[Congressional Record Volume 143, Number 2 (Thursday, January 9, 1997)]
[House]
[Pages H89-H95]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




           NOTICE OF PROPOSED AMENDMENTS TO PROCEDURAL RULES

                                                    U.S. Congress,


                                         Office of Compliance,

                                Washington, DC, December 20, 1996.
     Hon. Newt Gingrich,
     Speaker of the House, U.S. House of Representatives, 
         Washington, DC.
       Dear Mr. Speaker: Pursuant to Section 303 of the 
     Congressional Accountability Act of 1995 (2 U.S.C. 
     Sec. 1383), I am transmitting the enclosed notice of proposed 
     rulemaking (proposed amendments to the Procedural Rules of 
     the Office of Compliance) for publication in the 
     Congressional Record.
       The Congressional Accountability Act specifies that the 
     enclosed amendments be published on the first day on which 
     both Houses are in session following this transmittal.
           Sincerely,
                                                  Ricky Silberman,
                                               Executive Director.

  Office of Compliance--The Congressional Accountability Act of 1995: 
                Proposed Amendments to Procedural Rules


                     notice of proposed rulemaking

       Summary: The Executive Director of the Office of Compliance 
     is publishing proposed amendments to the rules governing the 
     procedures for the Office of Compliance under the 
     Congressional Accountability Act (P.L. 104-1, 109 Stat. 3). 
     The proposed amendments to the procedural rules have been 
     approved by the Board of Directors, Office of Compliance.
       Dates: Comments are due within 30 days after publication of 
     this Notice in the Congressional Record.
       Addresses: Submit written comments (an original and ten 
     copies) to the Executive Director, Office of Compliance, Room 
     LA200, 110 Second Street, S.E., Washington, D.C. 20540-1999. 
     Those wishing to receive notification of receipts of comments 
     are requested to include a self-addressed, stamped post card. 
     Comments may also be transmitted by facsimile (``FAX'') 
     machine to (202) 426-1913. This is not a toll-free call. 
     Copies of comments submitted by the public will be available 
     for review at the Law Library Reading Room, LM-201, Law 
     Library of Congress, James Madison Memorial Building, 
     Washington, D.C., Monday through Friday, between the hours of 
     9:30 a.m. and 4:00 p.m.
       For Further Information Contact: Executive Director, Office 
     of Compliance at (202) 724-

[[Page H90]]

     9250. This notice is also available in the following formats: 
     large print, braille, audio tape, and electronic file on 
     computer disk. Requests for this notice in an alternative 
     format should be made to Mr. Russell Jackson, Director, 
     Service Department, Office of the Sergeant at Arms and 
     Doorkeeper of the Senate, (202) 224-2705.


                       supplementary information

                             I. Background

       The Congressional Accountability Act of 1995 (``CAA'' or 
     ``Act'') was enacted into law on January 23, 1995. In 
     general, the CAA applies the rights and protections of eleven 
     federal labor and employment law statutes to covered 
     employees and employing offices within the legislative 
     branch. Section 303 of the CAA directs that the Executive 
     Director of the Office of Compliance (``Office'') shall, 
     subject to the approval of the Board of Directors (``Board'') 
     of the Office, adopt rules governing the procedures for the 
     Office, and may amend those rules in the same manner. The 
     procedural rules currently in effect, approved by the Board 
     and adopted by the Executive Director, were published 
     December 22, 1995 in the Congressional Record (141 Cong. R. 
     S19239 (daily ed., Dec. 22, 1995)). Amendments to these 
     rules, approved by the Board and adopted by the Executive 
     Director, were published September 19, 1996 in the 
     Congressional Record (142 Cong. R. H10672 and S10980 (daily 
     ed., Sept. 19, 1996)). The proposed revisions and additions 
     that follow establish procedures for consideration of matters 
     arising under Parts B and C of title II of the CAA, which are 
     generally effective January 1, 1997.
       A summary of the proposed amendments is set forth below in 
     Section II; the text of the provisions that are proposed to 
     be added or revised is found in Section III. The Executive 
     Director invites comment from interested persons on the 
     content of these proposed amendments to the procedural rules.

       II. Summary of Proposed Amendments to the Procedural Rules

       (A) Several revisions are proposed to provide for 
     consideration of matters arising under sections 210 and 215 
     (Parts B and C of title II) of the CAA. For example, 
     technical changes in the procedural rules will be necessary 
     in order to provide for the exercise of various rights and 
     responsibilities under sections 210 and 215 of the Act by the 
     General Counsel, charging individuals and entities 
     responsible for correcting violations. These proposed 
     revisions are as follows:
       Section 1.01 is proposed to be amended by inserting 
     references to Parts B and C of title II of the CAA in order 
     to clarify that the procedural rules now govern procedures 
     under those Parts of the Act.
       Section 1.02(i) is proposed to be amended to redefine the 
     term ``party'' to include, as appropriate, a charging 
     individual or an entity alleged to be responsible for 
     correcting a violation.
       Section 1.03(a)(3) is to be revised to provide for, as 
     appropriate, the filing of documents with the General 
     Counsel.
       Section 1.04(d) is proposed to be amended to provide for 
     appropriate disclosure to the public of decisions under 
     section 210 of the CAA and to provide, in accordance with 
     section 416(f) of the CAA, that the Board may, at its 
     discretion, make public decisions which are not otherwise 
     required to be made public.
       Section 1.05(a) is to be revised to allow for a charging 
     individual or party or an entity alleged to be responsible 
     for correcting a violation to designate a representative.
       Sections 1.07(a), 5.04 and 7.12 are to be revised to make 
     clear that Section 416(c), relating to confidentiality 
     requirements, does not apply to proceedings under section 215 
     of the Act, but does apply to the deliberations of hearing 
     officers and the Board under section 215.
       Section 5.01(a)(2), (b)(2), (c)(2) and (d) is proposed to 
     be amended to allow for the filing of complaints alleging 
     violation of sections 210 and 215 of the CAA.
       Section 7.07(f), relating to conduct of hearings, is to be 
     revised to provide that, if the representative of a charging 
     party of an entity alleged to be responsible for correcting a 
     violation has conflict of interest, that representative may 
     be disqualified.
       Section 8.03(a) relating to compliance with final decisions 
     is to be revised to implement sections 210 and 215 of the 
     CAA.
       Section 8.04 ``Judicial Review'' is proposed to be revised 
     to state that the United States Court of Appeals for the 
     Federal Circuit shall have jurisdiction, as appropriate, over 
     petitions under sections 210(d)(4) and 215(c)(5) of the Act.
       (B) Proposed Subpart D of these regulations implements the 
     provisions of section 215(c) of the CAA, which sets forth the 
     procedures for inspections, citations, notices, and 
     notifications, hearings, and review, variance procedures, and 
     compliance regarding enforcement of rights and protections of 
     the Occupational Safety and Health Act, as applied by the 
     CAA. Under section 215(c), any employing office or covered 
     employee may request the General Counsel to inspect and 
     investigate places of employment under the jurisdiction of 
     employing offices. A citation or notice may be issued by the 
     General Counsel to any employing office that is responsible 
     for correcting a violation of section 215, or that has failed 
     to correct a violation within the period permitted for 
     correction. A notification may be issued to any employing 
     office that has failed to correct a violation within the 
     permitted time. If a violation remains uncorrected, the 
     General Counsel may file a complaint against the employing 
     office with the Office, which is submitted to a hearing 
     officer for decision, with subsequent review by the Board. 
     Under section 215(c)(4), an employing office may apply to the 
     Board for a variance from an applicable health and safety 
     standard. In considering such application, the Board shall 
     exercise the authority of the Secretary of Labor under 
     sections 6(b) and 6(d) of the Occupational Safety and Health 
     Act of 1970 (``OSHAct'') to issue either a temporary or 
     permanent variance, if specified conditions are met.
       The Executive Director has modeled these proposed rules 
     under section 215(c), to the greatest extent practicable, on 
     the enforcement procedures set forth in the regulations of 
     the Secretary of Labor to implement comparable provisions of 
     the OSHAct (29 C.F.R., parts 1903 and 1905). The proposed 
     rules do not follow provisions of the Secretary's regulations 
     that are inapplicable, incompatible with the structure of the 
     Office of Compliance, and/or inconsistent with the express 
     statutory procedures of section 215(c) of the CAA. In 
     addition, the Secretary has identified some provisions of 
     Part 1903 as ``general enforcement policies rather than 
     substantive or procedural rules, [and thus] such policies may 
     be modified in specific circumstances where the Secretary or 
     his designee determines that an alternative course of action 
     would better serve the objectives of the Act.'' 29 CFR 
     Sec. 1903.1 These enforcement policies (such as the 
     Secretary's policy regarding employee rescue activities, 29 
     C.F.R. Sec. 1903.14(f) are not included in these rules. 
     Enforcement policies, if any, should be issued by the General 
     Counsel, to whom investigatory and enforcement authorities 
     are assigned under section 215.
       The Board finds that the proposed rules govern ``procedures 
     of the Office.'' Thus, they may appropriately be issued under 
     section 303 of the CAA.

          III. Text of proposed amendments to procedural rules

     Sec. 1.01  Scope and Policy
       These rules of the Office of Compliance govern the 
     procedures for consideration and resolution of alleged 
     violations of the laws made applicable under Parts A, B, C, 
     and D of title II of the Congressional Accountability Act of 
     1995. The rules include procedures for counseling, mediation, 
     and for electing between filing a complaint with the Office 
     of Compliance and filing a civil action in a district court 
     of the United States. The rules also address the procedures 
     for variances and compliance, investigation and enforcement 
     under Part C of title II and procedures for the conduct of 
     hearings held as a result of the filing of a complaint and 
     for appeals to the Board of Directors of the Office of 
     Compliance from Hearing Officer decisions, as well as other 
     matters of general applicability to the dispute resolution 
     process and to the operations of the Office of Compliance. It 
     is the policy of the Office that these rules shall be applied 
     with due regard to the rights of all parties and in a manner 
     that expedities the resolution of disputes.
     Sec. 1.02(i)
       (i) Party. The term ``party'' means: (1) an employee or 
     employing office in a proceeding under Part A of title II of 
     the Act; (2) a charging individual, an entity alleged to be 
     responsible for correcting a violation, or the General 
     Counsel in a proceeding under Part B of title II of the Act; 
     (3) an employee, employing office, or as appropriate, the 
     General Counsel in a proceeding under Part C of title II of 
     the Act; or (4) a labor organization, individual employing 
     office or employing activity, or, as appropriate, the General 
     Counsel in a proceeding under Part D of title II of the Act.
     Sec. 1.03(a)(3)
       (3) Faxing documents. Documents transmitted by FAX machine 
     will be deemed filed on the date received at the Office at 
     202-426-1913, or, in the case of any document to be filed or 
     submitted to the General Counsel, on the date received at the 
     Office of the General Counsel at 202-426-1663. A FAX filing 
     will be timely only if the document is received no later than 
     5:00 PM Eastern Time on the last day of the applicable filing 
     period. Any party using a FAX machine to file a document 
     bears the responsibility for ensuring both that the document 
     is timely and accurately transmitted and confirming that the 
     Office has received a facsimile of the document. The party or 
     individual filing the document may rely on its FAX status 
     report sheet to show that it filed the document in a timely 
     manner, provided that the status report indicates the date of 
     the FAX, the receiver's FAX number, the number of pages 
     included in the FAX, and that transmission was completed.
     Sec. 1.04(d)
       (d) Final decisions. Pursuant to section 416(f) of the Act, 
     a final decision entered by a Hearing Officer or by the Board 
     under section 405(g) or 406(e) of the Act, which is in favor 
     of the complaining covered employee, or in favor of the 
     charging party under section 210 of the Act, or reverses a 
     Hearing Officer's decision in favor of a complaining covered 
     employee or charging party, shall be made public, except as 
     otherwise ordered by the Board. The Board may make public any 
     other decision at its discretion.
     Sec. 1.05(a)
       (a) An employee, other charging individual or party, a 
     witness, a labor organization, an employing office, or an 
     entity alleged to be

[[Page H91]]

     responsible for correcting a violation wishing to be 
     represented by another individual must file with the Office a 
     written notice of designation of representative. The 
     representative may be, but is not required to be, an 
     attorney.
     Sec. 1.07(a)
       (a) In General. Section 416(a) of the CAA provides that 
     counseling under section 402 shall be strictly confidential, 
     except that the Office and a covered employee may agree to 
     notify the employing office of the allegations. Section 
     416(b) provides that all mediation shall be strictly 
     confidential. Section 416(c) provides that all proceedings 
     and deliberations of hearing officers and the Board, 
     including any related records shall be confidential, except 
     for release of records necessary for judicial actions, access 
     by certain committees of Congress, and publication of certain 
     final decisions. Section 416(c) does not apply to proceedings 
     under section 215 of the Act, but does apply to the 
     deliberations of hearing officers and the Board under section 
     215. See also sections 1.06, 5.04 and 7.12 of these rules.

    Subpart D--Compliance, Investigation, Enforcement and Variance 
Procedures Under Section 215 of the CAA (Occupational Safety and Health 
                              Act of 1970)


                 Inspections, Citations, and Complaints

Sec.
4.01  Purpose and scope
4.02  Authority for inspection
4.03  Request for inspections by employees and employing offices
4.04  Objection to inspection
4.05  Entry not a waiver
4.06  Advance of notice of inspection
4.07  Conduct of inspections
4.08  Representatives of employing offices and employees
4.09  Consultation with employees
4.10  Inspection not warranted; informal review
4.11  Imminent danger
4.12  Citations
4.13  Posting of citations
4.14  Failure to correct a violation for which a citation has been 
              issued; notice of failure to correct violation; complaint
4.15  Informal conferences


 Rules of Practice for Variances, Limitations, Variations, Tolerances, 
                             and Exemptions

4.20  Purpose and scope
4.21  Definitions
4.22  Effect of variances
4.23  Public notice of a granted variance, limitation, variation, 
              tolerance, or exemption
4.24  Form of documents
4.25  Applications for temporary variances and other relief
4.26  Applications for permanent variances and other relief
4.27  Modification or revocation of orders
4.28  Action on applications
4.29  Consolidation of proceedings
4.30  Consent findings and rules or orders
4.31  Order of proceedings and burden of proof


                 inspections, citations and complaints

     Sec. 4.01 Purpose and scope.
       The purpose of sections 4.01 through 4.15 of this subpart 
     is to prescribe rules and procedures for enforcement of the 
     inspection and citation provisions of section 215(c)(1) 
     through (3) of the CAA. For the purpose of sections 4.01 
     through 4.15, references to the ``General Counsel'' include 
     any designee of the General Counsel.
     Sec. 4.02 Authority for inspection.
       Under section 215(c)(1) of the CAA, upon written request of 
     any employing office or covered employee, the General Counsel 
     is authorized to enter without delay and at reasonable times 
     any place of employment under the jurisdiction of an 
     employing office; to inspect and investigate during regular 
     working hours and at other reasonable times, and within 
     reasonable limits and in a reasonable manner, any such place 
     of employment, and all pertinent conditions, structures, 
     machines, apparatus, devices, equipment and materials 
     therein; to question privately any employing office, 
     operator, agent or employee; and to review records required 
     by the CAA and regulations promulgated thereunder, and other 
     records which are directly related to the purpose of the 
     inspection.
     Sec. 4.03 Requests for inspections by employees and covered 
         employing offices.
       (a) By covered employees and representatives. 
       (1) Any covered employee or representative of covered 
     employees who believes that a violation of section 215 of the 
     CAA exists in any place of employment under the jurisdiction 
     of employing offices may request an inspection of such place 
     of employment by giving notice of the alleged violation to 
     the General Counsel. Any such notice shall be reduced to 
     writing, shall set forth with reasonable particularity the 
     grounds for the notice, and shall be signed by the employee 
     or the representative of the employees. A copy shall be 
     provided to the employing office or its agent by the General 
     Counsel or the General Counsel's designee no later than at 
     the time of inspection, except that, upon the written request 
     of the person giving such notice, his or her name and the 
     names of individual employees referred to therein shall not 
     appear in such copy or on any record published, released, or 
     made available by the General Counsel.
       (2) If upon receipt of such notification the General 
     Counsel's designee determines that the notice meets the 
     requirements set forth in subparagraph (1) of this section, 
     and that there are reasonable grounds to believe that the 
     alleged violation exists, he or she shall cause an inspection 
     to be made as soon as practicable, to determine if such 
     alleged violation exists. Inspections under this section 
     shall not be limited to matters referred to in the notice.
       (3) Prior to or during any inspection of a place of 
     employment, any covered employee or representative of 
     employees may notify the General Counsel's designee, in 
     writing, of any violation of section 215 of the CAA which he 
     or she has reason to believe exists in such place of 
     employment. Any such notice shall comply with the 
     requirements of subparagraph (1) of this section.
       (b) By employing offices. Upon written request of any 
     employing office, the General Counsel or the General 
     Counsel's designee shall inspect and investigate places of 
     employment under the jurisdiction of employing offices under 
     section 215(c)(1) of the CAA. Any such requests shall be 
     reduced to writing on a form available from the Office.
     Sec. 4.04  Objection to inspection.
       Upon a refusal to permit the General Counsel's designee, in 
     exercise of his or her official duties, to enter without 
     delay and at reasonable times any place of employment or any 
     place therein, to inspect, to review records, or to question 
     any employing office, operator, agent, or employee, in 
     accordance with section 4.02 or to permit a representative of 
     employees to accompany the General Counsel's designee during 
     the physical inspection of any workplace in accordance with 
     section 4.07, the General Counsel's designee shall terminate 
     the inspection or confine the inspection to other areas, 
     conditions, structures, machines, apparatus, devices, 
     equipment, materials, records, or interviews concerning which 
     no objection is raised. The General Counsel's designee shall 
     endeavor to ascertain the reason for such refusal, and shall 
     immediately report the refusal and the reason therefor to the 
     General Counsel, who shall take appropriate action.
     Sec. 4.05  Entry not a waiver.
       Any permission to enter, inspect, review records, or 
     question any person, shall not imply or be conditioned upon a 
     waiver of any cause of action or citation under the CAA.
     Sec. 4.06  Advance notice of inspections.
       Advance notice of inspections may be given under 
     circumstances determined appropriate by the General Counsel.
     Sec. 4.07  Conduct of inspections.
       (a) Subject to the provisions of section 4.02, inspections 
     shall take place at such times and in such places of 
     employment as the General Counsel may direct. At the 
     beginning of an inspection, the General Counsel's designee 
     shall represent his or her credentials to the operator of the 
     facility or the management employee in charge at the place of 
     employment to be inspected; explain the nature and purpose of 
     the inspection; and indicate generally the scope of the 
     inspection and the records specified in section 4.02 which he 
     or she wishes to review. However, such designation of records 
     shall not preclude access to additional records specified in 
     section 4.02.
       (b) The General Counsel's designee shall have authority to 
     take environmental samples and to take or obtain photographs 
     related to the purpose of the inspection, employ other 
     reasonable investigative techniques, and question privately, 
     any employing officer, operator, agent or employee of a 
     covered facility. As used herein, the term ``employ other 
     reasonable investigative techniques'' includes, but is not 
     limited, the use of devices to measure employee exposure and 
     the attachment of personal sampling equipment such as 
     dosimeters, pumps, badges and other similar devices to 
     employees in order to monitor their exposure.
       (c) The conduct of inspections shall be such as to preclude 
     unreasonable disruption of the operations of the employing 
     office.
       (d) At the conclusion of an inspection, the General 
     Counsel's designee shall confer with the employing office or 
     its representative and informally advise it of any apparent 
     safety or health violations disclosed by the inspection. 
     During such conference, the employing office shall be 
     afforded an opportunity to bring to the attention of the 
     General Counsel's designee any pertinent information 
     regarding conditions in the workplace.
       (e) Inspections shall be conducted in accordance with the 
     requirements of this subpart.
     Sec. 4.08  Representatives of employing offices and 
         employees.
       (a) The General Counsel's designee shall be in charge of 
     inspections and questioning of persons. A representative of 
     the employing office and a representative authorized by its 
     employees shall be given an opportunity to accompany the 
     General Counsel's designee during the physical inspection of 
     any workplace for the purpose of aiding such inspection. The 
     General Counsel's designee may permit additional employing 
     office representatives and additional representatives 
     authorized by employees to accompany the designee where he or 
     she determines that such additional representatives will 
     further aid the inspection. A different employing office and 
     employee representative may accompany the General Counsel's 
     designee during each different phase of an inspection if this 
     will not interfere with the conduct of the inspection.

[[Page H92]]

       (b) The General Counsel's designee shall have sole 
     authority to resolve all disputes as to who is the 
     representative authorized by the employing office and 
     employees for the purpose of this section. If there is no 
     authorized representative of employees, or if the General 
     Counsel's designee is unable to determine with reasonable 
     certainty who is such representative, he or she shall consult 
     with a reasonable number of employees concerning matters of 
     safety and health in the workplace.
       (c) The representative(s) authorized by employees shall be 
     an employee(s) of the employing office. However, if the 
     judgment of the General Counsel's designee, good cause has 
     been shown why accompaniment by a third party who is not an 
     employee of the employing office (such as an industrial 
     hygienist or a safety engineer) is reasonably necessary to 
     the conduct of an effective and thorough physical inspection 
     of the workplace, such third party may accompany the General 
     Counsel's designee during the inspection.
       (d) The General Counsel's designee may deny the right of 
     accompaniment under this section to any person whose conduct 
     interferes with a fair and orderly inspection. With regard to 
     information classified by an agency of the U.S. Government in 
     the interest of national security, only persons authorized to 
     have access to such information may accompany the General 
     Counsel's designee in areas containing such information.
     Sec. 4.09  Consultation with employees.
       The General Counsel's designee may consult with employees 
     concerning matters of occupational safety and health to the 
     extent they deem necessary for the conduct of an effective 
     and thorough inspection. During the course of an inspection, 
     any employee shall be afforded an opportunity to bring any 
     violation of section 215 of the CAA which he or she has 
     reason to believe exists in the workplace to the attention of 
     the General Counsel's designee.
     Sec. 4.10  Inspection not warranted; informal review.
       (a) If the General Counsel's designee determines that an 
     inspection is not warranted because there are no reasonable 
     grounds to believe that a violation or danger exists with 
     respect to a notice of violation under section 4.03(a), he or 
     she shall notify the party giving the notice in writing of 
     such determination. Upon the request of the complaining party 
     or the employing office, the General Counsel, at his or her 
     discretion, may hold an informal conference in which the 
     complaining party and the employing office may present their 
     views orally and in writing. After considering all written 
     and oral views presented, the General Counsel may affirm, 
     modify, or reverse the designee's determination and furnish 
     the complaining party and the employing office with written 
     notification of this decision and the reasons therefor. The 
     decision of the General Counsel shall be final and not 
     reviewable.
       (b) If the General Counsel's designee determines that an 
     inspection is not warranted because the requirements of 
     section 4.03(a)(1) have not been met, he or she shall notify 
     the complaining party in writing of such determination. Such 
     determination shall be without prejudice to the filing of a 
     new complaint meeting the requirements of section 4.03(a)(1).
     Sec. 4.11  Citations.
       (a) If, on the basis of the inspection, the General Counsel 
     believes that a violation of any requirement of section 215 
     of the CAA, or of any standard, rule or order promulgated 
     pursuant to section 215 of the CAA, has occurred, he or she 
     shall issue a citation to the employing office responsible 
     for correction of the violation, as determined under section 
     1.106 of the Board's regulations implementing section 215 of 
     the CAA. A citation may be issued even though after being 
     informed of an alleged violation by the General Counsel, the 
     employing office immediately abates, or initiates steps to 
     abate, such alleged violation. Any citation shall be issued 
     with reasonable promptness after termination of the 
     inspection.
       (b) Any citation shall describe with particularity the 
     nature of the alleged violation, including a reference to the 
     provision(s) of the CAA, standard, rule, regulation, or order 
     alleged to have been violated. Any citation shall also fix a 
     reasonable time or times for the abatement of the alleged 
     violation.
       (c) If a citation is issued for a violation alleged in a 
     request for inspection under section 4.03(a)(1), or a 
     notification of violation under section 4.03(a)(3), a copy of 
     the citation shall also be sent to the employee or 
     representative of employee who made such request of 
     notification.
       (d) After an inspection, if the General Counsel determines 
     that a citation is not warranted with respect to a danger or 
     violation alleged to exist in a request for inspection under 
     section 4.03(a)(1) or a notification of violation under 
     section 4.03(a)(3), the informal review procedures prescribed 
     in 4.15 shall be applicable. After considering all views 
     presented, the General Counsel shall affirm the previous 
     determination, order a reinspection, or issue a citation if 
     he or she believes that the inspection disclosed a violation. 
     The General Counsel shall furnish the party that submitted 
     the notice and the employing office with written notification 
     of the determination and the reasons therefore. The 
     determination of the General Counsel shall be final and not 
     reviewable.
       (e) Every citation shall state that the issuance of a 
     citation does not constitute a finding that a violation of 
     section 215 has occurred.
     Sec. 4.12  Imminent danger.
       (a) Whenever and as soon as a designee of the General 
     Counsel concludes on the basis of an inspection that 
     conditions or practices exist in any place or employment 
     which could reasonably be expected to cause death or serious 
     physical harm immediately or before the imminence of such 
     danger can be eliminated through the enforcement procedures 
     otherwise provided for by section 215(c), he or she shall 
     inform the affected employees and employing offices of the 
     danger and that he or she is recommending the filing of a 
     petition to restrain such conditions or practices and for 
     other appropriate relief in accordance with section 13(a) of 
     the OSHAct, as applied by section 215(b) of the CAA. 
     Appropriate citations may be issued with respect to an 
     imminent danger even though, after being informed of such 
     danger by the General Counsel's designee, the employing 
     office immediately eliminates the imminence of the danger and 
     initiates steps to abate such danger.
     Sec. 4.13  Posting of citations.
       (a) Upon receipt of any citation under section 215 of the 
     CAA, the employing office shall immediately post such 
     citation, or a copy thereof, unedited, at or near each place 
     an alleged violation referred to in the citation occurred, 
     except as provided below. Where, because of the nature of the 
     employing office's operations, it is not practicable to post 
     the citation at or near each place of alleged violation, such 
     citation shall be posted, unedited, in a prominent place 
     where it will be readily observable by all affected 
     employees. For example, where employing offices are engaged 
     in activities which are physically dispersed, the citation 
     may be posted at the location to which employees report each 
     day. Where employees do not primarily work at or report to a 
     single location, the citation may be posted at the location 
     from which the employees operate to carry out their 
     activities. The employing office shall take steps to ensure 
     that the citation is not altered, defaced, or covered by 
     other material.
       (b) Each citation, or a copy thereof, shall remain posted 
     until the violation has been abated, or for 3 working days, 
     whichever is later. The tendency of any proceedings regarding 
     the citation shall not affect its posting responsibility 
     under this section unless and until the Board issues a final 
     order vacating the citation.
       (c) An employing office to whom a citation has been issued 
     may post a notice in the same location where such citation is 
     posted indicating that the citation is being contested before 
     the Board, and such notice may explain the reasons for such 
     contest. The employing office may also indicate that 
     specified steps have been taken to abate the violation.
     Sec. 4.14  Failure to correct a violation for which a 
         citation has been issued; notice of failure to correct 
         violation; complaint.
       (a) If the General Counsel determines that an employing 
     office has failed to correct an alleged violation for which a 
     citation has been issued within the period permitted for its 
     correction, he or she may issue a notification to the 
     employing office of such failure prior to filing a compliant 
     against the employing office under section 215(c)(3) of the 
     CAA. Such notification shall fix a reasonable time or times 
     for abatement of the alleged violation for which the citation 
     was issued and shall be posted in accordance with section 
     4.13 of these rules. Nothing in these rules shall require the 
     General Counsel to issue such a notification as a 
     prerequisite to filing a complaint under section 215(c)(3) of 
     the CAA.
       (b) If after issuing a citation or notification, the 
     General Counsel believes that a violation has not been 
     corrected, the General Counsel may file a compliant with the 
     Office against the employing office named in the citation or 
     notification pursuant to section 215(c)(3) of the CAA. The 
     complaint shall be submitted to a Hearing Officer for 
     decision pursuant to subsections (b) through (h) of section 
     405, subject to review by the Board pursuant to section 406. 
     The procedures of sections 7.01 through 7.16 of these rules 
     govern compliant proceedings under this section.
     Sec. 4.15  Informal conferences.
       At the request of an affected employing office, employee, 
     or representative of employees, the General Counsel may hold 
     an informal conference for the purpose of discussing any 
     issues raised by an inspection, citation, or notice issued by 
     the General Counsel. The settlement of any citation or notice 
     at such conference shall be subject to the approval of the 
     Executive Director under section 414 of the CAA and section 
     9.05 of these rules. If the conference is requested by the 
     employing office, an affected employee or the employee's 
     representative shall be afforded an opportunity to 
     participate, at the discretion of the General Counsel. If the 
     conference is requested by an employee or representative of 
     employees, the employing office shall be afforded an 
     opportunity to participate, at the discretion of the General 
     Counsel. Any party may be represented by counsel at such 
     conference.

[[Page H93]]

 rules of practice for variances, limitations, variations, tolerances, 
                             and exemptions

     Sec. 4.20  Purpose and scope.
       Sections 4.20 through 4.31 contain rules of practice for 
     administrative proceedings to grant variances and other 
     relief under sections 6(b)(6)(A) and 6(d) of the Williams-
     Steiger Occupational Safety and Health Act of 1970, as 
     applied by section 215(c)(4) of the CAA.
     Sec. 4.21  Definitions.
       As used in sections 4.20 through 4.31, unless the context 
     clearly requires otherwise--
       (a) OSHAct means the Williams-Steiger Occupational Safety 
     and Health Act of 1970, as applied to covered employees and 
     employing offices under section 215 of the CAA.
       (b) Party means a person admitted to participate in a 
     hearing conducted in accordance with this subpart. An 
     applicant for relief and any affected employee shall be 
     entitled to be named parties. The General Counsel shall be 
     deemed a party without the necessity of being named.
       (c) Affected employee means an employee who would be 
     affected by the grant or denial of a variance, limitation, 
     variation, tolerance, or exemption, or any one of the 
     employee's authorized representatives, such as the employee's 
     collective bargaining agent.
     Sec. 4.22  Effect of variances.
       All variances granted pursuant to this part shall have only 
     future effect. In its discretion, the Board may decline to 
     entertain an application for a variance on a subject or issue 
     concerning which a citation has been issued to the employing 
     office involved and a proceeding on the citation or a related 
     issue concerning a proposed penalty or period of abatement is 
     pending before the General Counsel, a hearing officer, or the 
     Board until the completion of such proceeding.
     Sec. 4.23  Public notice of a granted variance, limitation, 
         variation, tolerance, or exemption.
       Every final action granting a variance, limitation, 
     variation, tolerance, or exemption under this part shall be 
     made public. Every such final action shall specify the 
     alternative to the standard involved which the particular 
     variance permits.
     Sec. 4.24  Form of documents.
       (a) Any applications for variances and other papers that 
     are filed in proceedings under sections 4.20 through 4.31 of 
     these rules shall be written or typed. All applications for 
     variances and other papers filed in variance proceedings 
     shall be signed by the applying employing office, or its 
     representative, and shall contain the information required by 
     sections 4.25 or 4.26 of these rules, as applicable.
     Sec. 4.25  Applications for temporary variances and other 
         relief.
       (a) Application for variance. Any employing office, or 
     class of employing offices, desiring a variance from a 
     standard, or portion thereof, authorized by section 
     6(b)(6)(A) of the OSHAct, as applied by section 215 of the 
     CAA, may file a written application containing the 
     information specified in paragraph (b) of this section with 
     the Board. Pursuant to section 215(c)(4) of the CAA, the 
     Board may refer any matter appropriate for hearing to a 
     hearing officer under subsections (b) through (h) of section 
     405, subject to review by the Board pursuant to section 406. 
     The procedures set forth at sections 7.01 through 7.16 of 
     these rules shall govern hearings under this subpart.
       (b) Contents. An application filed pursuant to paragraph 
     (a) of this section shall include:
       (1) The name and address of the applicant;
       (2) The address of the place or places of employment 
     involved;
       (3) A specification of the standard or portion thereof from 
     which the applicant seeks a variance;
       (4) A representation by the applicant, supported by 
     representations from qualified persons having first-hand 
     knowledge of the facts represented, that the applicant is 
     unable to comply with the standard or portion thereof by its 
     effective date and a detailed statement of the reasons 
     therefor,
       (5) A statement of the steps the applicant has taken and 
     will take, with specific dates where appropriate, to protect 
     employees against the hazard covered by the standard;
       (6) A statement of when the applicant expects to be able to 
     comply with the standard and of what steps the applicant has 
     taken and will take, with specific dates where appropriate, 
     to come into compliance with the standard;
       (7) A statement of the facts the applicant would show to 
     establish that (i) the applicant is unable to comply with a 
     standard by its effective date because of unavailability of 
     professional or technical personnel or of materials and 
     equipment needed to come into compliance with the standard or 
     because necessary construction or alteration of facilities 
     cannot be completed by the effective date; (ii) the applicant 
     is taking all available steps to safeguard its employees 
     against the hazards covered by the standard; and (iii) the 
     applicant has an effective program for coming into compliance 
     with the standard as quickly as practicable;
       (8) Any request for a hearing, as provided in this part;
       (9) A statement that the applicant has informed its 
     affected employees of the application by giving a copy 
     thereof to their authorized representative, posting a 
     statement, giving a summary of the application and specifying 
     where a copy may be examined, at the place or places where 
     notices to employees are normally posted, and by other 
     appropriate means; and
       (10) A description of how affected employees have been 
     informed of the application and of their right to petition 
     the Board for a hearing.
       (c) Interim order--(1) Application. An application may also 
     be made for an interim order to be effective until a decision 
     is rendered on the application for the variance filed 
     previously or concurrently. An application for an interim 
     order may include statements of fact and arguments as to why 
     the order should be granted. The hearing officer to whom the 
     Board has referred the application may rule ex parte upon the 
     application.
       (2) Notice of denial of application. If an application file 
     pursuant to paragraph (c)(1) of this section is denied, the 
     applicant shall be given prompt notice of the denial, which 
     shall include, or be accompanied by, a brief statement of the 
     grounds therefor.
       (3) Notice of the grant of an interim order. If an interim 
     order is granted, a copy of the order shall be served upon 
     the applicant for the order and other parties and the terms 
     of the order shall be made public. It shall be a condition of 
     the order that the affected employing office shall give 
     notice thereof to affected employees by the same means to be 
     used to inform them of an application for a variance.
     Sec. 4.26 Applications for permanent variances and other 
         relief.
       (a) Applications for variance. Any employing office, or 
     class of employing offices, desiring a variance authorized by 
     section 6(d) of the OSHAct, as applied by section 215 of the 
     CAA, may file a written application containing the 
     information specified in paragraph (b) of this section, with 
     the Board. Pursuant to section 215(c)(4) of the CAA, the 
     Board may refer any matter appropriate for hearing to a 
     Hearing Officer under subsections (b) through (h) of 
     section 405, subject to review by the Board pursuant to 
     section 406.
       (b) Contents. An application filed pursuant to paragraph 
     (a) of this section shall include:
       (1) The name and address of the applicant;
       (2) The address of the place or places of employment 
     involved;
       (3) A description of the conditions, practices, means, 
     methods, operations, or processes used or proposed to be used 
     by the applicant;
       (4) A statement showing how the conditions, practices, 
     means, methods, operations, or processes used or proposed to 
     be used would provide employment and places of employment to 
     employees which are as safe and healthful as those required 
     by the standard from which a variance is sought;
       (5) A certification that the applicant has informed its 
     employees of the application by (i) giving a copy thereof to 
     their authorized representative; (ii) posting a statement 
     giving a summary of the application and specifying where a 
     copy may be examined, at the place or places where notices to 
     employees are normally posted (or in lieu of such summary, 
     the posting of the application itself); and (iii) by other 
     appropriate means;
       (6) Any request for a hearing, as provided in this part; 
     and
       (7) A description of how employees have been informed of 
     the application and of their right to petition the Board for 
     a hearing.
       (c) Interim order--(1) Application. An application may also 
     be made for an interim order to be effective until a decision 
     is rendered on the application for the variance filed 
     previously or concurrently. An application for an interim 
     order may include statements of fact and arguments as to why 
     the order should be granted. The Hearing Officer to whom the 
     Board has referred the application may rule ex parte upon the 
     application.
       (2) Notice of denial of application. If an application 
     filed pursuant to paragraph (c)(1) of this section is denied, 
     the applicant shall be given prompt notice of the denial, 
     which shall include, or be accompanied by, a brief statement 
     of the grounds therefor.
       (3) Notice of the grant of an interim order. If an interim 
     order is granted, a copy of the order shall be served upon 
     the applicant for the order and other parties, and the terms 
     of the order shall be made public. It shall be a condition of 
     the order that the affected employing office shall give 
     notice thereof to affected employees by the same means to be 
     used to inform them of an application for a variance.
     Sec. 4.27  Modification or revocation of orders.
       (a) Modification or revocation. An affected employing 
     office or an affected employee may apply in writing to the 
     Board for a modification or revocation of an order issued 
     under section 6(b)(6)(A), or 6(d) of the OSHAct, as applied 
     by section 215 of the CAA. The application shall contain:
       (i) The name and address of the applicant;
       (ii) A description of the relief which is sought;
       (iii) A statement setting forth with particularity the 
     grounds for relief;
       (iv) If the applicant is an employing office, a 
     certification that the applicant has informed its affected 
     employees of the application by:
       (A) Giving a copy thereof to their authorized 
     representative;
       (B) Posting at the place or places where notices to 
     employees are normally posted, a statement giving a summary 
     of the application and specifying where a copy of the full 
     application may be examined (or, in lieu of the summary, 
     posting the application itself); and
       (C) Other appropriate means.

[[Page H94]]

       (v) If the applicant is an affected employee, a 
     certification that a copy of the application has been 
     furnished to the employing office; and
       (vi) Any request for a hearing, as provided in this part.
       (b) Renewal. Any final order issued under section 
     6(b)(6)(A) of the OSHAct, as applied by section 215 of the 
     CAA, may be renewed or extended as permitted by the 
     applicable section and in the manner prescribed for its 
     issuance.
     Sec. 4.28  Action on applications.
       (a) Defective applications. (1) If an application filed 
     pursuant to sections 4.25(a), 4.26(a), or 4.27 does not 
     conform to the applicable section, the Hearing Officer or the 
     Board, as applicable, may deny the application.
       (2) Prompt notice of the denial of an application shall be 
     given to the applicant.
       (3) A notice of denial shall include, or be accompanied by, 
     a brief statement of the grounds for the denial.
       (4) A denial of an application pursuant to this paragraph 
     shall be without prejudice to the filing of another 
     application.
       (b) Adequate applications. (1) If an application has not 
     been denied pursuant to paragraph (a) of this section, the 
     Office shall cause to be published a notice of the filing of 
     the application.
       (2) A notice of the filing of an application shall include:
       (i) The terms, or an accurate summary, of the application;
       (ii) A reference to the section of the OSHAct applied by 
     section 215 of the CAA under which the application has been 
     filed;
       (iii) An invitation to interested persons to submit within 
     a stated period of time written data, views, or arguments 
     regarding the application; and
       (iv) Information to affected employing offices, employees, 
     and appropriate authority having jurisdiction over employment 
     or places of employment covered in the application of any 
     right to request a hearing on the application.
     Sec. 4.29  Consolidation of proceedings.
       On the motion of the Hearing Officer or the Board or that 
     of any party, the Hearing Officer or the Board may 
     consolidate or contemporaneously consider two or more 
     proceedings which involve the same or closely related issues.
     Sec. 4.30  Consent findings and rules or orders.
       (a) General. At any time before the receipt of evidence in 
     any hearing, or during any hearing a reasonable opportunity 
     may be afforded to permit negotiation by the parties of an 
     agreement containing consent findings and a rule or order 
     disposing of the whole or any part of the proceeding. The 
     allowance of such opportunity and the duration thereof shall 
     be in the discretion of the Hearing Officer, after 
     consideration of the nature of the proceeding, the 
     requirements of the public interest, the representations of 
     the parties, and the probability of an agreement which will 
     result in a just disposition of the issues involved.
       (b) Contents. Any agreement containing consent findings and 
     rule or order disposing of a proceeding shall also provide:
       (1) That the rule or order shall have the same force and 
     effect as if made after a full hearing;
       (2) That the entire record on which any rule or order may 
     be based shall consist solely of the application and the 
     agreement;
       (3) A waiver of any further procedural steps before the 
     Hearing Officer and the Board; and
       (4) A waiver of any right to challenge or contest the 
     validity of the findings and of the rule or order made in 
     accordance with the agreement.
       (c) Submission. On or before the expiration of the time 
     granted for negotiations, the parties or their counsel may:
       (1) Submit the proposed agreement to the Hearing Officer 
     for his or her consideration; or
       (2) Inform the Hearing Officer that agreement cannot be 
     reached.
       (d) Disposition. In the event an agreement containing 
     consent findings and rule or order is submitted within the 
     time allowed therefor, the Hearing Officer may accept such 
     agreement by issuing his or her decision based upon the 
     agreed findings.
     Sec. 4.31  Order of Proceedings and Burden of Proof
       (a) Order of proceeding. Except as may be ordered otherwise 
     by the Hearing Officer, the party applicant for relief shall 
     proceed first at a hearing.
       (b) Burden of proof. The party applicant shall have the 
     burden of proof.
     Sec. 5.01(a)(2)
       (a)(2) The General Counsel may file a complaint alleging a 
     violation of section 210, 215 or 220 of the Act.
     Sec. 5.01(b)(2)
       (b)(2) A complaint may be filed by the General Counsel
       (i) After the investigation of a charge filed under section 
     210 or 220 of the Act, or
       (ii) after the issuance of a citation or notification under 
     section 215 of the Act.
     Sec. 5.01(c)(2)
       (c)(2) Complaints filed by the General Counsel. A complaint 
     filed by the General Counsel shall be in writing, signed by 
     the General Counsel or his designee and shall contain the 
     following information:
       (i) the name, address and telephone number of, as 
     applicable, (A) each entity responsible for correction of an 
     alleged violation of section 210(b), (B) each employing 
     office alleged to have violated section 215, or (C) each 
     employing office and/or labor organization alleged to have 
     violated section 220, against which complaint is brought;
       (ii) notice of the charge filed alleging a violation of 
     section 210 or 220 and/or issuance of a citation or 
     notification under section 215;
       (iii) a description of the acts and conduct that are 
     alleged to be violations of the Act, including all relevant 
     dates and places and the names and titles of the responsible 
     individuals; and
       (iv) a statement of the relief or remedy sought.
     Sec. 5.01(d)
       (d) Amendments to the complaint may be permitted by the 
     Office or, after assignment, by a Hearing Officer, on the 
     following conditions; that all parties to the proceeding have 
     adequate notice to prepare to meet the new allegations; that 
     the amendments, as appropriate, relate to the violations for 
     which the employee has completed counseling and mediation, or 
     relate to the charge(s) investigated and/or the citation or 
     notification issued by the General Counsel; and that 
     permitting such amendments will not unduly prejudice the 
     rights of the employing office, the labor organization, or 
     other parties, unduly delay the completion of the hearing or 
     otherwise interfere with or impede the proceedings.
     Sec. 5.04  Confidentiality
       Pursuant to section 416(c) of the Act, all proceedings and 
     deliberations of Hearing Officers and the Board, including 
     any related records, shall be confidential. Section 416(c) 
     does not apply to proceedings under section 215 of the Act, 
     but does apply to the deliberations of hearing Officers and 
     the Board under section 215. A violation of the 
     confidentiality requirements of the Act and these rules could 
     result in the imposition of sanctions. Nothing in these rules 
     shall prevent the Executive Director from reporting 
     statistical information does not reveal the identity of the 
     employees involved or of employing offices that are the 
     subject of a matter.
     Sec. 7.07(f)
       (f) If the Hearing Officer concludes that a representative 
     of an employee, a witness, a charging party, a labor 
     organization, an employing office, or an entity alleged to be 
     responsible for correcting a violation has a conflict of 
     interest, he or she may, after giving the representative an 
     opportunity to respond, disqualify the representative. In 
     that event, within the time limits for hearing and decision 
     established by the Act, the affected party shall be afforded 
     reasonable time to retain other representation.
     Sec. 7.12
       Pursuant to section 416 of the Act, all proceedings and 
     deliberation of Hearing Officers and the Board, including the 
     transcripts of hearings and any related records, shall be 
     confidential, except as specified in section 416 (d), (e), 
     and (f) of the Act. All parties to the proceeding and their 
     representatives, and witnesses who appear at the hearing, 
     will be advised of the importance of confidentiality in this 
     process and of their obligations, subject to sanctions, to 
     maintain it. This provision shall not apply to proceedings 
     under section 215 of the Act, but shall apply to the 
     deliberations of Hearing Officers and the Board under that 
     section.
     Sec. 8.03(a)
       (a) Unless the Board has, in its discretion, stayed the 
     final decision of the Office during the pendency of an appeal 
     pursuant to section 407 of the Act, and except as provided in 
     sections 210(d)(5) and 215(c)(6), a party required to take 
     action under the terms of a final decision of the Office 
     shall carry out its terms promptly, and shall within 30 days 
     after the decision or order becomes final and goes into 
     effect by its terms, provide the Office and all other parties 
     to the proceedings with a compliance report specifying the 
     manner in which compliance with the provisions of the 
     decision or order has been accomplished. If complete 
     compliance has not been accomplished within 30 days, the 
     party required to take any such action shall submit a 
     compliance report specifying why compliance with any 
     provision of the decision order has not yet been fully 
     accomplished, the steps being taken to assure full 
     compliance, and the anticipated date by which full compliance 
     will be achieved.
     Sec. 8.04  Judicial Review
       Pursuant to section 407 of the Act,
       (a) the United States Court of Appeals for the Federal 
     Circuit shall have jurisdiction over any proceeding commenced 
     by a petition of:
       (1) a party aggrieved by a final decision of the Board 
     under section 406(e) in cases arising under part A of title 
     II;
       (2) a charging individual or respondent before the Board 
     who files a petition under section 210(d)(4);
       (3) the General Counsel or a respondent before the Board 
     who files a petition under section 215(c)(5); or
       (4) the General Counsel or a respondent before the Board 
     who files a petition under section 215(c)(3) of the Act.
       (b) The U.S. Court of Appeals for the Federal Circuit shall 
     have jurisdiction over any petition of the General Counsel, 
     filed in the name of the Office and at the direction of the 
     Board, to enforce a final decision under section 405(g) or 
     406(e) with respect to a violation of part A, B, C, or D of 
     title II of the Act.

[[Page H95]]

       (c) The party filing for review shall serve a copy on the 
     opposing party or parties or their representative(s).
       Signed at Washington, D.C. on this 20th day of December, 
     1996.

                                              Ricky Silberman,

                                               Executive Director,
     Office of Compliance.

                          ____________________