prepare a plan for reviewing its regulations. Although the revision of Part 18, Subpart A began well before this recent Executive Order, the proposed revisions meet the Order's requirements, by replacing outmoded rules with a more-readily understandable version.
This proposed rule has been drafted and reviewed in accordance with Executive Order 12866. The Department of Labor, in coordination with the Office of Management and Budget (OMB), has determined that this proposed rule is not a “significant regulatory action” under Executive Order 12866, section 3(f) because rule because the rule will not have an annual effect on the economy of $100 million or more; nor create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; nor materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof. Furthermore, the rule does not raise a novel legal or policy issue arising out of legal mandates, the President's priorities or the principles set forth in this Executive Order. Accordingly, the proposed rule has not been reviewed by OMB.
The Department concludes that the Regulatory Flexibility Act, 5 U.S.C. 601
The Department has reviewed this rule in accordance with Executive Order 12291 and determined it is not a “major rule” under Executive Order 12291 because it is not likely to result in (1) An annual effect on the economy of $100 million or more; (2) a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or (3) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic or export markets. Accordingly, no regulatory impact analysis is required.
The Department has reviewed this proposed rule in accordance with the requirements of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531
The Department certifies that this proposed rule has been assessed in accordance with the requirements of the Paperwork Reduction Act, 44 U.S.C. 3501
The Department has reviewed the proposed rule in accordance with the requirements of the National Environmental Policy Act (NEPA) of 1969, as amended (42 U.S.C. 4321
The Department has reviewed this proposed rule in accordance with the Privacy Act of 1974, as amended (5 U.S.C. 552a). This rulemaking would not require any new process, filing or collection of any new information in the proceedings before the Office of
The Department has reviewed this proposed rule in accordance with the requirements of the Federal Regulations and Policies on Families, Section 654 of the Treasury and General Government Appropriations Act of 1999. These proposed regulations were not found to have a potential negative effect on family well-being as it is defined there under.
The Department certifies that this proposed rule has been assessed regarding environmental health risks and safety risks that may disproportionately affect children. These proposed regulations were not found to have a potential negative effect on the health or safety of children.
The Department has reviewed this proposed rule in accordance with E.O. 12630 and has determined that it does not contain any “policies that have takings implications” in regard to the “licensing, permitting, or other condition requirements or limitations on private property use, or that require dedications or exactions from owners of private property.”
The Department has reviewed this proposed rule in accordance with E.O. 13175 and has determined that it does not have “tribal implications.” The proposed rule does not “have substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.”
This regulation has been drafted and reviewed in accordance with Executive Order 12988, Civil Justice Reform, and will not unduly burden the Federal court system. The regulation has been written so as to minimize litigation and provide a clear legal standard for affected conduct, and has been reviewed carefully to eliminate drafting errors and ambiguities.
The Department has reviewed this proposed regulation in accordance with Executive Order 13211 and determined that the proposed rule is not subject to Executive Order 13211 because it is not a significant regulatory action under Executive Order 12866, will not have a significant adverse effect on the supply, distribution, or use of energy, and has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action.
The changes proposed here consist of amendments to rules of agency organization, procedure and practice, and consequently are exempt from the notice and public comment requirements of the Administrative Procedure Act,
Please be advised that the Department will post all comments without making any change to the comments, including any personal information provided. The
In addition to all comments received by the Department being accessible on