[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
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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 aA 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. 1.05Sec. 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, Tthe 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.
9.04Sec. 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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