[Congressional Record Volume 160, Number 128 (Tuesday, September 9, 2014)]
[Senate]
[Pages S5437-S5460]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




NOTICE OF PROPOSED RULEMAKING (``NPRM''), AND REQUEST FOR COMMENTS FROM 
                           INTERESTED PARTIES

  Mr. LEAHY. Mr. President, I ask unanimous consent that the attached 
documentation from the Office of Compliance be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:
                                                    U.S. Congress,


                                         Office of Compliance,

                                Washington, DC, September 9, 2014.
     Hon. Patrick J. Leahy,
     President Pro Tempore of the Senate,
     Washington, DC.
       Dear Mr. President: Section 210(e) of the Congressional 
     Accountability Act (``CAA''), 2 U.S.C. Sec. 1331(e), requires 
     the Board of Directors of the Office of Compliance (``the 
     Board'') to issue regulations implementing Section 210 of the 
     CAA relating to provisions of Titles II and III of the 
     Americans with Disabilities Act (``ADA''), 42 U.S.C. 
     Sec. Sec. 12131-12150, 12182, 12183 and 12198, made 
     applicable

[[Page S5438]]

     to the legislative branch by the CAA. 2 U.S.C. 
     Sec. 1331(b)(1).
       Section 304(b)(1) of the CAA, 2 U.S.C. Sec. 1384(b)(1), 
     requires that the Board issue a general notice of proposed 
     rulemaking by transmitting ``such notice to the Speaker of 
     the House of Representatives and the President pro tempore of 
     the Senate for publication in the Congressional Record on the 
     first day on which both Houses are in session following such 
     transmittal.''
       On behalf of the Board, I am hereby transmitting the 
     attached notice of proposed rulemaking to the President Pro 
     Tempore of the Senate. I request that this notice be 
     published in the Senate section of the Congressional Record 
     on the first day on which both Houses are in session 
     following receipt of this transmittal. In compliance with 
     Section 304(b)(2) of the CAA, a comment period of 30 days 
     after the publication of this notice of proposed rulemaking 
     is being provided before adoption of the rules.
       All inquiries regarding this notice should be addressed to 
     Barbara J. Sapin, Executive Director of the Office of 
     Compliance, Room LA-200, 110 2nd Street, S.E., Washington, DC 
     20540; (202) 724-9250.
           Sincerely,

                                            Barbara L. Camens,

                                  Chair of the Board of Directors,
                                             Office of Compliance.

  From the Board of Directors of the Office of Compliance: Notice of 
     Proposed Rulemaking (``NPRM''), and Request for Comments From 
                          Interested Parties.


 REGULATIONS EXTENDING RIGHTS AND PROTECTIONS UNDER THE AMERICANS WITH 
      DISABILITIES ACT (``ADA'') RELATING TO PUBLIC SERVICES AND 
ACCOMMODATIONS, NOTICE OF PROPOSED RULEMAKING, AS REQUIRED BY 2 U.S.C. 
  Sec. 1331, THE CONGRESSIONAL ACCOUNTABILITY ACT OF 1995, AS AMENDED 
                               (``CAA'').

     Background:
       The purpose of this Notice is to propose substantive 
     regulations that will implement Section 210 of the CAA, which 
     provides that the rights and protections against 
     discrimination in the provision of public services and 
     accommodation under Titles II and III of the ADA shall apply 
     to entities covered by the CAA.
       What is the authority under the CAA for these proposed 
     substantive regulations?
       Section 210(b) of the CAA provides that the rights and 
     protections against discrimination in the provision of public 
     services and accommodations established by the provisions of 
     Titles II and III (sections 201 through 230, 302, 303, and 
     309) of the Americans With Disabilities Act of 1990, 42 
     U.S.C. Sec. Sec. 12131-12150, 12182, 12183, and 12189 
     (``ADA'') shall apply to the following entities:
       (1) each office of the Senate, including each office of a 
     Senator and each committee;
       (2) each office of the House of Representatives, including 
     each office of a Member of the House of Representatives and 
     each committee;
       (3) each joint committee of the Congress;
       (4) the Office of Congressional Accessibility Services;
       (5) the Capitol Police;
       (6) the Congressional Budget Office;
       (7) the Office of the Architect of the Capitol (including 
     the Botanic Garden);
       (8) the Office of the Attending Physician; and
       (9) the Office of Compliance.

     2 U.S.C. 1331(b).

       Title II of the ADA generally prohibits discrimination on 
     the basis of disability in the provision of services, 
     programs, or activities by any ``public entity''. Section 
     210(b)(2) of the CAA defines the term ''public entity'' for 
     Title II purposes as any entity listed above that provides 
     public services, programs, or activities. 2 U.S.C. 
     Sec. 1331(b)(2).
       Title III of the ADA generally prohibits discrimination on 
     the basis of disability by public accommodations and requires 
     places of public accommodation and commercial facilities to 
     be designed, constructed, and altered in compliance with 
     accessibility standards. Section 225(f) of the CAA provides 
     that, ``[e]xcept where inconsistent with definitions and 
     exemptions provided in this Act, the definitions and 
     exemptions of the [ADA] shall apply under this Act.'' 2 
     U.S.C. Sec. 1361(f)(1).
       Section 210(f) of the CAA requires that the General Counsel 
     of the Office of Compliance on a regular basis, and at least 
     once each Congress, conduct periodic inspections of all 
     covered facilities and report to Congress on compliance with 
     disability access standards under section 210. 2 U.S.C. 
     Sec. 1331(f).
       Section 210(e) of the CAA requires the Board of Directors 
     of the Office of Compliance (``the Board'') established under 
     the CAA to issue regulations implementing the section. 2 
     U.S.C. Sec. 1331(e). Section 210(e) further states that such 
     regulations ``shall be the same as substantive regulations 
     promulgated by the Attorney General and the Secretary of 
     Transportation to implement the statutory provisions referred 
     to in subsection (b) except to the extent that the Board may 
     determine, for good cause shown and stated together with the 
     regulation, that a modification of such regulations would be 
     more effective for the implementation of the rights and 
     protections under this section.'' Id. Section 210(e) further 
     provides that the regulations shall include a method of 
     identifying, for purposes of this section and for different 
     categories of violations of subsection (b), the entity 
     responsible for correction of a particular violation. 2 
     U.S.C. Sec. 1331(e).
       Additional authority for proposing these regulations is 
     found in CAA Section 304, which sets forth the procedure to 
     be followed for the rulemaking process in general, including 
     notice and comment; Board consideration of comments and 
     adoption of regulations; transmittal to the Speaker and 
     President Pro Tempore for publication in the Congressional 
     Record; and approval by the Congress.
       Are there ADA public access regulations already in force 
     under the CAA?
       Yes. The CAA was enacted on January 23, 1995. It applied to 
     the legislative branch of the federal government the 
     protections of 12 (now 13) statutes that previously had 
     applied to the executive branch and/or the private sector, 
     including laws providing for family and medical leave, 
     prohibiting discrimination against eligible veterans, and 
     affording labor-management rights and responsibilities, among 
     others. The CAA established the Office of Compliance as an 
     independent agency to administer and enforce the CAA. The OOC 
     administers an administrative dispute resolution system to 
     resolve certain disputes arising under the Act. The General 
     Counsel of the OOC has independent investigatory and 
     enforcement authority for other violations of the Act, 
     including certain portions of the ADA, 42 U.S.C. 
     Sec. Sec. 12131-12150, 12182, 12183, & 12189.
       As set forth in the previous answer, the CAA requires the 
     Board to issue regulations implementing the statutory 
     protections provided by the CAA. See, e.g., CAA Sections 
     202(d) (Family and Medical Leave Act of 1993), 206(c) 
     (Veterans' Employment and Reemployment), 212 (d) (Federal 
     Service Labor Management Relations Act). 2 U.S.C. sections 
     1312(d), 1316(c), 1351(d). The Board's regulations ``shall be 
     the same as substantive regulations promulgated by the 
     Attorney General and Secretary of Transportation . . . except 
     insofar as the Board may determine, for good cause shown and 
     stated together with the regulation, that a modification of 
     such regulations would be more effective for the 
     implementation of the rights and protections under this 
     section.'' 2 U.S.C. Sec. 1331(e)(2).
       The CAA does not simply apply to the legislative branch the 
     substantive protections of these laws, and direct that the 
     implementing regulations essentially mirror those of the 
     executive branch. The statute further provides that, while 
     the CAA rulemaking procedure is underway, the corresponding 
     executive branch regulations are to be applied. Section 411 
     of the Act provides:
       ``Effect of failure to issue regulations.
       In any proceeding under section 1405, 1406, 1407, or 1408 
     of this title . . . if the Board has not issued a regulation 
     on a matter for which this chapter requires a regulation to 
     be issued, the hearing officer, Board, or court, as the case 
     may be, shall apply, to the extent necessary and appropriate, 
     the most relevant substantive executive agency regulation 
     promulgated to implement the statutory provision at issue in 
     the proceeding.''
       This statutory scheme makes plain that ADA public access 
     regulations are presently in force. First, regulations 
     virtually identical to these were adopted by the Board, 
     presented to the House of Representatives and the Senate on 
     September 19, 1996, and published on January 7, 1997. 142 
     Cong. Rec. S10984-11018 and 143 Cong. Rec. S30-66. No action 
     was taken and thus the regulations were not issued. As set 
     forth above, in these circumstances the CAA applies ``the 
     most relevant substantive executive agency regulations,'' 
     i.e., the Departments of Justice (``DOJ'') and Department of 
     Transportation (``DOT'') ADA public access regulations. 2 
     U.S.C Sec. 1411.
       A contrary interpretation would render meaningless several 
     sections of the CAA. For example, Congress directed the AOC 
     and other employing offices to conduct an initial study of 
     legislative branch facilities from January 23, 1995 through 
     December 31, 1996, ``to identify any violations of subsection 
     (b) of [section 210], to determine the costs of compliance, 
     and to take any necessary corrective action to abate any 
     violations.'' 2 U.S.C. section 1331(f)(3). Congress 
     instructed the OOC to assist the employing offices by 
     ``arranging for inspections and other technical assistance at 
     their request.'' Id. The CAA was enacted on January 23, 1995. 
     No implementing regulations could have taken effect as of 
     that date. Plainly, Congress intended the employing offices 
     and the OOC to look to the DOJ and DOT ADA public access 
     regulations, with which the CAA explicitly required employing 
     offices to comply, when conducting the initial study and 
     abatement actions.
       Other sections of the CAA support this reading. For 
     example, the CAA requires the Board to exclude from labor 
     relations regulations employees of Member offices, Senate and 
     House Legislative Counsel, the Congressional Budget Office 
     and several other employing offices if the Board finds a 
     conflict of interest or appearance thereof. 2 U.S.C. 
     Sec. 1351(e)(1)(B). Where, as here, a statute explicitly 
     provides for certain regulatory exemptions, it would be 
     illogical to interpret language that expressly provides 
     for regulatory compliance to mean anything else. When 
     Congress intended to exempt employing offices from 
     regulations, the CAA did so explicitly.
       Why are these regulations being proposed at this time?
       As set forth in the previous answer, the CAA requires 
     employing offices to comply with ADA public access 
     regulations issued by the DOJ and DOT pursuant to the ADA. 
     The CAA also requires the Board to issue its own regulations 
     implementing the ADA public

[[Page S5439]]

     access provisions of the CAA. The statute obligates the 
     Board's regulations to be the same as the DOJ and DOT 
     regulations except to the extent that the Board may determine 
     that a modification would be more effective in implementing 
     ADA public access protections. CAA section 210(e)(2). These 
     proposed regulations will clarify that covered entities must 
     comply with the ADA public access provisions applied to 
     public entities and accommodations to implement Titles II and 
     III of the ADA. Congressional approval and Board issuance of 
     ADA public access under the CAA will also eliminate any 
     question as to the ADA public access protections that are 
     applicable in the legislative branch.
       The Board adopted proposed regulations and presented them 
     to the House of Representatives and the Senate in 1996. The 
     regulations were published on January 7, 1997, during the 
     105th Congress. 142 Cong. Rec. S10984-11018 and 143 Cong. 
     Rec. S30-66. No Congressional action was taken and therefore 
     the regulations were not issued. The Board adopted the 
     present proposal, with updated proposed regulations, to 
     facilitate Congressional consideration of the ADA 
     regulations.
       Which ADA public access regulations are applied to covered 
     entities in 2 U.S.C. Sec. 1331(e)? 
       Section 210(e) of the CAA requires the Board to issue 
     regulations that are ``the same as substantive regulations 
     promulgated by the Attorney General and the Secretary of 
     Transportation to implement the statutory provisions . . . 
     except to the extent that the Board may determine, for good 
     cause shown and stated together with the regulation, that a 
     modification of such regulations would be more effective for 
     the implementation of the rights and protections under this 
     section.'' 2 U.S.C. Sec. 1331(e).
       Consistent with its prior decisions on this issue, the 
     Board has determined that all regulations promulgated after a 
     notice and comment by the DOJ and/or the DOT to implement the 
     provisions of Title II and Title III of the ADA applied by 
     section 210(b) of the CAA are ``substantive regulations'' 
     within the meaning of section 210(e). See, e.g., 142 Cong. 
     Rec. S5070, S5071-72 (daily ed. May 15, 1996) (NPRM 
     implementing section 220(d) regulations); 141 Cong. Rec. 
     S17605 (daily ed. Nov. 28, 1995) (NPRM implementing section 
     203 regulations).
       See also Reves v. Ernst & Young, 494 U.S. 56, 64 (1993) 
     (where same phrase or term is used in two different places in 
     the same statute, it is reasonable for court to give each use 
     a similar construction); Sorenson v. Secretary of the 
     Treasury, 475 U.S. 851, 860 (1986) (normal rule of statutory 
     construction assumes that identical words in different parts 
     of the same act are intended to have the same meaning).
       In this regard, the Board has reviewed the provisions of 
     section 210 of the CAA, the sections of the ADA applied by 
     that section, and the regulations of the DOJ and DOT, to 
     determine whether and to what extent those regulations are 
     substantive regulations which implement the provisions of 
     Title II and Title III of the ADA applied by section 210(b) 
     of the CAA. As explained more fully below, the Board proposes 
     to adopt the following otherwise applicable regulations of 
     the DOJ published at Parts 35 and 36 of Title 28 of the Code 
     of Federal Regulations (``CFR'') and those of the DOT 
     published at Parts 37 and 38 of Title 49 of the CFR:
       1. DOJ's regulations at Part 35 of Title 28 of the CFR: The 
     DOJ's regulations at Part 35 implement subtitle A of Title II 
     of the ADA (sections 201 through 205), the rights and 
     protections of which are applied to covered entities under 
     section 210(b) of the CAA. See 28 CFR Sec. 35.101 (Purpose). 
     Therefore, the Board determines that these regulations will 
     be adopted in the proposed regulations under section 210(e).
       2. DOJ's regulations at Part 36 of Title 28 of the CFR: The 
     DOJ's regulations at Part 36 implement Title III of the ADA 
     (sections 301 through 309). See 28 CFR Sec. 36.101 (Purpose). 
     Section 210(b) only applies the rights and protections of 
     three sections of Title III with respect to public 
     accommodations: prohibitions against discrimination (section 
     302), provisions regarding new construction and alterations 
     (section 303), and provisions regarding examinations and 
     courses (section 309). Therefore, only those regulations in 
     Part 36 that are reasonably necessary to implement the 
     statutory provisions of sections 302, 303, and 309 will be 
     adopted by the Board under section 210(e) of the CAA.
       3. DOT's regulations at Parts 37 and 38 of Title 49 of the 
     CFR: The DOT's regulations at Parts 37 and 38 implement the 
     transportation provisions of Title II and Title III of the 
     ADA. See 49 CFR Sec. Sec. 37.101 (Purpose) and 38.1 
     (Purpose). The provisions of Title II and Title III of the 
     ADA relating to transportation and applied to covered 
     entities by section 210(b) of the CAA are subtitle B of Title 
     II (sections 221 through 230) and certain portions of section 
     302 of Title III. Thus, those regulations of the Secretary 
     that are reasonably necessary to implement the statutory 
     provisions of sections 221 through 230, 302, and 303 of the 
     ADA will be adopted by the Board under section 210(e) of the 
     CAA.
       The Board proposes not to adopt those regulatory provisions 
     of the regulations of the DOJ or DOT that have no conceivable 
     applicability to operations of entities within the 
     Legislative Branch or are unlikely to be invoked. See 141 
     Cong. Rec. at S17604 (daily ed. Nov. 28, 1995) (NPRM 
     implementing section 203 regulations). Unless public comments 
     demonstrate otherwise, the Board intends to include in the 
     adopted regulations a provision stating that the Board has 
     issued substantive regulations on all matters for which 
     section 210(e) requires a regulation. See section 411 of the 
     CAA, 2 U.S.C. Sec. 1411.
       In addition, the Board has proposed to make technical 
     changes in definitions and nomenclature so that the 
     regulations comport with the CAA and the organizational 
     structure of the Office of Compliance. In the Board's 
     judgment, making such changes satisfies the CAA's ``good 
     cause'' requirement. With the exception of these technical 
     and nomenclature changes and additional proposed regulations 
     relating to the investigation and inspection authority 
     granted to the General Counsel under the CAA, the Board does 
     not propose substantial departure from otherwise applicable 
     regulations.
       The Board notes that the General Counsel applied the above-
     referenced standards of Parts 35 and 36 of the DOJ's 
     regulations and Parts 37 and 38 of the DOT's regulations 
     during the past inspections of Legislative Branch facilities 
     pursuant to section 210(f) of the CAA. In contrast to other 
     sections of the CAA, which generally give the Office of 
     Compliance only adjudicatory and regulatory responsibilities, 
     the General Counsel has the authority to investigate and 
     prosecute alleged violations of disability standards under 
     section 210, as well as the responsibility for inspecting 
     covered facilities to ensure compliance. According to the 
     General Counsel's final inspection reports, the Title II and 
     Title III regulations encompass the following requirements:
       1. Program accessibility: This standard is applied to 
     ensure physical access to public programs, services, or 
     activities. Under this standard, covered entities must modify 
     policies, practices, and procedures to ensure an equal 
     opportunity for individuals with disabilities. If policy and 
     procedural modifications are ineffective, then structural 
     modifications may be required.
       2. Effective communication: This standard requires covered 
     entities to make sure that their communications with 
     individuals with disabilities (such as in the context of 
     constituent meetings and committee hearings) are as effective 
     as their communications with others. Covered entities are 
     required to make information available in alternate formats 
     such as large print, Braille, or audio tape, or use methods 
     that provide individuals with disabilities the opportunity to 
     effectively communicate, such as sign language interpreters 
     or the use of pen and paper. Primary consideration must be 
     given to the method preferred by the individual.
       3. ADA Standards for Accessible Design: These standards are 
     applied to architectural barriers, including structural 
     barriers to communication, such as telephone booths, to 
     ensure that existing facilities, new construction, and new 
     alterations, are accessible to individuals with disabilities.
       The Board recognizes that, as with other obligations under 
     the CAA, covered entities will need information and guidance 
     regarding compliance with these ADA standards as adopted in 
     these proposed regulations, which the Office will provide as 
     part of its education and information activities.
       How do these regulations differ from those proposed by the 
     Board on January 7, 1997?
       These regulations are very similar to those proposed by the 
     Board in 1997; however, there are three significant 
     differences:
       1. These regulations have been updated to incorporate the 
     changes made in the DOJ and DOT regulations since 1997. One 
     of the most significant changes made by the DOJ occurred on 
     September 15, 2010 when the DOJ published regulations 
     adopting the 2010 Standards for Accessible Design (``2010 
     Standards''). The 2010 Standards became fully effective on 
     March 15, 2012 and replaced the 1991 Standards for Accessible 
     Design (``1991 Standards'') that were referenced in the 
     regulations proposed by the Board in 1997. These regulations 
     incorporate by reference the pertinent DOJ and DOT 
     regulations that are in effect as of the date of the 
     publication of this notice, which means that the 2010 
     Standards will be applied. The Board has also changed the 
     format of the incorporated regulations. Rather than 
     reprinting each of the regulations with minor changes to 
     reflect different nomenclature used in the CAA (i.e., 
     changing references to ``Assistant Attorney General,'' 
     ``Department of Justice,'' ``FTA Administrator,'' ``FTA 
     regional office,'' ``Administrator,'' and ``Secretary'' to 
     ``General Counsel''), these regulations contain a 
     definitional section in Sec. 1.105(a) which make these 
     changes and incorporates the DOJ and DOT regulations by 
     reference.
       2. Unlike the Board in 1997, the current Board has decided 
     not to propose adoption of the DOJ Title II regulation 
     relating to employment discrimination, 28 C.F.R. Sec. 35.140. 
     The Board notes that since 1997 most courts considering this 
     issue have decided that employees of public entities must use 
     the procedures in Title I of the ADA to pursue employment 
     discrimination claims and that these claims cannot be pursued 
     under Title II. See, e.g., Brumfield v. City of Chicago, 735 
     F.3d 619 (7th Cir. 2013); Elwell v. Okla. ex rel. Bd. of 
     Regents of the Univ. of Okla., 693 F.3d 1303 (10th Cir. 
     2012); Zimmerman v. Or. Dep't of Justice, 170 F.3d 1169 (9th 
     Cir. 1999). The prohibition against employment discrimination 
     because of disability in Title I of the ADA is incorporated 
     into section 201(a)(3) of the CAA. 2 U.S.C. Sec. 1311(a)(3). 
     Under section 210(c) of the CAA, ``with respect to any claim 
     of employment discrimination asserted by any covered 
     employee, the exclusive remedy shall be under section 1311 of 
     this title.'' 2 U.S.C. Sec. 1331(c). Similarly, under section 
     225(e) of the CAA, ``[o]nly a covered entity

[[Page S5440]]

     who has undertaken and completed the procedures in sections 
     1402 and 1403 of this title may be granted a remedy under 
     part A of this subchapter.'' 2 U.S.C. Sec. 1361(e). When 
     taken together, these sections of the CAA make it clear that 
     the exclusive method for obtaining relief for employment 
     discrimination because of disability is under section 201, 
     which involves using the counseling and mediation procedures 
     contained in sections 402 and 403 of the CAA. For these 
     reasons, the Board has found good cause not to incorporate 
     the DOJ Title II regulation relating to employment 
     discrimination, 28 C.F.R. Sec. 35.140, into these 
     regulations.
       3. In Parts 2 and 3 of these regulations, the Board has 
     proposed regulations relating to the two unique statutory 
     duties imposed by the CAA upon the General Counsel of the 
     Office of Compliance that are not imposed upon the DOJ and 
     DOT: (1) the investigation and prosecution of charges of 
     discrimination using the Office's mediation and hearing 
     processes (section 210(d) of the CAA) and (2) the biennial 
     inspection and reporting obligations (section 210(f) of the 
     CAA). Parts 2 and 3 of these regulations were not contained 
     in the regulations proposed in 1997; however, the Board has 
     determined that there is good cause to propose these 
     regulations to fully implement section 210 of the CAA. See, 2 
     U.S.C. Sec. 1331(e)(1). In formulating the substance of these 
     regulations, the Board has directed the Office's statutory 
     employees to consult with stakeholders and has considered 
     their comments and suggestions.
       The Board has also reviewed the biennial ADA reports from 
     the General Counsel and considered what the General Counsel 
     has learned since 1995 while investigating charges of 
     discrimination and conducting and reporting upon ADA 
     inspections. Of particular note is the regulation proposed as 
     Sec. 3.103(d) which addresses concerns raised by oversight 
     and appropriations staff over finding a cost-efficient 
     process that would allow better identification and 
     elimination of potential ADA compliance issues during the 
     pre-construction phases of new construction and alteration 
     projects.
     Procedural Summary:
       How are substantive regulations proposed and approved under 
     the CAA? 
       Pursuant to Section 304 of the CAA, 2 U.S.C. Sec. 1384, the 
     procedure for proposing and approving such substantive 
     regulations provides that:
       (1) the Board of Directors propose substantive regulations 
     and publish a general notice of proposed rulemaking in the 
     Congressional Record;
       (2) there be a comment period of at least 30 days after the 
     date of publication of the general notice of proposed 
     rulemaking;
       (3) after consideration of comments by the Board of 
     Directors, the Board adopt regulations and transmit notice of 
     such action (together with the regulations and a 
     recommendation regarding the method for Congressional 
     approval of the regulations) to the Speaker of the House and 
     President [P]ro [T]empore of the Senate for publication in 
     the Congressional Record;
       (4) there be committee referral and action on the proposed 
     regulations by resolution in each House, concurrent 
     resolution, or by joint resolution; and
       (5) final publication of the approved regulations in the 
     Congressional Record, with an effective date prescribed in 
     the final publication.
       For more detail, please reference the text of 2 U.S.C. 
     Sec. 1384. This Notice of Proposed Rulemaking is step (1) of 
     the outline set forth above.
       Are these proposed regulations also recommended by the 
     Office of Compliance's Executive Director, the Deputy 
     Executive Director for the Senate, and the Deputy Executive 
     Director for the House of Representatives? 
       As required by Section 304(b)(1) of the CAA, 2 U.S.C. 
     Sec. 1384(b)(1), the substance of these regulations is also 
     recommended by the Executive Director, the Deputy Executive 
     Director for the Senate and the Deputy Executive Director for 
     the House of Representatives.
       Has the Board of Directors previously proposed substantive 
     regulations implementing the ADA public access provisions 
     pursuant to 2 U.S.C. Sec. 1331?
       Yes. Proposed regulations were previously adopted by the 
     Board and presented to the House of Representatives and the 
     Senate on September 19, 1996. The regulations were published 
     on January 7, 1997. 142 Cong. Rec. S10984-11018 and 143 Cong. 
     Rec. S30-66. No Congressional action was taken on these 
     regulations.
       What is the approach taken by these proposed substantive 
     regulations?
       The Board will follow the procedure as enumerated above and 
     as required by statute. The Board will review any comments 
     received under step (2) of the outline above, and respond to 
     the comments and make any changes necessary to ensure that 
     the regulations fully implement section 210 of the CAA and 
     reflect the practices and policies particular to the 
     legislative branch.
       What responsibilities would covered entities have in 
     effectively implementing these regulations?
       The CAA charges covered entities with the responsibility to 
     comply with these regulations. CAA Sec. 210, 2 U.S.C. 
     Sec. 1331.
       Are there substantive differences in the proposed 
     regulations for the House of Representatives, the Senate, and 
     the other employing offices?
       No. The Board of Directors has identified no ``good cause'' 
     for proposing different regulations for these entities and 
     accordingly has not done so. 2 U.S.C. Sec. 1331(e)(2).
       Are these proposed substantive regulations available to 
     persons with disabilities in an alternate format?
       This Notice of Proposed Regulations is available on the 
     OOC's web site, www.compliance.gov, which is compliant with 
     Section 508 of the Rehabilitation Act of 1973 as amended, 29 
     U.S.C. Sec. 794d. This Notice can also be made available in 
     large print or Braille. Requests for this Notice in an 
     alternative format should be made to: Annie Leftwood, 
     Executive Assistant, Office of Compliance, 110 2nd Street, 
     S.E., Room LA-200, Washington, D.C. 20540; 202-724-9250; TDD: 
     202-426-1912; FAX: 202-426-1913.
     30 Day Comment Period Regarding the Proposed Regulations
       How long do I have to submit comments regarding the 
     proposed regulations?
       Comments regarding the proposed regulations of the OOC set 
     forth in this Notice are invited for a period of thirty (30) 
     days following the date of the appearance of this Notice in 
     the Congressional Record.
       How do I submit comments?
       Comments must be made in writing to the Executive Director, 
     Office of Compliance, 110 Second Street, S.E., Room LA-200, 
     Washington, D.C. 20540-1999. Those wishing to receive 
     confirmation of the receipt of their comments are requested 
     to provide a self-addressed, stamped post card with their 
     submission. It is requested, but not required, that an 
     electronic version of any comments be provided either on an 
     accompanying computer disk or e-mailed to the OOC via its web 
     site. Comments may also be submitted by facsimile to the 
     Executive Director at 202-426-1913 (a non-toll-free number).
       Am I allowed to view copies of comments submitted by 
     others?
       Yes. Copies of submitted comments will be available for 
     review on the Office's web site at www.compliance.gov, and at 
     the Office of Compliance, 110 Second Street, S.E., 
     Washington, D.C. 20540-1999, on Monday through Friday (non-
     Federal holidays) between the hours of 9:30 a.m. and 4:30 
     p.m.
     Summary:
       The Congressional Accountability Act of 1995, PL 104-1, was 
     enacted into law on January 23, 1995. The CAA, as amended, 
     applies the rights and protections of thirteen federal labor 
     and employment statutes to covered employees and employing 
     offices within the legislative branch of the federal 
     government. Section 210 of the CAA applies that the rights 
     and protections against discrimination in the provision of 
     public services and accommodations established by of Titles 
     II and III (sections 201 through 230, 302, 303, and 309) of 
     the Americans With Disabilities Act of 1990, 42 U.S.C. 
     Sec. 12131-12150, 12182, 12183, and 12189 (``ADA'') shall 
     apply to Legislative Branch entities covered by the CAA. The 
     above provisions of section 210 became effective on January 
     1, 1997. 2 U.S.C. Sec. 1331(h).
       The Board of Directors of the Office of Compliance is now 
     publishing proposed regulations to implement Section 210 of 
     the Congressional Accountability Act of 1995 (``CAA''), 2 
     U.S.C. Sec. 1301-1438, as applied to covered entities of the 
     House of Representatives, the Senate, and certain 
     Congressional instrumentalities listed below.
       In addition to inviting comment in this Notice, the Board, 
     through the statutory appointees of the Office, sought 
     consultation with the stakeholders regarding the development 
     of these regulations. The Board also notes that the General 
     Counsel of the Office of Compliance has completed inspections 
     of covered facilities for compliance with disability access 
     standards under section 210 of the CAA during each Congress 
     since the CAA was enacted and has submitted reports to 
     Congress after each of these inspections. Based on 
     information gleaned from these consultations and the 
     experience gained from the General Counsel's inspections, the 
     Board is publishing these proposed regulations, pursuant to 
     section 210(e) of the CAA, 2 Sec. 1331(e).
       The purpose of these regulations is to implement section 
     210 of the CAA. In this Notice of Proposed Rulemaking 
     (``NPRM'' or ``Notice'') the Board proposes that virtually 
     identical regulations be adopted for the Senate, the House of 
     Representatives, and the seven Congressional 
     instrumentalities. Accordingly:
       (1) Senate. It is proposed that regulations as described in 
     this Notice be included in the body of regulations that shall 
     apply to entities within the Senate, and this proposal 
     regarding the Senate entities is recommended by the Office of 
     Compliance's Deputy Executive Director for the Senate.
       (2) House of Representatives. It is further proposed that 
     regulations as described in this Notice be included in the 
     body of regulations that shall apply to entities within the 
     House of Representatives, and this proposal regarding the 
     House of Representatives entities is recommended by the 
     Office of Compliance's Deputy Executive Director for the 
     House of Representatives.
       (3) Certain Congressional instrumentalities. It is further 
     proposed that regulations as described in this Notice be 
     included in the body of regulations that shall apply to the 
     Office of Congressional Accessibility Services, the Capitol 
     Police, the Congressional Budget Office, the Office of the 
     Architect of the Capitol (including the Botanic Garden), the 
     Office of the Attending Physician, and the Office of 
     Compliance; and this proposal regarding these six 
     Congressional instrumentalities is recommended by the Office 
     of Compliance's Executive Director.

[[Page S5441]]

       Dates: Comments are due within 30 days after the date of 
     publication of this Notice in the Congressional Record.
     Supplementary Information:
       The regulations set forth below (Parts 1, 2, and 3) are the 
     substantive regulations that the Board of Directors of the 
     Office of Compliance are proposing pursuant to section 210(e) 
     of the CAA. Part 1 contains the general provisions applicable 
     to all regulations under section 210, the method of 
     identifying entities responsible for correcting a violation 
     of section 210, and the list of executive branch regulations 
     incorporated by reference which define and clarify the 
     prohibition against discrimination on the basis of disability 
     in the provision of public services and accommodations. Part 
     2 contains the provisions pertaining to investigation and 
     prosecution of charges of discrimination. Part 3 contains the 
     provisions regarding the periodic inspections and reports to 
     Congress on compliance with the disability access standards. 
     These three parts correspond to the three general duties 
     imposed upon the Office of Compliance by section 210 which 
     are as follows:
       1. Under section 210(e) of the CAA, the Board of Directors 
     of the Office of Compliance must promulgate substantive 
     regulations which implement the rights and protections 
     provided by section 210. 2 U.S.C. Sec. 1331(e)(1).
       2. Under Section 210(d) of the CAA, the General Counsel of 
     the Office of Compliance must receive and investigate charges 
     of discrimination alleging violations of the rights and 
     protections provided by Titles II and III of the ADA, may 
     request mediation of such charges upon believing that a 
     violation may have occurred, and, if mediation has not 
     succeeded in resolving the dispute, may file a complaint and 
     prosecute the complaint through the Office of Compliance's 
     hearing and review process 2 U.S.C. Sec. 1331(d).
       3. Under section 210(f) of the CAA, the General Counsel of 
     the Office of Compliance on a regular basis, and at least 
     once each Congress, must conduct periodic inspections of all 
     covered facilities and report to Congress on compliance with 
     disability access standards under section 210. 2 U.S.C. 
     Sec. 1331(f).
       Regulations proposed in Part 1.
       Sec. 1.101 Purpose and scope. This section references and 
     cites the sections of Title II and III of the ADA 
     incorporated by reference into the CAA, follows the statutory 
     language of the CAA to identify the covered entities and the 
     statutory duties of the General Counsel of the Office of 
     Compliance and describes how the regulations are organized.
       Sec. 1.102 Definitions. This section describes the 
     abbreviations that are used throughout the regulations.
       Sec. 1.103 Authority of the Board. This section describes 
     the authority of the Board of Directors of the Office of 
     Compliance to issue regulations under section 210 of the CAA 
     and the intended effect of the technical and nomenclature 
     changes made to the regulations promulgated by the Attorney 
     General and Secretary of Transportation.
       Sec. 1.104 Method for identifying the entity responsible 
     for correcting violations of section 210. The regulation in 
     this section is required by section 210(e)(3) of the CAA. 
     This regulation hues very closely to the DOJ Title III 
     regulation set forth in 28 C.F.R. Sec. 36.201 which in turn 
     is based on the statutory language in 42 U.S.C. Sec. 12182(a) 
     (one of the ADA statutory sections incorporated by reference 
     in section 210(b) of the CAA). Under section 302 of the ADA, 
     owners, operators, lessors and lessees are all jointly and 
     severally liable for ADA violations. See, e.g., Botosan v. 
     McNally Realty, 216 F.3d 827, 832 (9th Cir. 2000). The 
     proposed regulation allows consideration of relevant 
     statutes, contracts, orders, and other enforceable 
     arrangements or relationships to allocate responsibility. The 
     term ``enforceable arrangement'' is used intentionally since 
     certain indemnification and contribution contracts allocating 
     liability under the ADA have been found to be unenforceable. 
     See, e.g., Equal Rights Center v. Archstone-Smith Trust, 602 
     F.3d 597 (4th Cir. 2010, cert denied, 131 S. Ct. 504 (2010). 
     Although the concepts of ``ownership'' or ``leasing'' do not 
     appear to apply to Legislative Branch facilities on Capitol 
     Hill, the Architect of the Capitol does have statutory 
     superintendence responsibility for certain legislative branch 
     buildings and facilities, including the Capitol Building, 
     which includes duties and responsibilities analogous to those 
     of a ``landlord''. See 40 U.S.C. Sec. Sec. 163-166 (Capitol 
     Building), 167-175 and 185a (House and Senate office 
     buildings), 193a (Capitol grounds), 216b (Botanical Garden) 
     and 2 U.S.C. Sec. 141(a)(1) (Library of Congress buildings). 
     The Board believes that, where two or more entities may have 
     compliance obligations under section 210(b) as ``responsible 
     entities'' under the proposed regulations, those entities 
     should have the ability to allocate responsibility by 
     agreement similar to the case of landlords and tenants with 
     respect to public accommodations under Title III of the ADA. 
     Thus, the proposed regulations adopt such provisions modeled 
     after section 36.201(b) of the DOJ regulations. However, by 
     promulgating this provision, the Board does not intend any 
     substantive change in the statutory responsibility of 
     entities under section 210(b) or the applicable substantive 
     rights and protections of the ADA applied thereunder. See 142 
     Cong. Rec. at S270 (final rule under section 205 of the CAA 
     substitutes the term ``privatization'' for ``sale of 
     business'' in the Secretary of Labor's regulations under the 
     Worker Adjustment Retraining and Notification Act).
       Sec. 1.105 Regulations incorporated by reference. As 
     explained above, consistent with its prior decisions on this 
     issue, the Board has determined that all regulations 
     promulgated after a notice and comment by the DOJ and/or the 
     DOT to implement the provisions of Title II and Title III of 
     the ADA applied by section 210(b) of the CAA are 
     ``substantive regulations'' within the meaning of section 
     210(e). See, e.g., 142 Cong. Rec. S5070, S5071-72 (daily ed. 
     May 15, 1996) (NPRM implementing section 220(d) regulations); 
     141 Cong. Rec. S17605 (daily ed. Nov. 28, 1995) (NPRM 
     implementing section 203 regulations). In this regard, the 
     Board has reviewed the provisions of section 210 of the CAA, 
     the sections of the ADA applied by that section, and the 
     regulations of the DOJ and DOT, to determine whether and to 
     what extent those regulations are substantive regulations 
     which implement the provisions of Title II and Title III of 
     the ADA applied by section 210(b) of the CAA.
       In section 1.105(a)(1), the Board has modified the 
     nomenclature used in the incorporated regulations to comport 
     with the CAA and the organizational structure of the Office 
     of Compliance. In the Board's judgment, making such changes 
     satisfies the CAA's ``good cause'' requirement. With the 
     exception of these technical and nomenclature changes and 
     additional proposed regulations relating to the investigation 
     and inspection authority granted to the General Counsel under 
     the CAA, the Board does not propose substantial departure 
     from otherwise applicable regulations. The dates referenced 
     in section 1.105(a)(2) reflect that the ADA public access 
     provisions of the CAA became effective on January 1, 1997 
     rather than effective date of the ADA which was January 26, 
     1992. 2 U.S.C. Sec. 1331(h). The three year provision in 
     section 1.105(a)(3) was developed after consultation with the 
     Office of the Architect of the Capitol regarding what would 
     be a reasonable time frame for implementing these provisions 
     of the regulations. In several portions of DOJ and DOT 
     regulations, references are made to dates such as the 
     effective date of the regulations or effective dates derived 
     from the statutory provisions of the ADA. The Board proposes 
     to substitute dates which correspond to analogous periods for 
     the purposes of the CAA. In this way covered entities under 
     section 210 may have the same time to come into compliance 
     relative to the effective date of section 210 of the CAA 
     afforded public entities subject to Title II of the ADA. In 
     the Board's judgment, such changes satisfy the CAA's ``good 
     cause'' requirement. In section 1.105(a)(4), which was also 
     developed based upon consultations with the Office of the 
     Architect of the Capitol (``AOC''), the Board modified the 
     exception for ``historic'' property to include properties, 
     buildings, or facilities designated as an historic or 
     heritage assets by the AOC. This was necessary because the 
     DOJ regulations limit the definition of historic properties 
     to those ``listed or eligible for listing in the National 
     Register of Historic Places or properties designated as 
     historic under State or local law'' 28 C.F.R. Sec. 35.104. 
     While there are certainly properties on Capitol Hill which 
     have historically significant features that are worthy of 
     preservation, these properties are not eligible for listing 
     on the National Register of Historic Places or considered 
     historic under State of local law. See, Historic Preservation 
     Act of 1966, 16 U.S.C. 470g (exempting the White House and 
     its grounds, the Supreme Court building and its grounds, and 
     the United States Capitol and its related buildings and 
     grounds from the provisions of the Historic Preservation 
     Act).
       In section 1.105(b), the Board has adopted a rule of 
     interpretation to cover the few instances where there are 
     differences between regulations implementing Title II and 
     Title III of the ADA. The CAA is unique in that it applies 
     both Title II and Title III provisions to covered public 
     entities. The public accommodation provisions of Title III of 
     the ADA are otherwise only applicable to private entities. 
     See, 42 U.S.C. Sec. 12181(7). This section of the regulation 
     reflects the Board's determination that Congress applied 
     provisions of both Title II and Title III of the ADA to 
     legislative branch entities to ensure that individuals with 
     disabilities are provided the most access to public services, 
     programs, activities and accommodations provided by law.
       In section 1.105(c), the Board has listed the specific DOJ 
     regulations incorporated into the regulations being issued 
     under section 210 of the CAA. As noted earlier, the Board has 
     adopted all of the DOJ regulations implementing Titles II and 
     III of the ADA with the following exceptions:
       1. The Board is not incorporating the DOJ regulations 
     regarding retaliation or coercion (28 C.F.R. Sec. Sec. 35.134 
     & 36.206). Sections 35.134 and 36.206 of the DOJ's 
     regulations implement section 503 of the ADA, which prohibits 
     retaliation against any individual who exercises his or her 
     rights under the ADA. 28 CFR pt. 35, App. A at 464 & pt. 36, 
     App. B at 598 (section-by-section analysis). Sections 35.134 
     and 36.206 are not provisions which implement a right or 
     protection applied to covered entities under section 210(b) 
     of the CAA and, therefore, they will not be included within 
     the adopted regulations. The Board notes, however, that 
     section 207 of the CAA provides a comprehensive retaliation 
     protection for employees (including applicants and former 
     employees) who may invoke their rights under section 210, 
     although section 207 does not apply to nonemployees who may 
     enjoy rights and protections against discrimination under 
     section 210.

[[Page S5442]]

       2. As noted above, unlike the Board in 1997, the current 
     Board has decided not to propose adoption of the DOJ Title II 
     regulation relating to employment discrimination, 28 C.F.R. 
     Sec. 35.140. The Board notes that since 1997 most courts 
     considering this issue have decided that employees of public 
     entities must use the procedures in Title I of the ADA to 
     pursue employment discrimination claims and that these claims 
     cannot be pursued under Title II. See, e.g., Brumfield v. 
     City of Chicago, 735 F.3d 619 (7th Cir. 2013); Elwell v. 
     Okla. ex rel. Bd. of Regents of the Univ. of Okla., 693 F.3d 
     1303 (10th Cir. 2012); Zimmerman v. Or. Dep't of Justice, 170 
     F.3d 1169 (9th Cir. 1999). The prohibition against employment 
     discrimination because of disability in Title I of the ADA is 
     incorporated into section 201(a)(3) of the CAA. 2 U.S.C. 
     Sec. 1311(a)(3). Under section 210(c) of the CAA, ``with 
     respect to any claim of employment discrimination asserted by 
     any covered employee, the exclusive remedy shall be under 
     section 1311 of this title.'' 2 U.S.C. Sec. 1331(c). 
     Similarly, under section 225(e) of the CAA, ``[o]nly a 
     covered entity who has undertaken and completed the 
     procedures in sections 1402 and 1403 of this title may be 
     granted a remedy under part A of this subchapter.'' 2 U.S.C. 
     Sec. 1361(e). When taken together, these sections of the CAA 
     make it clear that the exclusive method for obtaining relief 
     for employment discrimination because of disability is under 
     section 201, which involves using the counseling and 
     mediation procedures contained in sections 402 and 403 of the 
     CAA. For these reasons, the Board has found good cause not to 
     incorporate the DOJ Title II regulation relating to 
     employment discrimination, 28 C.F.R. Sec. 35.140, into these 
     regulations.
       3. The Board has not incorporated Subpart F of the DOJ's 
     regulations (28 C.F.R. Sec. Sec. 35.170-35.189), which set 
     forth administrative enforcement procedures under Title II. 
     Subpart F implements the provisions of section 203 of the 
     ADA, which is applied to covered entities under section 210 
     of the CAA. Although procedural in nature, such provisions 
     address the remedies, procedures, and rights under section 
     203 of the ADA, and thus the otherwise applicable provisions 
     of these regulations are ``substantive regulations'' for 
     section 210(e) purposes. See 142 Cong. Rec. at S5071-72 
     (similar analysis under section 220(d) of the CAA). However, 
     since section 303 of the CAA reserves to the Executive 
     Director the authority to promulgate regulations that 
     ``govern the procedures of the Office,'' and since the Board 
     believes that the benefit of having one set of procedural 
     rules provides the ``good cause'' for modifying the DOJ's 
     regulations, the Board proposes to incorporate the provisions 
     of Subpart F into the Office's procedural rules, to omit 
     provisions that set forth procedures which conflict with 
     express provisions of section 210 of the CAA or are already 
     provided for under comparable provisions of the Office s 
     rules, and to omit rules with no applicability to the 
     Legislative Branch (such as provisions covering entities 
     subject to section 504 of the Rehabilitation Act, provisions 
     regarding State immunity, and provisions regarding referral 
     of complaints to the Justice Department). See 142 Cong. Rec. 
     at S5071-72 (similar analysis and conclusion under section 
     220(d) of the CAA).
       4. The Board has not incorporated Subpart G of the DOJ's 
     regulations, which designates the Federal agencies 
     responsible for investigating complaints under Title II of 
     the ADA. Given the structure of the CAA, such provisions are 
     not applicable to covered Legislative Branch entities and, 
     therefore, will not be adopted under section 210(e).
       5. The Board has not incorporated the insurance provisions 
     contained in 28 C.F.R. Sec. 36.212. Section 36.212 of the 
     DOJ's regulations restates section 501(c) of the ADA, which 
     provides that the ADA shall not be construed to restrict 
     certain insurance practices on the part of insurance 
     companies and employers, so long as such practices are not 
     used to evade the purposes of the ADA. Section 501(c) of the 
     ADA is not incorporated by reference into section 210 of the 
     CAA. Because section 36.212 implements a section of the ADA 
     which is not incorporated into the CAA and appears intended 
     primarily to cover insurance companies which are not covered 
     entities under the CAA, the Board finds good cause not to 
     incorporate this regulation.
       6. The Board has not incorporated Subpart E of the DOJ's 
     regulations (sections 36.501 through 36.599) setting forth 
     the enforcement procedures under Title III of the ADA. As the 
     Justice Department noted in its NPRM regarding subpart E, the 
     Department of Justice does not have the authority to 
     establish procedures for judicial review and enforcement and, 
     therefore, ``Subpart E generally restates the statutory 
     procedures for enforcement''. 28 CFR pt. 36, App. B at 638 
     (section-by-section analysis). Additionally, the regulations 
     derive from the provisions of section 308 of the ADA, which 
     is not applied to covered entities under section 210(b) of 
     the CAA. Thus, the regulations in subpart E are not 
     promulgated by the Attorney General as substantive 
     regulations to implement the statutory provisions of the ADA 
     referred to in section 210(b), within the meaning of section 
     210(e).
       7. The Board has not incorporated Subpart F of the DOJ's 
     regulations which establishes procedures to implement section 
     308(b)(1)(A)(ii) of the ADA regarding compliance with State 
     laws or building codes as evidence of compliance with 
     accessibility standards under the ADA. 28 CFR pt. 36, App. B 
     at 640 (section-by-section analysis). Section 308 is not one 
     of the laws applied to covered entities under section 210(b) 
     of the CAA and, therefore, these regulations will not be 
     adopted under section 210(e).
       In section 1.105(d), the Board has listed the specific DOT 
     regulations incorporated into the regulations being issued 
     under section 210 of the CAA. As noted earlier, the Board has 
     adopted all of the DOT regulations implementing Titles II and 
     III of the ADA with the following exceptions:
       1. Although the Board has adopted the definitions in 
     section 37.3 of the DOT's regulations, relating to 
     implementation of Part II of Title II of the ADA (sections 
     241 through 246), those definitions dealing with public 
     transportation by intercity and commuter rail are not adopted 
     because sections 241 through 246 of the ADA were not within 
     the rights and protections applied to covered entities under 
     section 210(b) and, therefore, the regulations implementing 
     such sections are not substantive regulations of the DOT 
     required to be adopted by the Board within the meaning of 
     section 210(e). Accordingly, the Board will give no effect to 
     the definitions of terms such as ``commerce,'' ``commuter 
     authority,'' ``commuter rail car,'' ``commuter rail 
     transportation,'' ``intercity rail passenger car,'' and 
     ``intercity rail transportation,'' which relate to sections 
     241 through 246 of the ADA.
       2. Although the Board has adopted the Nondiscrimination 
     regulation set forth in section 37.5 of the DOT's 
     regulations, subsection (f) of section 37.5 of the this 
     regulation relates to private entities primarily engaged in 
     the business of transporting people and whose operations 
     affect commerce. This subsection implements section 304 of 
     the ADA, which is not a right or protection applied to 
     covered entities under section 210(b) of the CAA. See 56 Fed. 
     Reg. 13856, 13858 (April 4, 1991) (preamble to NPRM regarding 
     Part 37). Therefore, it is not a regulation of the DOT 
     included within the scope of rulemaking under section 210(e) 
     of the CAA and will not be considered by the Board to be 
     included in these regulations.
       3. Several portions of the DOT's regulations refer to 
     obligations of entities regulated by state agencies 
     administering federal transportation funds. See, e.g., 
     sections 37.77(d) (requires filing of equivalent service 
     certificates with state administering agency), 37.135(f) 
     (submission of paratransit development plan to state 
     administering agency) and 37.145 (State comments on 
     paratransit plans). Any references to obligations not 
     imposed on covered entities, such as state law 
     requirements and laws regulating entities that receive 
     Federal financial assistance, will be considered excluded 
     from these proposed regulations.
       4. The Board has not adopted section 37.11 of the DOT's 
     regulations relating to administrative enforcement because it 
     does not implement any provision of the ADA applied to 
     covered entities under section 210 of the CAA. Moreover, the 
     enforcement procedures of section 210 are explicitly provided 
     for in section 210(d) (``Available Procedures''). 
     Accordingly, this section will not be included within the 
     incorporated regulations. The subject matter of enforcement 
     procedures is addressed in the Office's procedural rules and 
     in Part 2 of these regulations.
       5. Certain sections of Subparts B (Applicability) and C 
     (Transportation Facilities) of the Secretary's regulations 
     were promulgated to implement sections 242 and 304 of the 
     ADA, provisions that are not applied to covered entities 
     under section 210(b) of the CAA or are otherwise inapplicable 
     to Legislative Branch entities. Therefore, the Board will 
     exclude the following sections from its substantive 
     regulations on that basis: 37.21(a)(2) and (b) (relating to 
     private entities under section 304 of the ADA and private 
     entities receiving Federal assistance from the Transportation 
     Department), 37.25 (university transportation systems), 37.29 
     (private taxi services), 37.33 (airport transportation 
     systems), 37.37(a) and 37.37(e)-(g) (relating to coverage of 
     private entities and other entities under section 304 of the 
     ADA), and 37.49-37.57 (relating to intercity and commuter 
     rail systems). Similarly, the Board proposes modifying 
     sections 37.21(c), 37.37(d), and 37.37(h) and other sections 
     where references are made to requirements or circumstances 
     strictly encompassed by the provisions of section 304 of the 
     ADA and, therefore, not applicable to covered entities under 
     the CAA. See, e.g., sections 37.25-37.27 (transportation for 
     elementary and secondary education systems).
       6. Subpart D (sections 37.71 through 37.95) of the DOT's 
     regulations relate to acquisition of accessible vehicles by 
     public entities. Certain sections of subpart D were 
     promulgated to implement sections 242 and 304 of the ADA, 
     which were not applied to covered entities under section 
     210(b) of the CAA, or are otherwise inapplicable to 
     Legislative Branch entities. Therefore, the Board will 
     exclude the following sections from its substantive 
     regulations on that basis: 37.87-37.91 and 37.93(b) (relating 
     to intercity and commuter rail service).
       7. Subpart E (sections 37.101 through 37.109) of the DOT's 
     regulations relates to acquisition of accessible vehicles by 
     private entities. Section 37.101, relating to acquisition of 
     vehicles by private entities not primarily engaged in the 
     business of transporting people, implements section 302 of 
     the ADA, which is applied to covered entities under section 
     210(b). Therefore, the Board will adopt section 37.101 as 
     part of its section 210(e) regulations. Sections 37.103, 
     37.107, and 37.109 of the regulations implement section 304 
     of the ADA, which is inapplicable to covered entities under 
     the ADA. Therefore, the Board

[[Page S5443]]

     proposes not to include them within its substantive 
     regulations under section 210(e) of the CAA.
       8. Part 37 of the DOT's regulations includes several 
     appendices, only two of which the Board proposes to adopt as 
     part of these regulations. The Board proposes to adopt as an 
     appendix to these regulations Appendix A (Modifications to 
     Standards for Accessible Transportation Facilities, ADA 
     Accessibility Guidelines for Buildings and Facilities), which 
     provides guidance regarding the design, construction, and 
     alteration of buildings and facilities covered by Titles II 
     and III of the ADA. 49 CFR pt. 37, App. A. Such guidelines, 
     where not inconsistent with express provisions of the CAA or 
     of the regulations adopted by the Board, may be relied upon 
     by covered entities and other in proceedings under section 
     210 of the CAA to the same extent as similarly situated 
     persons may rely upon them in actions brought under Title II 
     and Title III of the ADA. See 142 Cong. Rec. at S222 and 141 
     Cong. Rec. at S17606 (similar resolution regarding Secretary 
     of Labor's interpretative bulletins under the Fair Labor 
     Standards Act for section 203 purposes). The Board proposes 
     not to adopt Appendix B, which gives the addresses of FTA 
     regional offices. Such information is not relevant to covered 
     entities under the CAA. The Board also proposes not to adopt 
     Appendix C, which contain forms for certification of 
     equivalent service. These forms appears to be irrelevant to 
     entities covered by the CAA and therefore will not be adopted 
     by the Board. Finally, the Board will adopt Appendix D to 
     Part 37, the section-by-section analysis of Part 37. The 
     Board notes that the section-by-section analysis may have 
     some relevance in interpreting the sections of Part 37 that 
     the Board has adopted.
       9. The Board proposes to adopt, with minimal technical and 
     nomenclature changes, the regulations contained in Part 38 
     and accompanying appendix, with the exception of the 
     following subparts which the Board has determined implement 
     portions of the ADA not applied to covered entities under 
     section 210(b) of the CAA and/or the Board believe have no 
     conceivable applicability to legislative branch operations: 
     Subpart E, Commuter Rail Cars and Systems; and Subpart F, 
     Intercity Rail Cars and Systems.
       In section 1.105(d), the Board has proposed the adoption of 
     one regulation promulgated by the Access Board, 36 C.F.R. 
     Sec. 1190.34, relating to the accessibility of leased 
     buildings and facilities. While the DOJ does not have a 
     regulation pertaining to leased buildings and facilities, the 
     Access Board has promulgated this regulation that sets 
     minimal accessible standards whenever the federal government 
     leases a building or facility (or a portion thereof). 
     Generally, this regulation requires that fully accessible 
     space be leased when available, but also sets some minimal 
     accessibility requirements when fully accessible spaces are 
     not available. These minimum requirements include at least 
     one accessible entrance, an accessible route to major 
     function areas, an accessible toilet, and accessible parking 
     (if that is included in the rent). If there is no space 
     available that meets even these minimal requirements, the 
     regulation does contain an exception that would permit the 
     short term leasing of spaces that do not even meet these 
     minimal standards. The most common ADA public access 
     complaint received by the General Counsel from members of the 
     public relates to the lack of ADA access to spaces being 
     leased by legislative branch offices. The Board therefore 
     finds good cause to clarify the ADA access obligations 
     regarding leased spaces by adopting 36 C.F.R. Sec. 1190.34.
       Regulations proposed in Part 2.
       Sec. 2.101 Purpose and scope. This section references and 
     notes that Part 2 of these regulations implements section 
     210(d) of the CAA which requires that the General Counsel 
     accept and investigate charges of discrimination filed by 
     qualified individuals with disabilities who allege a 
     violation of Title II or Title III of the ADA by a covered 
     entity. It also notes that by procedural rule or policy, the 
     General Counsel or the Office may further describe how the 
     General Counsel will exercise the statutory authority 
     provided by section 210(d) of the CAA. The Board notes that 
     the Executive Director is proposing amendments to the 
     Office's Procedural Rules that do include provisions relating 
     to section 210(d) of the CAA.
       Sec. 2.102 Definitions. This section provides definitions 
     for the undefined terms used in section 210(d) of the CAA. In 
     Sec. 2.102(a), the term ``charge'' is defined in a manner 
     consistent with the Supreme Court's decision in Fed. Express 
     Corp. v. Holowecki, 552 U.S. 389, 402 (2008). In 
     Sec. 2.102(b), the definition of the term ``file a charge'' 
     clarifies how charges can be presented to the General Counsel 
     by listing the methods by which the General Counsel has 
     accepted charges in the past. In Sec. 2.102(c), the term 
     ``occurrence of the alleged violation'' is defined in a 
     manner that includes both isolated acts of discrimination and 
     continuing violations. See, e.g., Havens Realty Corp. v. 
     Coleman, 455 U.S. 363, 380 (1982). In Sec. 2.102(d), the term 
     ``the rights and protections against discrimination in the 
     provision of public services and accommodations'' is defined 
     by referencing the specific sections of Titles II and III 
     that are incorporated into the CAA in section 210(b)(1). 2 
     U.S.C. Sec. 1331(b)(1).
       Sec. 2.103 Investigatory Authority. This section explains 
     the investigatory methods that the General Counsel will use 
     when investigating charges of discrimination and clarifies 
     the duty of cooperation owed by all parties. The language 
     used to describe the investigatory methods listed in 
     Sec. 2.103(a) is derived from the Supreme Court's decision in 
     Dow Chemical Co. v. United States, 476 U.S. 227, 233 (1986) 
     which describes what is intended when an agency is granted 
     investigatory authority that is not otherwise defined in the 
     statute. The duty to cooperate with investigations described 
     in Sec. 2.103(b) is implicit in the CAA. By empowering the 
     General Counsel to investigate potential violations of the 
     the ADA, Congress expressed its expectation that legislative 
     branch employees and offices would cooperate fully with 
     investigations conducted by the General Counsel pursuant to 
     this authority. This regulation is consistent with prior 
     policy guidance the General Counsel has provided to covered 
     entities.
       Sec. 2.104 Mediation. This section explains when the 
     General Counsel will request mediation of a charge of 
     discrimination. The language in Sec. 2.104(a) is derived from 
     section 210(d)(2) of the CAA. 2 U.S.C. Sec. 1331(d)(2). The 
     explanation of what happens when mediation results in a 
     settlement is contained in Sec. 2.104(b) and is consistent 
     with the language in section 210(d)(3) and with the General 
     Counsel's past practice of closing cases that are resolved 
     during mediation. The language in Sec. 2.104(c) is derived 
     from section 210(d)(3) of the CAA. 2 U.S.C. Sec. 1331(d)(3).
       Sec. 2.105 Complaint. The language in this section is is 
     derived from section 210(d)(3) of the CAA. 2 U.S.C. 
     Sec. 1331(d)(3).
       Sec. 2.106 Intervention by charging individual. The 
     language in this section is is derived from section 210(d)(3) 
     of the CAA. 2 U.S.C. Sec. 1331(d)(3).
       Sec. 2.107 Remedies and Compliance. This section describes 
     the remedies available and the compliance dates when a 
     violation of section 210 is found. The remedy language in 
     Sec. 2.107(a) is based upon the statutory language in section 
     210(c) of the CAA. 2 U.S.C. Sec. 1331(d)(3). The allowance of 
     attorney's fees and costs described in Sec. 2.107(a)(1) is 
     based upon the language in 28 C.F.R. Sec. 35.175 & 36.505 
     which recognize that attorney's fees may be awarded under 
     both Titles II and III of the ADA. The availability of 
     compensatory damages described in Sec. 2.107(a)(2) derives 
     from sections 210(c) and of the CAA which incorporates by 
     reference the remedies contained sections 203 and 308(a) of 
     the ADA. Section 203 of the ADA provides that the remedies 
     set forth in the Rehabilitation Act (at 29 U.S.C. Sec. 794a) 
     shall be the remedies for violations of Title II of the ADA. 
     The Supreme Court has made clear that the remedies available 
     under Title II of the ADA and the Rehabilitation Act are 
     ``coextensive with the remedies available in a private cause 
     of action brought under Title VI of the Civil Rights Act of 
     1964'' which includes compensatory, but not punitive, 
     damages. Barnes v. Gorman, 536 U.S. 181, 185 (2002). The 
     language in Sec. 2.107(a)(1) & (a)(2) requiring that payment 
     be made by the covered entity responsible for correcting the 
     violation is from section 415(c) of the CAA which requires 
     that funds to correct ADA violations ``may be paid only from 
     funds appropriated to the employing office or entity 
     responsible for correcting such violations.'' 2 U.S.C. 
     Sec. 1415(c). The compliance date set forth in Sec. 2.107(b) 
     is from section 210(d)(5) of the CAA. 2 U.S.C. 
     Sec. 1331(d)(5).
       Sec. 2.108 Judicial Review. This section is from section 
     210(d)(4) of the CAA. 2 U.S.C. Sec. 1331(d)(4).
       Regulations proposed in Part 3.
       Sec. 3.101 Purpose and scope. This section references and 
     notes that Part 3 of these regulations implements section 
     210(f) of the CAA which requires that the General Counsel, on 
     a regular basis, at least once each Congress, inspect the 
     facilities of covered entities to ensure compliance with the 
     Titles II and III of the ADA and to prepare and submit a 
     report to Congress containing the results of the periodic 
     inspections, describing any violations, assessing any 
     limitations in accessibility, and providing the estimated 
     cost and time needed for abatement. It also notes that by 
     procedural rule or policy, the General Counsel or the Office 
     may further describe how the General Counsel will exercise 
     the statutory authority provided by section 210(d) of the 
     CAA. The Board notes that the Executive Director is proposing 
     amendments to the Office's Procedural Rules that do include 
     provisions relating to section 210(f) of the CAA.
       Sec. 3.102 Definitions. This section defines terms used in 
     section 210(f) of the CAA which are not defined in the 
     statute. In Sec. 3.102(a), the term ``facilities of covered 
     entities'' is defined. The term ``facility'' is defined in 28 
     C.F.R. Sec. 35.104, which is incorporated by reference into 
     these regulations. See Sec. 1.105(c). ``Facilities of covered 
     entities'' is defined to include all facilities where covered 
     entities provide public programs, activities, services or 
     accommodations, including those facilities designed, 
     maintained, altered or constructed by a covered entity. 
     Because the General Counsel's inspections under section 
     210(f) of the CAA are focused upon finding barriers to access 
     in facilities, the term ``violation'' is defined in 
     Sec. 3.102(b) as any barrier to access caused by 
     noncompliance with the applicable standards. The definition 
     of ``estimated cost and time needed for abatement'' was 
     developed in consultation with Office of the Architect of the 
     Capitol which proposed that reporting regarding estimated 
     abatement cost and time be provided using a range of dollar 
     amounts and dates due to the difficulty in precisely 
     estimating such costs and dates.
       Sec. 3.103 Inspection authority. This section describes the 
     general scope of the General

[[Page S5444]]

     Counsel's inspection authority [Sec. 3.103(a)] and recognizes 
     that the General Counsel has the right to review information 
     and documents [Sec. 3.103(b)], receive cooperation from 
     covered entities [Sec. 3.103(c)], and become involved in pre-
     construction review of alteration and construction projects 
     [Sec. 3.103(d)].
       The general scope of authority in Sec. 3.103(a) is derived 
     from the language in section 210(f)(1) of the CAA. 2 U.S.C. 
     Sec. 1331(f)(1). This subsection also describes the 
     discretion that the General Counsel has exercised when 
     conducting these inspections since the enactment of the CAA.
       The document and information review described in 
     Sec. 3.103(b) recognizes that a thorough inspection of 
     facilities can require the review of documents and other 
     information to ascertain whether a covered entity is in 
     compliance with the ADA. The language in this subsection is 
     based upon prior policy guidance the General Counsel has 
     provided to covered entities.
       The duty to cooperate with inspections described in 
     Sec. 3.103(c), like the duty to cooperate with investigations 
     described in Sec. 2.103(b), is implicit in the CAA. By 
     empowering the General Counsel to inspect all facilities for 
     potential violations of the the ADA, Congress expressed its 
     expectation that legislative branch employees and offices 
     would cooperate fully with such inspections conducted by the 
     General Counsel pursuant to this authority. This regulation 
     is consistent with prior policy guidance the General Counsel 
     has provided to covered entities.
       The pre-construction review of alteration and construction 
     projects described in Sec. 3.103(d) was developed after 
     consultation with the Office of the Architect of the Capitol 
     and addresses concerns raised by oversight and appropriations 
     staff over finding a cost efficient process that would allow 
     better identification and elimination of potential ADA 
     compliance issues during the pre-construction phases of new 
     construction and alteration projects.
       Sec. 3.104 Reporting, estimating cost & time and compliance 
     date. This section describes the reporting obligations of the 
     General Counsel set forth in section 210(f)(2) of the CAA. 2 
     U.S.C. Sec. 1331(f)(2). The language in Sec. 3.104(a) is 
     directly from section 210(f)(2) of the CAA. Subsection 
     3.104(b) merely recognizes that the General Counsel needs the 
     cooperation of covered entities to provide the cost and time 
     estimates for abatement required by section 210(f)(2). The 
     compliance date set forth in Sec. 3.104(c) is from section 
     210(d)(5) of the CAA. 2 U.S.C. Sec. 1331(d)(5).
     Proposed Regulations:

PART 1--MATTERS OF GENERAL APPLICABILITY TO ALL REGULATIONS PROMULGATED 
   UNDER SECTION 210 OF THE CONGRESSIONAL ACCOUNTABILITY ACT OF 1995

       Sec. 1.101 PURPOSE AND SCOPE
       Sec. 1.102 DEFINITIONS
       Sec. 1.103 AUTHORITY OF THE BOARD
       Sec. 1.104 METHOD FOR IDENTIFYING THE ENTITY RESPONSIBLE 
     FOR CORRECTING VIOLATIONS OF SECTION 210
       Sec. 1.105 REGULATIONS INCORPORATED BY REFERENCE

     Sec. 1.101 Purpose and scope.

       (a) CAA. Enacted into law on January 23, 1995, the 
     Congressional Accountability Act (``CAA'') in Section 210(b) 
     provides that the rights and protections against 
     discrimination in the provision of public services and 
     accommodations established by the provisions of Title II and 
     III (Sections 201 through 230, 302, 303, and 309) of the 
     Americans With Disabilities Act of 1990, 42 U.S.C. 
     Sec. Sec. 12131-12150, 12182, 12183, and 12189 (``ADA'') 
     shall apply to the following entities:
       (1) each office of the Senate, including each office of a 
     Senator and each committee;
       (2) each office of the House of Representatives, including 
     each office of a Member of the House of Representatives and 
     each committee;
       (3) each joint committee of the Congress;
       (4) the Office of Congressional Accessibility Services;
       (5) the United States Capitol Police;
       (6) the Congressional Budget Office;
       (7) the Office of the Architect of the Capitol (including 
     the Botanic Garden);
       (8) the Office of the Attending Physician; and
       (9) the Office of Compliance;
       Title II of the ADA prohibits discrimination on the basis 
     of disability in the provision of public services, programs, 
     activities by any ``public entity.'' Section 210(b)(2) of the 
     CAA provides that for the purpose of applying Title II of the 
     ADA the term ``public entity'' means any entity listed above 
     that provides public services, programs, or activities. Title 
     III of the ADA prohibits discrimination on the basis of 
     disability by public accommodations and requires places of 
     public accommodation and commercial facilities to be 
     designed, constructed, and altered in compliance with 
     accessibility standards. Section 225(f) of the CAA provides 
     that, ``[e]xcept where inconsistent with definitions and 
     exemptions provided in this Act, the definitions and 
     exemptions of the [ADA] shall apply under this Act.'' 2 
     U.S.C. Sec. 1361(f)(1).
       Section 210(d) of the CAA requires that the General Counsel 
     of the Office of Compliance accept and investigate charges of 
     discrimination filed by qualified individuals with 
     disabilities who allege a violation of Title II or Title III 
     of the ADA by a covered entity. If the General Counsel 
     believes that a violation may have occurred, the General 
     Counsel may file with the Office a complaint against any 
     entity responsible for correcting the violation. 2 U.S.C. 
     Sec. 1361(d).
       Section 210(f) of the CAA requires that the General Counsel 
     of the Office of Compliance on a regular basis, and at least 
     once each Congress, conduct periodic inspections of all 
     covered facilities and to report to Congress on compliance 
     with disability access standards under Section 210. 2 U.S.C. 
     Sec. 1331(f).
       (b) Purpose and scope of regulations. The regulations set 
     forth herein (Parts 1, 2, and 3) are the substantive 
     regulations that the Board of Directors of the Office of 
     Compliance has promulgated pursuant to Section 210(e) of the 
     CAA. Part 1 contains the general provisions applicable to all 
     regulations under Section 210, the method of identifying 
     entities responsible for correcting a violation of Section 
     210, and the list of executive branch regulations 
     incorporated by reference which define and clarify the 
     prohibition against discrimination on the basis of disability 
     in the provision of public services and accommodations. Part 
     2 contains the provisions pertaining to investigation and 
     prosecution of charges of discrimination. Part 3 contains the 
     provisions regarding the periodic inspections and reports to 
     Congress on compliance with the disability access standards.

     Sec. 1.102 Definitions.

       Except as otherwise specifically provided in these 
     regulations, as used in these regulations:
       (a) Act or CAA means the Congressional Accountability Act 
     of 1995 (Pub. L. 104-1, 109 Stat. 3, 2 U.S.C. Sec. Sec. 1301-
     1438).
       (b) ADA means the Americans With Disabilities Act of 1990 
     (42 U.S.C. Sec. Sec. 12131-12150, 12182, 12183, and 12189) as 
     applied to covered entities by Section 210 of the CAA.
       (c) Covered entity and public entity include any of the 
     entities listed in Sec. 1.101(a) that provide public 
     services, programs, or activities, or operates a place of 
     public accommodation within the meaning of Section 210 of the 
     CAA. In the regulations implementing Title III, private 
     entity includes covered entities.
       (d) Board means the Board of Directors of the Office of 
     Compliance.
       (e) Office means the Office of Compliance.
       (f) General Counsel means the General Counsel of the Office 
     of Compliance.
       Sec. 1.103 Authority of the Board.
       Pursuant to Sections 210 and 304 of the CAA, the Board is 
     authorized to issue regulations to implement the rights and 
     protections against discrimination on the basis of disability 
     in the provision of public services and accommodations under 
     the ADA. Section 210(e) of the CAA directs the Board to 
     promulgate regulations implementing Section 210 that are 
     ``the same as substantive regulations promulgated by the 
     Attorney General and the Secretary of Transportation to 
     implement the statutory provisions referred to in subsection 
     (b) except to the extent that the Board may determine, for 
     good cause shown and stated together with the regulation, 
     that a modification of such regulations would be more 
     effective for the implementation of the rights and 
     protections under this section.'' 2 U.S.C. Sec. 1331(e). 
     Specifically, it is the Board's considered judgment, based on 
     the information available to it at the time of promulgation 
     of these regulations, that, with the exception of the 
     regulations adopted and set forth herein, there are no other 
     ``substantive regulations promulgated by the Attorney General 
     and the Secretary of Transportation to implement the 
     statutory provisions referred to in subsection (b) [of 
     Section 210 of the CAA]'' that need be adopted.
       In promulgating these regulations, the Board has made 
     certain technical and nomenclature changes to the regulations 
     as promulgated by the Attorney General and the Secretary of 
     Transportation. Such changes are intended to make the 
     provisions adopted accord more naturally to situations in the 
     Legislative Branch. However, by making these changes, the 
     Board does not intend a substantive difference between these 
     regulations and those of the Attorney General and/or the 
     Secretary from which they are derived. Moreover, such 
     changes, in and of themselves, are not intended to constitute 
     an interpretation of the regulations or of the statutory 
     provisions of the CAA upon which they are based.

     Sec. 1.104 Method for identifying the entity responsible for 
       correction of violations of section 210.

       (a) Purpose and scope. Section 210(e)(3) of the CAA 
     provides that regulations under Section 210(e) include a 
     method of identifying, for purposes of this section and for 
     categories of violations of Section 210(b), the entity 
     responsible for correcting a particular violation. This 
     section sets forth the method for identifying responsible 
     entities for the purpose of allocating responsibility for 
     correcting violations of Section 210(b).
       (b) Violations. A covered entity may violate Section 210(b) 
     if it discriminates against a qualified individual with a 
     disability within the meaning of Title II or Title III of the 
     ADA.
       (c) Entities Responsible for Correcting Violations. 
     Correction of a violation of the rights and protections 
     against discrimination is the responsibility of the entities 
     listed in subsection (a) of Section 210 of the CAA that 
     provide the specific public service, program, activity, or 
     accommodation that forms the basis for the particular 
     violation of Title II or Title III rights and protections 
     and, when the violation involves a physical

[[Page S5445]]

     access barrier, the entities responsible for designing, 
     maintaining, managing, altering or constructing the facility 
     in which the specific public service program, activity or 
     accommodation is conducted or provided.
       (d) Allocation of Responsibility for Correction of Title II 
     and/or Title III Violations. Where more than one entity is 
     found to be an entity responsible for correction of a 
     violation of Title II and/or Title III rights and protections 
     under the method set forth in this section, as between those 
     parties, allocation of responsibility for correcting the 
     violations of Title II or Title III of the ADA may be 
     determined by statute, contract, order, or other enforceable 
     arrangement or relationship.

     Sec. 1.105 Regulations incorporated by reference.

       (a) Technical and Nomenclature Changes to Regulations 
     Incorporated by Reference. The definitions in the regulations 
     incorporated by reference (``incorporated regulations'') 
     shall be used to interpret these regulations except when they 
     differ from the definitions in Sec. 1.102 or the 
     modifications listed below, in which case the definition in 
     Sec. 1.102 or the modification listed below shall be used. 
     The incorporated regulations are hereby modified as follows:
       (1) When the incorporated regulations refer to ``Assistant 
     Attorney General,'' ``Department of Justice,'' ``FTA 
     Administrator,'' ``FTA regional office,'' ``Administrator,'' 
     ``Secretary,'' or any other executive branch office or 
     officer, ``General Counsel'' is hereby substituted.
       (2) When the incorporated regulations refer to the date 
     ``January 26, 1992,'' the date ``January 1, 1997'' is hereby 
     substituted.
       (3) When the incorporated regulations otherwise specify a 
     date by which some action must be completed, the date that is 
     three years from the effective date of these regulations is 
     hereby substituted.
       (4) When the incorporated regulations contain an exception 
     for an ``historic'' property, building, or facility that 
     exception shall apply to properties, buildings, or facilities 
     designated as an historic or heritage asset by the Office of 
     the Architect of the Capitol in accordance with its 
     preservation policy and standards and where, in accordance 
     with its preservation policy and standards, the Office of the 
     Architect of the Capitol determines that compliance with the 
     requirements for accessible routes, entrances, or toilet 
     facilities would threaten or destroy the historic 
     significance of the building or facility, the exceptions for 
     alterations to qualified historic buildings or facilities for 
     that element shall be permitted to apply.
       (b) Rule of Interpretation. When a covered entity is 
     subject to conflicting regulations implementing both Title II 
     and Title III of the ADA, the regulation providing the most 
     access shall apply.
       (c) Incorporated Regulations from 28 C.F.R. Parts 35 and 
     36. The following regulations from 28 C.F.R. Parts 35 and 36 
     that are published in the Code of Federal Regulations on the 
     effective date of these regulations are hereby incorporated 
     by reference as though stated in detail herein:

     Sec. 35.101 Purpose.

       Sec. 35.102 Application.
       Sec. 35.103 Relationship to other laws.
       Sec. 35.104 Definitions.
       Sec. 35.105 Self-evaluation
       Sec. 35.106 Notice.
       Sec. 35.107 Designation of responsible employee and 
     adoption of grievance procedures.
       Sec. 35.130 General prohibitions against discrimination.
       Sec. 35.131 Illegal use of drugs.
       Sec. 35.132 Smoking.
       Sec. 35.133 Maintenance of accessible features.
       Sec. 35.135 Personal devices and services.
       Sec. 35.136 Service animals
       Sec. 35.137 Mobility devices.
       Sec. 35.138 Ticketing
       Sec. 35.139 Direct threat.
       Sec. 35.149 Discrimination prohibited.
       Sec. 35.150 Existing facilities.
       Sec. 35.151 New Construction and alterations.
       Sec. 35.152 Jails, detention and correctional facilities.
       Sec. 35.160 General.
       Sec. 35.161 Telecommunications.
       Sec. 35.162 Telephone emergency services.
       Sec. 35.163 Information and signage.
       Sec. 35.164 Duties.
       Sec. 36.101 Purpose.
       Sec. 36.102 Application.
       Sec. 36.103 Relationship to other laws.
       Sec. 36.104 Definitions.
       Sec. 36.201 General.
       Sec. 36.202 Activities.
       Sec. 36.203 Integrated settings.
       Sec. 36.204 Administrative methods.
       Sec. 36.205 Association.
       Sec. 36.207 Places of public accommodations located in 
     private residences.
       Sec. 36.208 Direct threat.
       Sec. 36.209 Illegal use of drugs.
       Sec. 36.210 Smoking.
       Sec. 36.211 Maintenance of accessible features.
       Sec. 36.213 Relationship of subpart B to subparts C and D 
     of this part.
       Sec. 36.301 Eligibility criteria.
       Sec. 36.302 Modifications in policies, practices, or 
     procedures.
       Sec. 36.303 Auxiliary aids and services.
       Sec. 36.304 Removal of barriers.
       Sec. 36.305 Alternatives to barrier removal.
       Sec. 36.306 Personal devices and services.
       Sec. 36.307 Accessible or special goods.
       Sec. 36.308 Seating in assembly areas.
       Sec. 36.309 Examinations and courses.
       Sec. 36.310 Transportation provided by public 
     accommodations.
       Sec. 36.402 Alterations.
       Sec. 36.403 Alterations: Path of travel.
       Sec. 36.404 Alterations: Elevator exemption.
       Sec. 36.405 Alterations: Historic preservation.
       Sec. 36.406 Standards for new construction and alterations.
       Appendix A to Part 36--Standards for Accessible Design.
       Appendix B to Part 36--Preamble to Regulation on 
     Nondiscrimination on the Basis of Disability by Public 
     Accommodations (Published July 26, 1991).
       (d) Incorporated Regulations from 49 C.F.R. Parts 37 and 
     38. The following regulations from 49 C.F.R. Parts 37 and 38 
     that are published in the Code of Federal Regulations on the 
     effective date of these regulations are hereby incorporated 
     by reference as though stated in detail herein:
       Sec. 37.1 Purpose.
       Sec. 37.3 Definitions.
       Sec. 37.5 Nondiscrimination.
       Sec. 37.7 Standards for accessible vehicles.
       Sec. 37.9 Standards for accessible transportation 
     facilities.
       Sec. 37.13 Effective date for certain vehicle 
     specifications.
       Sec. 37.21 Applicability: General.
       Sec. 37.23 Service under contract.
       Sec. 37.27 Transportation for elementary and secondary 
     education systems.
       Sec. 37.31 Vanpools.
       Sec. 37.37 Other applications.
       Sec. 37.41 Construction of transportation facilities by 
     public entities.
       Sec. 37.43 Alteration of transportation facilities by 
     public entities.
       Sec. 37.45 Construction and alteration of transportation 
     facilities by private entities.
       Sec. 37.47 Key stations in light and rapid rail systems.
       Sec. 37.61  Public transportation programs and activities 
     in existing facilities.
       Sec. 37.71  Purchase or lease of new non-rail vehicles by 
     public entities operating fixed route systems.
       Sec. 37.73  Purchase or lease of used non-rail vehicles by 
     public entities operating fixed route systems.
       Sec. 37.75  Remanufacture of non-rail vehicles and purchase 
     or lease of remanufactured non-rail vehicles by public 
     entities operating fixed route systems.
       Sec. 37.77  Purchase or lease of new non-rail vehicles by 
     public entities operating a demand responsive system for the 
     general public.
       Sec. 37.79  Purchase or lease of new rail vehicles by 
     public entities operating rapid or light rail systems.
       Sec. 37.81  Purchase or lease of used rail vehicles by 
     public entities operating rapid or light rail systems.
       Sec. 37.83  Remanufacture of rail vehicles and purchase or 
     lease of remanufactured rail vehicles by public entities 
     operating rapid or light rail systems.
       Sec. 37.101  Purchase or lease of vehicles by private 
     entities not primarily engaged in the business of 
     transporting people.
       Sec. 37.105  Equivalent service standard.
       Sec. 37.121  Requirement for comparable complementary 
     paratransit service.
       Sec. 37.123  ADA paratransit eligibility: Standards.
       Sec. 37.125  ADA paratransit eligibility: Process.
       Sec. 37.127  Complementary paratransit service for 
     visitors.
       Sec. 37.129  Types of service.
       Sec. 37.131  Service criteria for complementary 
     paratransit.
       Sec. 37.133  Subscription service.
       Sec. 37.135  Submission of paratransit plan.
       Sec. 37.137  Paratransit plan development.
       Sec. 37.139  Plan contents.
       Sec. 37.141  Requirements for a joint paratransit plan.
       Sec. 37.143  Paratransit plan implementation.
       Sec. 37.147  Considerations during FTA review.
       Sec. 37.149  Disapproved plans.
       Sec. 37.151  Waiver for undue financial burden.
       Sec. 37.153  FTA waiver determination.
       Sec. 37.155  Factors in decision to grant an undue 
     financial burden waiver.
       Sec. 37.161  Maintenance of accessible features: General.
       Sec. 37.163  Keeping vehicle lifts in operative condition: 
     Public entities.
       Sec. 37.165  Lift and securement use.
       Sec. 37.167  Other service requirements.
       Sec. 37.171  Equivalency requirement for demand responsive 
     service operated by private entities not primarily engaged in 
     the business of transporting people.
       Sec. 37.173  Training requirements.
       Appendix A to Part 37--Modifications to Standards for 
     Accessible Transportation Facilities.
       Appendix D to Part 37--Construction and Interpretation of 
     Provisions of 49 CFR Part 37.
       Sec. 38.1  Purpose.
       Sec. 38.2  Equivalent facilitation.
       Sec. 38.3  Definitions.
       Sec. 38.4  Miscellaneous instructions.
       Sec. 38.21  General.
       Sec. 38.23  Mobility aid accessibility.
       Sec. 38.25  Doors, steps and thresholds.
       Sec. 38.27  Priority seating signs.
       Sec. 38.29  Interior circulation, handrails and stanchions.
       Sec. 38.31  Lighting.
       Sec. 38.33  Fare box.
       Sec. 38.35  Public information system.
       Sec. 38.37  Stop request.
       Sec. 38.39  Destination and route signs.
       Sec. 38.51  General.
       Sec. 38.53  Doorways.
       Sec. 38.55  Priority seating signs.
       Sec. 38.57  Interior circulation, handrails and stanchions.

[[Page S5446]]

       Sec. 38.59  Floor surfaces.
       Sec. 38.61  Public information system.
       Sec. 38.63  Between-car barriers.
       Sec. 38.71  General.
       Sec. 38.73  Doorways.
       Sec. 38.75  Priority seating signs.
       Sec. 38.77  Interior circulation, handrails and stanchions.
       Sec. 38.79  Floors, steps and thresholds.
       Sec. 38.81  Lighting.
       Sec. 38.83  Mobility aid accessibility.
       Sec. 38.85  Between-car barriers.
       Sec. 38.87  Public information system.
       Sec. 38.171  General.
       Sec. 38.173  Automated guideway transit vehicles and 
     systems.
       Sec. 38.179  Trams, and similar vehicles, and systems.
       Figures to Part 38.
       Appendix to Part 38--Guidance Material.
       (e) Incorporated Regulation from 36 C.F.R. Part 1190. The 
     following regulation from 36 C.F.R. Part 1190 that is 
     published in the Code of Federal Regulations on the effective 
     date of these regulations is hereby incorporated by reference 
     as though detail herein:
       Sec. 1190.3--Accessible buildings and facilities: Leased.
       PART 2--MATTERS PERTAINING TO INVESTIGATION AND PROSECUTION 
     OF CHARGES OF DISCRIMINATION.
       Sec. 2.101  PURPOSE AND SCOPE
       Sec. 2.102  DEFINITIONS
       Sec. 2.103  INVESTIGATORY AUTHORITY
       Sec. 2.104  MEDIATION
       Sec. 2.105  COMPLAINT
       Sec. 2.106  INTERVENTION BY CHARGING INDIVIDUAL
       Sec. 2.107  REMEDIES AND COMPLIANCE
       Sec. 2.108  JUDICIAL REVIEW

     Sec. 2.101  Purpose and Scope.

       Section 210(d) of the CAA requires that the General Counsel 
     accept and investigate charges of discrimination filed by 
     qualified individuals with disabilities who allege a 
     violation of Title II or Title III of the ADA by a covered 
     entity. Part 2 of these regulations contains the provisions 
     pertaining to investigation and prosecution of charges of 
     discrimination. By procedural rule or policy, the General 
     Counsel or the Office may further describe how the General 
     Counsel will exercise the statutory authority provided by 
     Section 210.

     Sec. 2.102 Definitions.

       (a) Charge means any written document from a qualified 
     individual with a disability or that individual's designated 
     representative which suggests or alleges that a covered 
     entity denied that individual the rights and protections 
     against discrimination in the provision of public services 
     and accommodations provided in Section 210(b)(1) of the CAA.
       (b) File a charge means providing a charge to the General 
     Counsel in person, by mail, by electronic transmission, or by 
     any other means used by the General Counsel to receive 
     documents. Charges shall be filed within 180 days of the 
     occurrence of the alleged violation.
       (c) The occurrence of the alleged violation means the later 
     of (1) the date on which the charging individual was 
     allegedly discriminated against; or (2) the last date on 
     which the service, activity, program or public accommodation 
     described by the charging party was operated in a way that 
     denied access in the manner alleged by the charging party.
       (d) The rights and protections against discrimination in 
     the provision of public services and accommodations means all 
     of the rights and protections provided by Section 210(b)(1) 
     of the CAA through incorporation of Sections 201 through 230, 
     203, 303, and 309 of the ADA and by the regulations issued by 
     the Board to implement Section 210 of the CAA.

     Sec. 2.103 Investigatory Authority.

       (a) Investigatory Methods. When investigating charges of 
     discrimination and conducting inspections, the General 
     Counsel is authorized to use all the modes of inquiry and 
     investigation traditionally employed or useful to execute 
     this investigatory authority. The authorized methods of 
     investigation include, but are not limited to, the following: 
     (1) requiring the parties to provide or produce ready access 
     to: all physical areas subject to an inspection or 
     investigation, individuals with relevant knowledge concerning 
     the inspection or investigation who can be interviewed or 
     questioned, and documents pertinent to the investigation; and 
     (2) requiring the parties to provide written answers to 
     questions, statements of position, and any other information 
     relating to a potential violation or demonstrating 
     compliance.
       (b) Duty to Cooperate with Investigations. Charging 
     individuals and covered entities shall cooperate with 
     investigations conducted by the General Counsel. Cooperation 
     includes providing timely responses to reasonable requests 
     for information and documents (including the making and 
     retention of copies of records and documents), allowing the 
     General Counsel to review documents and interview relevant 
     witnesses confidentially and without managerial interference 
     or influence, and granting the General Counsel ready access 
     to all facilities where covered services, programs and 
     activities are being provided and all places of public 
     accommodation.

     Sec. 2.104  Mediation.

       (a) Belief that violation may have occurred. If, after 
     investigation, the General Counsel believes that a violation 
     of the ADA may have occurred and that mediation may be 
     helpful in resolving the dispute, prior to filing a 
     complaint, the General Counsel may request, but not 
     participate in, mediation under subsections (b) through (d) 
     of Section 403 of the CAA between the charging individual and 
     any entity responsible for correcting the alleged violation.
       (b) Settlement. If, prior to the filing of a complaint, the 
     charging individual and the entity responsible for correcting 
     the violation reach a settlement agreement that fully 
     resolves the dispute, the General Counsel shall close the 
     investigation of the charge without taking further action.
       (c) Mediation Unsuccessful. If mediation under (a) has not 
     succeeded in resolving the dispute, and if the General 
     Counsel believes that a violation of the ADA may have 
     occurred, the General Counsel may file with the Office a 
     complaint against any entity responsible for correcting the 
     violation.

     Sec. 2.105  Complaint.

       The complaint filed by the General Counsel shall be 
     submitted to a hearing officer for decision pursuant to 
     subsections (b) through (h) of Section 405 of the CAA. The 
     decision of the hearing officer shall be subject to review by 
     the Board pursuant to Section 406 of the CAA.

     Sec. 2.106  Intervention by Charging Individual.

       Any person who has filed a charge may intervene as of 
     right, with the full rights of a party, whenever a complaint 
     is filed by the General Counsel.

     Sec. 2.107  Remedies and Compliance.

       (a) Remedy. The remedy for a violation of Section 210 of 
     the CAA shall be such remedy as would be appropriate if 
     awarded under Section 203 or 308(a) of the ADA.
       (1) Attorney Fees and Costs. In any action commenced 
     pursuant to Section 210 of the CAA by the General Counsel, 
     when a charging individual has intervened, the hearing 
     officer and the Board, in their discretion, may allow the 
     prevailing charging individual a reasonable attorney's fee, 
     including litigation expenses, and costs, and the covered 
     entity responsible for correcting the violation shall pay 
     such fees, expenses and costs from its appropriated funds as 
     part of the funds to correct violations of Section 210 under 
     Section 415(c) of the CAA.
       (2) Compensatory Damages. In any action commenced pursuant 
     to Section 210 of the CAA by the General Counsel, when a 
     charging individual has intervened, the hearing officer and 
     the Board, in their discretion, may award compensatory 
     damages to the prevailing charging individual, and the 
     covered entity responsible for correcting the violation shall 
     pay such compensatory damages from its appropriated funds as 
     part of the funds to correct violations of Section 210 under 
     Section 415(c) of the CAA.
       (b) Compliance Date. Compliance shall take place as soon as 
     possible, but no later than the fiscal year following the end 
     of the fiscal year in which the order requiring correction 
     becomes final and not subject to further review.

     Sec. 2.108  Judicial Review.

       A charging individual who has intervened or any respondent 
     to the complaint, if aggrieved by a final decision of the 
     Board, may file a petition for review in the United States 
     Court of Appeals for the Federal Circuit, pursuant to Section 
     407 of the CAA.
       PART 3--MATTERS PERTAINING TO PERIODIC INSPECTIONS AND 
     REPORTING.
       Sec. 3.101  PURPOSE AND SCOPE
       Sec. 3.102  DEFINITIONS
       Sec. 3.103  INSPECTION AUTHORITY
       Sec. 3.104  REPORTING, ESTIMATED COST & TIME AND COMPLIANCE

     Sec. 3.101 Purpose and scope.

       Section 210(f) of the CAA requires that the General 
     Counsel, on a regular basis, at least once each Congress, 
     inspect the facilities of covered entities to ensure 
     compliance with the Titles II and III of the ADA and to 
     prepare and submit a report to Congress containing the 
     results of the periodic inspections, describing any 
     violations, assessing any limitations in accessibility, and 
     providing the estimated cost and time needed for abatement. 
     Part 3 of these regulations contains the provisions 
     pertaining to these inspection and reporting duties. By 
     procedural rule or policy, the General Counsel or the Office 
     may further describe how the General Counsel will exercise 
     this statutory authority provided by Section 210.

     Sec. 3.102 Definitions.

       (a) The facilities of covered entities means all facilities 
     used to provide public programs, activities, services or 
     accommodations that are designed, maintained, altered or 
     constructed by a covered entity and all facilities where 
     covered entities provide public programs, activities, 
     services or accommodations.
       (b) Violation means any barrier to access caused by 
     noncompliance with the applicable standards.
       (c) Estimated cost and time needed for abatement means cost 
     and time estimates that can be reported as falling within a 
     range of dollar amounts and dates.

     Sec. 3.103 Inspection authority.

       (a) General scope of authority. On a regular basis, at 
     least once each Congress, the General Counsel shall inspect 
     the facilities of covered entities to ensure compliance with 
     the Titles II and III of the ADA. When conducting these 
     inspections, the General Counsel has the discretion to decide 
     which facilities will be inspected and how inspections will 
     be conducted. The General Counsel may receive requests for 
     ADA inspections, including anonymous requests, and conduct 
     inspections for compliance with Titles II and III of

[[Page S5447]]

     the ADA in the same manner that the General Counsel receives 
     and investigates requests for inspections under Section 
     215(c)(1) of the CAA.
       (b) Review of information and documents. When conducting 
     inspections under Section 210(f) of the CAA, the General 
     Counsel may request, obtain, and review any and all 
     information or documents deemed by the General Counsel to be 
     relevant to a determination of whether the covered entity is 
     in compliance with Section 210 of the CAA.
       (c) Duty to cooperate. Covered entities shall cooperate 
     with any inspection conducted by the General Counsel in the 
     manner provided by Sec. 2.103(b).
       (d) Pre-construction review of alteration and construction 
     projects. Any project involving alteration or new 
     construction of facilities of covered entities are subject to 
     inspection by the General Counsel for compliance with Titles 
     II and III of the ADA during the design, pre-construction, 
     construction, and post construction phases of the project. 
     The Office of the Architect of the Capitol shall, within one 
     year from the effective date of these regulations, develop a 
     process with the General Counsel to identify potential 
     barriers to access prior to the completion of alteration and 
     construction projects that may include the following 
     provisions:
       (1) Design review or approval;
       (2) Inspections of ongoing alteration and construction 
     projects;
       (3) Training on the applicable ADA standards;
       (4) Final inspections of completed projects for compliance; 
     and
       (5) Any other provision that would likely reduce the number 
     of ADA barriers in alterations and new construction and the 
     costs associated with correcting them.

     Sec. 3.104 Reporting, estimating cost & time and compliance 
       date.

       (a) Reporting duty. On a regular basis, at least once each 
     Congress, the General Counsel shall prepare and submit a 
     report to Congress containing the results of the periodic 
     inspections conducted under Sec. 3.103(a), describing any 
     violations, assessing any limitations in accessibility, and 
     providing the estimated cost and time needed for abatement.
       (b) Estimated cost & time. Covered entities shall cooperate 
     with the General Counsel by providing information needed to 
     provide the estimated cost and time needed for abatement in 
     the manner provided by Sec. 2.103(b).
       (c) Compliance date. All barriers to access identified by 
     the General Counsel in its periodic reports shall be removed 
     or otherwise corrected as soon as possible, but no later than 
     the fiscal year following the end of the fiscal year in which 
     the report describing the barrier to access was issued by the 
     General Counsel.
     Recommended Method of Approval:
       The Board recommends that (1) the version of the proposed 
     regulations that shall apply to the Senate and entities and 
     facilities of the Senate be approved by the Senate by 
     resolution; (2) the version of the proposed regulations that 
     shall apply to the House of Representatives and entities and 
     facilities of the House of Representatives be approved by the 
     House of Representatives by resolution; and (3) the version 
     of the proposed regulations that shall apply to other covered 
     entities and facilities be approved by the Congress by 
     concurrent resolution.
       Signed at Washington, D.C., on this 9th day of September, 
     2014.
       Barbara L. Camens,
       Chair of the Board, Office of Compliance.
                                  ____

                                                    U.S. Congress,


                                         Office of Compliance,

                                                   Washington, DC.
     Hon. Patrick J. Leahy,
     President Pro Tempore of the Senate,
     Washington, DC.
       Dear Mr. President: Section 303(a) of the Congressional 
     Accountability Act of 1995 (CAA), 2 U.S.C. I383(a), requires 
     that, with regard to the initial proposal of procedural rules 
     under the CAA, the Executive Director ``shall, subject to the 
     approval of the Board [of Directors], adopt rules governing 
     the procedures of the Office . . . publish a general notice 
     of proposed rulemaking'' and ``shall transmit such notice to 
     the Speaker of the House of Representatives and the President 
     pro tempore of the Senate for publication in the 
     Congressional Record on the first day of which both Houses 
     are in session following such transmittal.''
       Having obtained the approval of the Board as required by 
     Section 303(b) of the CAA, 2 U.S.C. I383(b), I am 
     transmitting the attached notice of proposed procedural 
     rulemaking to the President pro tempore of the Senate. I 
     request that this notice be published in the Senate section 
     of the Congressional Record on the first day on which both 
     Houses are in session following the receipt of this 
     transmittal. In compliance with Section 303(b) of the CAA, a 
     comment period of 30 days after the publication of this 
     notice of proposed rulemaking is being provided before 
     adoption of the rules.
       Any inquiries regarding this notice should be addressed to 
     Barbara J. Sapin, Executive Director of the Office of 
     Compliance, Room LA-200, 110 2nd Street SE., Washington, DC 
     20540; 202-724-9250.
           Sincerely,

                                             Barbara J. Sapin,

                                               Executive Director,
                                             Office of Compliance.
       Attachment.

  From the Executive Director of the Office of Compliance: Notice of 
     Proposed Rulemaking (``NPRM''), and Request for Comments From 
                          Interested Parties.


   PROPOSED AMENDMENTS TO THE RULES OF PROCEDURE, NOTICE OF PROPOSED 
   RULEMAKING, AS REQUIRED BY 2 U.S.C. Sec. 1383, THE CONGRESSIONAL 
           ACCOUNTABILITY ACT OF 1995, AS AMENDED (``CAA'').

                         INTRODUCTORY STATEMENT

       Shortly after the creation of the Office of Compliance 
     (Office) in 1995, Procedural Rules were adopted to govern the 
     processing of cases and controversies under the 
     administrative procedures established in subchapter IV of the 
     Congressional Accountability Act of 1995 (CAA) 2 U.S.C. 1401-
     1407. The Rules of Procedure were amended in 1998 and again 
     in 2004. The existing Rules of Procedure are available in 
     their entirety on the Office of Compliance's web site: 
     www.compliance.gov. The web site is fully compliant with 
     section 508 of the Rehabilitation Act of 1973 (29 U.S.C. 
     794d).
       Pursuant to section 303(a) of the CAA (2 U.S.C. 1383(a)), 
     the Executive Director of the Office has obtained approval of 
     the Board of Directors of the Office of Compliance regarding 
     certain amendments to the Rules of Procedure.
       After obtaining the Board's approval, the Executive 
     Director must then ``publish a general notice of proposed 
     rulemaking . . . for publication in the Congressional Record 
     on the first day on which both Houses are in session 
     following such transmittal.'' (Section 303(b) of the CAA, 2 
     U.S.C. 1383(b)).


                                 NOTICE

       Comments regarding the proposed amendments to the Rules of 
     Procedure of the Office of Compliance set forth in this 
     NOTICE are invited for a period of thirty (30) days following 
     the date of the appearance of this NOTICE in the 
     Congressional Record. In addition to being posted on the 
     Office of Compliance's section 508 compliant web site 
     (www.compliance.gov), this NOTICE is also available in the 
     following alternative formats: Large Print, Braille. Requests 
     for this NOTICE in an alternative format should be made to 
     Annie Leftwood, Office of Compliance, at 202/724-9272 
     (voice). Submission of comments must be made in writing to 
     the Executive Director, Office of Compliance, 110 Second 
     Street, S.E., Room LA-200, Washington, D.C. 20540-1999. It is 
     requested, but not required, that an electronic version of 
     any comments be provided via e-mail to: Annie Leftwood: 
     [email protected]. Comments may also be submitted 
     by facsimile to the Executive Director at 202-426-1913 (a non 
     toll-free number). Those wishing to receive confirmation of 
     the receipt of their comments are requested to provide a 
     self-addressed, stamped post card with their submission. 
     Copies of submitted comments will be available for review at 
     the Office of Compliance, 110 Second Street, S.E., 
     Washington, D.C. 20540-1999, on Monday through Friday (non-
     Federal holidays) between the hours of 9:30 a.m. and 4:30 
     p.m.


                       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 13 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.
       The rules of procedure establish the process by which 
     alleged violations of the 13 laws made applicable to the 
     Legislative Branch under the CAA will be considered and 
     resolved. Subpart A covers general provisions pertaining to 
     scope and policy, definitions, and information on various 
     filings and computation of time. Proposed Amendments to 
     Subpart A provide for electronic filing and clarify 
     requirements and procedures concerning confidentiality. 
     Subpart B provides 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. A new Subpart C of the Procedural Rules sets 
     forth the proposed rules and procedures for enforcement of 
     the inspection, investigation and complaint sections 210(d) 
     and (f) of the CAA relating to Public Services and 
     Accommodations under Titles II and III of the Americans with 
     Disabilities Act (ADA). Subpart C has been reserved for these 
     rules since 1995. Because the Office of the General Counsel 
     conducts ADA inspections and investigates ADA charges using 
     procedures that are similar to what are used in its 
     Occupational, Safety and Health (OSH) inspections and 
     investigations conducted under section 215 of the CAA, the 
     procedural rules are similar to what are contained in Subpart 
     D of the Procedural Rules relating to OSH inspections and 
     investigations. The proposed Amendments to Subpart D clarify 
     potential ambiguities in the rules and procedures and make 
     modifications in terminology to better comport with the 
     statutory language used in Section 215 of the CAA. Subparts 
     E, F, and G include the process for the conduct of 
     administrative hearings held as the result of the

[[Page S5448]]

     filing of an administrative complaint. Subpart H sets forth 
     the procedures for appeals of decisions by hearing officers 
     to the Board of Directors of the Office of Compliance and for 
     appeals of decisions by the Board of Directors to the United 
     States Court of Appeals for the Federal Circuit. Proposed 
     Amendments to Subpart H also reference procedures for other 
     proceedings before the Board. Subpart I of the Rules contain 
     other matters of general applicability to the dispute 
     resolution process and to the operation of the Office of 
     Compliance, including proposed Amendments concerning 
     attorney's fees and violations of formal settlement 
     agreements.
       These proposed amendments to the Rules of Procedure are the 
     result of the experience of the Office in processing disputes 
     under the CAA since the original adoption of these Rules in 
     1995. The proposed Amendments to Subpart D of the Procedural 
     Rules reflect the experience of the Office of General Counsel 
     in conducting OSH inspections and investigations since 1995.


       EXPLANATION REGARDING THE TEXT OF THE PROPOSED AMENDMENTS

       Material from the 2004 version of the Rules is printed in 
     roman type. The text of the proposed amendments shows 
     deletions in italicized type within bold italics brackets 
     and added text in bold. Only subsections of the Rules that 
     include proposed 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 
     asterisks (* * * * *) 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 proposed to be amended, please access the Office of 
     Compliance web site at www.compliance.gov.

 PROPOSED AMENDMENTS

                     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

     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 definitions, 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 under Part A 
     of title II. The rules also address the procedures for 
     compliance, investigation and enforcement under Part B of 
     title II, [variances] and for compliance, investigation, 
     [and] enforcement, and variance under Part C of title II. The 
     rules include [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 Definitions.

       Except as otherwise specifically provided in these rules, 
     for purposes of this Part:

                               . . . . .

       (b) Covered Employee. The term ``covered employee'' means 
     any employee of

                               . . . . .

       (3) the [Capitol Guide Service] Office of Congressional 
     Accessibility Services;
       (4) the United States Capitol Police;

                               . . . . .

       (9) for the purposes stated in paragraph (q) of this 
     section, the [General Accounting] Government Accountability 
     Office or the Library of Congress.

                               . . . . .

       (d) Employee of the Office of the Architect of the Capitol. 
     The term ``employee of the Office of the Architect of the 
     Capitol'' includes any employee of the Office of the 
     Architect of the Capitol, or the Botanic Garden [or the 
     Senate Restaurants].
       (e) Employee of the Capitol Police. The term ``employee of 
     the Capitol Police'' includes civilian employees and any 
     member or officer of the Capitol Police.
       (f) Employee of the House of Representatives. The term 
     ``employee of the House of Representatives'' includes an 
     individual occupying a position the pay for which is 
     disbursed by the Clerk of the House of Representatives, or 
     another official designated by the House of Representatives, 
     or any employment position in an entity that is paid with 
     funds derived from the clerk-hire allowance of the House of 
     Representatives, but not any such individual employed by any 
     entity listed in subparagraphs (3) through (9) of paragraph 
     (b) above.
       (g) Employee of the Senate. The term ``employee of the 
     Senate'' includes any employee whose pay is disbursed by the 
     Secretary of the Senate, but not any such individual employed 
     by any entity listed in subparagraphs (3) through (9) of 
     paragraph (b) above.
       (h) Employing Office. The term ``employing office'' means:

                               . . . . .

       (4) the [Capitol Guide Service] Office of Congressional 
     Accessibility Services, the United States Capitol Police, the 
     Congressional Budget Office, the Office of the Architect of 
     the Capitol, the Office of the Attending Physician, and the 
     Office of Compliance; or
       (5) for the purposes stated in paragraph [(q)] (r) of this 
     section, the [General Accounting] Government Accountability 
     Office and the Library of Congress
       (j) Designated Representative. The term ``designated 
     representative'' means an individual, firm, or other entity 
     designated in writing by a party to represent the interests 
     of that party in a matter filed with the Office.

                               . . . . .

                  --Re-letter subsequent paragraphs--

       [(o)](p) General Counsel. The term ``General Counsel'' 
     means the General Counsel of the Office of Compliance and any 
     authorized representative or designee of the General Counsel.
       [(p)](q) Hearing Officer. The term ``Hearing Officer'' 
     means any individual [designated] appointed by the Executive 
     Director to preside over a hearing conducted on matters 
     within the Office's jurisdiction.
       [(q)](r) Coverage of the [General Accounting] Government 
     Accountability Office and the Library of Congress and their 
     Employees. The term ``employing office'' shall include the 
     [General Accounting] Government Accountability Office and the 
     Library of Congress, and the term ``covered employee'' shall 
     include employees of the [General Accounting] Government 
     Accountability Office and the Library of Congress, for 
     purposes of the proceedings and rulemakings described in 
     subparagraphs (1) and (2):

                               . . . . .

     Sec. 1.03 Filing and Computation of Time

       (a) Method of Filing. Documents may be filed in person, 
     electronically, by facsimile (FAX), 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. In addition, the Board or a Hearing Officer may 
     order other documents to be filed by FAX. The original copies 
     of documents filed by FAX must also be mailed to the Office 
     no later than the day following FAX transmission.] The filing 
     of all documents is subject to the limitations set forth 
     below. The Board, Hearing Officer, the Executive Director, or 
     the General Counsel may, in their discretion, determine the 
     method by which documents may be filed in a particular 
     proceeding, including ordering one or more parties to use 
     mail, FAX, electronic filing, or personal delivery. Parties 
     and their representatives are responsible for ensuring that 
     the Office always has their current postal mailing and e-mail 
     addresses and FAX numbers.

                               . . . . .

       (2) Mailing By Mail.
       (i) Requests for Mediation. If mailed, including express, 
     overnight and other expedited delivery, a request for 
     mediation or a complaint is deemed filed on the date of its 
     receipt in the Office.
       (ii) Other Documents. A document, Documents, other than a 
     request for mediation, or a complaint, is are deemed filed 
     on the date of its their postmark or proof of mailing to 
     the Office. Parties, including those using franked mail, are 
     responsible for ensuring that any mailed document bears a 
     postmark date or other proof of the actual date of mailing. 
     In the absence of a legible postmark a document will be 
     deemed timely filed if it is received by the Office at Adams 
     Building, Room LA 200, 110 Second Street, S.E., Washington, 
     D.C. 20540-1999, by mail within five (5) days of the 
     expiration of the applicable filing period.
       (3) Faxing Documents By FAX. 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 
     if received by 11:59 p.m. Eastern Time. Faxed documents 
     received after 11:59 p.m. Eastern Time will be deemed filed 
     the following business day. A FAX filing will be timely only 
     if the document is received no later than 5:00 PM 11:59 
     p.m. 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. 
     The time displayed as received by the Office on its FAX 
     status report will be used to show the time that the document 
     was filed. When the Office serves a document by FAX, the time 
     displayed as sent by the Office on its FAX status report will 
     be used to show the time that the document was served. A

[[Page S5449]]

     FAX filing cannot exceed 75 pages, inclusive of table of 
     contents, table of authorities, and attachments. Attachments 
     exceeding 75 pages must be submitted to the Office in person 
     or by electronic delivery. The date of filing will be 
     determined by the date the brief, motion, response, or 
     supporting memorandum is received in the Office, rather than 
     the date the attachments, were received in the Office.
       (4) By Electronic Mail. Documents transmitted 
     electronically will be deemed filed on the date received at 
     the Office at [email protected], or on the date 
     received at the Office of the General Counsel at 
     [email protected] if received by 11:59 p.m. Eastern Time. 
     Documents received electronically after 11:59 p.m. Eastern 
     Time will be deemed filed the following business day. An 
     electronic filing will be timely only if the document is 
     received no later than 11:59 p.m. Eastern Time on the last 
     day of the applicable filing period. Any party filing a 
     document electronically bears the responsibility for ensuring 
     both that the document is timely and accurately transmitted 
     and for confirming that the Office has received the document. 
     The time displayed as received by the Office will be used to 
     show the time that the document has been filed. When the 
     Office serves a document electronically, the time displayed 
     as sent by the Office will be used to show the time that the 
     document was served.
       (b) Service by the Office. At its discretion, the Office 
     may serve documents by mail, FAX, electronic transmission, or 
     personal or commercial delivery.
       (b)(c) Computation of Time. All time periods in these 
     rules that are stated in terms of days are calendar days 
     unless otherwise noted. However, when the period of time 
     prescribed is five (5) days or less, intermediate Saturdays, 
     Sundays, federal government holidays, and other full days 
     that the Office is officially closed for business shall be 
     excluded in the computation. To compute the number of days 
     for taking any action required or permitted under these 
     rules, the first day shall be the day after the event from 
     which the time period begins to run and the last day for 
     filing or service shall be included in the computation. When 
     the last day falls on a Saturday, Sunday, or federal 
     government holiday, or a day the Office is officially closed, 
     the last day for taking the action shall be the next regular 
     federal government workday.
       (c)(d) Time Allowances for Mailing, Fax, or Electronic 
     Delivery of Official Notices. Whenever a person or party has 
     the right or is required to do some act within a prescribed 
     period after the service of a notice or other document upon 
     him or her and the notice or document is served by regular, 
     first-
     class mail, five (5) days shall be added to the prescribed 
     period. Only two (2) days shall be added if a document is 
     served by express mail or other form of expedited delivery. 
     When documents are served by certified mail, return receipt 
     requested, the prescribed period shall be calculated from the 
     date of receipt as evidenced by the return receipt. When 
     documents are served electronically or by FAX, the prescribed 
     period shall be calculated from the date of transmission by 
     the Office.
       (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 filed by express mail or other forms of expedited delivery 
     in which proof of date of receipt by the addressee is 
     provided.

     Sec. 9.01 Sec. 1.04 Filing, Service, and Size Limitations 
       of Motions, Briefs, Responses and Other Documents.

       (a) Filing with the Office; Number and Format. One copy of 
     requests for counseling and mediation, requests for 
     inspection under OSH, unfair labor practice charges, charges 
     under titles II and III of the ADA, 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 any submission and any responses must be filed with 
     the Office. The Office, Hearing Officer, or Board may also 
     request aA party to submit may file an electronic version 
     of any submission in a designated format designated by the 
     Executive Director, General Counsel, Hearing Officer, or 
     Board, with receipt confirmed by electronic transmittal in 
     the same format.
       (b) Service. The parties shall serve on each other one copy 
     of all motions, briefs, responses and other documents filed 
     with the Office, other than the request for counseling, the 
     request for mediation and complaint. Service shall be made by 
     mailing, by fax or e-mailing, or by hand delivering a copy of 
     the motion, brief, response or other document to each party, 
     or if represented, the party's representative, on the service 
     list previously provided by the Office. Each of these 
     documents must be accompanied by a certificate of service 
     specifying how, when and on whom service was made. It shall 
     be the duty of each party to notify the Office and all other 
     parties in writing of any changes in the names or addresses 
     on the service list.

                               . . . . .

       (d) Size Limitations. Except as otherwise specified by the 
     Hearing Officer, or these rules, no brief, motion, response, 
     or supporting memorandum filed with the Office shall exceed 
     35 double-spaced pages, or 8,750 words, exclusive of the 
     table of contents, table of authorities and attachments. The 
     Board, the Executive Director, or Hearing Officer may waive, 
     raise or reduce modify this limitation upon motion and for 
     good cause shown; or on its their own initiative. Briefs, 
     motions, responses, and supporting memoranda shall be on 
     standard letter-size paper (8-1/2" x 11"). To the extent that 
     such a filing exceeds 35 double-spaced pages, the Hearing 
     Officer, Board, or Executive Director may, in their 
     discretion, reject the filing in whole or in part, and may 
     provide the parties an opportunity to refile.

     Sec. 9.02 Sec. 1.05 Signing of Pleadings, Motions and Other 
       Filings; Violation of Rules; Sanctions.

       (a) Signing. Every pleading, motion, and other filing of a 
     party represented by an attorney or other designated 
     representative shall be signed by the attorney or 
     representative. A party who is not represented shall sign the 
     pleading, motion or other filing. In the case of an 
     electronic filing, an electronic signature is acceptable. The 
     signature of a representative or party constitutes a 
     certificate by the signer that the signer has read the 
     pleading, motion, or other filing; that to the best of the 
     signer's knowledge, information, and belief formed after 
     reasonable inquiry, it is well grounded in fact and is 
     warranted by existing law or a good faith argument for the 
     extension, modification, or reversal of existing law, and 
     that it is not interposed for any improper purpose, such as 
     to harass or to cause unnecessary delay or needless increase 
     in the cost of litigation.
       (b) Sanctions. If a pleading, motion, or other filing is 
     not signed, it shall be stricken unless it is signed promptly 
     after the omission is called to the attention of the person 
     who is required to sign. If a pleading, motion, or other 
     filing is signed in violation of this rule, a Hearing Officer 
     or the Board, as appropriate, upon motion or upon its their 
     own initiative,shall may impose upon the person who signed 
     it, a represented party, or both, an appropriate sanction, 
     which may include an order to pay to the other party or 
     parties the amount of the reasonable expenses incurred 
     because of the filing of the pleading, motion, or other 
     filing, including a reasonable attorney's fee. A Hearing 
     Officer or the Board, as appropriate, upon motion or its own 
     initiative may also impose an appropriate sanction, which may 
     include the sanctions specified in section 7.02 , for any 
     other violation of these rules that does not result from 
     reasonable error.

     Sec. 1.04 Sec. 1.06 Availability of Official Information.

       (a) Policy. It is the policy of the Board, the Office 
     Executive Director, and the General Counsel, except as 
     otherwise ordered by the Board, to make available for public 
     inspection and copying final decisions and orders of the 
     Board and the Office, as specified and described in paragraph 
     (d) below.

                               . . . . .

       (c) Copies of Forms. Copies of blank forms prescribed by 
     the Office for the filing of complaints and other actions or 
     requests may be obtained from the Office or on line at 
     www.compliance.gov.

 . . . . .

       (f) Access by Committees of Congress. At the discretion of 
     the Executive Director, the The Executive Director, at his 
     or her discretion, may provide to the Committee on Standards 
     of Official Conduct of the House of Representatives (House 
     Committee on Ethics) and the Select Committee on Ethics of 
     the Senate (Senate Select Committee on Ethics) access to the 
     records of the hearings and decisions of the Hearing Officers 
     and the Board, including all written and oral testimony in 
     the possession of the Office. The identifying information in 
     these records may be redacted at the discretion of the 
     Executive Director. The Executive Director shall not provide 
     such access until the Executive Director has consulted with 
     the individual filing the complaint at issue, and until a 
     final decision has been entered under section 405(g) or 
     406(e) of the Act.

     Sec. 1.05Sec. 1.07 Designation of Representative.

       (a) An employee, other charging individual or A 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. No more than one representative, or firm, 
     or other entity may be designated as representative for a 
     party, unless approved in writing by the Hearing Officer or 
     Executive Director. The representative may be, but is not 
     required to be, an attorney. If the representative is an 
     attorney, he or she may sign the designation of 
     representative on behalf of the party.
       (b) Service Where There is a Representative. All service 
     Service of documents shall be directed to on the 
     representative unless and until such time as the represented 
     individual, labor organization, or employing office party 
     or representative, with notice to the party, specifies 
     otherwise and until such time as that individual, labor 
     organization, or employing office notifies the Executive 
     Director, in writing, of an amendment a modification or 
     revocation of the designation of representative. Where a 
     designation of representative is in effect, all time 
     limitations for receipt of materials by the represented 
     individual or entity shall be computed in the same manner as 
     for those who are unrepresented individuals or entities, 
     with service of the documents, however, directed to the 
     representative, as provided.

[[Page S5450]]

       (c) Revocation of a Designation of Representative. A 
     revocation of a designation of representative, whether made 
     by the party or by the representative with notice to the 
     party, must be made in writing and filed with the Office. The 
     revocation will be deemed effective the date of receipt by 
     the Office. At the discretion of the Executive Director, 
     General Counsel, mediator, hearing officer, or Board, 
     additional time may be provided to allow the party to 
     designate a new representative as consistent with the Act.

     Sec. 1.06 Sec. 1.08 Maintenance of Confidentiality.

       (a) Policy.In accord with section 416 of the Act, it is 
     the policy of Except as provided in sections 416(d), (e), 
     and (f) of the Act, the Office to shall maintain , to the 
     fullest extent possible, the confidentiality in counseling, 
     mediation, and of the proceedings and deliberations of 
     hearing officers and the Board in accordance with sections 
     416(a),(b), and (c) of the Act. of the participants in 
     proceedings conducted under sections 402, 403, 405 and 406 of 
     the Act and these rules.
       (b)At the time that any individual, employing office or 
     party, including a designated representative, becomes a 
     participant in counseling under section 402, mediation under 
     section 403, the complaint and hearing process under section 
     405, or an appeal to the Board under section 406 of the Act, 
     or any related proceeding, the Office will advise the 
     participant of the confidentiality requirements of section 
     416 of the Act and these rules and that sanctions may be 
     imposed for a violation of those requirements. Participant. 
     For the purposes of this rule, participant means an 
     individual or entity who takes part as either a party, 
     witness, or designated representative in counseling under 
     Section 402 of the Act, mediation under section 403, the 
     complaint and hearing process under section 405, or an appeal 
     to the Board under Section 406 of the Act, or any related 
     proceeding which is expressly or by necessity deemed 
     confidential under the Act or these rules. 
       (c) Prohibition. Unless specifically authorized by the 
     provisions of the Act or by these rules, no participant in 
     counseling, mediation or other proceedings made confidential 
     under Section 416 of the Act (``confidential proceedings'') 
     may disclose a written or oral communication that is prepared 
     for the purpose of or that occurs during counseling, 
     mediation, and the proceedings and deliberations of hearing 
     officers and the Board.
       (d) Exceptions. Nothing in these rules prohibits a party or 
     its representative from disclosing information obtained in 
     confidential proceedings when reasonably necessary to 
     investigate claims, ensure compliance with the Act or prepare 
     its prosecution or defense. However, the party making the 
     disclosure shall take all reasonably appropriate steps to 
     ensure that persons to whom the information is disclosed 
     maintain the confidentiality of such information. These rules 
     do not preclude a mediator from consulting with the Office, 
     except that when the covered employee is an employee of the 
     Office a mediator shall not consult with any individual 
     within the Office who might be a party or witness. These 
     rules do not preclude the Office from reporting statistical 
     information to the Senate and House of Representatives. 
       (e) Waiver. Participants may agree to waive 
     confidentiality. Such a waiver must be in writing and 
     provided to the Office.
       (f) Sanctions. The Office will advise the participants of 
     the confidentiality requirements of Section 416 of the Act 
     and that sanctions may be imposed by the Hearing Officer for 
     a violation of those requirements. No sanctions may be 
     imposed except for good cause and the particulars of which 
     must be stated in the sanction order.

     Sec. 1.07 Breach of Confidentiality Provisions.

       (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.
       (b) Prohibition. Unless specifically authorized by the 
     provisions of the CAA or by order of the Board, the Hearing 
     Officer or a court, or by the procedural rules of the Office, 
     no participant in counseling, mediation or other proceedings 
     made confidential under section 416 of the CAA 
     (``confidential proceedings'') may disclose the contents or 
     records of those proceedings to any person or entity, Nothing 
     in these rules prohibits a bona fide representative of a 
     party under section 1.05 from engaging in communications with 
     that party for the purpose of participation in the 
     proceedings, provided that such disclosure is not made in the 
     presence of individuals not reasonably necessary to the 
     representative's representation of that party. Moreover, 
     nothing in these rules prohibits a party or its 
     representative from disclosing information obtained in 
     confidential proceedings for the limited purposes of 
     investigating claims, ensuring compliance with the Act or 
     preparing its prosecution or defense, to the extent that such 
     disclosure is reasonably necessary to accomplish the 
     aforementioned purposes and provided that the party making 
     the disclosure takes all reasonably appropriate steps to 
     ensure that persons to whom the information is disclosed 
     maintain the confidentiality of such information.
       (c) Participant. For the purposes of this rule, participant 
     means any individual or party, including a designated 
     representative, that becomes a participant in counseling 
     under section 402, mediation under section 403, the complaint 
     and hearing process under section 405, or an appeal to the 
     Board under section 406 of the Act, or any related proceeding 
     which is expressly or by necessity deemed confidential under 
     the Act or these rules. 
       (d) Contents or Records of Confidential Proceedings. For 
     the purpose of this rule, the contents or records of 
     counseling, mediation or other proceeding includes 
     information disclosed by participants to the proceedings, and 
     records disclosed by either the opposing party, witnesses or 
     the Office. A participant is free to disclose facts and other 
     information obtained from any source outside of the 
     confidential proceedings. For example, an employing office or 
     its representatives may disclose information about its 
     employment practices and personnel actions, provided that the 
     information was not obtained in a confidential proceeding. 
     However, an employee who obtains that information in 
     mediation or other confidential proceeding may not disclose 
     such information. Similarly, information forming the basis 
     for the allegation of a complaining employee may be disclosed 
     by that employee, provided that the information contained in 
     those allegations was not obtained in a confidential 
     proceeding. However, the employing office or its 
     representatives may not disclose that information if it was 
     obtained a confidential proceeding. 
       (e) Violation of Confidentiality. Any complaint regarding a 
     violation of the confidentiality provisions must be made to 
     the Executive Director no later than 30 days after the date 
     of the alleged violation. Such complaints may be referred by 
     the Executive Director to a Hearing Officer. The Hearing 
     Officer is also authorized to initiate proceedings on his or 
     her own initiative, or at the direction of the Board, if the 
     alleged violation occurred in the context of Board 
     proceedings. Upon a finding of a violation of the 
     confidentiality provisions, the Hearing Officer, after notice 
     and hearing, may impose an appropriate sanction, which may 
     include any of the sanctions listed in section 7.02 of these 
     rules, as well as any of the following: 
       (1) an order that the matters regarding which the violation 
     occurred or any other designated facts shall be taken to be 
     established against the violating party for the purposes of 
     the action in accordance with the claim of the other party; 
       (2) an order refusing to allow the violating party to 
     support or oppose designated claims or defenses, or 
     prohibiting him from introducing designated matters in 
     evidence; 
       (3) an order striking out pleadings or parts thereof, or 
     staying further proceedings until the order is obeyed, or 
     dismissing with or without prejudice the action or 
     proceedings or any part thereof, or rendering a judgment by 
     default against the violating party; 
       (4) in lieu of any of the foregoing orders or in addition 
     thereto, the Hearing Officer shall require the party 
     violating the confidentiality provisions or the 
     representative advising him, or both, to pay, at such time as 
     ordered by the Hearing Officer, the reasonable expenses, 
     including attorney fees, caused by the violation, unless the 
     Hearing Officer finds that the failure was substantially 
     justified or that other circumstances make an award of 
     expenses unjust. Such an order shall be subject to review on 
     appeal of the final decision of the Hearing Officer under 
     section 406 of the Act. No sanctions may be imposed under 
     this section except for good cause and the particulars of 
     which must be stated in the sanction order.

  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 

     Sec. 2.01 Matters Covered by Subpart B.

       (a) These rules govern the processing of any allegation 
     that sections 201 through 206 of the Act have been violated 
     and any allegation of intimidation or reprisal prohibited 
     under section 207 of the Act. Sections 201 through 206 of the 
     Act apply to covered employees and employing offices certain 
     rights and protections of the following laws:

                               . . . . .

       (10) Chapter 35 (relating to veteran's preference) of title 
     5, United States Code 
       (11) Genetic Information Nondiscrimination Act of 2008.
       (b) This subpart applies to the covered employees and 
     employing offices as defined in section 1.02(b) and (h) of 
     these rules and any activities within the coverage of 
     sections 201 through 206(a) and 207 of the Act and referenced 
     above in section 2.01(a) of these rules.

                 *        *        *        *        *

     Sec. 2.03  Counseling.

       (a) Initiating a Proceeding; Formal Request for Counseling. 
     [In order] To initiate a proceeding under these rules 
     regarding an alleged violation of the Act, as referred to in 
     section 2.01(a), above, an employee shall file a written 
     request for counseling with the Office[]. [regarding an 
     alleged violation of the Act, as referred to in section 
     2.01(a), above.] The written formal request for counseling 
     should be on an official form provided by the Office and can 
     be found on the Office's website at www.compliance.gov. [All 
     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.]

[[Page S5451]]

       (b) Who May Request Counseling. A covered employee who, in 
     good faith, believes that he or she has been or is the 
     subject of a violation of the Act as referred to in section 
     2.01(a) may formally request counseling.

                             .  .  .  .  .

       (d) [Purpose] Overview  of  the  Counseling Period. The 
     Office will maintain strict confidentiality throughout the 
     counseling period. The [purpose of the] counseling period 
     [shall] should be used: to discuss the employee's concerns 
     and elicit information regarding the matter(s) which the 
     employee believes constitute a violation(s) of the Act; to 
     advise the employee of his or her rights and responsibilities 
     under the Act and the procedures of the Office under these 
     rules; to evaluate the matter; and to assist the employee in 
     achieving an early resolution of the matter, if possible.
       (e) Confidentiality and Waiver.
       (1) Absent a waiver under paragraph 2, below, all 
     counseling shall be kept strictly confidential and shall not 
     be subject to discovery. All participants in counseling shall 
     be advised of the requirement for confidentiality and that 
     disclosure of information deemed confidential could result in 
     sanctions later in the proceedings. Nothing in these rules 
     shall prevent a counselor from consulting with personnel 
     within the Office concerning a matter in counseling, except 
     that, when the person being counseled is an employee of the 
     Office, the counselor shall not consult with any individual 
     within the Office who might be a party or witness without the 
     consent of the person requesting counseling. Nothing 
     contained in these rules shall prevent the Executive Director 
     from compiling and publishing statistical information such as 
     that required by Section 301(h)(3) of the Act. [so long as 
     that statistical information does not reveal the identity of 
     the employees involved or of employing offices that are the 
     subject of a request for counseling.]
       (2) The employee and the Office may agree to waive 
     confidentiality [of] during the counseling process for the 
     limited purpose of allowing the Office [contacting the 
     employing office] to [obtain information] notify the 
     employing office of the allegations.[to be used in counseling 
     the employee or to attempt a resolution of any disputed 
     matter(s).] Such a limited waiver must be written on the form 
     supplied by the Office and signed by both the counselor and 
     the employee.

                             .  .  .  .  .

       (g) Role of Counselor [in Defining Concerns]. The counselor 
     [may] shall:
       (1) obtain the name, home and office mailing and e-mail 
     addresses, and home and office telephone numbers of the 
     person being counseled;
       (2) obtain the name and title of the person(s) whom the 
     employee claims has engaged in a violation of the Act, e-mail 
     address, if known, and the employing office in which this 
     person(s) works;

                             .  .  .  .  .

       (5) obtain the name, business and e-mail addresses, and 
     telephone number of the employee's representative, if any, 
     and whether the representative is an attorney.
        [(i)](h)Counselor Not a Representative. The counselor 
     shall inform the person being counseled that the counselor 
     does not represent either the employing office or the 
     employee. The counselor provides information regarding the 
     Act and the Office and may act as a third-party intermediary 
     with the goals of increasing the individual's understanding 
     of his or her rights and responsibilities under the Act and 
     of promoting the early resolution of the matter.
        [(j)] (i) Duration of Counseling Period. The period for 
     counseling shall be 30 days, beginning on the date that the 
     request for counseling is [received by the Office]  filed by 
     the employee in accordance with section 1.03(a) of these 
     rules, unless the employee requests in writing on a form 
     provided by the Office to reduce the period and the  [Office] 
     Executive Director agrees [to reduce the period].
        [(h)] (j) Role of Counselor in Attempting Informal 
     Resolution. In order to attempt to resolve the matter brought 
     to the attention of the counselor, the counselor must obtain 
     a waiver of confidentiality pursuant to section 2.03(e)(2) of 
     these rules. If the employee executes such a waiver, the 
     counselor may:
       (1) conduct a limited inquiry for the purpose of obtaining 
     any information necessary to attempt an informal resolution 
     or formal settlement;
       (2) reduce to writing any formal settlement achieved and 
     secure the signatures of the employee, his or her 
     representative, if any, and a member of the employing office 
     who is authorized to enter into a settlement on the employing 
     office's behalf; and, pursuant to section 414 of the Act and 
     section 9.05 of these rules, seek the approval of the 
     Executive Director. Nothing in this subsection, however, 
     precludes the employee, the employing office or their 
     representatives from reducing to writing any formal 
     settlement.
       (k) Duty to Proceed. An employee who initiates a proceeding 
     under this part shall be responsible at all times for 
     proceeding, regardless of whether he or she has designated a 
     representative, and shall notify the Office in writing of any 
     change in pertinent contact information, such as address, e-
     mail, fax number, etc. An employee, however, may withdraw 
     from counseling once without prejudice to the employee's 
     right to reinstate counseling regarding the same matter, 
     provided that the request to reinstate counseling must be in 
     writing and is [received in] filed with the Office not later 
     than 180 days after the date of the alleged violation of the 
     Act and that counseling on a single matter will not last 
     longer than a total of 30 days.
       (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,] first class mail, [or by] personal 
     delivery evidenced by a written receipt, or electronic 
     transmission. 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.
       (m) Employees of the Office of the Architect of the Capitol 
     and 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, in his or 
     her sole discretion, may recommend that the employee use the 
     [grievance] internal procedures of the Architect of the 
     Capitol or the Capitol Police pursuant to a Memorandum of 
     Understanding (MOU) between the Architect of the Capitol and 
     the Office or the Capitol Police and the Office addressing 
     certain procedural and notification requirements. The term 
     ``[grievance] internal procedure(s)'' refers to any internal 
     procedure of the Architect of the Capitol and the Capitol 
     Police, including grievance procedures referred to in section 
     401 of the Act, that can provide a resolution of the 
     matter(s) about which counseling was requested. Pursuant to 
     section 401 of the Act when the Executive Director makes such 
     a recommendation, the following procedures shall apply:
       (i) The Executive Director shall recommend in writing to 
     the employee that the employee use an  [grievance] internal 
     procedure of the Architect of the Capitol or of the Capitol 
     Police, as appropriate, for a period generally up to 90 days, 
     unless the Executive Director determines, in writing, that a 
     longer period is appropriate [for resolution of the 
     employee's complaint through the grievance procedures of  the 
     Architect of the Capitol or the Capitol Police. Once the 
     employee notifies the Office that he or she is using the 
     internal procedure, the employee shall provide a waiver of 
     confidentiality to allow the Executive Director to notify 
     the Architect of the Capitol or the Capitol Police that 
     the employee will be using the internal procedure.
       (ii) The period during which the matter is pending in the 
     internal procedure shall not count against the time available 
     for counseling or mediation under the Act.
       (iii) If the dispute is resolved to the employee's 
     satisfaction, the employee shall so notify the Office within 
     20 days after the employee has been served with a final 
     decision.
       (ii) (iv) After having contacted the Office and having 
     utilized using the  grievance internal procedures of the 
     Architect of the Capitol or of the Capitol Police, the 
     employee may notify the Office that he or she wishes to 
     return to the procedures under these rules:
       (A) within 60 days after the expiration of the period 
     recommended by the Executive Director, or longer if the 
     Executive Director has extended the time period, if the 
     matter has not resulted in a final decision or a decision not 
     to proceed; or
       (B) within 20 days after service of a final decision or a 
     decision not to proceed, resulting from the grievance 
     internal procedures of the Architect of the Capitol or of 
     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. If no request to return to the 
     procedures under these rules is received within 60 days after 
     the expiration of the period recommended by the Executive 
     Director the Office will issue a Notice of End of Counseling, 
     as specified in section 2.04(i) of these Rules.
       (v) If a request to return to counseling is not made by the 
     employee within the time periods outlined above, the Office 
     will issue a Notice of the End of Counseling.
       (2) Notice to Employees who Have Not Initiated Counseling 
     with the Office. When an employee of the Architect of the 
     Capitol or the Capitol Police raises in the internal 
     procedures of the Architect of the Capitol or of the Capitol 
     Police Board an allegation which may also be raised under 
     the procedures set forth in this subpart, the Architect of 
     the Capitol or the Capitol Police Board should shall, in 
     accordance with the MOU with the Office, advise the employee 
     in writing that a request for counseling about the allegation 
     must be initiated with the Office within 180 days after the 
     alleged violation of law occurred if the employee intends to 
     use the procedures of the Office.
       (3) Notice in Final Decisions when Employees Have Not 
     Initiated Counseling with the Office. When an employee raises 
     in the internal procedures of the Architect of the Capitol or 
     of the Capitol Police Board an allegation which may also be 
     raised under the procedures set forth in this subpart, any 
     final decision issued pursuant to the procedures of the 
     Architect of the Capitol or of the Capitol Police Board 
     should under such procedure, shall, pursuant to the MOU with 
     the Office, include notice to the employee of his or her 
     right to initiate the procedures under

[[Page S5452]]

     these rules within 180 days after the alleged violation 
     occurred.
       (4) Notice in Final Decisions when There Has Been a 
     Recommendation by the Executive Director. When the Executive 
     Director has made a recommendation under paragraph 1 above, 
     the Architect of the Capitol or the Capitol Police Board 
     should shall, pursuant to the MOU with the Office, include 
     with the final decision notice to the employee of his or her 
     right to resume the procedures under these rules within 20 
     days after service on the employee of the final decision and 
     shall transmit a copy of the final decision, settlement 
     agreement, or other final disposition of the case to the 
     Executive Director.

     Sec. 2.04 Mediation.

       (a) Explanation] Overview. Mediation is a process in which 
     employees, employing offices and their representatives, if 
     any, meet separately and/or jointly with a neutral mediator 
     trained to assist them in resolving disputes. As parties to 
     participants in the mediation, employees, employing offices, 
     and their representatives discuss alternatives to continuing 
     their dispute, including the possibility of reaching a 
     voluntary, mutually satisfactory resolution. The neutral 
     mediator has no power to impose a specific resolution, and 
     the mediation process, whether or not a resolution is 
     reached, is strictly confidential, pursuant to section 416 of 
     the Act.
       (b) Initiation. Not more than 15 days after receipt by the 
     employee of the notice of the conclusion of the counseling 
     period under section 2.03(l), the employee may file with the 
     Office a written request for mediation. Except to provide for 
     the services of a mediator and notice to the employing 
     office, the invocation of mediation shall be kept 
     confidential by the Office. The request for mediation shall 
     contain the employee's name, home and e-mail addresses, and 
     telephone number, and the name of the employing office that 
     is the subject of the request. Failure to request mediation 
     within the prescribed period will may preclude the 
     employee's further pursuit of his or her claim. If a request 
     for mediation is not filed within 15 days of receipt of a 
     Notice of the End of Counseling, without good cause shown, 
     the case will be closed and the employee will be so notified.

                               . . . . .

       (d) Selection of Neutrals Mediators; Disqualification. 
     Upon receipt of the request for mediation, the Executive 
     Director shall assign one or more neutrals mediators to 
     commence the mediation process. In the event that a neutral 
     mediator considers him or herself unable to perform in a 
     neutral role in a given situation, he or she shall withdraw 
     from the matter and immediately shall notify the Office of 
     the withdrawal. Any party may ask the Office to disqualify a 
     neutral mediator by filing a written request, including the 
     reasons for such request, with the Executive Director. This 
     request shall be filed as soon as the party has reason to 
     believe there is a basis for disqualification. The Executive 
     Director's decision on this request shall be final and 
     unreviewable.
       (e) Duration and Extension. 

                               . . . . .

       (2) The Office Executive Director 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 shall be written and filed with the Office 
     Executive Director no later than the last day of the 
     mediation period. The request shall set forth the joint 
     nature of the request and the reasons therefore, and specify 
     when the parties expect to conclude their discussions. 
     Requests for additional extensions may be made in the same 
     manner. Approval of any extensions shall be within the sole 
     discretion of the Office Executive Director.
       (f) Procedures. 
       (1) The Neutral's Mediator's Role. After assignment of 
     the case, the neutral mediator will promptly contact the 
     parties. The neutral mediator has the responsibility to 
     conduct the mediation, including deciding how many meetings 
     are necessary and who may participate in each meeting. The 
     neutral mediator may accept and may ask the parties to 
     provide written submissions.
       (2) The Agreement to Mediate. At the commencement of the 
     mediation, the neutral mediator will ask the parties 
     participants and/or their representatives to sign an 
     agreement prepared by the Office (``the Agreement to 
     Mediate''). The Agreement to Mediate will define what is to 
     be kept confidential during mediation and set out the 
     conditions under which mediation will occur, including the 
     requirement that the participants adhere to the 
     confidentiality of the process and a notice that a breach of 
     the mediation agreement could result in sanctions later in 
     the proceedings. The Agreement to Mediate will also provide 
     that the parties to the mediation will not seek to have the 
     counselor or the neutral mediator participate, testify or 
     otherwise present evidence in any subsequent administrative 
     action under section 405 or any civil action under section 
     408 of the Act or any other proceeding.
       (g) Who May Participate. The covered employee, and the 
     employing office , their respective representatives, and the 
     Office may meet, jointly or separately, with the neutral. A 
     representative of the employee and a representative of the 
     employing who has actual authority to agree to a settlement 
     agreement on behalf of the employee or the employing office, 
     as the case may be, must be present at the mediation or must 
     be immediately accessible by telephone during the mediation 
     . may elect to participate in mediation proceedings through 
     a designated representative, provided, that the 
     representative has actual authority to agree to a settlement 
     agreement or has immediate access by telephone to someone 
     with actual settlement authority, and provided further, that 
     should the mediator deem it appropriate at any time, the 
     physical presence in mediation of any party may be required. 
     The Office may participate in the mediation process through a 
     representative and/or observer. The mediator will determine, 
     as best serves the interests of mediation, whether the 
     participants may meet jointly or separately with the 
     mediator.
       (h) Informal Resolutions and Settlement Agreements. At any 
     time during mediation the parties may resolve or settle a 
     dispute in accordance with section 9.05 9.03 of these 
     rules.
       (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 personally delivered 
     evidenced by a written receipt, or sent by first class mail, 
     e-mail, or fax. , and it The notice will specify the mode 
     of delivery and also notify provide information about the 
     employee's 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 2.07 of 
     these rules.
       (j) Independence of the Mediation Process and the Neutral 
     Mediator. The Office will maintain the independence of the 
     mediation process and the neutral mediator. No individual, 
     who is appointed by the Executive Director to mediate, may 
     conduct or aid in a hearing conducted under section 405 of 
     the Act with respect to the same matter or shall be subject 
     to subpoena or any other compulsory process with respect to 
     the same matter.
       (k) Confidentiality. Except as necessary to consult with 
     the parties, the parties' their counsel or other designated 
     representatives, the parties to, the mediation, the  neutral 
     and the Office shall not disclose, in whole or in part, 
     any information or records obtained through, or prepared 
     specifically for, the mediation process. This rule shall 
     not preclude a neutral from consulting with the Office, 
     except that when the covered employee is an employee of 
     the Office a neutral shall not consult with any individual 
     within the Office who might be a party or witness. This 
     rule shall also not preclude the Office from reporting 
     statistical information to the Senate and House of 
     Representatives that does not reveal the identity of the 
     employees or employing offices involved in the mediation. 
     All parties to the action and their representatives will 
     be advised of the confidentiality requirements of this 
     process and of the sanctions that might be imposed for 
     violating these requirements.
       (k) Violation of Confidentiality in Mediation. An 
     allegation regarding a violation of the confidentiality 
     provisions may be made by a party in a mediation to the 
     mediator during the mediation period and, if not resolved by 
     agreement in mediation, to a Hearing Officer during 
     proceedings brought under Section 405 of the Act.

                               . . . . .

     Sec. 2.05 Election of Proceeding.

       (a) Pursuant to section 404 of the Act, not later than 90 
     days after a covered employee receives notice of the end of 
     mediation under section 2.04(i) of these rules but no sooner 
     than 30 days after that date, the covered employee may 
     either:

                               . . . . .

       (2) file a civil action in accordance with section 408 of 
     the Act and section 2.06 2.07, below in the United States 
     District Court district court for the district in which the 
     employee is employed or for the District of Columbia.
       (b) A covered employee who files a civil action pursuant to 
     section 2.06 408 of the Act and section 2.07 below, may not 
     thereafter file a complaint under section 405 of the Act and 
     section 5.01 below on the same matter.

     Sec. 2.06 Certification of the Official Record

       (a) Certification of the Official Record shall contain the 
     date the Request for Counseling was made; the date and method 
     of delivery the Notification of End of Counseling Period was 
     sent to the complainant; the date the Notice was deemed by 
     the Office to have been received by the complainant; the date 
     the Request for Mediation was filed; the date and method of 
     delivery the Notification of End of Mediation Period was sent 
     to the complainant; and the date the Notice was deemed by the 
     Office to have been received by the complainant.
       (b) At any time after a complaint has been filed with the 
     Office in accordance with section 405 of the Act and the 
     procedure set out in section 5.01, below; or a civil action 
     filed in accordance with section 408 of the Act and section 
     2.07 below in the United States district court, a party may 
     request and receive from the Office Certification of the 
     Official Record.
       (c) Certification of the Official Record will not be 
     provided until after a complaint has been filed with the 
     Office or the Office has been notified that a civil action 
     has been filed in district court.

[[Page S5453]]

     Sec. 2.06 2.07 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. Failure to notify the Office that such action 
     has been filed may result in delay in the preparation and 
     receipt of the Certification of the Official Record.

Subpart C--Compliance, Investigation, and Enforcement under Section 210 
      of the CAA (ADA Public Services)--Inspections and Complaints

     Sec. 3.01 Purpose and Scope
     Sec. 3.02 Authority for Inspection
     Sec. 3.03 Request for Inspections by Members of the Public
     Sec. 3.04 Objection to Inspection
     Sec. 3.05 Entry Not a Waiver
     Sec. 3.06 Advance Notice of Inspection
     Sec. 3.07 Conduct of Inspections
     Sec. 3.08 Representatives of Covered Entities
     Sec. 3.09 Consultation with Individuals with Disabilities
     Sec. 3.10 Inspection Not Warranted; Informal Review
     Sec. 3.11 Charge filed with the General Counsel
     Sec. 3.12 Service of charge or notice of charge
     Sec. 3.13 Investigations by the General Counsel
     Sec. 3.14 Mediation
     Sec. 3.15 Dismissal of charge
     Sec. 3.16 Complaint by the General Counsel
     Sec. 3.17 Settlement

     Sec. 3.18 Compliance date

     Sec. 3.01 Purpose and Scope.

       The purpose of sections 3.01 through 3.18 of this subpart 
     is to prescribe rules and procedures for enforcement of the 
     inspection and complaint provisions of sections 210(d) and 
     (f) of the CAA. For the purpose of sections 3.01 through 
     3.18, references to the ``General Counsel'' include any 
     authorized representative of the General Counsel. In 
     situations where sections 3.01 through 3.18 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 210 of 
     the CAA.

     Sec. 3.02 Authority for Inspection.

       (a) Under section 210(f)(1) of the CAA, the General Counsel 
     is authorized to enter without delay and at reasonable times 
     any facility of any entity listed in section 210(a) 
     (``covered entities''), to inspect and investigate during 
     regular working hours and at other reasonable times, and 
     within reasonable limits and in a reasonable manner, any 
     facility, and all pertinent conditions, structures, machines, 
     apparatus, devices, equipment and materials therein; to 
     question privately any covered entity, employee, operator, or 
     agent; and to review records maintained by or under the 
     control of the covered entity.
       (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. 3.03 Requests for Inspections by Members of the Public 
       and Covered Entities.

       (a) By Members of the Public.
       (1) Any person who believes that a violation of section 210 
     of the CAA exists in any facility of a covered entity may 
     request an inspection of such facility 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 person or 
     the representative of the person. A copy shall be provided to 
     the covered entity 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. If the person making the 
     request is a qualified individual with a disability, as 
     defined by section 201(2) of the Americans with Disabilities 
     Act of 1990 (ADA) (42 U.S.C. 12131(2)), the request for 
     inspection shall be considered a charge of discrimination 
     within the meaning of section 210(d)(1) of the CAA.
       (2) If upon receipt of such notification the General 
     Counsel's designee determines that the notice meets the 
     requirements set forth in subparagraph (1) of this section, 
     and that there are reasonable grounds to believe that the 
     alleged violation exists, he or she shall cause an inspection 
     to be made as soon as practicable, to determine if such 
     alleged violation exists. Inspections under this section 
     shall not be limited to matters referred to in the notice.
       (3) Prior to or during any inspection of a facility, any 
     person may notify the General Counsel's designee, in writing, 
     of any violation of section 210 of the CAA which he or she 
     has reason to believe exists in such facility. Any such 
     notice shall comply with the requirements of subparagraph (1) 
     of this section.
       (b) By Covered Entities. Upon written request of any 
     covered entity, the General Counsel or the General Counsel's 
     designee shall inspect and investigate facilities of covered 
     entities under section 210(d) of the CAA. Any such requests 
     shall be reduced to writing on a form available from the 
     Office.

     Sec. 3.04 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 covered entity, operator, agent, or employee, in 
     accordance with section 3.02 or to permit a representative of 
     employees to accompany the General Counsel's designee during 
     the physical inspection of any facility in accordance with 
     section 3.07, 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. 3.05 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 under section 210 of the CAA.

     Sec. 3.06 Advance Notice of Inspections.

       (a) Advance notice of inspections may not be given, except 
     in the following situations:
       (1) in circumstances where the inspection can most 
     effectively be conducted after regular business hours or 
     where special preparations are necessary for an inspection;
       (2) where necessary to assure the presence of 
     representatives of the covered entity and employees or the 
     appropriate personnel needed to aid in the inspection; and
       (3) 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 or by the General Counsel's 
     designee.

     Sec. 3.07 Conduct of Inspections.

       (a) Subject to the provisions of section 3.02, 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 facility 
     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 3.02 which he 
     or she wishes to review. However, such designation of records 
     shall not preclude access to additional records specified in 
     section 3.02.
       (b) The General Counsel's designee shall have authority to 
     take or obtain photographs related to the purpose of the 
     inspection, employ other reasonable investigative techniques, 
     and question privately, any covered entity, 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 measuring 
     devices, testing equipment, or other equipment used to assess 
     accessibility or compliance with the ADA Standards.
       (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 covered 
     entity.
       (e) At the conclusion of an inspection, the General 
     Counsel's designee shall confer with the covered entity or 
     its representative and informally advise it of any apparent 
     ADA 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 
     accessibility in the facility.
       (f) Inspections shall be conducted in accordance with the 
     requirements of this subpart.

     Sec. 3.08 Representatives of Covered Entities.

       (a) The General Counsel's designee shall be in charge of 
     inspections and questioning of persons. A representative of 
     the covered entity shall be given an opportunity to accompany 
     the General Counsel's designee during the physical inspection 
     of any facility for the purpose of aiding such inspection. 
     The General Counsel's designee may permit additional 
     representatives from the covered entity to accompany the 
     designee where he or she determines that such additional 
     representatives will further aid the inspection. A different 
     covered entity representative may accompany the General 
     Counsel's designee during each different phase of an 
     inspection if this will not interfere with the conduct of the 
     inspection.

[[Page S5454]]

       (b) The General Counsel's designee shall have authority to 
     resolve all disputes as to whom is the representative 
     authorized by the covered entity for the purpose of this 
     section.
       (c) If in the judgment of the General Counsel's designee, 
     good cause has been shown why accompaniment by a third party 
     who is not the requestor or an employee of the covered entity 
     (such as a sign language interpreter, braille reader, 
     architect or accessibility expert) 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. 3.09 Consultation with Individuals with Disabilities

       The General Counsel's designee may consult with individuals 
     with disabilities concerning matters of accessibility to the 
     extent he or she deems necessary for the conduct of an 
     effective and thorough inspection. During the course of an 
     inspection, any person shall be afforded an opportunity to 
     bring any violation of section 210 of the CAA which he or she 
     has reason to believe exists in the facility to the attention 
     of the General Counsel's designee.

     Sec. 3.10 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 exists under section 210 
     of the CAA, he or she shall notify the party making the 
     request 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 covered entity with a copy of such 
     statement. The covered entity may submit an opposing written 
     statement of position with the General Counsel and, at the 
     same time, provide the complaining party with a copy of such 
     statement. Upon the request of the complaining party or the 
     covered entity, the General Counsel, at his or her 
     discretion, may hold an informal conference in which the 
     complaining party and the covered entity 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 covered entity 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 3.03(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 3.03(a)(1).

     Sec. 3.11 Charge filed with the General Counsel.

       (a) Who may file.
       (1) Any qualified individual with a disability, as defined 
     in section 201(2) of the Americans with Disabilities Act of 
     1990 (42 U.S.C. 12131(2)), as applied by section 210 of the 
     CAA, who believes that he or she has been subjected to 
     discrimination on the basis of a disability in violation 
     of section 210 of the CAA by a covered entity, may file a 
     charge against any entity responsible for correcting the 
     violation with the General Counsel. A charge may not be 
     filed under section 210 of the CAA by a covered employee 
     alleging employment discrimination on the basis of 
     disability; the exclusive remedy for such discrimination 
     are the procedures under section 201 of the CAA and 
     subpart B of the Office's procedural rules.
       (b) When to file. A charge under this section must be filed 
     with the General Counsel not later than 180 days from the 
     date of the alleged discrimination.
       (c) Form and Contents. A charge shall be written or typed 
     on a charge form available from the Office. All charges shall 
     be signed and verified by the qualified individual with a 
     disability (hereinafter referred to as the ``charging 
     party''), or his or her representative, and shall contain the 
     following information:
       (i) the full name, mail and e-mail addresses, and telephone 
     number(s) of the charging party;
       (ii) the name, mail and e-mail addresses, and telephone 
     number of the covered entit(ies) against which the charge is 
     brought, if known (hereinafter referred to as the '' 
     respondent'');
       (iii) the name(s) and title(s) of the individual(s), if 
     known, involved in the conduct that the charging party claims 
     is a violation of section 210 and/or the location and 
     description of the places or conditions within covered 
     facilities that the charging party claims is a violation of 
     section 210;
       (iv) a description of the conduct, locations, or conditions 
     that form the basis of the charge, and a brief description of 
     why the charging party believes the conduct, locations, or 
     conditions is a violation of section 210; and (v) the name, 
     mail and e-mail addresses, and telephone number of the 
     representative, if any, who will act on behalf of the 
     charging party.

     Sec. 3.12 Service of charge or notice of charge.

       Within ten (10) days after the filing of a charge with the 
     General Counsel's Office (excluding weekends or holidays), 
     the General Counsel shall serve the respondent with a copy of 
     the charge, except when it is determined that providing a 
     copy of the charge would impede the law enforcement functions 
     of the General Counsel. Where a copy of the charge is not 
     provided, the respondent will be served with a notice of the 
     charge within ten (10) days after the filing of the charge. 
     The notice shall include the date, place and circumstances of 
     the alleged violation of section 210. The notice may not 
     include the identity of the person filing the charge if that 
     person has requested anonymity.

     Sec. 3.13 Investigations by the General Counsel.

       The General Counsel or the General Counsel's designated 
     representative shall promptly investigate each charge 
     alleging violations of section 210 of the CAA. As part of the 
     investigation, the General Counsel will accept any statement 
     of position or evidence with respect to the charge which the 
     charging party or the respondent wishes to submit. The 
     General Counsel will use other methods to investigate the 
     charge, as appropriate.

     Sec. 3.14 Mediation.

       If, upon investigation, the General Counsel believes that a 
     violation of section 210 may have occurred and that mediation 
     may be helpful in resolving the dispute, the General Counsel 
     may request, but not participate in, mediation under 
     subsections (b) through (d) of section 403 of the CAA and the 
     Office's procedural rules thereunder, between the charging 
     party and any entity responsible for correcting the alleged 
     violation.

     Sec. 3.15 Dismissal of charge.

       Where the General Counsel determines that a complaint will 
     not be filed, the General Counsel shall dismiss the charge.

     Sec. 3.16 Complaint by the General Counsel.

       (a) After completing the investigation, and where mediation 
     under section 3.14, if any, has not succeeded in resolving 
     the dispute, and where the General Counsel has not settled or 
     dismissed the charge, and if the General Counsel believes 
     that a violation of section 210 may have occurred, the 
     General Counsel may file with the Office a complaint against 
     any entity responsible for correcting the violation.
       (b) The complaint filed by the General Counsel under 
     subsection (a) shall be submitted to a hearing officer for 
     decision pursuant to subsections (b) through (h) of section 
     405 of the CAA. Any person who has filed a charge under 
     section 3.11 of these rules may intervene as of right with 
     the full rights of a party. The procedures of sections 405 
     through 407 of the CAA and the Office's procedural rules 
     thereunder shall apply to hearings and related proceedings 
     under this subpart.

     Sec. 3.17 Settlement.

       Any settlement entered into by the parties to any process 
     described in section 210 of the CAA shall be in writing and 
     not become effective unless it is approved by the Executive 
     Director under section 414 of the CAA and the Office's 
     procedural rules thereunder.

     Sec. 3.18 Compliance Date.

       In any proceedings under this section, compliance shall 
     take place as soon as possible, but not later than the fiscal 
     year following the end of the fiscal year in which the order 
     requiring correction becomes final and not subject to further 
     review.

Subpart D--Compliance, Investigation, Enforcement and Variance Process 
  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

 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 ApplicationsSec. 4.29 Consolidation of 
         Proceedings

[[Page S5455]]

     Sec. 4.30 Consent Findings and Rules or Orders
     Sec. 4.31 Order of Proceedings and Burden of Proof

                 Inspections, Citations and Complaints

                 *        *        *        *        *

     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 where covered employees work 
     (``place of employment'') 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 maintained by or under the control of 
     the covered entity. required by the CAA and regulations 
     promulgated thereunder, and other records which are directly 
     related to the purpose of the inspection.

     Sec. 4.03 Requests for Inspections by Employees and Covered 
       Employing Offices.

       (a) By Covered Employees and Representatives.
       (1) Any covered employee or representative of covered 
     employees who believes that a violation of section 215 of the 
     CAA exists in any place of employment under the jurisdiction 
     of employing offices may request an inspection of such place 
     of employment by giving notice of the alleged violation to 
     the General Counsel. Any such notice shall be reduced to 
     writing 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.

                 *        *        *        *        *

       (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. 4.10 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 in writing. The complaining party may 
     obtain review of such determination by submitting and serving 
     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 and serve an opposing written 
     statement of position with the General Counsel, and , at 
     the same time, provide 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.

                 *        *        *        *        *

     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] including any occupational safety or 
     health standard promulgated by the Secretary of Labor under 
     Title 29 of the U.S. Code, section 655, or of any other 
     regulation standard, rule or order promulgated pursuant to 
     section 215 of the CAA, has occurred, he or she shall issue 
     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] has 
     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 
     unless the violation is continuing or the employing office 
     has agreed to toll the deadline for filing the citation.

                 *        *        *        *        *

     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. When a citation contains security information as 
     defined in Title 2 of the U.S. Code, section 1979, the 
     General Counsel may edit or redact the security information 
     from the copy of the citation used for posting or may provide 
     to the employing office a notice for posting that describes 
     the alleged violation without referencing the security 
     information. The employing office shall take steps to ensure 
     that the citation or notice is not altered, defaced, or 
     covered by other material. Notices of de minimis violations 
     need not be posted.
       (b) Each citation, notice, 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.

                         .    .    .    .    .

     Sec. 4.15 Informal Conferences.

       At the request of an affected employing office, employee, 
     or representative of employees, the General Counsel may hold 
     an informal conference for the purpose of discussing any 
     issues raised by an inspection, citation, or notice issued by 
     the General Counsel. Any settlement entered into by the 
     parties at such conference shall be subject to the approval 
     of the Executive Director under section 414 of the CAA and 
     section [9.05] 9.03 of these rules. If the conference is 
     requested by the employing office, an affected employee or 
     the employee's representative shall be afforded an 
     opportunity to participate, at the discretion of the General 
     Counsel. If the conference is requested by an employee or 
     representative of employees, the employing office shall be 
     afforded an opportunity to participate, at the discretion of 
     the General Counsel. Any party may be represented by counsel 
     at such conference.

                         .    .    .    .    .

                         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

     Sec. 5.01 Complaints.

       (a) Who May File.
       (1) An employee who has completed the mediation period 
     under section 2.04 may timely file a complaint with the 
     Office alleging any violation of sections 201 through 207 of 
     the Act[.], under the Genetic Information Nondiscrimination 
     Act, or any other statute made applicable under the Act.
       (2) The General Counsel may timely file a complaint 
     alleging a violation of section 210, 215 or 220 of the Act.
       (b) When to File.
       (1) A complaint may be filed by an employee no sooner than 
     30 days after the date of receipt of the notice under section 
     2.04(i), but no later than 90 days after receipt of that 
     notice. In cases where a complaint is filed with the Office 
     sooner than 30 days after the date of receipt of the notice 
     under section 2.04(i), the Executive Director, at his or her 
     discretion, may return the complaint to the employee for 
     filing during the prescribed period without prejudice and 
     with an explanation of the prescribed period of filing.

                         .    .    .    .    .

       (c) Form and Contents.
       (1) Complaints Filed by Covered Employees. A complaint 
     shall be in writing and may be written or typed on a 
     complaint form available from the Office. All complaints 
     shall be signed by the covered employee, or his or her 
     representative, and shall contain the following information:
       (i) the name, mailing and e-mail addresses, and telephone 
     number(s) of the complainant;

                         .    .    .    .    .

       (v) a brief description of why the complainant believes the 
     challenged conduct is a violation of the Act or the relevant 
     sections of the Genetic Information Nondiscrimination Act and 
     the section(s) of the Act involved;

                         .    .    .    .    .

       (vii) the name, mailing and e-mail addresses, and telephone 
     number of the representative, if any, who will act on behalf 
     of the complainant.
       (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:

[[Page S5456]]

       (i) the name, mail and e-mail addresses, if available, 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;

                         .    .    .    .    .

       (e) Service of Complaint. Upon receipt of a complaint or an 
     amended complaint, the Office shall serve the respondent, or 
     its designated representative, by hand delivery [or certified 
     mail] or first class mail, e-mail, or facsimile with a copy 
     of the complaint or amended complaint and [a copy of these 
     rules] written notice of the availability of these rules at 
     www.compliance.gov. A copy of these rules may also be 
     provided if requested by either party. The Office shall 
     include a service list containing the names and addresses of 
     the parties and their designated representatives.
       (f) Answer. Within 15 days after receipt of a copy of a 
     complaint or an amended complaint, the respondent shall file 
     an answer with the Office and serve one copy on the 
     complainant. [The answer shall contain a statement of the 
     position of the respondent on each of the issues raised in 
     the complaint or amended complaint, including admissions, 
     denials, or explanations of each allegation made in the 
     complaint and any affirmative defenses or other defenses to 
     the complaint.] In answering a complaint, a party must state 
     in short and plain terms its defenses to each claim asserted 
     against it and admit or deny the allegations asserted against 
     it by an opposing party. Failure to [file an answer] deny an 
     allegation, other than one relating to the amount of damages, 
     or to raise a claim or defense as to any allegation(s) shall 
     constitute an admission of such allegation(s). Affirmative 
     defenses not raised in an answer that could have reasonably 
     been anticipated based on the facts alleged in the complaint 
     shall be deemed waived. A respondent's motion for leave to 
     amend an answer to interpose a denial or affirmative defense 
     will ordinarily be granted unless to do so would unduly 
     prejudice the rights of the other party or unduly delay or 
     otherwise interfere with or impede the proceedings.
       (g) Motion to Dismiss. In addition to an answer, a 
     respondent may file a motion to dismiss, or other responsive 
     pleading with the Office and serve one copy on the 
     complainant. Responses to any motions shall be in compliance 
     with section 1.04(c) of these rules.
       (h) Confidentiality. The fact that a complaint has been 
     filed with the Office by a covered employee shall be kept 
     confidential by the Office, except as allowed by these rules.

     Sec. 5.02 Appointment of the Hearing Officer.

       Upon the filing of a complaint, the Executive Director will 
     appoint an independent Hearing Officer, who shall have the 
     authority specified in sections 5.03 and 7.01(b) below. The 
     Hearing Officer shall not be the counselor involved in or the 
     [neutral] mediator who mediated the matter under sections 
     2.03 and 2.04 of these rules.

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

                         .    .    .    .    .

       (f) Withdrawal of Complaint by Complainant. At any time a 
     complainant may withdraw his or her own complaint by filing a 
     notice with the Office for transmittal to the Hearing Officer 
     and by serving a copy on the employing office or 
     representative. Any such withdrawal must be approved by the 
     Hearing Officer and may be with or without prejudice to 
     refile at the Hearing Officer's discretion.
       (g) Withdrawal of Complaint by the General Counsel. At any 
     time prior to the opening of the hearing the General Counsel 
     may withdraw his complaint by filing a notice with the 
     Executive Director and the Hearing Officer and by serving a 
     copy on the respondent. After opening of the hearing, any 
     such withdrawal must be approved by the Hearing Officer and 
     may be with or without prejudice to refile at the Hearing 
     Officer's discretion.
       (h) Withdrawal From a Case by a Representative. A 
     representative must provide sufficient notice to the Hearing 
     Officer and the parties of record of his or her withdrawal. 
     Until the party designates another representative in writing, 
     the party will be regarded as pro se.

     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] may result in the imposition of procedural or 
     evidentiary 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 the 
     subject of a matter.] See also sections [1.06] [1.07] 1.08 
     and 7.12 of these rules.

                   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

     Sec. 6.01 Discovery.

       (a) [Explanation] Description. Discovery is the process by 
     which a party may obtain from another person, including a 
     party, information, not privileged, reasonably calculated to 
     lead to the discovery of admissible evidence, for the purpose 
     of assisting that party in developing, preparing and 
     presenting its case at the hearing. No discovery, oral or 
     written, by any party shall [This provision  shall not be 
     construed to permit any discovery, oral or written, to be 
     taken of, or from, an employee of the Office of 
     Compliance, or the counselor(s), or mediator the 
     neutral(s) involved in counseling and mediation., 
     including files, records, or notes produced during 
     counseling and mediation and maintained by the Office. 
       (b) Initial Disclosure. Office Policy Regarding Discovery. 
     It is the policy of the Office to encourage the early and 
     voluntary exchange of relevant and material nonprivileged 
     information between the parties, including the names and 
     addresses of witnesses and copies of relevant and material 
     documents, and to encourage Hearing Officers to develop 
     procedures which allow for the greatest exchange of relevant 
     and material information and which minimizes the need for 
     parties to formally request such information. Within 14 days 
     after the pre-hearing conference and except as otherwise 
     stipulated or ordered by the Hearing Officer, a party must, 
     without awaiting a discovery request, provide to the other 
     parties: the name and, if known, mail and e-mail addresses 
     and telephone number of each individual likely to have 
     discoverable information that the disclosing party may use to 
     support its claims or defenses; and a copy or a description 
     by category and location of all documents, electronically 
     stored information, and tangible things that the disclosing 
     party has in its possession, custody, or control and may use 
     to support its claims or defenses.
       (c) Discovery Availability. Pursuant to section 405(e) of 
     the Act, the Hearing Officer in his or her discretion may 
     permit the parties may engage in reasonable prehearing 
     discovery. In exercising that discretion, the Hearing 
     Officer may be guided by the Federal Rules of Civil 
     Procedure.
       (1) The Hearing Officer may authorize parties may take 
     discovery by one or more of the following methods: 
     depositions upon oral examination or written questions; 
     written interrogatories; production of documents or things or 
     permission to enter upon land or other property for 
     inspection or other purposes; physical and mental 
     examinations; and requests for admission.
       (2) The Hearing Officer may adopt standing orders or make 
     any order setting forth the forms and extent of discovery, 
     including orders limiting the number of depositions, 
     interrogatories, and requests for production of documents, 
     and may also limit the length of depositions.

                               . . . . .

       (d) Claims of Privilege.
       (1) Information Withheld. Whenever a party withholds 
     information otherwise discoverable under these rules by 
     claiming that it is privileged or confidential or subject to 
     protection as hearing or trial preparation materials, the 
     party shall make the claim expressly in writing and shall 
     describe the nature of the documents, communications or 
     things not produced or disclosed in a manner that, without 
     revealing the information itself privileged or protected, 
     will enable other parties to assess the applicability of the 
     privilege or protection. A party must make a claim for 
     privilege no later than the due date for the production of 
     the information.
       (2) Information Produced As Inadvertent Disclosure. If 
     information produced in discovery is subject to a claim of 
     privilege or of protection as hearing preparation material, 
     the party making the claim may notify any party that received 
     the information of the claim and the basis for it. After 
     being notified, a party must promptly return, sequester, or 
     destroy the specified information and any copies it has; must 
     not use or disclose the information until the claim is 
     resolved; must take reasonable steps to retrieve the 
     information if the party disclosed it before being notified; 
     and may promptly present the information to the Hearing 
     Officer or the Board under seal for a determination of the 
     claim. The producing party must preserve the information 
     until the claim is resolved.

     Sec. 6.02 Request for Subpoena.

       (a) Authority to Issue Subpoenas. At the request of a 
     party, a Hearing Officer may issue subpoenas for the 
     attendance and testimony of witnesses and for the production 
     of correspondence, books, papers, documents, or other 
     records. The attendance of witnesses and the production of 
     records may be required from any place within the United 
     States. However, no subpoena by any party may be issued for 
     the attendance or testimony of an employee with of the 
     Office of Compliance, a counselor, or a mediator, including 
     files, records, or notes produced during counseling and 
     mediation and maintained by the Office. Employing offices 
     shall make their employees available for discovery and 
     hearing without requiring a subpoena.
       (d) Rulings. The Hearing Officer shall promptly rule on the 
     request for the subpoena.

                               * * * * *

                          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 

[[Page S5457]]

     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 Proposed Findings of Fact and Conclusions of Law; 
         Posthearing Briefs 
     Sec. 7.15 Closing the record 
     Sec. 7.16 Hearing Officer Decisions; Entry in Records of the 
         Office; Corrections to the Record; Motions to Alter, 
         Amend or Vacate the Decision. 

     Sec. 7.01 The Hearing Officer. 

                               . . . . .

       (b) Authority. Hearing Officers shall conduct fair and 
     impartial hearings and take all necessary action to avoid 
     undue delay in the disposition of all proceedings. They shall 
     have all powers necessary to that end unless otherwise 
     limited by law, including, but not limited to, the authority 
     to:

                               . . . . .

       (14) maintain and enforce the confidentiality of 
     proceedings; and

                               . . . . .

     Sec. 7.02 Sanctions.

                               . . . . .

       (b) The Hearing Officer may impose sanctions upon the 
     parties under, but not limited to, the circumstances set 
     forth in this section.
       (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:
       [(a)](A) draw an inference in favor of the requesting party 
     on the issue related to the information sought;
       [(b)](B) stay further proceedings until the order is 
     obeyed;
       [(c)](C) prohibit the party failing to comply with such 
     order from introducing evidence concerning, or otherwise 
     relying upon, evidence relating to the information sought;
       [(d)](D) permit the requesting party to introduce secondary 
     evidence concerning the information sought;
       [(e)](E) strike, in whole or in part, [any part of] the 
     complaint, briefs, answer, or other submissions of the party 
     failing to comply with the order, as appropriate; 
       [(f)](F) direct judgment against the non-complying party in 
     whole or in part; or
       [(g)](G) order that the non-complying party, or the 
     representative advising that party, pay all or part of the 
     attorney's fees and reasonable expenses of the other party or 
     parties or of the Office, caused by such non-compliance, 
     unless the Hearing Officer or the Board finds that the 
     failure was substantially justified or that other 
     circumstances make an award of attorney's fees and/or 
     expenses unjust.
       (2) Failure to Prosecute or Defend. If a party fails to 
     prosecute or defend a position, the Hearing Officer may 
     dismiss the action with prejudice or [rule for the 
     complainant] decide the matter, where appropriate. 

                               . . . . .

       (4) Filing of frivolous claims. If a party files a 
     frivolous claim, the Hearing Officer may dismiss the claim, 
     in whole or in part, with prejudice or decide the matter for 
     the party alleging the filing of the frivolous claim.
       (5) Failure to maintain confidentiality. An allegation 
     regarding a violation of the confidentiality provisions may 
     be made to a Hearing Officer in proceedings under Section 405 
     of the CAA. If, after notice and hearing, the Hearing Officer 
     determines that a party has violated the confidentiality 
     provisions, the Hearing Officer may: 
       (A) direct that the matters related to the breach of 
     confidentiality or other designated facts be taken as 
     established for purposes of the action, as the prevailing 
     party claims;
       (B) prohibit the party breaching confidentiality from 
     supporting or opposing designated claims or defenses, or from 
     introducing designated matters in evidence;
       (C) strike the pleadings in whole or in part; 
       (D) stay further proceedings until the breach of 
     confidentiality is resolved to the extent possible; 
       (E) dismiss the action or proceeding in whole or in part; 
     or
       (F) render a default judgment against the party breaching 
     confidentiality. 
       (c) No sanctions may be imposed under this section except 
     for good cause and the particulars of which must be stated in 
     the sanction order. 

                               . . . . .

     Sec. 7.04  Motions and Prehearing Conference.

                               . . . . .

       (b) Scheduling of the Prehearing Conference. Within 7 days 
     after assignment, the Hearing Officer shall serve on the 
     parties and their designated representatives written notice 
     setting forth the time, date, and place of the prehearing 
     conference, except that the Executive Director may, for good 
     cause, extend up to an additional 7 days the time for serving 
     notice of the prehearing conference. 
       (c) Prehearing Conference Memoranda. The Hearing Officer 
     may order each party to prepare a prehearing conference 
     memorandum. At his or her discretion, the Hearing Officer may 
     direct the filing of the memorandum after discovery by the 
     parties has concluded. [That] The memorandum may include:

                               . . . . .

       (3) the specific relief, including, where known, a 
     calculation of [the amount of] any monetary relief [,] or 
     damages that is being or will be requested;
       (4) the names of potential witnesses for the party's case, 
     except for potential impeachment or rebuttal witnesses, and 
     the purpose for which they will be called and a list of 
     documents that the party is seeking from the opposing party, 
     and, if discovery was permitted, the status of any pending 
     request for discovery. (It is not necessary to list each 
     document requested. Instead, the party may refer to the 
     request for discovery.); and

                               . . . . .

       (d) At the prehearing conference, the Hearing Officer may 
     discuss the subjects specified in paragraph (c) above and the 
     manner in which the hearing will be conducted [and proceed]. 
     In addition, the Hearing Officer may explore settlement 
     possibilities and consider how the factual and legal issues 
     might be simplified and any other issues that might expedite 
     the resolution of the dispute. The Hearing Officer shall 
     issue an order, which recites the action taken at the 
     conference and the agreements made by the parties as to any 
     of the matters considered and which limits the issues to 
     those not disposed of by admissions, stipulations, or 
     agreements of the parties. Such order, when entered, shall 
     control the course of the proceeding, subject to later 
     modification by the Hearing Officer by his or her own motion 
     or upon proper request of a party for good cause shown.

     Sec. 7.05  Scheduling the Hearing.

                               . . . . .

       (b) Motions for Postponement or a Continuance. Motions for 
     postponement or for a continuance by either party shall be 
     made in writing to the [Office] Hearing Officer, shall set 
     forth the reasons for the request, and shall state whether 
     the opposing party consents to such postponement. Such a 
     motion may be granted by the Hearing Officer upon a showing 
     of good cause. In no event will a hearing commence later than 
     90 days after the filing of the complaint.

     Sec. 7.06  Consolidation and Joinder of Cases.

                               . . . . .

       (b) Authority. The Executive Director prior to the 
     assignment of a complaint to a Hearing Officer; a Hearing 
     Officer during the hearing; or the Board [, the Office, or a 
     Hearing Officer] during an appeal may consolidate or join 
     cases on their own initiative or on the motion of a party if 
     to do so would expedite processing of the cases and not 
     adversely affect the interests of the parties, taking into 
     account the confidentiality requirements of section 416 of 
     the Act.

     Sec. 7.07  Conduct of Hearing; Disqualification of 
       Representatives.

                               . . . . .

       (c) No later than the opening of the hearing, or as 
     otherwise ordered by the Hearing Officer, each party shall 
     submit to the Hearing Officer and to the opposing party typed 
     lists of the hearing exhibits and the witnesses expected to 
     be called to testify, excluding impeachment or rebuttal 
     witnesses [, expected to be called to testify]. 

                               . . . . .

       (f) Failure of either party to appear, present witnesses, 
     or respond to an evidentiary order may result in an adverse 
     finding or ruling by the Hearing Officer. At the discretion 
     of the Hearing Officer, the hearing may also be held in 
     absence of the complaining party if the representative for 
     that party is present.
       [(f)](g) 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. 7.08  Transcript.

                               . . . . .

       (b) Corrections. Corrections to the official transcript 
     will be permitted. Motions for correction must be submitted 
     within 10 days of service of the transcript upon the [party] 
     parties. Corrections of the official transcript will be 
     permitted only upon approval of the Hearing Officer. The 
     Hearing Officer may make corrections at any time with notice 
     to the parties.

                               . . . . .

     Sec. 7.12  Confidentiality.

       (a) Pursuant to section 416 of the Act and section 1.08 of 
     these Rules, 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 sections 416(d), (e), and (f) of the Act and 
     section 1.08(d) of these Rules. 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.

[[Page S5458]]

       (b) Violation of Confidentiality. An allegation regarding a 
     violation of confidentiality occurring during a hearing may 
     be resolved by a Hearing Officer in proceedings under Section 
     405 of the CAA. After providing notice and an opportunity to 
     the parties to be heard, the Hearing Officer, in accordance 
     with section 1.08(f) of these Rules, may make a finding of a 
     violation of confidentiality and impose appropriate 
     procedural or evidentiary sanctions, which may include any of 
     the sanctions listed in section 7.02 of these Rules.

     Sec. 7.13 Immediate Board Review of a Ruling by a Hearing 
       Officer.

                               . . . . .

       (b) Time for Filing. A motion by a party for interlocutory 
     review of a ruling of the Hearing Officer shall be filed with 
     the Hearing Officer within 5 days after service of the ruling 
     upon the parties. The motion shall include arguments in 
     support of both interlocutory review and the determination 
     requested to be made by the Board upon review. Responses, if 
     any, shall be filed with the Hearing Officer within 3 days 
     after service of the motion.
       (b)(c) Standards for Review. In determining whether to 
     certify and forward a request for interlocutory review to the 
     Board, the Hearing Officer shall consider all of the 
     following:

                               . . . . .

       [(c) Time for Filing. A motion by a party for interlocutory 
     review of a ruling of the Hearing Officer shall be filed with 
     the Hearing Officer within 5 days after service of the ruling 
     upon the parties. The motion shall include arguments in 
     support of both interlocutory review and the determination 
     requested to be made by the Board upon review. Responses, if 
     any, shall be filed with the Hearing Officer within 3 days 
     after service of the motion.
       (d) Hearing Officer Action. If all the conditions set forth 
     in paragraph (b)(c) above are met, the Hearing Officer 
     shall certify and forward a request for interlocutory review 
     to the Board for its immediate consideration. Any such 
     submission shall explain the basis on which the Hearing 
     Officer concluded that the standards in paragraph (b)(c) 
     have been met. The decision of the Hearing Office to forward 
     or decline to forward a request for review is not appealable.
       (e) Grant of Interlocutory Review Within Board's Sole 
     Discretion. Upon the Hearing Officer's certification and 
     decision to forward a request for review, Tthe Board, in 
     its sole discretion, may grant interlocutory review. The 
     Board's decision to grant or deny interlocutory review is not 
     appealable.

                               . . . . .

       (g) Denial of Motion not Appealable; Mandamus. The grant 
     or denial of a motion for a request for interlocutory review 
     shall not be appealable. The Hearing Officer shall promptly 
     bring a denial of such a motion, and the reasons therefor, to 
     the attention of the Board. If, upon consideration of the 
     motion and the reason for denial, the Board believes that 
     interlocutory review is warranted, it may grant the review 
     sua sponte. In addition, the Board may in its discretion, in 
     extraordinary circumstances, entertain directly from a party 
     a writ of mandamus to review a ruling of a Hearing Officer.
       (h)(g) Procedures before Board. Upon its [acceptance of a 
     ruling of the Hearing Officer for decision to grant 
     interlocutory review, the Board shall issue an order setting 
     forth the procedures that will be followed in the conduct of 
     that review.
       (i)(h) Review of a Final Decision. Denial of 
     interlocutory review will not affect a party's right to 
     challenge rulings, which are otherwise appealable, as part of 
     an appeal to the Board under section 8.01 from the Hearing 
     Officer's decision issued under section 7.16 of these rules.

     Sec. 7.14 Proposed Findings of Fact and Conclusions of Law; 
       Posthearing Briefs.

       (a) May be Filed Required. The Hearing Officer may 
     permit require the parties to file proposed findings of 
     fact and conclusions of law and/or posthearing briefs on the 
     factual and the legal issues presented in the case.
       (b) Length. No principal brief shall exceed 50 pages, or 
     12,500 words, and no reply brief shall exceed 25 pages, or 
     6,250 words, exclusive of tables and pages limited only to 
     quotations of statutes, rules, and the like. Motions to file 
     extended briefs shall be granted only for good cause shown; 
     the Hearing Officer may in his or her discretion also reduce 
     the page limits. Briefs in excess of 10 pages shall include 
     an index and a table of authorities.
       (c) Format. Every brief must be easily readable. Briefs 
     must have double spacing between each line of text, except 
     for quoted texts and footnotes, which may be single-spaced.

     Sec. 7.15 Closing the Record of the Hearing.

       (a) Except as provided in section 7.14, the record shall be 
     closed at the conclusion of the hearing. However, when the 
     Hearing Officer allows the parties to submit argument, 
     briefs, documents or additional evidence previously 
     identified for introduction, the record will remain open for 
     as much time as the judge grants for that purpose additional 
     evidence previously identified for introduction, the Hearing 
     Officer may allow an additional period before the conclusion 
     of the hearing as is necessary for that purpose.
       (b) Once the record is closed, no additional evidence or 
     argument shall be accepted into the hearing record except 
     upon a showing that new and material evidence has become 
     available that was not available despite due diligence prior 
     to the closing of the record or it is in rebuttal to new 
     evidence or argument submitted by the other party just before 
     the record closed. However, the The Hearing Officer shall 
     also make part of the record any motions for attorney fees, 
     supporting documentation, and determinations thereon, and 
     approved correction to the transcript.

     Sec. 7.16 Hearing Officer Decisions; Entry in Records of the 
       Office; Corrections to the Record; Motions to Alter, Amend 
       or Vacate the Decision.

                               . . . . .

       (b) The Hearing Officer's written decision shall:
       (1) state the issues raised in the complaint;
       (2) describe the evidence in record;
       (3) contain findings of fact and conclusions of law, and 
     the reasons or basis therefore, on all the material issues of 
     fact, law, or discretion presented on the record;
       (4) contain a determination of whether a violation has 
     occurred; and (5) order such remedies as are appropriate 
     under the CAA.
       (b)(c) Upon issuance, the decision and order of the 
     Hearing Officer shall be entered into the records of the 
     Office.
       (c)(d) The Office shall promptly provide a copy of the 
     decision and order of the Hearing Officer to the parties.
       (d)(e) If there is no appeal of a decision and order of a 
     Hearing Officer, that decision becomes a final decision of 
     the Office, which is subject to enforcement under section 
     8.03 of these rules.
       (f) Corrections to the Record. After a decision of the 
     Hearing Officer has been issued, but before an appeal is made 
     to the Board, or in the absence of an appeal, before the 
     decision becomes final, the Hearing Officer may issue an 
     erratum notice to correct simple errors or easily correctible 
     mistakes. The Hearing Officer may do so on motion of the 
     parties or on his or her own motion with or without advance 
     notice.
       (g) After a decision of the Hearing Officer has been 
     issued, but before an appeal is made to the Board, or in the 
     absence of an appeal, before the decision becomes final, a 
     party to the proceeding before the Hearing Officer may move 
     to alter, amend or vacate the decision. The moving party must 
     establish that relief from the decision is warranted because: 
     (1) of mistake, inadvertence, surprise, or excusable neglect; 
     (2) there is newly discovered evidence that, with reasonable 
     diligence, could not have been discovered in time to move for 
     a new hearing; (3) there has been fraud (misrepresentation, 
     or misconduct by an opposing party; (4) the decision is void; 
     or (5) the decision has been satisfied, released, or 
     discharged; it is based on an earlier decision that has been 
     reversed or vacated; or applying it prospectively is 
     no longer equitable. The motion shall be filed within 15 
     days after service of the Hearing Officer's decision. No 
     response shall be filed unless the Hearing Officer so 
     orders. The filing and pendency of a motion under this 
     provision shall not relieve a party of the obligation to 
     file a timely appeal or operate to stay the action of the 
     Hearing Officer unless so ordered by the Hearing Officer.

                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
     Sec. 8.05  Application for Review of an Executive Director 
         Action
     Sec. 8.06  Exceptions to Arbitration Awards
     Sec. 8.07  Expedited Review of Negotiability
     Sec. 8.08  Procedures of the Board in Impasse Proceedings

     Sec. 8.01  Appeal to the Board.

       (a) No later than 30 days after the entry of the final 
     decision and order of the Hearing Officer in the records of 
     the Office, an aggrieved party may seek review of that 
     decision and order by the Board by filing with the Office a 
     petition for review by the Board. The appeal must be served 
     on the opposing party or its representative.

                             .  .  .  .  .

       (3) Upon written delegation by the Board, In any case in 
     which the Board has not rendered a determination on the 
     merits, 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,; determine any request for 
     enlargement of page limitation of any post-petition for 
     review document or submission with the Board; or require 
     proof of service where there are questions of proper service. 
     Such delegation shall continue until revoked by the Board.

                             .  .  .  .  .

       (d) Upon appeal, the Board shall issue a written decision 
     setting forth the reasons for its decision. The Board may 
     dismiss the appeal or affirm, reverse, modify or remand the 
     decision and order of the Hearing Officer in whole or in 
     part. Where there is no remand the decision of the Board 
     shall be entered in the records of the Office as the final 
     decision of the Board and shall be subject to judicial 
     review.
       (e) The Board may remand the matter to the a Hearing 
     Officer for further action or proceedings, including the 
     reopening of the record for the taking of additional 
     evidence. The decision by the Board to remand a case is not 
     subject to judicial review under Section 407 of the Act. The 
     procedures for a remanded hearing shall be governed by 
     subparts F, G, and H of these Rules. The Hearing Officer 
     shall render a decision or report to

[[Page S5459]]

     the Board, as ordered, at the conclusion of proceedings on 
     the remanded matters. Upon receipt of the decision or 
     report, the Board shall determine whether the views of the 
     parties on the content of the decision or report should be 
     obtained in writing and, where necessary, shall fix by order 
     the time for the submission of those views. A decision of 
     the Board following completion of the remand shall be entered 
     in the records of the Office as the final decision of the 
     Board and shall be subject to judicial review under Section 
     407 of the Act.

                             .  .  .  .  .

       (h) Record. The docket sheet, complaint and any amendments, 
     notice of hearing, answer and any amendments, motions, 
     rulings, orders, stipulations, exhibits, documentary 
     evidence, any portions of depositions admitted into evidence, 
     docketed Memoranda for the Record, or correspondence between 
     the Office and the parties, and the transcript of the hearing 
     (together with any electronic recording of the hearing if the 
     original reporting was performed electronically) together 
     with the Hearing Officer's decision and the petition for 
     review, any response thereto, any reply to the response and 
     any other pleadings shall constitute the record in the case.

                             .  .  .  .  .

       (j) An appellant may move to withdraw a petition for review 
     at any time before the Board renders a decision. The motion 
     must be in writing and submitted to the Board. The Board, at 
     its discretion, may grant such a motion and take whatever 
     action is required.

     Sec. 8.02  Reconsideration.

       After a final decision or order of the Board has been 
     issued, a party to the proceeding before the Board, who can 
     establish in its moving papers that reconsideration is 
     necessary because the Board has overlooked or misapprehended 
     points of law or fact, may move for reconsideration of such 
     final decision or order. The motion shall be filed within 15 
     days after service of the Board's decision or order. No 
     response shall be filed unless the Board so orders. The 
     filing and pendency of a motion under this provision shall 
     not relieve a party of the obligation to file a timely appeal 
     or operate to stay the action of the Board unless so ordered 
     by the Board. The decision to grant or deny a motion for 
     reconsideration is within the sole discretion of the Board 
     and is not appealable. 

     Sec. 8.03  Compliance with Final Decisions, Requests for 
       Enforcement.

       (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) of the Act, 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, the steps being taken to assure full 
     compliance, and the anticipated date by which full compliance 
     will be achieved. A party may also file a petition for 
     attorneys fees and/or damages unless the Board has, in its 
     discretion, stayed the final decision of the Office during 
     the pendency of the appeal pursuant to Section 407 of the 
     Act.

                             .  .  .  .  .

       (d) To the extent provided in Section 407(a) of the Act and 
     Section 8.04 of this section, the appropriate Any party may 
     petition the Board for enforcement of a final decision of the 
     Office or the Board. The petition shall specifically set 
     forth the reasons why the petitioner believes enforcement is 
     necessary.

                             .  .  .  .  .

                                .  .  .

     Sec. 8.05  Application for Review of an Executive Director 
       Action.

       For additional rules on the procedures pertaining to the 
     Board's review of an Executive Director action in 
     Representation proceedings, refer to Parts 2422.30--31 of the 
     Substantive Regulations of the Board, available at 
     www.compliance.gov.

 Sec. 8.06 Expedited Review of Negotiability Issues.

       For additional rules on the procedures pertaining to the 
     Board's expedited review of negotiability issues, refer to 
     Part 2424 of the Substantive Regulations of the Board, 
     available at www.compliance.gov.

 Sec. 8.07 Review of Arbitration Awards.

       For additional rules on the procedures pertaining to the 
     Board's review of arbitration awards, refer to Part 2425 of 
     the Substantive Regulations of the Board, available at 
     www.compliance.gov.

 Sec. 8.08 Procedures of the Board in Impasse Proceedings.

       For additional rules on the procedures of the Board in 
     impasse proceedings, refer to Part 2471 of the Substantive 
     Regulations of the Board, available at www.compliance.gov.

 Subpart I--Other Matters of General Applicability

      9.01 Filing, Service and Size Limitations of Motions, 
         Briefs, Responses and other Documents. 
      9.02 Signing of Pleadings, Motions and Other Filings; 
         Violations of Rules; Sanctions
      9.03 Sec. 9.01 Attorney's Fees and Costs
      9.04 Sec. 9.02 Ex parte Communications
      9.05 Sec. 9.03 Settlement Agreements
      9.06 Sec. 9.04 Revocation, Amendment or Waiver of Rules
      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 any submission and any responses must be filed with 
     the Office. The Office, Hearing Officer, or Board may also 
     request a party to submit an electronic version of any 
     submission in a designated format, with receipt confirmed by 
     electronic transmittal in the same format.
       (b) Service. The parties shall serve on each other one copy 
     of all motions, briefs, responses and other documents filed 
     with the Office, other than the request for counseling, the 
     request for mediation and complaint. Service shall be made by 
     mailing or by hand delivering a copy of the motion, brief, 
     response or other document to each party, or if represented, 
     the party's representative, on the service list previously 
     provided by the Office. Each of these documents, must be 
     accompanied by a certificate of service specifying how, when 
     and on whom service was made. It shall be the duty of each 
     party to notify the Office and all other parties in writing 
     of any changes in the names or addresses on the service list.
       (c) Time Limitations for Response to Motions or Briefs and 
     Reply. Unless otherwise specified by the Hearing Officer or 
     these rules, a party shall file a response to a motion or 
     brief within 15 days of the service of the motion or brief 
     upon the party. Any reply to such response shall be filed and 
     served within 5 days of the service of the response. Only 
     with the Hearing Officer's advance approval may either party 
     file additional responses or replies.
       (d) Size Limitations. Except as otherwise specified by the 
     Hearing Officer or these rules, no brief, motion, response, 
     or supporting memorandum filed with the Office shall exceed 
     35 pages, or 8,750 words, exclusive of the table of contents, 
     table of authorities and attachments. The Board, the Office, 
     Executive Director, or Hearing Officer may waive, raise or 
     reduce this limitation for good cause shown or on its own 
     initiative. Briefs, motions, responses, and supporting 
     memoranda shall be on standard letter-size paper (8\1/2\" x 
     11").

     Sec. 9.02 Signing of Pleadings, Motions and Other Filings; 
       Violation of Rules; Sanctions.

       Every pleading, motion, and other filing of a party 
     represented by an attorney or other designated representative 
     shall be signed by the attorney or representative. A party 
     who is not represented shall sign the pleading, motion or 
     other filing. The signature of a representative or party 
     constitutes a certificate by the signer that the signer has 
     read the pleading, motion, or other filing; that to the best 
     of the signer's knowledge, information, and belief formed 
     after reasonable inquiry, it is well grounded in fact and is 
     warranted by existing law or a good faith argument for the 
     extension, modification, or reversal of existing law, and 
     that it is not interposed for any improper purpose, such as 
     to harass or to cause unnecessary delay or needless increase 
     in the cost of litigation. If a pleading, motion, or other 
     filing is not signed, it shall be stricken unless it is 
     signed promptly after the omission is called to the attention 
     of the person who is required to sign. If a pleading, motion, 
     or other filing is signed in violation of this rule, a 
     Hearing Officer or the Board, as appropriate, upon motion or 
     upon its own initiative, shall impose upon the person who 
     signed it, a represented party, or both, an appropriate 
     sanction, which may include an order to pay to the other 
     party or parties the amount of the reasonable expenses 
     incurred because of the filing of the pleading, motion, or 
     other filing, including a reasonable attorney's fee. A 
     Hearing Officer, the Executive Director, or the Board, as 
     appropriate, upon motion or its own initiative may also 
     impose an appropriate sanction, which may include the 
     sanctions specified in section 7.02, for any other violation 
     of these rules that does not result from reasonable error.

      9.03 Sec. 9.01 Attorney's Fees and Costs. 

       (a) Request. No later than 20 30 days after the entry of 
     a final Hearing Officer's decision of the Office, under 
     section 7.16, or after service of a Board decision by the 
     Office the complainant, if he or she is a the prevailing 
     party, may submit to the Hearing Officer or Arbitrator who 
     heard decided 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 or Arbitrator, 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 Office. 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.

[[Page S5460]]

       (b) Form of Motion. In addition to setting forth the legal 
     and factual bases upon which the attorney's fees and/or costs 
     are sought, a motion for an award of attorney's fees and/or 
     costs shall be accompanied by:

                               . . . . .

       (3) the attorney's customary billing rate for similar work 
     with evidence that the rate is consistent with the prevailing 
     community rate for similar services in the community in which 
     the attorney ordinarily practices; and
       (4) an itemization of costs related to the matter in 
     question. ; and
       (5) evidence of an established attorney-client 
     relationship.
      9.04Sec. 9.02 Ex parte Communications.
       (a) Definitions. 

                               . . . . .

       (3) For purposes of section 9.04 9.02, the term 
     proceeding means the complaint and hearing proceeding under 
     section 405 of the CAA, an appeal to the Board under section 
     406 of the CAA, a pre-election investigatory hearing under 
     section 220 of the CAA, and any other proceeding of the 
     Office established pursuant to regulations issued by the 
     Board under the CAA.

                               . . . . .

       (b) Prohibited Ex Parte Communications and Exceptions.
       (2) The Hearing Officer or the Office may initiate attempts 
     to settle a matter informally at any time. The parties may 
     agree to waive the prohibitions against ex parte 
     communications during settlement discussions, and they may 
     agree to any limits on the waiver.
       --Renumber subsequent paragraphs in subsection--

      9.05 Sec. 9.03 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. The settlement is not 
     effective until it has been approved by the Executive 
     Director. 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 for signature. A formal settlement 
     agreement cannot be submitted to the Executive Director for 
     signature until the appropriate revocation periods have 
     expired. 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. 
     Parties are encouraged to include in their settlements 
     specific dispute resolution procedures. If the particular 
     formal settlement agreement does not have a stipulated method 
     for dispute resolution of an alleged violation of the 
     agreement, the Office may provide assistance in resolving 
     the dispute, including the services of a mediator as 
     determined by the Executive Director. the following dispute 
     resolution procedure shall be deemed to be a part of each 
     formal settlement agreement approved by the Executive 
     Director pursuant to section 414 of the Act: Where the 
     settlement agreement does not have a stipulated method for 
     resolving violation allegations, Any complaint an 
     allegation regarding of a violation of a formal settlement 
     agreement may must 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 Rule. allegations will be reviewed, investigated or 
     mediated, as appropriate, by the Executive Director or 
     designee.
      9.06 Sec. 9.04 Payments required pursuant to Decisions, 
         Awards, or Settlements under section 415(a) of the Act.
       Whenever a final decision or award pursuant to sections 
     405(g), 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. No payment shall 
     be made from such account until the time for appeal of a 
     decision has expired.
      9.07 Sec. 9.05 Revocation, Amendment or Waiver of Rules.
       (a) The Executive Director, subject to the approval of the 
     Board, may revoke or amend these rules by publishing proposed 
     changes in the Congressional Record and providing for a 
     comment period of not less than 30 days. Following the 
     comment period, any changes to the rules are final once they 
     are published in the Congressional Record.
       (b) The Board or a Hearing Officer may waive a procedural 
     rule contained in this Part in an individual case for good 
     cause shown if application of the rule is not required by 
     law.

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