[Congressional Record Volume 143, Number 50 (Thursday, April 24, 1997)]
[House]
[Pages H1879-H1889]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          NOTICE OF ADOPTION OF AMENDMENTS TO PROCEDURAL RULES

                                                    U.S. Congress,


                                         Office of Compliance,

                                   Washington, DC, April 18, 1997.
     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 adoption 
     of 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: Amendments to 
     Procedural Rules


          notice of adoption of amendments to procedural rules

       Summary: After considering the comments to the Notice of 
     Proposed Rulemaking published January 7, 1997 in the 
     Congressional Record, the Executive Director has adopted and 
     is publishing amendments to the rules governing the 
     procedures for the Office of Compliance under the 
     Congressional Accountability Act of 1995 (P.L. 104-1, 109 
     Stat. 3). The amendments to the procedural rules have been 
     approved by the Board of Directors, Office of Compliance.
       For Further Information Contact: Executive Director, Office 
     of Compliance, Room LA 200, 110 Second Street, S.E., 
     Washington, D.C. 20540-1999. Telephone No. 202-724-9250. TDD/
     TTY: 202-426-1912.


                       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 revisions and additions that 
     follow establish procedures for consideration of matters 
     arising under Parts B and C of title II of the CAA, which 
     became generally effective January 1, 1997.
       Pursuant to section 303(b) of the CAA, the Executive 
     Director published for comment a Notice of Proposed 
     Rulemaking (``NPR'') in the Congressional Record on January 
     7, 1997 (143 Cong. R. S25-S30 (daily ed., Jan. 7, 1997)) 
     inviting comments regarding the proposed amendments to the 
     procedural rules. Four comments were received in response to 
     the NPR: Three from Congressional offices and one from a 
     labor organization. After full consideration of the comments 
     received, the Executive Director has, with the approval of 
     the Board, adopted these amendments to the procedural rules.

 II. Consideration of Comments and Conclusions Regarding Amendments to 
                            Existing Rules.

       A. Section 1.04(d)--Final Decisions.
       One commenter noted that, although section 1.04(d) provides 
     that the Board will make public final decisions in favor of a 
     complaining covered employee, or charging party under section 
     210 of the CAA, as well as those that reverse a Hearing 
     Officer's decision in favor of a complaining employee or 
     charging party, section 1.04(d) does not specifically provide 
     that decisions in favor of an employing office will be made 
     public. Rather, such decisions may be made public in the 
     discretion of the Board. The commenter suggested that the 
     rules should provide either that all or none of the decisions 
     be made public, asserting that, if section 1.04(d) were not 
     so modified, there would be ``inconsistent access'' to 
     decisions and ``the impression that the Board's procedures 
     are weighted against employing offices.'' Proposed section 
     1.04(d) is identical to section 416(f) of the CAA, and its 
     language, therefore, should not and will not be altered, 
     whatever the Board's ultimate practice with respect to the 
     publication of decisions in favor of employing offices.
       B. Section 1.07(a)
       One commenter suggested that, if section 1.04(d) were not 
     modified to provide for publication of all decisions, the 
     term ``certain final decisions'' in section 1.07(a) should be 
     defined and procedures should be established to challenge 
     Board determinations regarding the publication of decisions. 
     Section 1.07(a) has been modified to make it clear that the 
     referenced final decisions are those described in section 
     416(f) of the CAA. As section 416(f) of the CAA makes clear 
     which final decisions must be made public and grants the 
     Board complete discretion as to publication of other final 
     decisions, procedures for challenging determinations 
     regarding publication are not warranted.
       C. Section 5.01--Complaints.
       For the reasons set forth in Section III.C.10., infra, 
     section 5.01(b)(2) will not be modified to require the 
     General Counsel to conduct a follow-up inspection as a 
     prerequisite to filing a complaint under section 215 of the 
     CAA, as requested by a commenter.
       D. Section 5.04--Confidentiality
       One commenter suggested that section 5.04 be modified to 
     clarify that proceedings before Hearing Officers and the 
     Board are not confidential. However, with certain exceptions, 
     pursuant to section 416(c) of the CAA, such proceedings are 
     confidential and, therefore, the proposed rule cannot be 
     modified as suggested by the commenter. However, the rule 
     will be clarified to note the statutory exceptions to the 
     confidentiality requirement. In addition, at the suggestion 
     of another commenter, the rule will be modified to cross-
     reference sections 1.06, 1.07 and 7.12 of the procedural 
     rules, which also relate to confidentiality.

 III. Consideration of Comments and Conclusions Regarding Section 215 
                              Procedures.

       A. Promulgation of the proposed amendments as substantive 
           regulations under section 304.
       Two commenters restated objections to the Board's decision 
     in promulgating its substantive section 215 regulations (143 
     Cong. R. S61, S63 (daily ed., Jan. 7, 1997)) not to adopt the 
     Secretary's rules of practices and procedure for variances 
     under the OSHAct (part 1905, 29 C.F.R.), and the Secretary's 
     regulations relating to the procedure for conducting 
     inspections, and for issuing and contesting citations and 
     proposed penalties under the OHSAct (part 1903, 29 C.F.R.) as 
     regulations under section 215(d)(2) of the CAA. The arguments 
     offered by the commenters are substantially the same as those 
     rejected by the Board in its rulemaking on this issue (143 
     Cong. R. at S63). The Board has fully explained its decision 
     not to adopt Parts 1903 and 1905, 29 C.F.R., as regulations 
     under section 215(d) of the CAA, and for rejecting the 
     arguments made by the commenters. The Board did not consider 
     the Secretary's regulations governing inspections, citations, 
     and variances to be outside the scope of rulemaking under 
     section 304 because they were ``procedural'' as opposed to 
     ``substantive.'' Instead, the Board did not adopt these 
     regulations because they were promulgated to implement 
     sections 8, 9, and 10 of the OSHAct, statutory provisions 
     which are not ``referred to in subsection (a)'' of section 
     215. Accordingly, these regulations are not within the scope 
     of the Board's rulemaking authority under section 215(d)(2). 
     143 Cong. R. at S63-64. Thus, the question whether the 
     proposed regulations should have been issued under section 
     304 of the CAA cannot be addressed by the Executive Director 
     in the context of this rulemaking.
       Because the Board has determined that regulations covering 
     variances, citations, and notices cannot be issued under 
     section 215(d), the question is whether such regulations may 
     be issued by the Executive Director under section 303. The 
     essence of the commenters' argument in this rulemaking is 
     that the Executive Director cannot do so because the 
     procedures affect substantive rights of the parties. The 
     commenters' position is based on the substance-procedure 
     distinction that they believe demarcates the

[[Page H1880]]

     boundary between rulemaking under sections 215(d) and 304 and 
     rulemaking under section 303.
       As noted above, the Board did not exclude the subjects of 
     variances, citations, and notices from its rulemaking based 
     on a substance/procedure distinction, but because the 
     Secretary's regulations covering these subjects were not 
     within the scope of section 215(d). Similarly, the Executive 
     Director is not barred from promulgating rules governing the 
     procedures of the Office simply because those procedures 
     might affect the substantive rights of the parties.
       Contrary to the commenters' arguments, the Board's earlier 
     statement (in the context of its rulemaking under section 
     220(d) of the CAA) that rules governing procedures can be 
     substantive regulations is not controlling with respect to 
     the present issue. In its rulemaking proceeding under section 
     220(d), the Board determined that the subject matter of the 
     Federal Labor Relations Authority's regulations, including 
     certain regulations purporting to govern procedures of the 
     Authority, were within the plain language setting forth the 
     scope of rulemaking under section 220(d). The question raised 
     by the commenters in that rulemaking was whether regulations 
     falling within the scope of section 220(d) were nevertheless 
     excluded because of their procedural label or character. The 
     Board decided that they were not so excluded, and its 
     statement that procedural rules can be considered substantive 
     regulations was made in that context. See 142 Cong. R. S5070, 
     5072 (daily ed., May 15, 1996). Conversely, in its rulemaking 
     under section 215(d), the Board determined that certain 
     regulations were not within the scope of rulemaking under 
     section 215(d), and it rejected the argument that regulations 
     not falling within the scope of section 215(d) should 
     nevertheless be included because of their substantive label 
     or character. Thus, contrary to the commenters' arguments, 
     there is no inconsistency in the underlying rationale of the 
     Board in these two rulemakings. The Board's preambulatory 
     remarks as part of the section 220(d) rulemaking seized upon 
     by the commenters, when read in context, do not control the 
     question here.
       The question whether these rules can be promulgated under 
     section 303 must begin and end with the language of the 
     statute. Section 303(a) provides that ``[t]he Executive 
     Director shall, subject to approval of the Board, adopt rules 
     governing the procedures of the Office, including the 
     procedures of hearing officers, which shall be submitted for 
     publication in the Congressional Record.'' 2 U.S.C. 
     Sec. 1383(a). The regulations in issue plainly meet these 
     criteria. So long as the Executive Director's regulations 
     meet these criteria, the regulations may be promulgated under 
     this authority, whether they affect substantive rights or 
     not.
       Given the Board's decision not to promulgate regulations 
     governing the subject of variances, citations, and notices 
     under section 215(d), if the Executive Director accepted the 
     commenters' arguments and did not issue these rules under 
     section 303, it would mean, for example, that no procedures 
     would exist by which variances may be considered by the 
     Board. The Executive Director believes that such a procedure 
     should be provided employing offices. Because promulgation of 
     such procedures is within the scope of the Executive 
     Director's rulemaking under section 303, there is no basis 
     upon which the Executive Director should refuse to address 
     these matters under section 303.
       B. References to the General Counsel's designees.
       Two commenters argued that references in the regulations to 
     ``designees of the General Counsel'' are inappropriate on the 
     theory that the CAA does not authorize the General Counsel to 
     delegate his duties. To the extent that the commenters are 
     arguing that the General Counsel is prohibited from assigning 
     or designating others to perform the inspections and other 
     responsibilities under section 215 of the CAA, such an 
     argument is refuted by section 302(c)(4) of the CAA, which 
     expressly authorizes the General Counsel to ``appoint * * * 
     such additional attorneys as may be necessary to enable the 
     General Counsel to perform the General Counsel's duties.'' 2 
     U.S.C. Sec. 1382(c)(4). Similarly, 215(c) of the CAA provides 
     that the General Counsel exercises the ``authorities granted 
     to the Secretary of Labor'' by subsections (a), (d), (e), and 
     (f) of section 8 of the OSHAct, and sections 9 and 10 of the 
     OSHAct. Those sections in turn recognize that the Secretary 
     may act personally or through an ``authorized 
     representative'' with respect to many of these functions. See 
     29 U.S.C. Sec. Sec. 657(e),(f), and 658(a). Thus, the 
     proposed regulation is not inconsistent with section 215 of 
     the provisions of the OSHAct incorporated thereunder.
       One of the commenters also argued that the General Counsel 
     may not utilize detailees or consultants in carrying out his 
     duties, because section 302 of the CAA gives the Executive 
     Director the authority to secure the use of detailees. 
     However, section 302 does not limit the functions to which 
     these detailees may be assigned within the Office. Similarly, 
     although the Executive Director may procure the temporary 
     services of consultants ``[i]n carrying out the functions of 
     the Office,'' nothing in the CAA suggests that the Executive 
     Director is barred from obtaining and approving the services 
     of consultants to assist the General Counsel in performing 
     his duties. Indeed, the comprehensive inspections of 
     Legislative Branch facilities were performed in large part 
     through the use of detailees and consultants assisting the 
     General Counsel. The commenters were aware of this use of 
     consultants for this purpose. No claim was made that such 
     inspections could not be conducted with the assistance of 
     consultants.
       More to the point, the General Counsel is statutorily 
     responsible for exercising the authorities and performing the 
     duties of the General Counsel as specified in section 215 and 
     is accountable for decisions made therein. The proposed 
     regulatory sections do not purport to delegate the General 
     Counsel's statutory responsibilities to others. The 
     regulations simply recognize that the General Counsel may 
     utilize others to enable him to perform certain functions 
     within those responsibilities (such as assisting in 
     conducting investigations and inspections).
       The commenters' implicit argument that the CAA requires the 
     General Counsel to solely and personally perform those 
     functions is, quite simply, wrong. It is clear that ``those 
     legally responsible for a decision must in fact make it, but 
     that their method of doing so--their thought processes, their 
     reliance on their staffs--is largely beyond judicial 
     scrutiny.'' Yellow Freight System, Inc. v. Martin, 983 F.2d 
     1195, 1201 (2d Cir. 1993), quoting KFC National Management 
     Corp. v. NLRB, 497 F.2d 298 (2d Cir. 1974), cert. denied, 423 
     U.S. 1087 (1976). Thus, the decision to assign or designate 
     others (such as other attorneys in the Office, detailees or 
     others) to perform functions related to the General Counsel's 
     ultimate decisions under section 215 (e.g., whether to issue 
     a citation, a notice and/or a complaint in a particular case) 
     is not prohibited by the CAA or subject to review by 
     individual employing offices, as argued by the commenters.
       One of the commenters argued that employing offices should 
     have an opportunity to pass upon the qualifications of 
     individuals chosen by the General Counsel to conduct 
     inspections through a specified process. Nothing in the CAA 
     or the OSHAct authorizes adoption of such a procedure, and 
     such a provision would interfere unduly with the General 
     Counsel's enforcement responsibilities. Adoption of 
     procedures to micro-manage the General Counsel's operations 
     in this area would be improper in the absence of any 
     statutory authority.
       C. Inspections, Citations, and Complaints.

   1. Objection to inspection, entry not a waiver, advance notice of 
inspection, requirement of ex parte administrative inspection warrants 
                    (sections 4.04, 4.05, and 4.06)

       Three commenters requested that the Executive Director 
     issue regulations requiring the General Counsel to provide 
     advance notice of an inspection to employing offices or to 
     seek a warrant before conducting a non-consensual search of 
     employing offices. One commenter argued that the Supreme 
     Court's decision in Marshall v. Barlow's, Inc., 436 U.S. 307 
     (1978), which held that the Fourth Amendment's protection 
     against unreasonable searches and seizures applies to non-
     consensual inspection of private commercial property, applies 
     to administrative inspections of legislative branch employing 
     offices by another legislative branch entity; the commenter 
     further argued that the rules should require that the General 
     Counsel first notify the employing office of the intent to 
     inspect, obtain written consent prior to inspections, and 
     schedule an appointment with employing offices for such 
     inspections. The other commenter argued that, regardless of 
     whether the Fourth Amendment's protection applies equally to 
     congressional offices, similar privacy interests apply to 
     employing offices to enable them to conduct their legislative 
     business free from unreasonable searches. These commenters 
     asked that the procedural rules include provisions similar to 
     those of section 1903.4 of the Secretary's rules, which were 
     amended to authorize the Secretary to secure an ex parte 
     administrative warrant upon refusal to consent to a search in 
     response to the Barlow's decision. See 45 Fed. Reg. 65916 
     (Oct. 3, 1980) (Final rule amending section 1903.4, 29 
     C.F.R.). The third commenter also requested that the final 
     regulations include the compulsory process/ex parte 
     administrative warrants provisions of section 1903.4, but did 
     not explain how inclusion of such a provision would be 
     authorized by section 215 of the CAA.
       It is not entirely clear that the Fourth Amendment's 
     protections that bar the warrantless search of commercial 
     premises apply (or apply with equal force) to inspections of 
     a legislative branch office by another legislative branch 
     entity, albeit an independent one. The protections of the 
     Fourth Amendment were designed to protect privacy interests 
     against intrusion by the government; it is, therefore, not 
     obvious that they apply to prohibit one legislative branch 
     enforcement entity (the General Counsel) from conducting an 
     investigation of another legislative branch entity (an 
     individual employing office). To be sure, there may be 
     portions of an employing office to which individual persons' 
     expectations of privacy may attach. See, e.g., O'Connor v. 
     Ortega, 480 U.S. 709 (1987) (expectation of privacy in public 
     employee's desk, files, and areas within his exclusive 
     control); Schowengerdt v. General Dynamics Corp., 823 F.2d 
     1328, 1335 (9th Cir. 1987) (reasonable expectation of privacy 
     found to exist in areas of government property given over to 
     an employee's exclusive control). But it is questionable 
     whether an employing office, as a covered entity (as 
     distinguished from the individuals holding positions within 
     the office

[[Page H1881]]

     or working there), would be found to possess a privacy right 
     to be free from administrative inquiries authorized by a 
     statute duly enacted by Congress. Moreover, section 215(f)'s 
     requirement that the General Counsel conduct a comprehensive 
     inspection of all covered employing offices and other covered 
     facilities on a regular basis and at least once each Congress 
     may well defeat an otherwise reasonable expectation of 
     privacy in such offices and other facilities. See, e.g., 
     United States v. Bunkers, 521 F.2d 1217, 1219-20 (9th Cir.) 
     (search of postal worker's locker authorized by regulation), 
     cert. denied, 423 U.S. 989 (1975); United States v. Taketa, 
     923 F.2d 665, 672 (9th Cir. 1991) (valid regulation may 
     defeat an otherwise reasonable expectation of workplace 
     privacy); see also Donovan v. Dewey, 452 U.S. 593 (1981) 
     (legislative schemes authorizing warrantless administrative 
     searches of commercial property do not necessarily violate 
     the Fourth Amendment).
       In any event, whether Barlow's and its progeny apply in the 
     context of the CAA is a question that need not be decided 
     here. Section 215 does not provide a mechanism by which 
     warrants may be issued. Section 215 contemplates the 
     assignment of hearing officers, but only after a complaint 
     has been filed by the General Counsel. See 2 U.S.C. 
     Sec. 1341(c)(3). Moreover, there is no provision in the CAA 
     that would allow such applications to be heard by federal 
     judges. Compare 2 U.S.C. Sec. 1405(f)(3) (authorizing federal 
     district court to issue orders requiring persons to appear 
     before the hearing officer to give testimony and produce 
     records). Thus, there is no statutory basis upon which such a 
     procedure could be adopted by the Executive Director.
       The commenters incorrectly assume that, absent a warrant 
     procedure, the General Counsel would nevertheless enter a 
     workspace over the objection of the employing office/s with 
     jurisdiction over the area or control of the space involved. 
     Just as it would be improper to assume that employing offices 
     would engage in a wholesale refusal to allow inspections, it 
     cannot be assumed that the General Counsel will attempt to 
     force inspectors into work areas over the employing office's 
     objection. See 29 U.S.C. Sec. 657(a)(2) (Secretary authorized 
     ``to inspect and investigate during regular working hours and 
     at other reasonable times, and within reasonable limits and 
     in a reasonable manner . . .''). In the typical case, the 
     General Counsel can be expected to ascertain the reason for 
     the refusal and attempt to secure voluntary consent to 
     conduct the inspection. If the employing office continues to 
     refuse an inspection, there are options presently available 
     to the General Counsel to secure access to the space. 
     These options would include, among others, seeking such 
     consent from the relevant committee(s) of the Congress 
     that have responsibilities for the office space or work 
     area involved, and seeking consent from the Architect of 
     the Capitol and/or other entities that have 
     superintendence or other responsibility for and authority 
     over the facility and access to and/or control of the 
     space involved. If such options are unavailing, the 
     General Counsel could simply note the refusal of the 
     employing office to allow the inspection in, for example, 
     the inspection report submitted to the Congress. Of 
     course, the Office assumes that employing offices will not 
     withhold their consent.
       The commenters also argued that advance notice should be 
     given by the General Counsel to conform to protections 
     recognized in the private sector context. One of the 
     commenters specifically requested that the rules require the 
     General Counsel to first schedule an appointment with an 
     employing office prior to an inspection. Although the 
     commenters argued that such notice is consistent with 
     practice under the OSHAct, advance notice of inspections is 
     the exception, not the rule, at OSHA. See 29 C.F.R. 
     Sec. 1903.6; OSHAct section 17(f). Moreover, in enacting the 
     CAA, the Congress understood that its incorporation of the 
     rights and protections of the OSHAct included the standard 
     practice and procedure at OSHA that advance notice would not 
     be given. See 142 Cong. R. S 625 (daily ed., Jan. 9, 1995) 
     (section-by-section analysis of the CAA submitted by Senator 
     Grassley) (``[T]he act does not provide that employing 
     offices are to receive notice of the inspections.''). Thus, 
     the commenters' argument that advance notice of inspections 
     is required by OSHA regulations and practice, or by the CAA, 
     is not supported by the statute. Indeed, as one of the 
     commenters acknowledged, its proposal requiring advance 
     notice would require a re-writing of the inspection authority 
     of section 8(a) of the OSHAct, applied by section 215, to 
     read that the General Counsel is authorized ``upon the notice 
     and consent of the employing office to enter [without delay 
     and] at reasonable times . . .'' Adoption of such a rule, 
     which is plainly at odds with the underlying statute, would 
     be improper.
       One of the commenters argued alternatively that proposed 
     section 4.06 be modified to include the provisions of section 
     1903.6, which authorizes advance notice in certain specified 
     circumstances. The provisions of section 1903.6, with 
     appropriate modifications, will be included as part of the 
     final regulations, since such an enforcement policy is not 
     deemed to add to or alter any substantive provision in the 
     underlying statute.
       This commenter also requested that section 4.06 be modified 
     to require the General Counsel to issue a written statement 
     explaining why advance notice was not provided to the 
     employing office. Nothing under the CAA or the OSHAct 
     authorizes or suggests such a requirement, nor would any 
     purpose of the CAA be served. Thus, no such modification will 
     be made.
       Finally, section 4.05 (Entry not a waiver) will be modified 
     to specifically refer to section 215 of the CAA, as requested 
     by a commenter.

  2. References to recordkeeping requirements (sections 4.02 and 4.07)

       Two commenters objected to references in proposed section 
     4.02 of the regulations to ``records required by the CAA and 
     regulations promulgated thereunder,'' and a similar reference 
     in section 4.07, on the theory that no recordkeeping 
     requirements, even those that are inextricably intertwined 
     with the substantive health and safety standards of Parts 
     1910 and 1926, 29 C.F.R., may be imposed on employing offices 
     under the CAA. The commenters presented no different 
     arguments than those fully considered and rejected by the 
     Board in promulgating its substantive section 215 
     regulations. See 142 Cong. R. at S63. Because the Board has 
     adopted substantive health and safety standards which impose 
     limited recordkeeping requirements on employing offices 
     (e.g., rules relating to employee exposure records), such 
     records are subject to review during an inspection. The 
     Executive Director thus has no basis for the proposed 
     deletion.

                 3. Security clearances (section 4.02)

       Two commenters suggested that section 4.02 of the proposed 
     regulation be amended to provide that the General Counsel or 
     other person conducting a work site inspection obtain an 
     appropriate security clearance before inspecting areas that 
     contain classified information. The General Counsel reports 
     that he is in the process of obtaining, through the 
     appropriate security division of the United States Capitol 
     Police, security clearances for the General Counsel and the 
     General Counsel's inspection personnel to enable them to have 
     access to such areas, if access is required as part of a 
     section 215 inspection. Section 4.02, and other sections as 
     appropriate, will be amended to state that the General 
     Counsel and/or any inspection personnel will be required to 
     either have or obtain appropriate security clearance, if such 
     clearance is required for access to the workspaces inspected.

     4. Requests for inspections by employing office (section 4.03)

       One commenter noted that, although section 4.03(b) provides 
     that employing office requests for inspections must be 
     reduced to writing on a form provided by the Office, there is 
     no requirement in section 4.03(a) that employee requests be 
     submitted on an Office-provided form. Section 4.03(a) will be 
     modified to provide that employee requests be reduced in 
     writing on an Office-provided form. The commenter has asked 
     that any form developed be submitted for review and comment 
     from employing offices prior to its approval. Since the form 
     is merely an investigative tool of the General Counsel, there 
     is no reason to require that it be ``approved'' by the 
     Board prior to issuance. Inspection forms and other 
     similar documents relating to the General Counsel's 
     enforcement procedures are available from the General 
     Counsel.

      5. Scope and nature of inspection (sections 4.03 and 4.08).

       One commenter has asked that section 4.03(2) be modified to 
     provide that inspections will be limited to matters included 
     in the notice of violation. Section 4.03(2) is based on 
     virtually identical provisions of the Secretary's 
     regulations, 29 C.F.R. Sec. 1903.11. Nothing in section 215 
     or the provisions of the OSHAct incorporated thereunder would 
     authorize placing a limitation on the General Counsel's 
     inspection authority, as proposed by the commenter.
       Similarly, section 8(e) of the OSHAct, 29 U.S.C. 
     Sec. 657(e), and proposed section 4.08 provide that a 
     representative of the employer and a representative 
     authorized by the employees shall be given an opportunity to 
     accompany the inspector, and section 4.08 will not be 
     modified to provide that parties be given the opportunity to 
     seek immediate review of the General Counsel's determinations 
     regarding authorized representatives, or to provide specific 
     standards by which the General Counsel may deny the right of 
     accompaniment, or that parties have a ``fair'' opportunity to 
     accompany the General Counsel's designee during the 
     inspection, as suggested by two commenters. As with the 
     proposed modifications of section 4.03, nothing in section 
     215, the OSHAct, or the Secretary's rules and practice under 
     the OSHAct, would authorize placing these limitations on the 
     General Counsel's enforcement authorities. On the contrary, 
     such a modification provides parties with a tool for delay, 
     allowing an office to forestall prompt inspection and 
     abatement of hazards while the parties litigate the issue of 
     whether an employing office was denied a ``fair'' opportunity 
     for accompaniment or whether a representative of employees is 
     an appropriately authorized representative. Nothing in the 
     OSHAct, as applied by section 215 of the CAA, would sanction 
     such a rule.

 6. Inspector compliance with health and safety requirements (section 
                                 4.07).

       Two commenters requested that section 4.07 of the proposed 
     regulations add the provisions of 29 C.F.R. Sec. 1903.7(c), 
     which provide that health and safety inspectors take 
     reasonable safety precautions to ensure that their inspection 
     practices are not hazardous and comply with the employer's 
     safety and health rules at the work site. This enforcement 
     policy will be included within the final regulations.

[[Page H1882]]

             7. Consultation with employees (section 4.09).

       Section 4.09 tracks the provisions of section 1903.10 of 
     the Secretary's regulations, which provide that inspectors 
     may consult with employees concerning health and safety and 
     other matters deemed necessary for an effective and thorough 
     inspection, and that afford employees an opportunity to bring 
     violations to the attention of the inspectors during the 
     course of an inspection. A commenter has requested that 
     section 4.09 be modified to require specific limits on the 
     time, place, and manner of such consultations, and that 
     employees be required to first put in writing violations that 
     they intend to bring to the attention of inspectors during 
     the course of an inspection. Nothing in section 215 of the 
     CAA or the provisions of the OSHAct incorporated thereunder 
     requires or permits the modifications requested by the 
     commenter.

      8. Inspection not warranted; informal review (section 4.10).

       A commenter requested that proposed section 4.10(a) be 
     revised to state that, after conducting informal conference 
     to review a decision not to conduct an inspection of a work 
     site, the General Counsel ``shall'' (rather than ``may'') 
     affirm, modify or reverse the decision. The final regulations 
     will include the change suggested by the commenter.
       A second commenter requested that the final regulations 
     include the provisions of 29 C.F.R. Sec. 1903.12(a), which 
     permit parties to make written submissions as part of the 
     informal conference. The final regulations will include these 
     provisions, as suggested by the commenter.

                      9. Citations (section 4.11).

       Two commenters requested that section 4.11 of the final 
     regulations include the language of 29 C.F.R. Sec. 1903.14(a) 
     that ``No citation may be issued under this section after the 
     expiration of six months following the occurrence of any 
     violation.'' The commenters argued that the proposed 
     regulations ``omit this important substantive right'' under 
     section 9(c) of the OSHAct. Section 9(c) of the OSHAct is a 
     temporal limitation on the ability of the Secretary to issue 
     a citation and thus is included within the scope of section 
     215(c). It applies regardless of whether or not a procedural 
     regulation ``implements'' it. Nevertheless, because the 
     proposed provision simply tracks the clear and unambiguous 
     statutory provision of section 9(c) of the OSHAct and does 
     not purport to create or modify any substantive right, it 
     will be included in section 4.11 of the final regulations.
       One commenter requested that section 4.11(a), which 
     authorizes the General Counsel to issue citations or notices 
     even if the employing office immediately abates, or initiates 
     steps to abate the violation, be deleted. However, this 
     provision tracks the language of section 1903.14(a) and is 
     consistent with section 215 of the CAA. Thus, it will not be 
     modified as requested by the commenter.

          10. De minimis violations (sections 4.11 and 4.13).

       Two commenters argued that the Executive Director should 
     adopt provisions regarding ``de minimis'' violations, 
     consistent with section 9(a) of the OSHAct and 29 C.F.R. 
     Sec. Sec. 1903.14 and 1903.16. Section 9(a) of the OSHAct 
     provides, in relevant part, that ``[t]he Secretary may 
     prescribe procedures for the issuance of a notice in lieu of 
     a citation with respect to deminimis violations which have no 
     direct or immediate relationship to safety or health.'' 
     Although OSHA formerly required inspectors to issue citations 
     on de minimis violations under this provision, the practice 
     has been abandoned. OSHA Field Inspection Reference Manual 
     ch. III.C.2.g. (1994) (``De Minimis violations . . . shall 
     not be included in citations. . . . The employer should be 
     verbally notified of the violation and the [Compliance Safety 
     and Health Officer] should note it in the inspection case 
     file.''). Thus, a provision enabling the General Counsel to 
     issue notices for de minimis violations is of little 
     practical utility under section 215. However, the text of 
     section 215(c)(2)(A) authorizes the General Counsel to issue 
     a ``citation or notice,'' which reasonably would include a 
     notice of de minimis violations. Including such a provision 
     in these regulations is consistent with the CAA, and does not 
     create a substantive requirement. Thus, sections 4.11 and 
     4.13 will be modified to provide that the General Counsel may 
     issue notices of de minimis violations in appropriate cases, 
     as requested by the commenters.

   11. Failure to correct a violation for which a citation has been 
 issued; notice of failure to correct a violation; complaint (section 
                                 4.14).

       Section 4.14(a) of the proposed regulations provide that, 
     ``if the General Counsel determines'' that an employing 
     office has failed to correct timely an alleged violation, he 
     or she ``may'' issue a notification of such failure before 
     filing a complaint against the office. Two commenters argued 
     that the proposed regulations are contrary to section 
     215(c)(2)(B) of the CAA because they do not require the 
     General Counsel to issue a notification before filing a 
     complaint. Similarly, these commenters argued that section 
     5.01 be modified to require the General Counsel to conduct a 
     follow-up inspection as a prerequisite to filing a complaint 
     under section 215. Nothing in section 215(c)(2)(B) requires 
     the General Counsel to issue a notification or to conduct a 
     follow-up inspection prior to filing a complaint. Instead, 
     section 215 grants the General Counsel the authority to file 
     a complaint after issuing ``a citation or notification,'' if 
     the General Counsel determines that a violation has not been 
     corrected. 2 U.S.C. Sec. 1341(c)(3).
       The section-by-section analysis of the CAA explains the 
     basis for section 215(c)(2)'s language authorizing the 
     General Counsel to issue a citation or a notice. It makes 
     clear that section 215 does not require the General Counsel 
     to issue a notification prior to filing a complaint where an 
     employing office has failed to abate a hazard outlined in the 
     citation: ``[Under section 215] the general counsel can issue 
     a citation and proceed to file a complaint if the violation 
     remains unabated. Or the general counsel may file a 
     notification after the citation is not complied with, and 
     then file a complaint. The general counsel may not file a 
     notification without having first filed a citation which has 
     not been honored. The choice whether to follow a citation 
     with a complaint once it is evident that there has not been 
     compliance, or to file a notification before the filing of 
     the complaint, will normally turn or whether the general 
     counsel believes that good faith efforts are being undertaken 
     to comply with the citation, but the time period for complete 
     remediation of the citation period has expired.'' 141 Cong. 
     R. S621, S625 (daily ed. Jan. 9, 1995) (section-by-section 
     analysis).
       Therefore, because the commenters' requested change is 
     contrary to the statutory procedure outlined in section 215, 
     it may not be adopted as a procedure of the Office under 
     section 303.

                12. Informal conferences (section 4.15).

       One commenter requested that section 4.15 be modified to 
     require the General Counsel to allow participation in a 
     formal conference by persons other than the requesting party 
     (complaining employee or employing office). Section 4.15, 
     which states that such participation is ``at the discretion 
     of the General Counsel,'' tracks section 1903.19 of the 
     Secretary's regulations and is consistent with section 215 of 
     the CAA. Thus, it will not be modified as requested by the 
     commenter. However, as requested by the commenter, section 
     4.15 will be revised to clarify that any settlement entered 
     into between the parties to such a conference shall be 
     subject to the approval of the Executive Director, to conform 
     to section 414 of the CAA.

                         13. Notice of contest.

       A commenter argued that the procedural regulations should 
     provide a procedure for filing notices of contest, as 
     outlined in 29 C.F.R. Sec. 1903.17 and consistent with 
     section 9(a) of the OSHAct. However, the changes proposed by 
     the commenter would flatly contradict the statutory 
     procedures outlined in section 215. As the Board noted in its 
     rulemaking under section 215, the statutory enforcement 
     scheme under section 215 differs significantly from the 
     comparable statutory provisions of the OSHAct.
       The enforcement procedures of the OSHAct are set forth in 
     sections 8, 9, 10, and 11 of the OSHAct, 29 U.S.C. 
     Sec. Sec. 657-660. Section 8(a) of the OSHAct authorizes the 
     Secretary's inspectors to conduct reasonable safety and 
     health inspections at places of employment. 29 U.S.C. 
     Sec. 657(a). If a violation is discovered, the inspector may 
     issue a citation to the employer under section 9(a) of the 
     OSHAct, specifically describing the violation, fixing a 
     reasonable time for its abatement and, in his or her 
     discretion, proposing a civil monetary penalty. 29 
     U.S.C. Sec. Sec. 658, 659. Section 8(c) permits an 
     employer to notify the Secretary that it intends to 
     contest the citation. 29 U.S.C. Sec. 659(c). If the 
     employer does not contest the citation within 15 working 
     days, it becomes a final abatement order and is ``not 
     subject to review by any court or agency.'' 29 U.S.C. 
     Sec. 659(b). Section 10(c) of the OSHAct also gives an 
     employee or representative of employees a right to contest 
     the period of time fixed in the citation for abatement of 
     the violation. In either event, the Occupational Safety 
     and Health Review Commission must afford the employer and/
     or the employee ``an opportunity for a hearing.'' 29 
     U.S.C. Sec. 659(c). Section 10(c) also requires the 
     Commission to provide affected employees or their 
     representatives ``an opportunity to participate as parties 
     to hearings under this subsection.'' Id.
       Rather than either incorporating by reference the statutory 
     enforcement procedures of the OSHAct described above or 
     adopting them in haec verba in section 215, the CAA provides 
     a detailed statutory enforcement scheme which departs from 
     the OSHAct in several significant respects. Section 215(c) 
     makes reference to sections 8(a), 8(d), 8(e), 8(f), 9, and 10 
     of the OSHAct, but only to the extent of granting the General 
     Counsel the ``authorities of the Secretary'' contained in 
     those sections to ``inspect and investigate places of 
     employment'' and to ``issue a citation or notice * * * or a 
     notification'' to employing offices. Section 215(c) (1), (2). 
     Other portions of sections 8, 9, and 10 of the OSHAct that do 
     not relate to the Secretary's authority to conduct 
     inspections or to issue citations or notices are not 
     incorporated into sections 215(c). Instead, section 215(c) 
     provides a detailed procedure regarding inspections and 
     citations which, although modeled on sections 8, 9, and 10 of 
     the OSHAct, differs in several significant respects from the 
     OSHAct enforcement scheme.
       For example, under section 10 of the OSHAct, the employer 
     must initiate a contest within 15 days of receipt to prevent 
     the citation from becoming final; under section 215(c), the 
     General Counsel must initiate a

[[Page H1883]]

     complaint to obtain a final order against an employing office 
     that fails or refuses to abate a hazard outlined in the 
     citation. Section 10(c) of the OSHAct gives employees and 
     representatives of employees a right to participate as 
     parties before the Occupational Safety and Health Appeals 
     Review Board; section 215(c)(5) does not provide such party 
     participation rights to employees and suggests that only the 
     General Counsel and the employing office may participate in 
     any review of decisions issued under section 215.
       Section 215(c) of the CAA outlines the specific procedures 
     regarding variances, citations, notifications and hearings 
     under section 215. Any procedural regulations adopted by the 
     Executive Director under section 303 of the CAA cannot 
     conflict with these statutorily-mandated procedures. See 
     United States v. Fausto, 108 S.Ct. 668, 677 (1988) (the 
     provision of detailed review procedures provides strong 
     evidence that Congress intended such procedures to be 
     exclusive); Block v. Community Nutrition Institute, 467 U.S. 
     340, 345-48 (1984) (omission of review procedures for 
     consumers affected by milk market orders, coupled with the 
     provision of such procedures for milk handlers so affected, 
     was strong evidence that Congress intended to preclude 
     consumers from obtaining judicial review); Whitney Nat. Bank 
     v. Bank of New Orleans & Tr. Co., 85 S.Ct. 551, 557 (1965) 
     (where Congress has provided statutory review procedures, 
     such procedures are to be exclusive).
       Given the fact that section 215(c) sets forth a detailed 
     enforcement procedure which is significantly different than 
     the procedures of the OSHAct, it is reasonable to conclude 
     that Congress did not intend the Board to presume that the 
     regulations regarding such procedures would be ``the same'' 
     as the Secretary's procedures, as they generally must be if 
     they fall within the Board's substantive rulemaking authority 
     under section 215(d)(2). See Lorillard v. Pons, 434 would be 
     ``the same'' as the Secretary's procedures, as they 
     generally must be if they fall within the Board's 
     substantive rulemaking authority under section 215(d)(2). 
     See Lorilard v. Pons, 434 U.S. 575(1978) (manner in which 
     Congress employed incorporation by reference evidence an 
     intent on the part of Congress to assimilate the remedies 
     and procedures of the FLSA into the ADEA, except in those 
     cases where, in the ADEA itself, Congress made plain its 
     decision to follow a different course than that provided 
     for in the FLSA). Thus, the commenters' interpretation is 
     not supported by section 215.
       Here, there is no statutory authority for the filing and 
     determination of notices of contest by employing offices. The 
     only way in which a safety and health issue can be presented 
     to a hearing officer is in connection with a complaint filed 
     by the General Counsel. These procedural regulations cannot 
     be used to engraft provisions not provided for in the statute 
     and, more importantly, which conflict with the procedures 
     expressly set forth therein. For the same reasons, there is 
     no statutory basis upon which to create a procedure allowing 
     an employing office to petition for modification of abatement 
     dates (29 C.F.R. Sec. 1903.14a), as requested by this 
     commenter.

                           14. Trade secrets

       A commenter requested that the regulations include the 
     provisions of section 1903.7, 29 C.F.R., relating to 
     protection of trade secrets information. Section 1903.7 
     implements section 15 of the OSHAct, which provides that 
     information obtained by the Secretary in connection with any 
     inspection or proceeding under the OSHAct ``which might 
     reveal a trade secret referred to in section 1905 of title 18 
     of the United States Code'' shall be considered confidential. 
     It is not clear that section 15 of the OSHAct applies to 
     proceedings under section 215 of the CAA. However, the 
     current procedural rules attempt to protect privileged or 
     otherwise confidential information from disclosure in CAA 
     proceedings. If any employing office possessed information 
     that constituted a ``trade secret'' within the meaning of 
     section 15, the Office's procedures recognize that 
     confidential or privileged materials or other information 
     should be protected from disclosure in appropriate 
     circumstances. See section 6.01(c)(3) and (d) of the 
     Procedural Rules (authorizing hearing officers to issue any 
     order to prevent discovery or disclosure of confidential or 
     privileged materials or information, and dealing with claims 
     of privilege). If employing offices maintain information that 
     would constitute ``trade secrets'' within the meaning of 
     section 15 of the OSHAct, protection against disclosure of 
     such information should be extended to inspections and other 
     information gathering under section 215. Accordingly, the 
     final rules will include, with appropriate modification, the 
     provisions of section 1903.7 as section 4.07(g).
       D. Variances.

 1. Publication of variance determinations and notices (sections 4.23, 
                         4.25, 4.26, and 4.28).

       Two commenters requested that sections 4.23, 4.25, 4.26, 
     and 4.28 specify the manner in which the Board's final 
     determinations and other notices will be made public, either 
     by publication in the Congressional Record or its equivalent. 
     The regulations will be amended to provide that the Board 
     shall transmit a copy of the final decision to the Speaker of 
     the House and President pro tempore of the Senate with a 
     request that the order be published in the Congressional 
     Record. Since the CAA does not require publication of such 
     orders in the Congressional Record, the decision to publish 
     in the Congressional Record is solely within the discretion 
     of Congress.

                 2. Hearings (sections 4.25 and 4.26).

       Two commenters have suggested that the provisions regarding 
     referral of matters appropriate for hearing to hearing 
     officers in sections 4.25 and 4.26 of the proposed 
     regulations be revised to replace ``may'' with ``shall'' to 
     conform to the language of section 215. They further suggest 
     that the references in section 4.25 and 4.26 requiring 
     applicants to include a request for a hearing be deleted as 
     unnecessary. After considering these comments and the 
     statutory language, the regulations will be amended to 
     provide for referral to hearing officers.
       E. Enforcement policy regarding employee rescue activities.
       Two commenters argued that the regulations should include 
     the provisions of subsection (f) of 29 C.F.R. Sec. 1903.14, 
     which provides that, with certain exceptions, no citations 
     may be issued to an employer because of rescue activity 
     undertaken by an employee. However, this provision was 
     adopted by the Secretary as ``a general statement of agency 
     policy'' and is ``an exercise of OSHA's prosecutorial 
     discretion in carrying out its enforcement responsibilities'' 
     under the OSHAct. See ``Policy on Employee Rescue Efforts,'' 
     59 Fed. Reg. 66612 (Dec. 27, 1994) (amending 29 C.F.R. pt. 
     1903 to add section 1903.7; noting that rule is effective 
     immediately upon publication because `'the rescue policy 
     simply states OSHA's enforcement policy'' regarding citations 
     involving employee rescue activities). Because it is an 
     enforcement policy, the Secretary reserves the right to 
     modify it ``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 C.F.R. 
     Sec. 1903.1. The General Counsel has stated his intention to 
     follow, where not inconsistent with the CAA, the enforcement 
     policies of the Secretary, which would include the policy on 
     employee rescue activities. Thus, this policy will be 
     expressly stated as part of the final procedural regulations 
     at section 4.11(f), as requested by the commenters. 
     However, so that such policies are consistent with the 
     Secretary's part 1903 regulations, the final regulations 
     will add the proviso of section 1903.1, 29 C.F.R., that, 
     to the extent statements in these regulations at section 
     4.01 set forth general enforcement policies they may be 
     modified in specific circumstances by the General Counsel 
     on the same terms as similar enforcement policies of the 
     Secretary.
       F. Regulations governing inspections, citations, and 
           notices in the case of Member retirement, defeat, and 
           office moves.
       A commenter has requested regulations that would specify 
     the employing office to whom the General Counsel should issue 
     citations and notices in cases where circumstances have 
     changed since the time of the alleged violation, such as when 
     a Member dies, retires, or is not reelected, or when an 
     employing office moves from one office to another. After 
     considering the matter, the Executive Director has determined 
     that it would be inappropriate to issue procedural rules 
     governing these issues. The hypothetical situations posited 
     by the commenter are better addressed by the General Counsel 
     and ultimately, the Board, in the context of actual cases. 
     When and if the situations hypothesized by the commenter 
     occur, the General Counsel and the Board are better 
     positioned to make determinations based on the facts 
     presented. See NLRB v. Bell Aerospace Co., 416 U.S. 267, 294-
     95 (1974) (use of adjudication rather than rulemaking within 
     agency discretion).
       G. Technical and nomenclature changes.
       Commenters have suggested a number of technical and 
     nomenclature corrections in the language of the proposed 
     regulations. The Executive Director has considered all of 
     these suggestions and, as appropriate, has adopted them.
       H. Additional comments.
       One of the commenters requested that the Executive Director 
     review several proposed changes in procedural rules suggested 
     by commenters in response to the earlier July 11, 1996 Notice 
     of Proposed Rulemaking and either promulgate regulations to 
     address these issues or supply a written response as to why 
     such regulations are not necessary. These suggestions 
     included: (1) changes in the special procedures for the 
     Architect of the Capitol and Capitol Police; (2) a rule 
     allowing parties to negotiate changes to the Agreement to 
     Mediate; (3) a procedure by which the parties, instead of the 
     Executive Director, would select Hearing Officers; (4) 
     procedures by which the Office would notify employing offices 
     of various matters; (5) additional requirements for the 
     filing of a complaint; (6) changes in counseling procedures; 
     and (7) a procedure which would allow parties to petition for 
     the recusal of individual Board members.
       As stated in the preamble of the Notice of Adoption of 
     Amendments to Procedural Rules, such comments and suggestions 
     were not the subject of or germane to the proposals made in 
     that rulemaking. 142 Cong. R. H10672, H10674 and S10980, 
     S10981 (daily ed., Sept. 19, 1996). Nor are they here. The 
     Notice of this rulemaking clearly stated that the proposed 
     revisions and additions to the procedural rules were intended 
     to provide for the implementation of Parts B and C of title 
     II of the CAA, which were generally effective

[[Page H1884]]

     on January 1, 1997, and to establish procedures for 
     consideration of matters arising under those parts.
       As stated in the September 19, 1996 Notice of Adoption of 
     Amendments, the Office, like most agencies, reviews its 
     policies and procedures on an ongoing bases. Where its 
     experience suggests that additional or amended procedures are 
     needed, it will modify its policies and propose amendments to 
     its procedures, to the extent appropriate under the CAA.
       Signed at Washington, D.C. on this 18th day of April, 1997.

                                              Ricky Silberman,

                                               Executive Director,
                                             Office of Compliance.

          IV. Text of adopted 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 expedites 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 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, in accordance with 
     section 416(f), 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 inspection by employees and employing 
         offices
     4.04  Objection to inspection
     4.05  Entry not a waiver
     4.06  Advance 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  Citations
     4.12  Imminent danger
     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 authorized representative of the General Counsel. In 
     situations where sections 4.01 through 4.15 set forth general 
     enforcement policies rather than substantive or procedural 
     rules, such policies may be modified in specific 
     circumstances where the General Counsel or the General 
     Counsel's designee determines that an alternative course of 
     action would better serve the objectives of section 215 of 
     the CAA.
     Sec. 4.02  Authority for Inspection.
       (a) 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.
       (b) Prior to inspecting areas containing information which 
     is classified by an agency of the United States Government 
     (and/or by any congressional committee or other authorized 
     entity within the Legislative Branch) in the interest of 
     national security, and for which security clearance is 
     required as a condition for access to the area(s) to be 
     inspected, the individual(s) conducting the inspection shall 
     have obtained the appropriate security clearance.
     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 on a form available from the Office, 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.

[[Page H1885]]

       (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 section 215 
     of the CAA.
     Sec. 4.06  Advance notice of inspections.
       (a) Advance notice of inspections may not be given, except 
     in the following situations: (1) in cases of apparent 
     imminent danger, to enable the employing office to abate the 
     danger as quickly as possible; (2) in circumstances where the 
     inspection can most effectively be conducted after regular 
     business hours or where special preparations are necessary 
     for an inspection; (3) where necessary to assure the presence 
     of representatives of the employing office and employees or 
     the appropriate personnel needed to aid in the inspection; 
     and (4) in other circumstances where the General Counsel 
     determines that the giving of advance notice would enhance 
     the probability of an effective and thorough inspection.
       (b) In the situations described in paragraph (a) of this 
     section, advance notice of inspections may be given only if 
     authorized by the General Counsel, except that in cases of 
     apparent imminent danger, advance notice may be given by the 
     General Counsel's designee without such authorization if the 
     General Counsel is not immediately available. When advance 
     notice is given, it shall be the employing office's 
     responsibility promptly to notify the authorized 
     representative of employees, if the identity of such 
     representative is known to the employing office. (See section 
     4.08(b) as to situations where there is no authorized 
     representative of employees.) Upon the request of the 
     employing office, the General Counsel will inform the 
     authorized representative of employees of the inspection, 
     provided that the employing office furnishes the General 
     Counsel's designee with the identity of such representative 
     and with such other information as is necessary to enable him 
     promptly to inform such representative of the inspection. 
     Advance notice in any of the situations described in 
     paragraph (a) of this section shall not be given more than 24 
     hours before the inspection is scheduled to be conducted, 
     except in apparent imminent danger situations and in other 
     unusual circumstances.
     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 present 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 office, operator, agent or employee of a 
     covered facility. As used herein, the term ``employ other 
     reasonable investigative techniques'' includes, but is not 
     limited to, the use of devices to measure employee exposures 
     and the attachment of personal sampling equipment such as 
     dosimeters, pumps, badges and other similar devices to 
     employees in order to monitor their exposures.
       (c) In taking photographs and samples, the General 
     Counsel's designees shall take reasonable precautions to 
     insure that such actions with flash, spark-producing, or 
     other equipment would not be hazardous. The General Counsel's 
     designees shall comply with all employing office safety and 
     health rules and practices at the workplace or location being 
     inspected, and they shall wear and use appropriate protective 
     clothing and equipment.
       (d) The conduct of inspections shall be such as to preclude 
     unreasonable disruption of the operations of the employing 
     office.
       (e) 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.
       (f) Inspections shall be conducted in accordance with the 
     requirements of this subpart.
       (g) Trade Secrets.
       (1) At the commencement of an inspection, the employing 
     office may identify areas in the establishment which contain 
     or which might reveal a trade secret as referred to in 
     section 15 of the OSHAct and section 1905 of title 18 of the 
     United States Code. If the General Counsel's designee has no 
     clear reason to question such identification, information 
     contained in such areas, including all negatives and prints 
     of photographs, and environmental samples, shall be labeled 
     ``confidential--trade secret'' and shall not be disclosed by 
     the General Counsel and/or his designees, except that such 
     information may be disclosed to other officers or employees 
     concerned with carrying out section 215 of the CAA or when 
     relevant in any proceeding under section 215. In any such 
     proceeding the hearing officer or the Board shall issue such 
     orders as may be appropriate to protect the confidentiality 
     of trade secrets.
       (2) Upon the request of an employing office, any authorized 
     representative of employees under section 4.08 in an area 
     containing trade secrets shall be an employee in that area or 
     an employee authorized by the employing office to enter that 
     area. Where there is no such representative or employee, the 
     General Counsel's designee shall consult with a reasonable 
     number of employees who work in that area concerning matters 
     of safety and health.
     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 Counsels 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.
       (b) The General Counsel's designee shall have 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 in 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 
     (and/or by any congressional committee or other authorized 
     entity within the Legislative Branch) 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 he or she deems 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.

[[Page H1886]]

     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. The complaining party may obtain review 
     of such determination by submitting a written statement of 
     position with the General Counsel and, at the same time, 
     providing the employing office with a copy of such statement 
     by certified mail. The employing office may submit an 
     opposing written statement of position with the General 
     Counsel and, at the same time, providing the complaining 
     party with a copy of such statement by certified mail. 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 orally present their views. After 
     considering all written and oral views presented, the General 
     Counsel shall 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 notice of alleged violation 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, either a citation or a notice of de minimis 
     violations that have no direct or immediate relationship to 
     safety or health. An appropriate citation or notice of de 
     minimis violations shall 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. No citation may be issued under this section 
     after the expiration of 6 months following the occurrence 
     of any alleged violation.
       (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 or notice of de minimis violations 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 or notice of 
     de minimis violations shall also be sent to the employee or 
     representative of employees who made such request or 
     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 therefor. 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.
       (f) No citation may be issued to an employing office 
     because of a rescue activity undertaken by an employee of 
     that employing office with respect to an individual in 
     imminent danger unless:
       (1)(i) Such employee is designated or assigned by the 
     employing office to have responsibility to perform or assist 
     in rescue operations, and
       (ii) The employing office fails to provide protection of 
     the safety and health of such employee, including failing to 
     provide appropriate training and rescue equipment; or
       (2)(i) Such employee is directed by the employing office to 
     perform rescue activities in the course of carrying out the 
     employee's job duties, and
       (ii) The employing office fails to provide protection of 
     the safety and health of such employee, including failing to 
     provide appropriate training and rescue equipment; or
       (3)(i) Such employee is employed in a workplace that 
     requires the employee to carry out duties that are directly 
     related to a workplace operation where the likelihood of 
     life-threatening accidents is foreseeable, such as a 
     workplace operation where employees are located in confined 
     spaces or trenches, handle hazardous waste, respond to 
     emergency situations, perform excavations, or perform 
     construction over water; and
       (ii) Such employee has not been designated or assigned to 
     perform or assist in rescue operations and voluntarily 
     elected to rescue such an individual; and
       (iii) The employing office has failed to instruct employees 
     not designated or assigned to perform or assist in rescue 
     operations of the arrangements for rescue, not to attempt 
     rescue, and of the hazards of attempting rescue without 
     adequate training or equipment.
       (4) For the purpose of this policy, the term ``imminent 
     danger'' means the existence of any condition or practice 
     that could reasonably be expected to cause death or serious 
     physical harm before such condition or practice can be 
     abated.
     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 of 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. Notices of de minimis 
     violations need not be posted.
       (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 pendency 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 complaint 
     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 complaint 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 complaint proceedings under this section.
     Sec. 4.15  Informal conferences.
       At the request of an affected employing office, employee, 
     or representative of employees, the General may hold an 
     informal conference for the purpose of discussing any issues 
     raised by an inspection, citation, or notice issued by the 
     General Counsel. Any settlement entered into by the parties 
     at such

[[Page H1887]]

     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 General Counsel. Any party 
     may be represented by counsel at such conference.


 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 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, 
     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 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.
       The Board will transmit every final action granting a 
     variance, limitation, variation, tolerance, or exemption 
     under this part of the Speaker of the House of 
     Representatives and the President pro tempore of the Senate 
     with a request that such final action be published in the 
     Congressional record. 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 which 
     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, by its 
     attorney or other authorized 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 shall 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 
     thereof;
       (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 alternation 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) 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
       (9) 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 
     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 transmitted by the Board to the Speaker 
     of the House of Representatives and the President pro tempore 
     of the Senate with a request that the order be published in 
     the Congressional Record. 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) Application 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 shall 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; and
       (6) 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 transmitted by the Board to the Speaker 
     of the House of Representatives and the President pro tempore 
     of the Senate with a request that the order be published in 
     the Congressional Record. 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

[[Page H1888]]

     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 particularly 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 of 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.
       (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, which the Board will transmit to the Speaker 
     of the House of Representatives and the President pro tempore 
     of the Senate with a request that the order be published in 
     the Congressional Record.
       (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 officers 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 reception 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 therefore, 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, except as provided 
     in sub-sections 416(d), (e) and (f), 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 to the Senate and House of 
     Representatives, so long as that statistical information does 
     not reveal the identity of the employees involved or of 
     employing offices that are subject of a matter. See also 
     sections 1.06, 1.07 and 7.12 of these rules.
     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 
     deliberations 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 
     any 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 or order has not yet been fully 
     accomplished,

[[Page H1889]]

     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 220(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.
       (c) The party filing a petition for review shall serve a 
     copy on the opposing party or parties or their 
     representative(s).

                          ____________________