[Congressional Record Volume 150, Number 82 (Tuesday, June 15, 2004)]
[House]
[Pages H4166-H4169]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




        NOTICE OF ADOPTION OF AMENDMENTS TO THE PROCEDURAL RULES

                                                    U.S. Congress,


                                         Office of Compliance,

                                    Washington, DC, June 15, 2004.
     Hon. J. Dennis Hastert,
     Speaker of the House, House of Representatives, Washington, 
         DC.
       Dear Mr. Speaker: According to Section 303(a) of the 
     Congressional Accountability Act of 1995 (``Act''), 2 U.S.C. 
     1383(a), the Executive Director of the Office of Compliance 
     shall, ``subject to the approval of the Board [of Directors 
     of the Office of Compliance], adopt rules governing the 
     procedures of the Office, including the procedures of hearing 
     officers, which shall be submitted for publication in the 
     Congressional Record. The rules may be amended in the same 
     manner.''
       The Executive Director and Board of Directors of the Office 
     of Compliance are transmitting herewith the enclosed 
     Amendments to the Procedural Rules of the Office of 
     Compliance for publication in the Congressional Record on the 
     first day on which both Houses of Congress are in session 
     following this transmittal. See section 303(b) of the Act, 2 
     U.S.C. 1383(b).
       These amendments to the Procedural Rules of the Office of 
     Compliance shall be deemed adopted by the Executive Director 
     with the approval of the Board of Directors effective on the 
     date of publication of this Notice of Adoption of Amendments 
     to Procedural Rules in the Congressional Record, and shall be 
     in full force and effect as of that date.
       Any inquiries regarding this Notice should be addressed to 
     the Executive Director, Office of Compliance, 110 2nd Street, 
     S.E., Room LA-200, Washington, D.C. 20540; 202-724-9250, TDD 
     202-426-1912.
           Sincerely,
     Susan S. Robfogel,
                                  Chair of the Board of Directors.
     William W. Thompson II,
                                               Executive Director.

          Notice of Adoption of Amendments to Procedural Rules


                         Introductory Statement

       On September 4, 2003, a Notice of Proposed Amendments to 
     the Procedural Rules of the Office of Compliance was 
     published in the Congressional Record at S11110, and H7944. 
     As specified by the Congressional Accountability Act of 1995 
     (``Act'') at Section 303(b) (2 U.S.C. 1384(b)), a 30 day 
     period for comments from interested parties ensued. In 
     response, the Office received a number of comments regarding 
     the proposed amendments.
       At the request of a commenter, for good reason shown, the 
     Board of Directors extended the 30 day comment period until 
     October 20, 2003. The extension of the comment period was 
     published in the Congressional Record on October 2, 2003 at 
     H9209 and S12361.
       On October 15, 2003, an announcement that the Board of 
     Directors intended to hold a hearing on December 2, 2003 
     regarding the proposed procedural rule amendments was 
     published in the Congressional Record at H9475 and S12599. On 
     November 21, 2003, a Notice of the cancellation of the 
     December 2, 2003 hearing was published in the Congressional 
     Record at S15394 and H12304.
       On February 26, 2004, the Board of Directors of the Office 
     of Compliance caused a Second Notice of Proposed Amendments 
     to the Procedural Rules to be published in the Congressional 
     Record at H693 and S1671. The Second Notice included changes 
     to the initial proposed amendments, together with a brief 
     discussion of each proposed amendment, and afforded 
     interested parties another opportunity to comment on these 
     proposed amendments. (The Second Notice was also published in 
     the House version of the Congressional Record on February 24, 
     2004. However, because the Senate did not publish the Second 
     Notice on that date, the Second Notice was published on 
     February 26, 2004.)
       The comment period for the Second Notice of Proposed 
     Amendments to the Procedural Rules ended on March 25, 2004. 
     The Board received a number of additional comments regarding 
     the proposed amendments.
       The Executive Director and the Board of Directors of the 
     Office of Compliance have reviewed all comments received 
     regarding the Notice and the Second Notice, have made certain 
     additional changes to the proposed amendments inter alia in 
     response thereto, and herewith issue the final Amendments to 
     the Procedural Rules as authorized by section 303(b) of the 
     Act, which sates in part: ``Rules shall be considered issued 
     by the Executive Director as of the date on which they are 
     published in the Congressional Record.'' See 2 U.S.C. 
     1383(b).
       The complete existing Procedural Rules of the Office of 
     Compliance may be found on the Office's web site: 
     www.compliance.gov.
 Supplementary Information: The Congressional Accountability 
     Act of 1995 (CAA), PL 104-1, was enacted into law on January 
     23, 1995. The CAA applies the rights and protections of 11 
     federal labor and employment statutes to covered employees 
     and employing offices within the Legislative Branch of 
     Government. Section 301 of the CAA (2 U.S.C. 1381) 
     establishes the Office of Compliance as an independent office 
     within that Branch. Section 303 (2 U.S.C. 1383) directs that 
     the Executive Director, as the Chief Operating Officer of the 
     agency, adopt rules of procedure governing the Office of 
     Compliance, subject to approval by the Board of Directors of 
     the Office of Compliance. The rules of procedure generally 
     establish the process by which alleged violations of the laws 
     made applicable to the Legislative Branch under the CAA will 
     be considered and resolved. The rules include procedures for 
     counseling, mediation, and election between filing an 
     administrative complaint with the Office of Compliance or 
     filing a civil action in U.S. District Court. The rules also 
     include the procedures for processing Occupational Safety and 
     Health investigations and enforcement, as well as the process 
     for the conduct of administrative hearings held as the result 
     of the filing of an administrative complaint under all of the 
     statutes applied by the Act, and for appeals of a decision by 
     a hearing officer to the Board of Directors of the Office of 
     Compliance, and for the filing of an appeal of a decision by 
     the Board of Directors to the United States Court of Appeals 
     for the Federal Circuit. The rules also contain other matters 
     of general applicability to the dispute resolution process 
     and to the operation of the Office of Compliance.
       These amendments to the Rules of Procedures are the result 
     of the experience of the Office in processing disputes under 
     the CAA during the period since the original adoption of 
     these rules in 1995.

                       HOW TO READ THE AMENDMENTS

       The text of the amendments shows changes to the preexisting 
     text of the Procedural Rules as follows: [deletions within 
     italicized brackets], and added text in italicized bold. Only 
     subsections of the rules which include amendments are 
     reproduced in this NOTICE. The insertion of a series of small 
     dots (. . . . .) indicates additional, unamended text within 
     a section has not been reproduced in this document. The 
     insertion of a series of stars (* * * * *) indicates that the 
     unamended text of entire sections of the Rules have not been 
     reproduced in this document. For the text of other portions 
     of the Rules which are not amended, please access the Office 
     of Compliance web site at www.compliance.gov
       Included with these amendments are ``Discussions'' which 
     are not part of the Procedural Rules, but which have been 
     added to provide additional information regarding the 
     adoption of these amendments to the Procedural Rules.

                           DISABILITY ACCESS

       This Notice of Adoption of Amendments to the Procedural 
     Rules is available on the Office of Compliance web site, 
     www.compliance.gov, which is compliant with section 508 of 
     the Rehabilitation Act of 1973 as amended, 29 U.S.C. 794d. 
     This Notice is also available in large print or Braille. 
     Requests for this Notice in an alternative format should be 
     made to: Alma Candelaria, Deputy Executive Director, Office 
     of Compliance, 110 2nd Street, S.E., Room LA-200, Washington, 
     D.C. 20540; 202-724-9225; TDD: 202-426-1912; FAX: 202-426-
     1913.

                      PART I--OFFICE OF COMPLIANCE

                           RULES OF PROCEDURE

       As Amended--February 12, 1998 (Subpart A, section 1.02, 
     ``Definitions''), and As Amended by the publication of this 
     Notice of Adoption of Amendments to the Procedural Rules on 
     June __, 2004.

                           TABLE OF CONTENTS

                     Subpart A--General Provisions

     Sec. 1.01 Scope and Policy
     Sec. 1.02 Definitions
     Sec. 1.03 Filing and Computation of Time
     Sec. 1.04 Availability of Official Information
     Sec. 1.05 Designation of Representative
     Sec. 1.06 Maintenance of Confidentiality
     Sec. 1.07 Breach of Confidentiality Provisions

  Subpart B--Pre-Complaint Procedures Applicable to Consideration of 
     Alleged Violations of Part A of Title II of the Congressional 
                       Accountability Act of 1995

     Sec. 2.01 Matters Covered by Subpart B
     Sec. 2.02 Requests for Advice and Information
     Sec. 2.03 Counseling
     Sec. 2.04 Mediation
     Sec. 2.05 Election of Proceedings
     Sec. 2.06 Filing of Civil Action

        Subpart C--[Reserved (Section 210--ADA Public Services)]

    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
     Sec. 4.02 Authority for Inspection
     Sec. 4.03 Request for Inspections by Employees and Employing 
         Offices
     Sec. 4.04 Objection to Inspection
     Sec. 4.05 Entry Not a Waiver
     Sec. 4.06 Advance Notice of Inspection
     Sec. 4.07 Conduct of Inspections
     Sec. 4.08 Representatives of Employing Offices and Employees
     Sec. 4.09 Consultation with Employees
     Sec. 4.10 Inspection Not Warranted, Informal Review
     Sec. 4.11 Citations
     Sec. 4.12 Imminent Danger
     Sec. 4.13 Posting of Citations
     Sec. 4.14 Failure to Correct a Violation for Which a Citation 
         Has Been Issued; Notice of Failure to Correct Violation; 
         Complaint
     Sec. 4.15 Informal Conferences

[[Page H4167]]

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

     Sec. 4.20 Purpose and Scope
     Sec. 4.21 Definitions
     Sec. 4.22 Effect of Variances
     Sec. 4.23 Public Notice of a Granted Variance, Limitation, 
         Variation, Tolerance, or Exemption
     Sec. 4.24 Form of Documents
     Sec. 4.25 Applications for Temporary Variances and other 
         Relief
     Sec. 4.26 Applications for Permanent Variances and other 
         Relief
     Sec. 4.27 Modification or Revocation of Orders
     Sec. 4.28 Action on Applications
     Sec. 4.29 Consolidation of Proceedings
     Sec. 4.30 Consent Findings and Rules or Orders
     Sec. 4.31 Order of Proceedings and Burden of Proof

                         Subpart E--Complaints

     Sec. 5.01 Complaints
     Sec. 5.02 Appointment of the Hearing Officer
     Sec. 5.03 Dismissal, Summary Judgment, and Withdrawal of 
         Complaint
     Sec. 5.04 Confidentiality

                   Subpart F--Discovery and Subpoenas

     Sec. 6.01 Discovery
     Sec. 6.02 Requests for Subpoenas
     Sec. 6.03 Service
     Sec. 6.04 Proof of Service
     Sec. 6.05 Motion to Quash
     Sec. 6.06 Enforcement

                          Subpart G--Hearings

     Sec. 7.01 The Hearing Officer
     Sec. 7.02 Sanctions
     Sec. 7.03 Disqualification of the Hearing Officer Sec. 7.04 
         Motions and Prehearing Conference
     Sec. 7.05 Scheduling the Hearing
     Sec. 7.06 Consolidation and Joinder of Cases
     Sec. 7.07 Conduct of Hearing, Disqualification of 
         Representatives
     Sec. 7.08 Transcript
     Sec. 7.09 Admissibility of Evidence
     Sec. 7.10 Stipulations
     Sec. 7.11 Official Notice
     Sec. 7.12 Confidentiality
     Sec. 7.13 Immediate Board Review of a Ruling by a Hearing 
         Officer
     Sec. 7.14 Briefs
     Sec. 7.15 Closing the record
     Sec. 7.16 Hearing Officer Decisions, Entry in Records of the 
         Office

                Subpart H--Proceedings before the Board

     Sec. 8.01 Appeal to the Board
     Sec. 8.02 Reconsideration
     Sec. 8.03 Compliance with Final Decisions, Requests for 
         Enforcement
     Sec. 8.04 Judicial Review

           Subpart I--Other Matters of General Applicability

     Sec. 9.01 Filing, Service and Size Limitations of Motions, 
         Briefs, Responses and other Documents
     Sec. 9.02 Signing of Pleadings, Motions and Other Filings; 
         Violations of Rules; Sanctions
     Sec. 9.03 Attorney's Fees and Costs
     Sec. 9.04 Ex parte Communications
     Sec. 9.05 Settlement Agreements
     Sec. 9.06 Payments pursuant to Decisions or Awards under 
         Section 415(a) of the Act.
     Sec. 9.07 Revocation, Amendment or Waiver of Rules

                           *   *   *   *   *


     Sec. 1.03 Filing and Computation of Time.

       (a) Method of Filing. Documents may be filed in person or 
     by mail, including express, overnight and other expedited 
     delivery. When specifically requested by the Executive 
     Director, or by a Hearing Officer in the case of a matter 
     pending before the Hearing Officer, or by the Board of 
     Directors in the case of an appeal to the Board, any document 
     may also be filed by electronic transmittal in a designated 
     format, with receipt confirmed by electronic transmittal in 
     the same format. Requests for counseling under section 2.03, 
     requests for mediation under section 2.04 and complaints 
     under section 5.01 of these rules may also be filed by 
     facsimile (FAX) transmission.....
       Discussion: The Office is beginning the process or 
     migrating to electronic filing of documents. Because of the 
     limitations in current capabilities, this authorization is 
     optional, and provides for a designation of the format to be 
     utilized. The Rule does not contemplate that a party will be 
     involuntarily required to file electronically. The 
     authorization for such filing must be made by the official(s) 
     before whom the filing is pending.

                           *   *   *   *   *

       (d) Service or filing of documents by certified mail, 
     return receipt requested. Whenever these rules permit or 
     require service or filing of documents by certified mail, 
     return receipt requested, such documents may also be served 
     or fled by express mail or other forms of expedited delivery 
     in which proof of date of receipt by the addressee is 
     provided.
       Discussion: Because of the increase in time required to 
     process mail through the U.S. Postal Service since 9-11, the 
     Office has determined that additional flexibility in the use 
     of comparable document delivery services is needed.

                           *   *   *   *   *


     2.03 Counseling.

       (a) Initiating a Proceeding, Formal Request for Counseling. 
     In order to initiate a proceeding under these rules, an 
     employee shall [formally] file a written request for 
     counseling [from] with the Office regarding an alleged 
     violation of the Act, as referred to in section 2.01(a) 
     above. All [formal] requests for counseling shall be 
     confidential, unless the employee agrees to waive his or her 
     right to confidentiality under section 2.03(e)(2), below.
       Discussion: Requiring a written request for counseling 
     provides the Office with documentation of the request. Such 
     documents remain confidential, as required by section 416 of 
     the Act, and by the Procedural Rules.

                           *   *   *   *   *

       (c) When, How, and Where to Request Counseling. A [formal] 
     request for counseling must be in writing, and[: (1)] shall 
     be [made] filed pursuant to the requirements of section 
     2.03(a) of these Rules with the Office of Compliance at Room 
     LA-200, 110 Second Street, S.E., Washington, D. C. 20540-
     1999, [telephone 202-724-9250;] FAX 202-426-1913; TDD 202426-
     1912, not later than 180 days after the alleged violation bf 
     the Act.[;] [(2) may be made to the Office in person, by 
     telephone, or by written request; (3) shall be directed to: 
     Office of Compliance, Adams Building, Room LA-200, 110 Second 
     Street, S.E., Washington, D.C. 20540-1999; telephone 202-724-
     9250; FAX 202-426-1913; TDD 202-4261912.]
       Discussion: This amendment conforms to the amendment at 
     section 2.03(a).

                           *   *   *   *   *

       (l) Conclusion of the Counseling Period and Notice. The 
     Executive Director shall notify the employee in writing of 
     the end of the counseling period, by certified mail, return 
     receipt requested, or by personal delivery evidenced by a 
     written receipt. The Executive Director, as part of the 
     notification of the end of the counseling period, shall 
     inform the employee of the right and obligation, should the 
     employee choose to pursue his or her claim, to file with the 
     Office a request for mediation within 15 days after receipt 
     by the employee of the notice of the end of the counseling 
     period.
       Discussion: Because of the increase in time required to 
     process mail through the U.S. Postal Service since 9-11, the 
     Office has determined that additional flexibility of personal 
     delivery is needed, as long as that delivery can be verified.
       (m) Employees of the Office of the Architect of the Capitol 
     and the Capitol Police.
       (1) Where an employee of the Office of the Architect of the 
     Capitol or of the Capitol Police requests counseling under 
     the Act and these rules, the Executive Director may recommend 
     that the employee use the grievance procedures of the 
     Architect of the Capitol or the Capitol Police. The term 
     `grievance procedures' refers to internal procedures of the 
     Architect of the Capitol and the Capitol Police that can 
     provide a resolution of the matter(s) about which counseling 
     was requested. Pursuant to section 401 of the Act and by 
     agreement with the Architect of the Capitol and the Capitol 
     Police Board, when the Executive Director makes such a 
     recommendation, the following procedures shall apply:

                               . . . . .

       (ii) After having contacted the Office and having utilized 
     the grievance procedures of the Architect of the Capitol or 
     of the Capitol Police Board, the employee may notify the 
     Office that he or she wishes to return to the procedures 
     under these rules:
       (A) within [10] 60 days after the expiration of the period 
     recommended by the Executive Director, if the matter has not 
     [been resolved] resulted in a final decision; or
       (B) within 20 days after service of a final decision 
     resulting from the grievance procedures of the Architect of 
     the Capitol or the Capitol Police Board.
       (iii) The period during which the matter is pending in the 
     internal grievance procedure shall not count against the time 
     available for counseling or mediation under the Act. If the 
     grievance is resolved to the employee's satisfaction, the 
     employee shall so notify the Office within 20 days after the 
     employee has received service of the final decision resulting 
     from the grievance procedure. [or i] If no request to return 
     to the procedures under these rules is received within [the 
     applicable time period] 60 days after the expiration of the 
     period recommended by the Executive Director, the Office will 
     [consider the case to be closed in its official files] issue 
     a Notice of End of Counseling, as specified in section 
     2.04(i) of these Rules.
       Discussion: Section 401 of the Act authorizes the Executive 
     Director, ``after receiving a request for counseling . . . 
     [to] recommend that the employee use the grievance procedures 
     of the Architect of the Capitol or the Capitol Police for 
     resolution of the employee's grievance for a specific period 
     of time, which shall not count against the time available for 
     counseling or mediation.'' The extension of the grace period 
     in the case of a matter which has not been concluded in 60 
     days provides the parties additional time to complete the 
     grievance process. The issuance of a Notice of End of 
     Counseling rather than the administrative closure of a matter 
     ensures that no employee inadvertently loses the opportunity 
     to continue to pursue a matter, which has not been 
     successfully concluded through the agency grievance 
     procedure. If an employee notifies the Office of a desire to 
     return to the Office dispute resolution procedure pursuant to 
     subsection (ii) above, the time remaining in counseling shall 
     not include any time between the filing of the request for 
     counseling, and the date of issuance by the Executive 
     Director of a recommended referral. Thus, for instance, if 
     the Executive Director recommends referral 5 days after the 
     filing of a Request for Counseling, the time remaining in 
     counseling as of the date the Office receives a notification 
     of return would be 25 days.

[[Page H4168]]

     2.04 Mediation.

                               . . . . .

       (e) Duration and Extension.
       (1) The mediation period shall be 30 days beginning on the 
     date the request for mediation is received, unless the Office 
     grants an extension.
       (2) The Office may extend the mediation period upon the 
     joint written request of the parties or of the appointed 
     mediator on behalf of the parties to the attention of the 
     Executive Director. The request [may be oral or] shall be 
     written and [shall be noted and] filed with the Office no 
     later than the last day of the mediation period. The request 
     shall set forth the joint nature of the request and the 
     reasons therefor, and specify when the parties expect to 
     conclude their discussions. Request for additional extensions 
     may be made in the same manner. Approval of any extensions 
     shall be within the sole discretion of the Office.
       Discussion: This amendment authorizes a mediator or both 
     parties to submit a request for extension. The Office will 
     accept joint requests by the parties in which the signature 
     of a party has been authorized to be executed by the other 
     party, as long as that authorization is stated in the 
     submission.

                           *   *   *   *   *

       (i) Conclusion of the Mediation Period and Notice. If, at 
     the end of the mediation period, the parties have not 
     resolved the matter that forms the basis of the request for 
     mediation, the Office shall provide the employee, and the 
     employing office, and their representatives, with written 
     notice that the mediation period has concluded. The written 
     notice to the employee will be sent by certified mail, return 
     receipt requested, or will be ([hand]] personally delivered, 
     evidenced by a written receipt, and it will also notify the 
     employee of his or her right to elect to file a complaint 
     with the Office in accordance with section 405 of the Act and 
     section 5.01 of these rules or to file a civil action 
     pursuant to section 408 of the Act and section 2.06 of these 
     rules.
       Discussion: Because of the increase in time required to 
     process mail through the U.S. Postal Service since 9-11, the 
     Office has determined that additional flexibility of personal 
     delivery is needed, as long as that delivery can be verified.

                           *   *   *   *   *


     2.06 Filing of Civil Action.

                               . . . . .

       (c) Communication Regarding Civil Actions Filed with 
     District Court. The party filing any civil action with the 
     United States District Court pursuant to sections 404(2) and 
     408 of the Act shall provide a written notice to the Office 
     that the party has filed a civil action, specifying the 
     district court in which the civil action was filed and the 
     case number.
       Discussion: The Office of Compliance is required by the Act 
     to educate Members of Congress, employing offices, and 
     employees regarding their rights and responsibilities under 
     the Act (section 301(h)); to ensure that an employee has not 
     filed both a District Court and an administrative complaint 
     in violation of section 404; and to monitor any judicial 
     interpretation of the Act or review of Office regulations 
     pursuant to sections 408 and 409. Requiring such notice by a 
     party to a matter which has been processed through counseling 
     and mediation before this agency pursuant to a duly 
     promulgated rule of this agency does not violate any 
     applicable attorney rule of professional conduct.

                           *   *   *   *   *


     Sec. 5.03 Dismissal, Summary Judgment, and Withdrawal of 
       Complaints.

                               . . . . .

       (d) Summary Judgment. A Hearing Officer may, after notice 
     and an opportunity for the parties to address the question of 
     summary judgment, issue summary judgment on some or all of 
     the complaint.
       Discussion: This amendment clarifies the existing authority 
     of Hearing Officers to issue summary judgment or partial 
     summary judgment.
       ([d]e) Appeal. A [dismissal] final decision by the Hearing 
     Officer made under section 5.03(a)-[(c)] (d) or 7.16 of these 
     rules may be subject to appeal before the Board if the 
     aggrieved party files a timely petition for review under 
     section 8.01. A final decision under section 5.03(a)-(d) 
     which does not resolve all of the claims or issues in the 
     case(s) before the Hearing Officer may not be appealed to the 
     Board in advance of a final decision entered under section 
     7.16 of these rules, except as authorized pursuant to section 
     7.13 of these rules.
       Discussion: This amendment clarifies that any final 
     decision which does not completely dispose of a matter will 
     be treated as an interlocutory appeal.
       ([e]f) . . . . .
       ([f]g) . . . . .

                           *   *   *   *   *


     Sec. 7.02 Sanctions.

       (a) The Hearing Officer may impose sanctions on a party's 
     representative necessary to regulate the course of the 
     hearing.
       Discussion: This rule is procedural. The Office of 
     Compliance is required by section 405(d)(3) of the Act to 
     conduct its hearings ``to the greatest extent practicable, in 
     accordance with the principles and procedures set forth in 
     sections 554 through 557 of [the Administrative Procedure Act 
     found at] title 5, United States Code.'' The phrase 
     ``necessary to regulate the course of the hearing'' is 
     derived from section 556(c)(5) of the Administrative 
     Procedure Act, 5 U.S.C. 556(c)(5). Agency tribunals operated 
     under the Administrative Procedure Act possess broad 
     authority to regulate the practice and conduct of attorneys 
     and other representatives appearing on behalf of parties to 
     proceedings before them.
       (b) The Hearing Officer may impose sanctions upon the 
     parties under, but not limited to, the circumstances set 
     forth in this section.
       ([a]1) Failure to Comply with an Order. When a party fails 
     to comply with an order (including an order for the taking of 
     a deposition, for the production of evidence within the 
     party's control, or for production of witnesses), the Hearing 
     Officer may:
       ([1]a) . . . . .
       ([2]b) . . . . .
       ([3]c) . . . . .
       ([4]d) . . . . .
       ([5]e) . . . . .
       ([6]f) . . . . .
       ([7]g) . . . . .
       ([b]2) . . . . .
       ([c]3) . . . . .

                           *   *   *   *   *


     Sec. 8.01 Appeal to the Board.

                               . . . . .

       (b)(1) Unless otherwise ordered by the Board, within 21 
     days following the filing of a petition for review to the 
     Board, the appellant shall file and serve a supporting brief 
     in accordance with section 9.01 of these rules. That brief 
     shall identify with particularity those findings or 
     conclusions in the decision and order that are challenged and 
     shall refer specifically to the portions of the record and 
     the provisions of statutes or rules that are alleged to 
     support each assertion made on appeal.
       (2) Unless otherwise ordered by the Board, within 21 days 
     following the service of the appellant's brief, the opposing 
     party may file and serve a responsive brief. Unless otherwise 
     ordered by the Board, within 10 days following the service of 
     the appellee's responsive brief, the appellant may file and 
     serve a reply brief.
       (3) Upon written delegation by the Board, the Executive 
     Director is authorized to determine any request for 
     extensions of time to file any post petition for review 
     document or-submission with the Board in any case in which 
     the Executive Director has not rendered a determination on 
     the merits. Such delegation shall continue until revoked by 
     the Board.
       Discussion: This ministerial delegation is not a 
     ``substantive'' rule. The extension of filing deadlines is 
     limited to the parameters of a written authorization from the 
     Board, and cannot affect the requirement of section 406(a) 
     that a party must ``file a petition for review by the Board 
     not later than 30 days after entry of the decision in the 
     records of the Office.''

                           *   *   *   *   *


     Sec. 9.01 Filing, Service and Size Limitations of Motions, 
       Briefs, Responses and other Documents.

       (a) Filing with the Office; Number. One original and three 
     copies of all motions, briefs, responses, and other documents 
     must be filed, whenever required, with the Office or Hearing 
     Officer. However, when a party aggrieved by the decision of a 
     Hearing Officer or a party to any other matter or 
     determination reviewable by the Board files an appeal or 
     other submission with the Board, one original and seven 
     copies of [both] any [appeal brief] submission and any 
     responses must be filed with the Office. The Office[r], 
     Hearing Officer, or Board may also request a party to submit 
     an electronic version of any submission ffon a disk]] in a 
     designated format, with receipt confirmed by electronic 
     transmittal in the same format.
       Discussion: The addition of the phrase ``or other matter or 
     determination reviewable by the Board'' references those 
     controversies over which the Board has jurisdiction, but 
     which are not initially determined before a Hearing Officer. 
     These other matters or determinations include collective 
     bargaining representation and negotiability determinations 
     made by the Board pursuant to Part 2422 of the Office of 
     Compliance Rules, review by the Board of arbitration 
     decisions pursuant to Part 2425 of the Rules, determination 
     of bargaining consultation rights under Part 2426 of the 
     Rules, requests for statements of policy or guidance by the 
     Board under Part 2427 of the Rules, enforcement of standards 
     of conduct decisions and orders by the Assistant Secretary of 
     Labor of Labor Management Relations pursuant to Part 2428 of 
     the Rules, and determinations regarding collective bargaining 
     impasses pursuant to Part 2470 of the Rules. Some of these 
     matters are addressed to the Board in the first instance. 
     Submission by electronic version is an option in addition to 
     the existing methods for filing documents. See also amended 
     rule 1.03(a), supra. This addition reflects the decision of 
     this agency to begin migrating toward electronic filing of 
     submissions. Because of the limitations in current 
     capabilities, this authorization is optional, and provides 
     for a designation of the format to be utilized. The Rule does 
     not contemplate that a party will be involuntarily required 
     to file electronically. The authorization for such filing 
     must be made by the official(s) before whom the filing is 
     pending.

                           *   *   *   *   *


     Sec. 9.03 Attorney's fees and costs.

       (a) Request. No later than 20 days after the entry of a 
     Hearing Officer's decision under section 7.16 or after 
     service of a Board decision by the Office, the complainant, 
     if he or

[[Page H4169]]

     she is a prevailing party, may submit to the Hearing Officer 
     who heard the case initially a motion for the award of 
     reasonable attorney's fees and costs, following the form 
     specified in paragraph (b) below. All motions for attorney's 
     fees and costs shall be submitted to the Hearing Officer. The 
     Hearing Officer, after giving the respondent an opportunity 
     to reply, shall rule on the motion. Decisions regarding 
     attorney's fees and costs are collateral and do not affect 
     the finality or appealability of a final decision issued by 
     the Hearing Officer. A ruling on a motion for attorney's fees 
     and costs may be appealed together with the final decision of 
     the Hearing Officer. If the motion for attorney's fees is 
     ruled on after the final decision has been issued by the 
     Hearing Officer, the ruling may be appealed in the same 
     manner as a final decision, pursuant to section 8.01 of these 
     Rules.
       Discussion: This amendment clarifies the rules to exclude 
     the filing of motions for attorney's fees with the Board of 
     Directors.

                           *   *   *   *   *


     Sec. 9.05 Informal Resolutions and Settlement Agreements

                               . . . . .

       (b) Formal Settlement Agreement. The parties may agree 
     formally to settle all or part of a disputed matter in 
     accordance with section 414 of the Act. In that event, the 
     agreement shall be in writing and submitted to the Executive 
     Director for review and approval. If the Executive Director 
     does not approve the settlement, such disapproval shall be in 
     writing, shall set forth the grounds therefor, and shall 
     render the settlement ineffective.
       (c) Requirements for a Formal Settlement Agreement. A 
     formal settlement agreement requires the signature of all 
     parties or their designated representatives on the agreement 
     document before the agreement can be submitted to the 
     Executive Director. A formal settlement agreement cannot be 
     rescinded after the signatures of all parties have been 
     affixed to the agreement, unless by written revocation of the 
     agreement voluntarily signed by all parties, or as otherwise 
     permitted by law.
       (d) Violation of a Formal Settlement Agreement. If a party 
     should allege that a formal settlement agreement has been 
     violated, the issue shall be determined by reference to the 
     formal dispute resolution procedures of the agreement. If the 
     particular formal settlement agreement does not have a 
     stipulated method for dispute resolution of an alleged 
     violation of the agreement, the following dispute resolution 
     procedure shall be deemed to be apart of each formal 
     settlement agreement approved by the Executive Director 
     pursuant to section 414 of the Act. Any complaint regarding a 
     violation of a formal settlement agreement may be filed with 
     the Executive Director no later than 60 days after the party 
     to the agreement becomes aware of the alleged violation. Such 
     complaints may be referred by the Executive Director to a 
     Hearing Officer for a final decision. The procedures for 
     hearing and determining such complaints shall be governed by 
     subparts F, G, and H of these rules.
       Discussion: The Act empowers the Executive Director to 
     exercise final approval over any settlement agreement. 
     Otherwise, no settlement agreement shall ``become 
     effective.'' See 2 U.S.C. 1414. This procedural rule provides 
     a dispute resolution procedure which is designed to preserve 
     the confidentiality of any settlement agreement to the 
     maximum extent possible, should the parties not include 
     another dispute resolution mechanism in the settlement 
     agreement which is approved by the Executive Director.
     Sec. 9.06 Payments required pursuant to Decisions, Awards, or 
     Settlements under section 415(a) of the Act. Whenever a 
     decision or award pursuant to sections 4050, 406(e), 407, or 
     408 of the Act, or an approved settlement pursuant to section 
     414 of the Act, require the payment of funds pursuant to 
     section 415(a) of the Act, the decision, award, or settlement 
     shall be submitted to the Executive Director to be processed 
     by the Office for requisition from the account of the Office 
     of Compliance in the Department of the Treasury, and payment.
       Discussion: This rule memorializes existing practices 
     authorized under section 415(a) of the Act.

     Sec. 9.07 Revocation, Amendment or Waiver of Rules.

. . . . .

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