[Congressional Record Volume 162, Number 163 (Tuesday, November 15, 2016)]
[Senate]
[Pages S6358-S6376]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      NOTICE OF ADOPTED RULEMAKING

  Mr. HATCH. 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, November 15, 2016.
     Hon. Orrin G. Hatch,
     President Pro Tempore of the U.S. Senate,
     Washington, DC.
       Dear Mr. President: Section 303 of the Congressional 
     Accountability Act of 1995 (CAA), 2 U.S.C. 1383, requires 
     that, with regard to the amendment of the rules governing the 
     procedures of the Office, the Executive Director ``shall, 
     subject to the approval of the Board [of Directors], adopt 
     rules governing the procedures of the Office . . . .'' and 
     ``[u]pon adopting rules . . . shall transmit notice of such 
     action together with a copy of such rules 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 published a general notice of proposed rulemaking in 
     the Congressional Record on September 9, 2014, provided a 
     comment period of at least 30 days after publication of such 
     notice, and obtained the approval of the Board of Directors 
     for the adoption of these rules as required by Section 303(a) 
     and (b) of the CAA, 2 U.S.C. 1383(a) and (b), I am 
     transmitting the attached Amendments to the Procedural Rules 
     of the Office of Compliance to the President Pro Tempore of 
     the United States Senate for publication 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 accordance with Section 303(b) of the CAA, 
     these amendments to the Procedural Rules shall be considered 
     issued by the Executive Director and in effect as of the date 
     on which they are published in the Congressional Record.
       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, S.E., Washington, DC 
     20540.
           Sincerely,

                                             Barbara J. Sapin,

                                               Executive Director,
                                             Office of Compliance.


 =========================== NOTE =========================== 

  
  On page S6358, November 15, 2016, near the top of the third 
column, the following language appears: NOTICE OF 
PROPOSEDRULEMAKING U.S. CONGRESS, OFFICE OF COMPLIANCE, 
Washington, DC, November 15, 2016. Hon. PAUL D. RYAN, Speaker of 
the House of Representatives, Washington, DC. DEAR MR. SPEAKER: 
Section 303 of the Congressional Accountability Act of 1995 (CAA), 
2 U.S.C. 1383, requires that, with regard to the amendment of the 
rules governing the procedures of the Office, the Executive 
Director ``shall, subject to the approval of the Board [of 
Directors], adopt rules governing the procedures of the Office . . 
. .'' and ``[u]pon adopting rules. . . . shall transmit notice of 
such action together with a copy of such rules 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 published a general notice of proposed 
rulemaking in the Congressional Record on September 9, 2014, 
provided a comment period of at least 30 days after publication of 
such notice, and obtained the approval of the Board of Directors 
for the adoption of these rules as required by Section 303(a) and 
(b) of the CAA, 2 U.S.C. 1383(a) and (b), I am transmitting the 
attached Amendments to the Procedural Rules of the Office of 
Compliance to the Speaker of the United States House of 
Representatives for publication in the House section of the 
Congressional Record on the first day on which both Houses are in 
session following the receipt of this transmittal. In accordance 
with Section 303(b) of the CAA, these amendments to the Procedural 
Rules shall be considered issued by the Executive Director and in 
effect as of the date on which they are published in the 
Congressional Record. 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, S.E., Washington, DC 
20540. Sincerely, BARBARA J. SAPIN, Executive Director, Office of 
Compliance.
  
  The online Record has been corrected to read: U.S. CONGRESS, 
OFFICE OF COMPLIANCE, Washington, DC, November 15, 2016. Hon. 
ORRIN G. HATCH, President Pro Tempore of the U.S. Senate, 
Washington, DC. DEAR MR. PRESIDENT: Section 303 of the 
Congressional Accountability Act of 1995 (CAA), 2 U.S.C. 1383, 
requires that, with regard to the amendment of the rules governing 
the procedures of the Office, the Executive Director ``shall, 
subject to the approval of the Board [of Directors], adopt rules 
governing the procedures of the Office . . .'' and ``[u]pon 
adopting rules . . . shall transmit notice of such action together 
with a copy of such rules 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 
published a general notice of proposed rulemaking in the 
Congressional Record on September 9, 2014, provided a comment 
period of at least 30 days after publication of such notice, and 
obtained the approval of the Board of Directors for the adoption 
of these rules as required by Section 303(a) and (b) of the CAA, 2 
U.S.C. 1383(a) and (b), I am transmitting the attached Amendments 
to the Procedural Rules of the Office of Compliance to the 
President Pro Tempore of the United States Senate for publication 
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 accordance with Section 303(b) of the CAA, these 
amendments to the Procedural Rules shall be considered issued by 
the Executive Director and in effect as of the date on which they 
are published in the Congressional Record. 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, 
S.E., Washington, DC 20540. Sincerely, BARBARA J. SAPIN, Executive 
Director, Office of Compliance.


 ========================= END NOTE ========================= 


        FROM THE EXECUTIVE DIRECTOR OF THE OFFICE OF COMPLIANCE


                NOTICE OF ADOPTED RULEMAKING (``NARM''),

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

     INTRODUCTORY STATEMENT
       On September 9, 2014, a Notice of Proposed Amendments to 
     the Procedural Rules of the Office of Compliance (``Office'' 
     or ``OOC''), as amended in June 2004 (``2004 Procedural 
     Rules'' or ``2004 Rules'') was published in the Congressional 
     Record at S5437, and H7372. As required under the 
     Congressional Accountability Act of 1995 (``Act'') at section 
     303(b) (2 U.S.C. 1383(b)), a 30 day period for comments from 
     interested parties followed. In response to the Notice of 
     Proposed Rulemaking, the Office received a number of comments 
     regarding the proposed amendments. Specifically, the Office 
     received comments from the Committee on House Administration, 
     the Office of the Senate Chief Counsel for Employment, the 
     U.S. Capitol Police, the Architect

[[Page S6359]]

     of the Capitol, and the U.S. Capitol Police Labor Committee.
       The Executive Director and the Board of Directors of the 
     Office of Compliance have reviewed all comments received 
     regarding the Notice, have made certain additional changes to 
     the proposed amendments in response thereto, and herewith 
     issue the final Amended Procedural Rules (Rules) as 
     authorized by section 303(b) of the Act, which states in 
     part: ``Rules shall be considered issued by the Executive 
     Director as of the date on which they are published in the 
     Congressional Record.'' See, 2 U.S.C. 1383(b).
       These Procedural Rules of the Office of Compliance may be 
     found on the Office's web site: www.compliance.gov.
 Supplementary Information: The Congressional Accountability 
     Act of 1995 (CAA), PL 104-1, was enacted into law on January 
     23, 1995. The CAA applies the rights and protections of 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) 
     established the Office of Compliance as an independent office 
     within that Branch. Section 303 (2 U.S.C. 1383) directed that 
     the Executive Director, as the Chief Operating Officer of the 
     agency, adopt rules of procedure governing the Office of 
     Compliance, subject to approval by the Board of Directors of 
     the Office of Compliance. The rules of procedure generally 
     establish the process by which alleged violations of the laws 
     made applicable to the Legislative Branch under the CAA will 
     be considered and resolved. The rules include procedures for 
     counseling, mediation, and election between filing an 
     administrative complaint with the Office of Compliance or 
     filing a civil action in U.S. District Court. The rules also 
     include the procedures for processing Occupational Safety and 
     Health investigations and enforcement, as well as the process 
     for the conduct of administrative hearings held as the result 
     of the filing of an administrative complaint under all of the 
     statutes applied by the Act, for appeals of a decision by a 
     Hearing Officer to the Board of Directors of the Office of 
     Compliance, and for the filing of an appeal of a decision by 
     the Board of Directors to the United States Court of Appeals 
     for the Federal Circuit. The rules also contain other matters 
     of general applicability to the dispute resolution process 
     and to the operation of the Office of Compliance.
       The Office's response and discussion of the comments is 
     presented below:
     Discussion

     SUBPART A--GENERAL PROVISIONS OF THE RULES
       There were a number of comments submitted in reference to 
     the proposed amendments made to Subpart A, General Provisions 
     of the Rules. With respect to the amendments to the Filing 
     and Computation of Time under section 1.03(a), one commenter 
     noted that the provisions allowing the Board, Hearing 
     Officer, Executive Director and General Counsel to determine 
     the method by which documents may be filed in a particular 
     proceeding ``in their discretion'' are overly broad. The 
     commenter also requested clarification on whether there would 
     be different methods used for filing in the same case, 
     whether five (5) additional days would be added regardless of 
     the type of service, and whether the OOC would inform the 
     opposing party of the prescribed dates for a response.
       The Office does not find as overly broad the amendment 
     allowing the Board, Hearing Officer, Executive Director, and 
     General Counsel the discretion to determine the method by 
     which documents may be filed. The 2004 version of these 
     Rules, as well as the CAA, confer the Office and independent 
     Hearing Officers with wide discretion in conducting hearings 
     and other processes. The Office further finds that there is 
     no need to clarify whether different methods can be used in 
     the same case, as long as whatever method chosen is made 
     clear to parties. Finally, as the Rules are clear that five 
     additional days will be added when documents are served by 
     mail, the Office does not believe that it is necessary to 
     include a requirement that the OOC inform parties of the 
     specific dates that are required for response. That 
     information can be ascertained from information on the method 
     of filing.
       As the OOC has indicated that it intends to move toward 
     electronic filing, one commenter voiced support for the 
     Office's decision to permit parties to file electronically. 
     However, the commenter indicated that it would be beneficial 
     for the proposed Rules to contain procedures for storing 
     electronic material in a manner that will protect 
     confidentiality and ensure compliance with section 416 of the 
     CAA.
       The Office routinely handles all materials in a secure and 
     confidential manner, regardless of the format. Because the 
     Office's confidential document management is covered in its 
     own standard operating procedures, there is no need to 
     include those procedures in these Rules.
       Section 1.03(a)(2)(ii) of the Proposed Rules provided that 
     documents other than requests for mediation that are mailed 
     were deemed to be filed on the date of their postmark. 
     However, mailed requests for mediation were to be deemed 
     filed on the date they were received in the Office. 
     (1.03(a)(2)(i)) This was a proposed change to the Rules that 
     had established the date of filing for requests for mediation 
     and complaints as the date when they were received in the 
     Office. One commenter asserted that in changing the date of 
     filing for complaints served by mail from the date received 
     in the Office to the date of the postmark, the rules gave a 
     covered employee an additional five days to file an OOC 
     complaint. Upon review of all comments, the Office has 
     determined that, because mail delivery on the Capitol campus 
     is irregular due to security measures, it is best to use the 
     date of postmark as the date of filing. This will ensure that 
     all filings that under ordinary circumstances would be timely 
     would not be deemed untimely because of any delay in mail 
     delivery on the Hill. This includes the filing of a request 
     for mediation, which will be deemed received in the Office as 
     the date of postmark. In using the postmark as the date of 
     filing for all mailed documents, the Office sees no advantage 
     gained in one method of filing over the other, but rather 
     views this as a way of curtailing any disadvantage to those 
     who use mail for filing at a time when there are often 
     significant delays in mail delivery to offices on the Hill.
       In sections 1.03(a)(3) and (4) of the Proposed Rules, the 
     Office changed the filing deadline for fax and electronic 
     submissions from 5:00 pm Eastern Time on the last day of the 
     applicable filing period to 11:59 pm Eastern Time on the last 
     day of the applicable filing period. One commenter noted that 
     while submissions under section 1.03(a)(3) require in person 
     hand delivery by 5:00 p.m., this deadline is inconsistent 
     with the 11:59 p.m. deadline required for faxed and 
     electronically filed documents. The commenter stated that the 
     filing deadlines should be the same for all types of delivery 
     and receipt options.
       This is not an unusual situation. Often there are different 
     filing deadlines, depending on the mode of delivery. However, 
     to ensure consistency, the Office has changed the language so 
     that the same time will be used for filing all documents 
     coming into the Office.
       Under Proposed Rule section 1.03(a)(4), commenters noted 
     that there was ambiguity regarding email time display and one 
     commenter proposed the addition of a new rule requiring 
     prompt acknowledgement of the receipt of an emailed document 
     to ensure that it has been received by the parties.
       In view of this comment, the Office added language to the 
     Adopted Rules, providing that when the Office serves a 
     document electronically, the service date and time will be 
     based on the document's timestamp information. No further 
     change is necessary. Confirmation of the transmittal of a 
     document can be shown from the date and timestamp on the 
     email, which is typically more reliable than a recipient's 
     acknowledgment.
       One commenter noted that under Proposed Rule section 
     1.03(c), there should be some way of notifying parties when 
     the Office is ``officially closed for business.'' The Office 
     determined that it is not necessary to include in the 
     Procedural Rules how the Office will notify parties of 
     closures. The Office generally follows the Office of 
     Personnel Management closure policy with respect to inclement 
     weather and other official government closures. Further, 
     information on the Office's closures appears on the Office's 
     website at www.compliance.gov and is provided on the Office's 
     mainline at 202.724.9250.
       In response to the proposed changes to the new section 1.06 
     (formerly section 1.04) in the Proposed Rules, several 
     commenters indicated that while records of Hearing Officers 
     may be made public if required for the purposes of judicial 
     review under Section 407, the Procedural Rules do not address 
     circumstances where records are also necessary for purposes 
     of civil action review under section 408 for res judicata 
     purposes.
       After review of these comments, the Office believes that 
     this concern is adequately addressed in the Adopted Rules. 
     Section 1.08(d), includes a broader statement concerning the 
     appropriate use of records in other proceedings, and allows 
     the submission of a Hearing Officer's decision in another 
     proceeding, as long as the requirements in section 1.08(d) 
     are met. Nothing in these Rules prohibits a party or its 
     representative from disclosing information obtained in 
     confidential proceedings when it is reasonably necessary to 
     investigate claims, ensure compliance with the Act or prepare 
     a prosecution or defense. While section 1.08(d) does allow 
     for the submission of Hearing Officer decisions under the 
     appropriate circumstances, it also serves to preserve the 
     confidentiality of these records. Thus, 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.
       With respect to the new section 1.07, Designation of a 
     Representative, a commenter noted that the requirement that 
     only one person could be designated as a representative was 
     problematic since there have been situations when more than 
     one attorney would be needed to represent an employing office 
     or employee. The suggestion was made that the limitations 
     apply only to a party for point of contact purposes. As the 
     purpose of limiting the number of designated representatives 
     was to eliminate any confusion caused by having to serve more 
     than one representative per party, the Office has modified 
     the language to indicate that only one representative may be 
     designated to receive service.
       There were several comments to section 1.07(c) of the 
     Proposed Regulations. The proposals to section 1.07(c) 
     provided that in the event of a revocation of a designation 
     of representative, the Executive Director, OOC General 
     Counsel, Mediator, Hearing Officer or OOC Board has the 
     discretion to grant a

[[Page S6360]]

     party ``additional time . . . to allow the party to designate 
     a new representative as consistent with the Act.'' The 
     commenters noted that the CAA is a waiver of sovereign 
     immunity that must be strictly construed and that there is no 
     discretion to extend statutory deadlines to give a party time 
     to designate a new representative, including time to request 
     counseling under section 402, to request and complete 
     mediation under section 403, to file a complaint or initiate 
     a civil action under section 404, or to file an appeal under 
     section 406 of the CAA. Commenters urged that the rule be 
     modified to clarify this point.
       As the adopted language notes that additional time may be 
     granted only as consistent with the CAA, it should be clear 
     that in granting any additional time to designate a new 
     representative, the Executive Director, OOC General Counsel, 
     Mediator, Hearing Officer or OOC Board will ensure that 
     statutory deadlines are observed.
       Deletion of the section 1.07 of the 2004 Procedural Rules, 
     the breach of confidentiality provision, generated the most 
     comments. Commenters generally noted that the Proposed 
     Procedural Rules would eliminate the existing process for 
     filing a complaint based on violation of the confidentiality 
     provisions of section 416 of the CAA. The effect of this 
     proposed rule change would be that, if there was a 
     confidentiality breach, a party could obtain relief only 
     pursuant to an ``agreement'' facilitated by the Mediator 
     during the mediation period or through sanctions issued by a 
     Hearing Officer during a section 405 proceeding (see Proposed 
     Procedural Rules sections 2.04(k) and 7.12(b)). Commenters 
     expressed concern that under the Proposed Rules, if an 
     individual violated section 416 of the CAA at any other time 
     in the process, no remedy would be available. Most commenters 
     felt that this was inconsistent with the confidentiality 
     requirements of the CAA, and that the Procedural Rules should 
     include a complaint procedure for resolving independent 
     violations of section 416. For example, one commenter noted 
     that, under the Proposed Procedural Rules, if parties agree 
     to a settlement during mediation, there is no remedy 
     available to the employing office if the employee decides to 
     publicize the terms of the settlement or any statements made 
     during mediation. Similarly, if a covered employee never 
     initiates a section 405 proceeding, but instead drops the 
     matter or initiates a section 408 proceeding, the Proposed 
     Procedural Rules would allow the employee to publicize any 
     statements made during mediation, with no fear of sanction. 
     The uncertainty regarding confidentiality would result in 
     parties being less candid in mediation and, thereby, 
     undermine it as a dispute resolution process.
       Section 1.07 of the 2004 Procedural Rules, permitting the 
     filing with the Executive Director of stand-alone complaints 
     of violation of the confidentiality provisions, has been 
     deleted because the OOC Board held, as a matter of statutory 
     interpretation of the CAA, that it did not have the statutory 
     authority to independently resolve a breach of 
     confidentiality action brought under the Procedural Rules, 
     without the existence of an underlying complaint under 
     section 405 of the CAA. Taylor v. U.S. Senate Budget Comm. 
     No. 10-SN-31 (CFD), 2012 WL 588440 (OOC Board Feb. 14, 2012); 
     see Massa v. Katz & Rickher, No. 10-HS-59 (CFD) (OOC Board 
     May 8, 2012) (dismissing complaint alleging breach of 
     confidentiality on subject-matter jurisdiction grounds 
     because the complainant ``never filed a complaint [under 
     section 405 of the CAA] against an employing office alleging 
     violation of sections 201-207 of the CAA.''). In other words, 
     the Board's authority to adjudicate a breach of 
     confidentiality is limited to employment rights proceedings 
     initiated by a complaint filed by a covered employee against 
     an employing office alleging violations of laws specifically 
     incorporated by the CAA under 2 U.S.C. Sec. Sec. 1311-1317. 
     Section 405 of the CAA, by its terms, limits the filing of a 
     complaint to a covered employee who has completed mediation 
     and section 406 of the CAA limits Board review to any party 
     aggrieved by the decision of a Hearing Officer under section 
     405(g) of the CAA. For this reason, the Board determined that 
     section 1.07(e) of the Procedural Rules could only apply to 
     those orders and decisions regarding sanctions that were in a 
     final order issued under section 405(g). While the CAA and 
     the procedural rules mandate that parties in counseling, 
     mediation, and hearing maintain confidentiality, there is no 
     statutory provision within the CAA which addresses the 
     authority of a Hearing Officer or the Board to address 
     independent breaches of confidentiality. See 2 U.S.C. 
     Sec. 1416
       Other commenters noted that under Taylor, supra, the Board 
     also appears to take the position that there is no provision 
     in the CAA authorizing an employing office to bring a breach 
     of confidentiality claim against a complainant. See also, 
     Eric J.J. Massa v. Debra S. Katz and Alexis H. Rickher, Case 
     No.: 10-HS-59 (CFD), (May 8, 2012) and Taylor. One commenter 
     strongly disagreed with this conclusion, noting that just as 
     the confidentiality obligations of the CAA clearly and 
     unambiguously apply equally to employing offices and 
     employees, so too should the ability to assert claims for 
     breach of statutory confidentiality. The commenter asserts 
     that a contrary reading of the statute, as appears to have 
     been implicitly suggested in the above-referenced cases 
     (denying employing offices the ability to bring claims for 
     breach of confidentiality against employees), is inconsistent 
     with the purpose and intent of the confidentiality provisions 
     of the CAA.
       Again, because under section 405 of the CAA, the filing of 
     a complaint is limited to a covered employee who has 
     completed counseling and mediation (and the General Counsel 
     in limited circumstances), and there is no mechanism in the 
     CAA for enforcement of confidentiality breaches outside of a 
     section 405 proceeding, there is similarly no process in the 
     CAA under which an employing office can initiate a breach of 
     confidentiality claim that can be enforced. The Procedural 
     Rules, however, do provide that within the context of a 
     section 405 proceeding, an employing office may make a breach 
     of confidentiality claim and the Hearing Officer is 
     authorized to order a number of sanctions if a breach is 
     found.
       Comments were also made that limiting remedies for breaches 
     of confidentiality to procedural and evidentiary sanctions 
     was inappropriate and, that the effect of that limitation was 
     to make the penalty for breach of confidentiality nonexistent 
     for a complainant who chooses not to file a complaint with 
     the OOC because no procedural or evidentiary sanctions would 
     ever be applicable. The commenter requested that the Rules 
     clarify that monetary damages may be awarded against both 
     employing offices and employees for a demonstrated breach of 
     confidentiality.
       In the absence of any express authority, the Board has 
     decided that ``the Office and its Hearing Officers have the 
     power to control and supervise proceedings conducted under 
     Sections 402, 403, and 405 of the [CAA], and may rely on this 
     power to impose appropriate sanctions for a breach of the 
     [CAA's] confidentiality requirements.'' Taylor v. U.S. Senate 
     Budget Comm; Massa v. Katz & Rickher. The Board has further 
     held that a breach of the CAA's confidentiality provisions 
     does not independently entitle an employee to monetary 
     damages absent a violation of one of the ``money-mandating'' 
     statutes it applies. Office of the Architect of the Capitol 
     v. Cienfuegos, No. 11-AC-138 (CV, RP), 2014 WL 7139940, *n.1 
     (OOC Board Dec. 11, 2014). The Board's authority is therefore 
     limited to deciding breaches of confidentiality during the 
     pendency of a complaint filed pursuant to section 405 of the 
     CAA, and the Adopted Rules so provide.
       Further, as to the deletion of section 1.07(d), covering 
     contents or records of confidential proceedings, the comments 
     noted that mediation does not bestow confidentiality to facts 
     or evidence that exist outside of mediation and the language 
     needs the significant qualification that currently exists in 
     section 1.07(d) (``. . . A participant is free to disclose 
     facts and other information obtained from any source outside 
     of the confidential proceedings . . .''). The commenter 
     recommended that the entire language of section 1.07(d) of 
     the 2004 Procedural Rules be retained in the new Rules.
       The Office agrees that including the current section 
     1.07(d) in the Adopted Rules (now in the Adopted Rules as 
     section 1.08(e)) would give appropriate guidance on the 
     contents and records of confidential proceedings.
       There were multiple comments concerning the confidentiality 
     provisions in section 1.08 of the Proposed Rules. One such 
     comment noted that ``communications between attorneys and 
     clients should never amount to a confidentiality breach 
     absent a protective order''; yet, with the deletion of the 
     ``Breach of Confidentiality Provisions'' section, there is no 
     timeframe listed for when a party can claim a confidentiality 
     breach. Commenters urged the OOC to reinstitute the previous 
     requirement. Because of the Board rulings limiting the 
     authority of the Board to review a breach of confidentiality 
     claim outside of a section 405 proceeding, there does not 
     need to be a timeframe for a party to claim the breach. The 
     claim would have to occur during the section 405 proceeding 
     itself. Because circumstances would differ in each case, 
     setting a time frame for a breach of confidentiality should 
     be left up to the Hearing Officer and the OOC Board of 
     Directors.
       Commenters noted that section 1.08(c) was also inconsistent 
     because it prohibits disclosure of a written or oral 
     communication that is prepared for the purpose of, or occurs 
     during, counseling. The most important document that allows 
     for the preparation of a defense to a claim is the formal 
     request for counseling. That written document is necessary to 
     identify the claims that a Complainant has properly exhausted 
     under the CAA. Some commenters requested that the Office 
     provide the employing office with the request for counseling.
       Counseling is to be strictly confidential, therefore, the 
     request itself will not be provided to other parties by the 
     Office. As the Circuit Court for the District of Columbia 
     noted in Blackmon-Malloy v. U.S. Capitol Police Bd., 575 F.3d 
     699, 713 (D.C. Cir. 2009), ``Congress's inclusion of 
     provisions requiring the Office to issue written notices of 
     the end of counseling and the end of mediation must be read 
     in light of the provisions on confidentiality. Those 
     provisions, sections 1416(a) and (b), provide that counseling 
     and mediation, respectively, shall be strictly 
     confidential.'' 2 U.S.C. Sec. 1416(a) & (b). Blackmon-Malloy 
     v. U.S. Capitol Police Bd., 575 F.3d 699, 711 (D.C. Cir. 
     2009). The court noted that, ``nothing in the CAA suggests 
     Congress intended courts to engage in a mini-trial on the 
     content of the counseling and mediation sessions, an inquiry 
     that would be fraught with problems. . . . Congress expressly 
     limited the ability of the court to review the

[[Page S6361]]

     substance of compliance with these processes.'' Blackmon-
     Malloy v. U.S. Capitol Police Bd., 575 F.3d at 711.
       One commenter objected to section 1.08(d) of the Proposed 
     Rules, noting that mediators should not be able to discuss 
     substantive matters from mediation with the Office. The 
     commenter noted that to permit mediators to consult with the 
     OOC regarding the substance of the mediation violates the 
     principle that ``[a]ll mediation shall be strictly 
     confidential,'' 2 U.S.C. Sec. 1416(b), and is inconsistent 
     with the OOC's role as a neutral. Specifically, the commenter 
     points out that as the OOC appoints the Hearing Officer to 
     handle the subsequent complaint, the Executive Director rules 
     on a number of procedural issues in any subsequent case, and 
     in view of the OOC's adjudicative role in the complaint 
     process, allowing the mediator to consult with the OOC 
     regarding substantive issues related to the mediation may 
     negatively impact the OOC's neutrality, and/or the perception 
     of the parties that the OOC is neutral.
       The Office agrees with the commenter that under the CAA, 
     ``[a]ll mediation shall be strictly confidential.'' CAA 
     Sec. 416(b). The confidentiality provision regarding 
     mediation is further clarified in section 2.04(j) of the 
     Procedural Rules, which provides that the ``Office will 
     maintain the independence of the mediation process and the 
     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.'' 
     However, the CAA requires both counseling and mediation, in 
     part, to assist employees and employing offices in reaching 
     an early resolution of their disputes. When a neutral 
     mediator believes that consulting with the Office on 
     administrative, procedural, or even substantive matters will 
     expedite and facilitate resolution of the dispute, there is 
     no reason for the mediator not to be able to do that. In 
     fact, the purposes of the counseling and mediation provisions 
     are best served if the OOC encourages the mediator to do 
     everything he or she can to expedite resolution of the 
     matter.
       Furthermore, because Mediators are barred from serving as 
     Hearing Officers in the same case under CAA section 403(d), 
     there is no chance that a Mediator who consults with the 
     Office will use that information to make a determination that 
     will be binding upon the parties. Section 403(d) of the CAA 
     is designed to inspire confidence in and maintain the 
     integrity of the mediation process by encouraging the parties 
     to be frank and forthcoming, without fear that such 
     information may later be used against them. See, e.g., 141 
     Cong. Rec. S629 (January 9, 1995). In essence, if the parties 
     know that the mediator will not be involved in investigating 
     or determining the validity of any of the allegations being 
     made, they may be more willing to work cooperatively with the 
     Mediator during the mediation. This is also the theory behind 
     a key provision of the EEOC's ADR Policy Statement: ``In 
     order to ensure confidentiality, those who serve as neutrals 
     for the Commission should be precluded from performing any 
     investigatory or enforcement function related to charges with 
     which they may have been involved. The dispute resolution 
     process must be insulated from the investigative and 
     compliance process.'' EEOC, Notice No. 915.002 (7/17/95).
       Because Mediators under the CAA are insulated from the 
     investigative and compliance process, there is no statutory 
     or ethical bar that would prevent them from consulting with 
     the office if it would facilitate resolution of the dispute.
       One comment also noted that the proposed rule sections 
     1.08(b) and (c) may be read to allow a ``participant'' to 
     publicize the fact that a covered employee has requested and/
     or engaged in counseling and mediation, and the fact that an 
     individual has filed an OOC complaint. See also, 2.03(d), 
     2.04(b) and 5.01(h) (requiring the OOC--but not 
     participants--to keep confidential the ``invocation of 
     mediation'' and ``the fact that a complaint has been filed 
     with the [OOC] by a covered employee''). The Commenter notes 
     that these disclosures would violate the strict 
     confidentiality mandated by the CAA and that the proposed 
     rule should not be adopted.
       It is the opinion of the Office that the strict 
     confidentiality mandated by the CAA applies to the 
     discussions and content of conversations that go on in 
     counseling, mediation, and the hearing, rather than the fact 
     of filing of a request for counseling, invocation of 
     mediation, or a complaint. Indeed, section 1.08(e), added 
     back into the Adopted Rules, spells out that it is the 
     information actually obtained in the counseling, mediation or 
     hearing proceedings that is to be kept confidential, not 
     necessarily the fact that a hearing or mediation is being 
     held. Moreover, to ensure confidentiality and consistent with 
     the Office of Compliance Administrative and Technical 
     Corrections Act of 2015 (PL 114-6), all participants are 
     advised of the confidentiality requirement under the CAA.
       In another comment, it was noted that the waiver provision 
     under section 1.08(e) of the Proposed Rules was not clear and 
     appeared to conflict with the statutory requirement of 
     confidentiality under section 416 of the CAA. Where there is 
     a waiver of confidentiality, it is unclear whether a waiver 
     releases all requirements for confidentiality including 
     making records public in proceedings, waiving the 
     confidentiality requirements of proceedings before a Hearing 
     Officer, and waiving the sanctions requirement under section 
     1.08(f). It is important that any waiver be clear as to why 
     it would be permissible despite the language in section 416 
     of the CAA and how such a waiver affects documents, 
     proceedings, and testimony. The commenter further notes that 
     the language of the waiver does not make clear that all 
     participants must agree to waive confidentiality and should 
     therefore be deleted from the Rules.
       The Office agrees that the waiver language in section 
     1.08(e) of the Proposed Rules is too confusing and not meant 
     as a general waiver. Accordingly, the waiver language has 
     been deleted in the Adopted Rules.
       One comment noted that section 1.08(f) of the Proposed 
     Regulations would remove the requirement that the OOC advise 
     participants of their confidentiality obligations in a timely 
     fashion. Section 1.06(b) of the 2004 Procedural Rules 
     requires the OOC to provide this notification ``[a]t the time 
     that any individual... becomes a participant,'' and that 
     language is not included in Proposed Procedural Rule 1.08(f). 
     Such early notice is critical to ensuring that CAA-mandated 
     confidentiality is maintained and, thus, the existing rule 
     should be retained.
       The Office of Compliance Administrative and Technical 
     Corrections Act of 2015 (PL 114-6), requires the Executive 
     Director to notify each person participating in mediation and 
     in the hearing and deliberations process of the 
     confidentiality requirement and of the sanctions applicable 
     to any person who violates the confidentiality requirement. 
     The Office has created notifications to be provided to 
     participants during all phases of the administrative process, 
     including in mediation and at hearings, and includes a 
     statement on its request for counseling form advising that 
     ``all counseling shall be strictly confidential.'' Consistent 
     with this and in agreement with the comment, section 1.08(f) 
     of the Adopted Rules is modified to provide that, ``[t]he 
     Executive Director will advise all participants in mediation 
     and hearing at the time they become 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.''
     SUBPART B--PRE-COMPLAINT PROCEDURES APPLICABLE TO 
         CONSIDERATION OF ALLEGED VIOLATIONS OF PART A OF TITLE II 
         OF THE CONGRESSIONAL ACCOUNTABILITY ACT OF 1995
       In reviewing the change in the Proposed Rules, the Office 
     has decided to delete the reference in section 2.03 of the 
     2004 Rules to an ``official'' form that should be used to 
     file a formal request for counseling and has replaced it in 
     the Adopted Rules with the following language: ``Individuals 
     wishing to file a formal request for counseling may call the 
     Office for a form to use for this purpose.''
       There were several comments to section 2.03 of the Proposed 
     Rules. One commenter noted that the strict confidentiality 
     provision discussed in section 2.03(d) should refer to the 
     confidentiality provisions described in sections 2.03(e)(l)-
     (2) and 1.08. In addition, the commenter maintained that the 
     words ``should be used'' should be deleted and replaced with 
     the word ``shall'' so that the counseling period only 
     pertains to the enumerated items.
       The Office has decided to leave the language as proposed 
     (``should be used'') to provide the most flexibility to the 
     Counselor and employee depending on the circumstances of each 
     case.
       There were comments that section 2.03(e)(1) of the Proposed 
     Rules was inconsistent with the requirements in section 
     1.08(d). The commenter noted that, for example, section 
     2.03(e)(1) provides that ``all counseling shall be kept 
     strictly confidential and shall not be subject to 
     discovery.'' The commenter noted that it is not clear that 
     the Office of Compliance Procedural Rules can control the 
     release of discoverable information in federal district 
     court. Notwithstanding that restriction, section 2.03(e)(1) 
     is inconsistent with the exceptions provided in section 
     1.08(d) which permits disclosing information obtained in 
     confidential proceedings when reasonably necessary to 
     investigate claims, ensure compliance with the Act or prepare 
     its prosecution or defense.
       Additional comments noted that section 2.03(e)(1) of the 
     Proposed Rule would permit the OOC to publicize certain 
     statistical information regarding CAA proceedings, which is 
     consistent with section 301(h)(3) of the CAA, but the 
     proposed rule would remove this language: ``. . . 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.'' To ensure compliance 
     with section 416 of the CAA, the rule should specify that the 
     OOC will not publicize this detailed information in its 
     statistical reports.
       The Office believes that the CAA's confidentiality 
     requirements found in section 416 of the CAA confer upon it 
     the obligation to safeguard the confidentiality of such 
     information. It is for that reason, the language limiting the 
     discovery of information discussed in counseling was added. 
     To ensure that its intention to protect the information is 
     understood, the Office has decided to keep that language in 
     the A Rules. Further, to preserve confidentiality of 
     statistical information released as part of the reporting 
     under section 301(h)(3) of the CAA, language has been put 
     back in, indicating that statistical information will not 
     reveal the identity

[[Page S6362]]

     of individual employees or employing offices that are the 
     subject of specific requests for counseling.
       In addition, by way of clarification, the Office has added 
     a reference in section 2.03(e)(2) of the Adopted Rules to 
     section 416(a) of the CAA indicating that the employee and 
     the Office may agree to waive confidentiality during the 
     counseling process for the limited purpose of allowing the 
     Office to notify the employing office of the allegations.
       Noting that section 2.03(m) of the proposed rules requires 
     the Capitol Police to enter into a Memorandum of 
     Understanding (MOU) to permit an employee to use the Capitol 
     Police internal grievance process, one commenter observed 
     that there was no such requirement in section 401 of the CAA.
       As the language in the proposed regulation indicates, a MOU 
     may be necessary to address certain procedural and 
     notification requirements. The OOC believes that the best way 
     to work out notice and follow up details is through a MOU. 
     However, the language does not mandate a MOU, but rather 
     indicates that an MOU would be helpful in addressing 
     administrative and procedural issues that could come up 
     should the Executive Director decide to recommend that an 
     employee use an internal process.
       There were several comments noting that inclusion of ``good 
     cause'' language in section 2.04(b) of the Proposed Rules 
     would allow a covered employee additional time to file a 
     request for mediation outside of the statutory 15-day period. 
     The commenter asserted that there is no support for a ``good 
     cause'' extension in the statute, and thus the OOC lacks 
     authority to create such an extension in its Proposed 
     Procedural Rules.
       Typically, a final decision as to timeliness is up to the 
     Hearing Officer and neither the Office nor the Mediator will 
     dismiss a request for mediation where the request may be 
     late. The intent of this amendment was to allow the Office to 
     close the case if a request for mediation was not timely 
     filed and make the decision not to forward for mediation. 
     Because the 15-day time limit in which to file a request for 
     mediation is statutory, the Office has deleted the ``good 
     cause'' language from the Adopted Rules. However, a case may 
     be closed if the request for mediation is not filed within 15 
     days of receipt of a Notice of the End of Counseling. In most 
     cases, the final decision as to whether a request for 
     mediation has been timely filed is up to the fact finder. In 
     any event, a decision on an issue of equitable tolling would 
     still be up to the Hearing Officer to decide.
       In section 2.04(f)(2) of the Proposed Rules, language was 
     added to the agreement to mediate that read that the 
     Agreement to Mediate would define what is to be kept 
     confidential during mediation. Commenters noted that 
     everything in mediation is confidential and the statute does 
     not permit the parties, the Mediator, or the OOC to redefine 
     or limit what aspects of the mediation are confidential and 
     which are not. This addition in the Proposed Rules was 
     intended to create a contractual agreement on confidential 
     matters. There is no question that a person can waive 
     confidentiality. But the default in this section should be 
     that matters are confidential unless there is a waiver, not 
     the other way around. Therefore, this language is being 
     deleted from the Adopted Rules.
       The Office received comments on section 2.04(g) related to 
     the procedures by some oversight committees for approving 
     settlements. Commenters requested that the proposed change be 
     modified to make it clear that Members of the committees need 
     not be present for mediation, nor must they be reachable by 
     phone during the mediation. It is understood that in some 
     cases, an oversight committee has specific procedures for 
     approving settlements that might not fit exactly into the 
     parameters established under section 2.04(g). Section 414 of 
     the Act does provide for this. The Act states: ``Nothing in 
     this chapter shall affect the power of the Senate and the 
     House of Representatives, respectively, to establish rules 
     governing the process by which a settlement may be entered 
     into by such House or by any employing office of such 
     House.'' Because this provision is set forth in the Act, it 
     is not necessary to modify the language in section 2.04(g) of 
     the Rules.
       There were additional comments to proposed Procedural Rule 
     2.04(g). Commenters noted that the rule as proposed would 
     grant the Mediator the authority to require ``any party'' to 
     attend a mediation meeting in person and that there was 
     nothing in the CAA that would give a Mediator this authority. 
     As a general rule, Mediators do not ``direct'' individuals to 
     attend mediation in person, unless the Mediator believes that 
     a specific person's presence would advance the mediation. 
     However, the Office has revised the language in the Adopted 
     Rules to indicate that the Mediator may ``specifically 
     request'' a party or individual's presence.
       One commenter stated that the OOC should not alter 
     established practice by participating in mediations, as 
     allowed in Section 2.04(g). In response, the Office notes 
     that as the 2004 Rules include the Office as a possible 
     participant in mediation, the Proposed Rules did not change 
     established practice. However, to ensure that participation 
     by the Office does not interfere with the mediation process, 
     the Amended Rules include language that requires the 
     permission of the Mediator and the parties before the Office 
     can participate in mediation. This is not meant to require 
     permission from the parties when the Office appoints an in-
     house mediator. Such an appointment is left exclusively to 
     the Executive Director.
       There were several comments to section 2.04(i) of the 
     Proposed Rules. Commenters noted that the notice of the end 
     of mediation period should advise the employing office of the 
     date and mode of transmission of the notice that was sent to 
     the complainant or add a presumption to the new rule, stating 
     that the notice is presumed to have been received on the day 
     it is sent by facsimile or email, or within 5 calendar days 
     if sent by first class mail.
       However, the Technical Amendments Act modified section 404 
     of the CAA and established that the deadline to elect 
     proceedings after the end of mediation was `not later than 90 
     days but not sooner than 30 days after the end of the period 
     of mediation.' (Emphasis added) As this changed the deadline 
     from the receipt of the notice of end of mediation to the end 
     of the mediation period itself, section 2.04(i) of the 
     Adopted Rules was changed accordingly. Section 205(a), 
     regarding election of proceedings, was also modified to 
     reflect the changes made by Technical Amendments Act.
     SUBPART C--COMPLIANCE, INVESTIGATION, AND ENFORCEMENT UNDER 
         SECTION 210 OF THE CAA (ADA PUBLIC SERVICES)--INSPECTIONS 
         AND COMPLAINTS
       In the NPRM published on September 9, 2014, the Executive 
     Director proposed a new Subpart C of the Procedural Rules 
     setting forth rules and procedures for the inspection, 
     investigation and complaint provisions contained in 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). On September 9, 2014, the OOC Board 
     also published a NPRM with substantive regulations 
     implementing Section 210 of the CAA, including sections 
     210(d) and (f). In response to the NPRMs, the Executive 
     Director received comments to both the proposed ADA 
     procedural rules and the proposed substantive regulations 
     that were similar or substantially related. While the ADA 
     substantive regulations have been adopted by the Board of 
     Directors, they have not yet been approved by Congress. The 
     Executive Director has therefore decided to withdraw the 
     proposed procedural rules contained in Subpart C relating to 
     section 210 of the CAA. Any future procedural rules regarding 
     the inspection, investigation and complaint provisions 
     contained in sections 210(d) and (f) of the CAA relating to 
     ADA Public Services and Accommodations will be promulgated 
     when the substantive regulations implementing section 210 of 
     the CAA have been approved.
     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
       Regarding sections 4.02(a), 4.03(a) and (b), two commenters 
     objected to defining ``place of employment'' as ``any place 
     where covered employees work.'' The 2004 Rules referred to 
     ``places of employment under the jurisdiction of employing 
     offices.'' The language in the 2004 Procedural Rules is the 
     same language used in section 215(c)(1) of the CAA. Section 
     215(c)(1) describes the authorities of the General Counsel, 
     which are the same as those granted to the Secretary of Labor 
     by subsections (a), (d), (e), and (f) of section 8 of the 
     Occupational Safety and Health Act of 1970 (OSHAct) (29 
     U.S.C. Sec. Sec. 657(a), (d), (e), and (f)). Notably, section 
     8(a) grants the ``right to enter without delay and at 
     reasonable times any factory, plant, establishment, 
     construction site, or other area, workplace or environment 
     where work is performed by an employee of an employer.'' 
     (Emphasis added). The CAA refers to the same authorities for 
     periodic inspections as it does for requests for inspections, 
     that is, section 215(c)(1), and therefore section 8(a) of the 
     OSHAct. Thus, the General Counsel's authority for periodic 
     inspections and requests for inspections covers not only 
     legislative branch facilities that are under the jurisdiction 
     of employing offices, such as the Hart or Rayburn office 
     buildings, but any place where covered employees work, such 
     as the Architect of the Capitol's workshop in the U.S. 
     Supreme Court building. One commenter expressed concern this 
     would mean the General Counsel could visit a telework 
     employee's home office to conduct an inspection, since the 
     home office is where a covered employee works, but not where 
     an employing office has ``jurisdiction''. However, the 
     General Counsel would not inspect an area and make findings 
     that are beyond the reach of any employing office to address. 
     The efforts in this section of the Procedural Rules are 
     intended to more accurately reflect, rather than broaden, its 
     authority to inspect.
       One commenter objected to language in section 4.02(a) that 
     authorizes the General Counsel to review records ``maintained 
     by or under the control of the covered entity.'' The 2004 
     Rules refers to records ``required by the CAA and regulations 
     promulgated thereunder, and other records which are directly 
     related to the purpose of the inspection.'' The concern is 
     that the General Counsel is imposing record-keeping 
     requirements. However, the language does not require entities 
     to create records or even to maintain records, but addresses 
     the authority of the General Counsel to review records that 
     are maintained. Further, whether a record is ``directly 
     related to the purpose of the inspection'' is a matter that 
     may be raised by

[[Page S6363]]

     an entity whether that language is in the section or not. The 
     General Counsel is not seeking the right to review records 
     that have nothing to do with the inspection. Moreover, 
     whether a record is ``directly'' related is not always 
     readily apparent when a record request is first made, and the 
     better course is to avoid misunderstandings and delays in 
     inspections because of a debate over degrees of relatedness.
       One commenter suggested inserting the words ``upon 
     notification to the appropriate employing office(s)'' in 
     section 4.02(a) after, ``the General Counsel is authorized'' 
     and before, ``to enter without delay and at reasonable times, 
     . . .''. As noted above, that language is from section 8(a) 
     of the OSHAct. There is no requirement to provide advance 
     notice of an inspection to employing offices but in practice 
     the approach of the General Counsel is to provide 
     notification well in advance. The employing offices usually 
     provide an escort for access and assistance during the 
     inspection. The General Counsel has even rescheduled an 
     inspection when no escort shows. The General Counsel's 
     periodic inspection calendars are provided to employing 
     offices at the beginning of each Congress and posted on the 
     OOC's website.
       The same commenter asked the Executive Director to revise 
     section 4.03(a)(1) to reflect the General Counsel's practice 
     of providing advance notice of an inspection and the 
     scheduling of a pre-inspection opening conference. The 
     current language requires that the General Counsel provide a 
     copy of the notice of violation to the employing office ``no 
     later than at the time of inspection.'' The commenter also 
     asked the Executive Director to revise section 4.06(a), which 
     states that advance notice of inspections may not be given 
     except under the situations listed in (a)(1) through (4). The 
     Executive Director agrees that the practice of the General 
     Counsel has defaulted to giving advance notice, as opposed to 
     not giving advance notice. However, flexibility is still 
     needed to inspect without advance notice, usually for exigent 
     circumstances. In such situations, and under the 2004 
     Procedural Rules, the General Counsel need not first persuade 
     an employing office that the matter falls under an exception 
     to advance notice.
       The commenter also suggested that the Executive Director 
     revise section 4.11 on Citations to reflect other processes 
     used by OOC, such as the Serious Deficiency Notice and case 
     reports, adding that the General Counsel rarely issues 
     citations and does not issue de minimis violations. The 
     commenter asked that the Executive Director change section 
     4.12 on Imminent Danger to include OOC's use of the Serious 
     Deficiency Notice; change section 4.14 to require the General 
     Counsel to notify the employing office that it failed to 
     correct a violation before the General Counsel files a 
     complaint, rather than having the notification be optional; 
     and change section 4.25 on applications for temporary 
     variances and other relief to include the Request for 
     Modification of Abatement process used by the General 
     Counsel.
       The suggested changes regarding notification of 
     inspections, citations, imminent danger, notification before 
     filing a complaint, and applications for temporary variances/
     requests for modification of abatement, were raised by the 
     commenter, not in response to any changes the Executive 
     Director proposed in the NPRM. The Executive Director is 
     therefore reluctant to discuss them without further notice 
     and opportunity to comment for all stakeholders. While the 
     processes of the General Counsel that have developed since 
     2004 in these areas are not wholly reflected in the 
     Procedural Rules, they are not inconsistent with the Rules or 
     with the authorities granted to the General Counsel under the 
     CAA. They are examples of how the operational needs of the 
     parties and OOC can be accommodated without first revising 
     the Procedural Rules.
       One commenter was supportive of OOC's effort to balance the 
     OSHAct, which requires citations to be posted unedited and 
     un-redacted, with concern over the disclosure of security 
     information. More specifically, the Executive Director had 
     added the following language to section 4.13(a) on the 
     posting of citations: ``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.'' However, the commenter wanted the 
     Executive Director to go further and include other security 
     information, such as ``sensitive but unclassified'' 
     information, and to address how OOC will protect all security 
     information it encounters during all stages of the OSH 
     inspection process. The Executive Director does not believe 
     the Procedural Rules are the place for setting forth OOC's 
     safeguards and internal handling procedures for security 
     information. The reference to 2 U.S.C. Sec. 1979 was an 
     effort to use an established definition of security 
     information that applies to the Legislative Branch, rather 
     than leaving it to the OOC to decide what is security 
     information. A document marked as classified or sensitive but 
     unclassified by the classifying or originating entity will be 
     handled accordingly.
     SUBPART E--COMPLAINTS
       Commenters suggested deleting newly proposed language in 
     section 5.01(b)(1) that would permit the Executive Director 
     to return a complaint that was filed prematurely, without 
     prejudice. The commenters asserted that the provision is 
     unfair to employing offices and places the Executive Director 
     in the position of giving legal advice to complainants.
       The Office disagrees that allowing a complainant to cure a 
     defect in their filing is improper, and has added language 
     giving the Executive Director discretion to return all early 
     filed Complaints to the complaining employee for filing 
     within the prescribed period, and with an explanation of the 
     applicable time limits. It is clear that no complaint will be 
     processed until it is timely. Giving the Executive Director 
     the discretion to return a complaint in these circumstances 
     does not give the Executive Director the authority to process 
     a complaint that is filed prematurely.
       In comments to section 5.01(g) of the proposed regulations, 
     commenters suggested that a respondent be permitted to file a 
     motion to dismiss in lieu of an answer. They explained that 
     the rule should give the Hearing Officer discretion to allow 
     a respondent to file a motion to dismiss in lieu of an 
     answer. Otherwise, a party will be forced to waste resources 
     responding to a complaint that may be dismissed or 
     significantly altered by a Hearing Officer's ruling on the 
     motion to dismiss. They conclude that filing a motion to 
     dismiss should suspend the obligation to file an answer.
       The Office declines to make this change in the Adopted 
     Rules, believing that a direct response to the allegations is 
     vital, and any party wishing to file a motion to dismiss in 
     addition to an answer may do so. While a motion to dismiss 
     option was added to the Proposed Procedural Rules because 
     many stakeholders indicated that they would like to see it 
     added, this language was not intended to replace the filing 
     of an answer. When there is no adverse action like a removal 
     or suspension, and the claim involves harassment or 
     retaliation, the employing office has no requirement to 
     provide the complainant with the administrative file or 
     investigation, and there is no requirement under the Rules 
     that the agency provide this information before the time to 
     answer. In those circumstances, the complainant must rely on 
     the answer for information in order to respond. While it is 
     in the Hearing Officer's discretion whether to extend the 
     time to allow the respondent to file an answer and to stay 
     discovery while ruling on a motion to dismiss, the Office has 
     decided to keep language requiring an answer. In hearings 
     under the CAA, the time frames are typically very short and a 
     requirement for respondent to answer keeps the process moving 
     forward.
       Sections 5.03(f) and (g) of the Proposed Rules were 
     modified to allow a Hearing Officer to dismiss a complaint 
     after withdrawal--with or without prejudice. Several 
     commenters objected to this change. One commenter suggested 
     such a dismissal be with prejudice only, another suggested 
     the Board identify factors a Hearing Officer must consider 
     when dismissing a complaint or permitting a complainant to 
     re-file, and another suggested the language be modified to 
     clarify that a Hearing Officer cannot expand a complainant's 
     time to file a complaint--and that a complaint that would 
     otherwise be time-barred under section 404 may not be re-
     filed.
       While it is clear that a withdrawal of a complaint with or 
     without prejudice cannot be used to extend the statutory time 
     frame, the Executive Director has added language to the 
     Adopted Rules indicating that the authority of the Hearing 
     Officer is consistent with section 404 of the CAA.
       Section 5.03(h) was added in the Proposed Rules requiring a 
     representative to provide sufficient notice to the Hearing 
     Officer and the parties of his or her withdrawal in a matter, 
     and clarifying that the employee will be considered pro se 
     until another representative has been designated in writing. 
     Commenters suggested that the Board define what is meant by 
     ``sufficient'' notice.
       The Office recognizes that with respect to the conduct of a 
     hearing, the Hearing Officer is in the best position to 
     determine what constitutes sufficient notice under the 
     circumstances, and so must have flexibility in making 
     determinations. Therefore, the Executive Director declines to 
     make the changes as requested.
     SUBPART F--DISCOVERY AND SUBPOENAS
       In general, several commenters asserted that Proposed 
     Procedural Rules sections 2.03(e)(l), 6.01(a), and 6.02(a) 
     are invalid to the extent that they would limit the 
     availability of OOC employees and records in the discovery 
     process, because there is no statutory basis for this 
     evidentiary privilege.
       The Executive Director believes that the CAA's 
     confidentiality requirements found in section 416 of the CAA 
     confer upon the Office the obligation to safeguard the 
     confidentiality of such information. Accordingly, to ensure 
     that its intention to safeguard confidential information is 
     clear, the Executive Director declines to make any changes in 
     the A Rules to these sections.
       In the Proposed Rules section 6.01(b) language about 
     initial disclosure was modified to specify that information, 
     including witness lists and discovery documents, must be 
     provided to the opposing party within 14 days of a pre-
     hearing conference. A commenter suggested that this rule 
     places an unfair burden on employing offices who should not 
     be required to turn over witness lists and discovery 
     documents without a request.
       The Office believes that, given the limited time between 
     the filing of a complaint and

[[Page S6364]]

     opening of the hearing, this requirement should be kept as 
     proposed because it will promote the prompt and fair exchange 
     of information and reduce delay in the proceedings. This 
     process should not pose an unfair burden on employing offices 
     because of the ready availability of the information to the 
     employing office.
       One commenter expressed concern that the changes proposed 
     to section 6.01(c), permit the parties to engage in 
     ``reasonable prehearing discovery,'' without defining what 
     types of discovery are reasonable, or the volume of discovery 
     that is appropriate, given the limited time involved in the 
     process. The language in the 2004 Procedural Rules, 
     permitting discovery only as authorized by the Hearing 
     Officer was more equitable because the Hearing Officer had 
     greater control over the proceedings, and better ability to 
     prevent discovery abuses, or the use of delay tactics. 
     Additionally, application of the Federal Rules of Civil 
     Procedure to the types and volume of discovery may be helpful 
     to the parties' understanding of the process.
       This comment misapprehends the Hearing Officer's authority. 
     Section 405(e) of the CAA provides that ``[r]easonable 
     prehearing discovery may be permitted at the discretion of 
     the hearing officer.'' The authority is therefore permissive, 
     not restrictive. It has always been the policy of the Office 
     to encourage early and voluntary exchange of relevant 
     information and the Rules, as amended, allow a hearing 
     officer to authorize discovery, but do not mandate it.
       One commenter suggested that section 6.01(c)(1) be modified 
     to state that, when a motion to dismiss is filed, discovery 
     is stayed until the Hearing Officer has ruled on the motion.
       The Executive Director declines to make this modification. 
     As noted above, because the time frames in the hearing 
     process are limited, requiring that discovery be stayed until 
     there is a ruling on a motion to dismiss could take up 
     valuable time. In any event, the Hearing Officer should have 
     the most flexibility to make a decision to stay discovery 
     depending on the circumstances of each case.
       Section 6.01(d)(1) of the Proposed Rules provides: ``A 
     party must make a claim for privilege no later than the due 
     date for the production of the information.'' One commenter 
     suggested that a claim for privilege belongs to a party and 
     cannot be waived except by the party. Thus, section 
     6.01(d)(1) cannot place a limitation on a party's right to 
     assert a privilege and would be inconsistent with the 
     inadvertent disclosure identified in section 6.01(d)(2). As 
     an example, the commenter notes that one may have 
     inadvertently disclosed privileged information on the last 
     day of discovery which would require that it be returned or 
     destroyed in accordance with section 6.01(d)(2). However, if 
     the privilege was not asserted on the last day of discovery, 
     the Procedural Rules would allow the opposing party to keep 
     the inadvertently disclosed documents. Thus, by limiting the 
     timing of the asserted privilege, a conflict is created 
     between sections 6.01(d)(1) and 6.01(d)(2).
       The Office is not attempting, by this rule, to place a 
     limit on a party's right to assert a privilege, but rather to 
     ensure that if a party intends to assert a privilege it does 
     so in a timely way. Until a privilege is asserted, the 
     assumption is that the information is not privileged. 
     Therefore, this rule is not inconsistent with section 
     6.01(d)(2) that requires that information that has been 
     claimed as privileged and inadvertently disclosed be returned 
     or destroyed, even if disclosed on the last day of discovery.
       Section 6.02(a) was modified in the Proposed Rules to 
     clarify that OOC employees and service providers acting in 
     their official capacities, and confidential case-related 
     documents maintained by the OOC, cannot be subpoenaed. In 
     addition, the rules clarify that employing offices must make 
     their employees available for discovery and hearings without 
     a subpoena. One commenter requested that an employing office 
     only be required to make available witnesses under their 
     control during actual work hours and work shifts on the day 
     of the hearing and, otherwise, that subpoenas be used. 
     Another commenter suggested the provision be revised to 
     state: ``Employing offices shall make reasonable efforts to 
     make their management-level employees available for discovery 
     and hearing without requiring a subpoena.''
       Often, the timing and pacing of a hearing depends on the 
     availability of witnesses. The Executive Director believes 
     that it is important that the parties willingly commit to the 
     hearing process to ensure the most efficient and equitable 
     outcome possible. By requiring employing offices to make 
     their employees available without a subpoena, the purpose of 
     the Proposed Rule was to ensure that employees will be 
     readily available when called as witnesses, therefore 
     reducing the administrative burdens on the parties, the 
     Hearing Officer, and the Office.
     SUBPART G--HEARINGS
       As a general comment, one commenter stated that it was 
     unclear what authority under the CAA the Board of Directors 
     was utilizing to authorize a Hearing Officer to issue 
     sanctions under sections 7.02 and 7.12(b). The commenter 
     maintained that sanctions are not authorized under the CAA 
     and, thus, Procedural Rules incorporating substantive 
     provisions are beyond the scope of authority permitted under 
     the CAA. The commenter further suggested that because 
     sanctions provisions affect the rights of the parties, they 
     are substantive in nature and the appropriate avenue should a 
     substantive sanctions provision be requested is to pursue a 
     statutory amendment to the CAA.
       The Executive Director disagrees. It is clear that a 
     Hearing Officer has the ability to use sanctions to run an 
     orderly and proper hearing. Moreover, the CAA provides this 
     authority. Thus, under section 405(d) of the CAA, the Hearing 
     Officer is required to conduct the hearing in ``accordance 
     with the principles and procedures set forth in section 554 
     through 557 of title 5.'' Specifically, under 5 U.S.C.557: 
     ``The record shall show the ruling on each finding, 
     conclusion, or exception presented. All decisions, including 
     initial, recommended, and tentative decisions, are a part of 
     the record and shall include a statement of . . . the 
     appropriate rule, order, sanction, relief, or denial 
     thereof.'' Further, under section 405(g) of the CAA, ``the 
     hearing officer shall issue a written decision [that] shall . 
     . . contain a determination of whether a violation has 
     occurred and order such remedies as are appropriate pursuant 
     to subchapter II of this chapter.''
       Another comment in this area pointed to section 
     7.02(b)(1)(G) of the 2004 Rules that authorizes a Hearing 
     Officer to ``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.''
       The Office notes that because section 415 of the CAA 
     requires that only funds appropriated to an account of the 
     Office in the Treasury may be used for the payment of awards 
     and settlements under the CAA, this provision has been 
     deleted from the Adopted Rules.
       Section 7.02(b)(4) of the Proposed Rules permits a Hearing 
     Officer to dismiss a frivolous claim. One commenter suggested 
     that this rule be modified to make it clear that, when a 
     respondent has moved to dismiss a claim on the grounds that 
     it is frivolous, no answer should be required to be filed and 
     no discovery taken ``unless and until the motion is denied.'' 
     Another commenter suggested that allegations that a claim is 
     frivolous be resolved through a motion to dismiss, referenced 
     in section 5.01(g).
       As stated previously, the Executive Director is declining 
     to delete the requirement that an answer be filed in all 
     complaint proceedings. Moreover, the Office recognizes that a 
     claim alleging that a matter is frivolous may always be 
     subject to a motion to dismiss and the Hearing Officer has 
     the discretion to move the case as appropriate. Therefore, 
     qualifying language need not be included in these rules. In 
     order to clarify one point, the Office has added language 
     indicating that a Hearing Officer may dismiss a claim, sua 
     sponte, for the filing of a frivolous claim.
       Some commenters noted that the CAA did not authorize each 
     of the remedies for failure to maintain confidentiality under 
     section 7.02(b)(5). While the Hearing Officer is authorized 
     to issue a decision under section 405, the commenters note 
     that Congress did not authorize remedies for breach of 
     confidentiality. Accordingly, the Board of Directors of the 
     Office of Compliance is required to seek a statutory 
     correction should it desire to provide remedies for breach of 
     confidentiality. Where Congress sought to provide a remedy 
     under the CAA, it specifically incorporated it. Compare 2 
     U.S.C. 1313(b), 2 U.S.C. 1314(b), 2 U.S.C. 1317(b), and 2 
     U.S.C. 1331(c) incorporating a remedy provision with the 
     absence of a remedy provision in 2 U.S.C. 1416.
       For the reasons below, the Office declines to delete this 
     section. The CAA does provide for sanctions and remedies for 
     the failure to maintain confidentiality. Under the Office of 
     Compliance Administrative and Technical Corrections Act of 
     2015, section 2 U.S.C. 1416(c) of the CAA was amended to: 
     ``The Executive Director shall notify each person 
     participating in a proceeding or deliberation to which this 
     subsection applies of the requirements of this subsection and 
     of the sanctions applicable to any person who violates the 
     requirements of this subsection.'' (Emphasis added.)
       Section 7.07 gives the Hearing Officer discretion when a 
     party fails to appear for hearing. One commenter suggested 
     that the rule be amended to require the complainant to appear 
     at hearings.
       The rule, as written, is intended to allow the Hearing 
     Officer discretion to determine when the presence of a party 
     is required for the proceeding to move forward.
       With respect to sections 7.13(d) and (e), one commenter 
     noted that these sections ``purport to limit the availability 
     of interlocutory appeals'', and section 8.01(e) purports to 
     limit the availability of judicial review. Because these 
     issues should be addressed by substantive rulemaking, these 
     proposed Procedural Rules are invalid and should not be 
     adopted.
       These provisions are not substantive, but are procedural. 
     Therefore no changes need to be made. Thus, under the 
     Proposed Rules, the time within which to file an 
     interlocutory appeal is described in section 7.13(b); section 
     7.13(c) provides the standards upon which a Hearing Officer 
     determines whether to forward a request for interlocutory 
     review to the Board; and section 7.13(d) provides that the 
     decision of the Hearing Officer to

[[Page S6365]]

     forward or decline to forward a request for review is not 
     appealable. The Office's rule permitting the Hearing Officer 
     to determine whether a question should be forwarded to the 
     Board is consistent with judicial practice, and the Board 
     retains discretion whether or not to entertain the appeal. 
     Under 28 USC 1292(b):

       When a district judge, in making in a civil action an order 
     not otherwise appealable under this section,\1\ shall be of 
     the opinion that such order involves a controlling question 
     of law as to which there is substantial ground for difference 
     of opinion and that an immediate appeal from the order may 
     materially advance the ultimate termination of the 
     litigation, he shall so state in writing in such order. The 
     Court of Appeals which would have jurisdiction of an appeal 
     of such action may thereupon, in its discretion, permit an 
     appeal to be taken from such order, if application is made to 
     it within ten days after the entry of the order: Provided, 
     however, that application for an appeal hereunder shall not 
     stay proceedings in the district court unless the district 
     judge or the Court of Appeals or a judge thereof shall so 
     order.

     \1\ Orders other than ``[i]nterlocutory orders . . . 
     granting, continuing, modifying, refusing or dissolving 
     injunctions, or refusing to dissolve or modify injunctions. . 
     . .''

       There were several comments on section 7.15(a) of the 
     Proposed Regulations regarding the closing of the record of 
     the hearing. One commenter noted that the OOC should identify 
     what factors or guidance a Hearing Officer must follow in 
     determining the amount of time that the record is to remain 
     open. Another commenter objected to allowing any documents to 
     be entered into the record after the close of a hearing.
       A complete record is essential to a determination by the 
     Hearing Officer. The Hearing Officer is in the best position 
     to determine how long the record should be kept open and what 
     information is most relevant to creating a complete record 
     upon which to issue a decision. Because the Hearing Officer 
     should be accorded appropriate discretion, the Executive 
     Director sees no reason to make the changes noted.
       There were several comments to section 7.16 concerning 
     sufficient time to respond to motions. One commenter 
     recommended that a provision be added to the Rules stating 
     that a Hearing Officer shall provide a party at least two 
     business days to respond to a written motion. Another 
     commenter recommended that a rule be adopted that expressly 
     permits the hearing to be opened just for purposes of arguing 
     a dispositive motion, such as a motion to dismiss, thereby 
     allowing the parties to avoid spending time and resources 
     when a case can be dismissed because it is frivolous or 
     because it fails to state a claim.
       The Executive Director does not believe that any revisions 
     are required to this section. As the time frames under the 
     CAA for the issuance of the decision of a Hearing Officer are 
     very short (a decision must be issued within 90 days of the 
     end of the hearing), it is crucial that the Hearing Officer 
     be accorded the most discretion in conducting the hearing.
       One commenter suggested that the Rules include directions 
     to Hearing Officers to sua sponte dismiss abated cases. The 
     commenter maintained that when a Member of the House of 
     Representatives leaves office, the Member's personal office 
     ceases to exist and the case abates. Citing Hamilton-Hayyim 
     v. Office of Congressman Jackson, Case No. 12-C-6392, 2014 WL 
     1227243 (N.D. 111. Mar. 25, 2014); accord Oklahoma Natural 
     Gas Co. v. Oklahoma, 273 U.S. 257, 259-260 (1927); Bowles v. 
     Wilke, 175 F.2d 35. 38-39 (7th Cir. 1949), the commenter 
     noted that the CAA ``demonstrates a congressional mandate . . 
     . to end any employment action liability of that respective 
     Member's personal office'' at the time the Member leaves 
     office. Hamilton-Hayyim, 2014 WL 1227243 at *2.10 When a 
     Hearing Officer becomes aware that a Member's personal office 
     ceases to exist, the Rules should provide that the Hearing 
     Officer will dismiss the case, sua sponte.
       For the reasons stated herein, the Office disagrees with 
     this interpretation and the Executive Director declines to 
     provide such a rule, leaving it to the Hearing Officer or 
     Board to make the determination on the issue. An ``employing 
     office'' does not cease to exist when a Member resigns or 
     otherwise leaves office. The clear intent of the CAA is to 
     subject the Legislative Branch to liability for violation of 
     federal employment laws, not to subject Members personally to 
     such liability. 2 U.S.C. Sec. 1302. Moreover, a Member is not 
     directly involved in the litigation, as Congress's attorneys 
     defend the action and have the ultimate authority to make 
     litigation decisions. Id. Sec. 1408(d). Additionally, there 
     is no financial risk to a Member, as any monetary settlement 
     or award is paid from a statutory fund. Id. Sec. 1415(a).
       Courts considering this issue have reached this same 
     conclusion. In Hanson v. Office of Senator Mark Dayton, 535 
     F. Supp. 2d 25 (D.D.C. 2008), the court found no ambiguity as 
     to the meaning of the term ``employing office'' and opined 
     that although the CAA defines ``employing office'' as the 
     personal office of a Member, there is absolutely no 
     indication in the CAA or elsewhere that Congress intended the 
     naming device to insulate former Congressional offices from 
     suit under the CAA. The court therefore expressly held that 
     the expiration of a Senator's term did not moot or abate the 
     lawsuit. Indeed, the term ``employing office'' is merely ``an 
     organizational division within Congress, established for 
     Congress's administrative convenience, analogous to a 
     department within a large corporation'' and the term exists 
     solely ``to be named as a defendant in [CAA] actions.'' 
     Fields v. Office of Eddie Bernice Johnson, 459 F. 3d 1, 27-29 
     (D.C. Cir. 2006); see Bastien v. Office of Senator Ben 
     Nighthorse Campbell, No. 01-cv-799, 2005 WL 3334359, at *4, 
     (D. Colo. Dec. 5, 2005) (``[T]he term `employing office' 
     actually refers to Congress and Congress is the responsible 
     entity under the CAA.''), quoted in 454 F.3d 1072, 1073 (10th 
     Cir. 2006).
       To the extent that the commenter disagrees with the above 
     explanation and relies on Hamilton-Hayyim v. Office of 
     Congressman Jesse Jackson, Jr., No. 12-c-6392, 2014 WL 
     1227243 (N.D. Ill. Mar. 25, 2014), it is the belief of the 
     Office that the case misapplied clearly established law as 
     described above and should not affect the Procedural Rules. 
     Hamilton-Hayyim conflates the issue of successor or 
     continuing liability under Rule 25(d) of the Federal Rules of 
     Civil Procedure with the role of an ``employing office'' in a 
     suit under the CAA. As grounds for its holding, the court in 
     Hamilton-Hayyim found that a suit against an employing office 
     becomes moot or abates upon the resignation of a Member 
     because Congress did not statutorily create successor 
     liability which infers that ``Congress certainly does not 
     want to burden a new Member with the liability of a former 
     Member.'' Id. at *2. This rationale does not comport with the 
     CAA. There is no burden on a new Member resulting from an 
     existing action against a former Member under the CAA because 
     the obligation to provide a legal defense rests with the 
     Office of House Employment Counsel and any resulting 
     financial responsibility is paid through a fund. 2 U.S.C. 
     Sec. 1408, 1415(a). The Executive Director believes that the 
     holding in Hamilton-Hayyim is contrary to the clear intent of 
     the CAA which is to hold Legislative Branch employing 
     offices, not Members, accountable for violations of specific 
     labor and employment laws. Because an employing office does 
     not cease to exist for purposes of suit under the CAA when a 
     Member leaves office, the Executive Director declines to make 
     the change suggested.
     SUBPART I--OTHER MATTERS OF GENERAL APPLICABILITY
       One commenter stated that section 9.01(a) is unclear as to 
     what is meant by a ``decision of the Office.'' If the 
     procedural rule is meant to be a decision of the Board of 
     Directors of the Office of Compliance, the rule should be 
     clarified. The definition of a final decision of the Office 
     can be found in sections 405(g) \2\ and 406(e) \3\ of the 
     CAA. Therefore no further revisions are necessary.
---------------------------------------------------------------------------
     \2\ Section 405 Complaint and Hearing, (g) Decision. ``. . . 
     If a decision is not appealed under section 1406 of this 
     title to the Board, the decision shall be considered the 
     final decision of the Office.''
     \3\ Section 406 Appeal to the Board, (e) Decision. ``. . . A 
     decision that does not require further proceedings before a 
     hearing officer shall be entered in the records of the Office 
     as a final decision.''
---------------------------------------------------------------------------
       There were comments to section 9.02(c)(2) of the Proposed 
     Rules asking for clarification of the circumstances under 
     which the Office or a Hearing Officer would initiate 
     settlement discussions once the mediation period has ended. 
     The Office sees no reason to change the language. As there 
     are many situations that can come up in hearing where a 
     Hearing Officer may conclude that the parties are interested 
     in discussing settlement, the decision as to whether to 
     initiate settlement discussions should be left up to the 
     Office or Hearing Officer as circumstances dictate.
       One commenter noted that Proposed Procedural Rule 
     Sec. 9.03(d) would give the Executive Director sole authority 
     to resolve alleged violations of settlement agreements, in 
     the event that the parties do not agree on a method for 
     resolving disputes. There is nothing in the CAA that gives 
     the Executive Director the authority to resolve contractual 
     disputes, and this rule should not be adopted.
       The Office notes that the rule specifically states that the 
     Office may provide assistance in resolving the dispute, 
     including the services of a mediator and that allegations of 
     a breach of a settlement will be reviewed, investigated, or 
     mediated as appropriate. It does not say that the Executive 
     Director will resolve those alleged violations, but rather, 
     assist the parties in doing so.
       One commenter noted that proposed Procedural Rule Sec. 9.04 
     states that, after a settlement agreement has been approved 
     by the Executive Director, ``[n]o payment shall be made from 
     such account until the time for appeal of a decision has 
     expired.'' This rule should clarify that it does not apply to 
     settlements reached in the absence of a ``decision'' that may 
     be appealed.
       The Office has clarified section 9.04 in the Amended Rules 
     and included language that indicates that this rule does not 
     apply to situations where a settlement has been reached and 
     there is no decision that could be appealed.


       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 adopted amendments shows 
     [deletions in italicized type within bold italics brackets] 
     and added text in underlined bold. Only subsections of the 
     Rules that include adopted amendments are reproduced in this 
     NOTICE. The insertion of a series of small dots (. . . . .) 
     indicates additional, un-amended text within a

[[Page S6366]]

     section has not been reproduced in this document. The 
     insertion of a series of asterisks (* * * * *) indicates that 
     the un-amended 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.

 ADOPTED 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 Filing, 
         Service, and Size Limitations of Motions, Briefs, 
         Responses and Other Documents
     Sec. 1.05 Designation of Representative Signing of 
         Pleadings, Motions and Other Filings; Violation of Rules; 
         Sanctions
     Sec. 1.06 Maintenance of Confidentiality Availability of 
         Official Information
     Sec. 1.07 Breach of Confidentiality Provisions Designation 
         of Representative

     Sec. 1.08 Confidentiality

     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 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)] (2) 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 (1) and (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 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) 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) 
     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) By FAX [Faxing Documents.] Documents transmitted by FAX 
     machine will be deemed filed on the date received at the 
     Office at 202-426-1913, or[, in the case of any document to 
     be filed or submitted to the General Counsel,] on the date 
     received at the Office of the General Counsel at 202-426-1663 
     if received by 5:00 PM Eastern Time. Faxed documents received 
     after 5:00 PM 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 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 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 5:00 PM Eastern Time. 
     Documents received electronically after 5:00 PM 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 5:00 PM 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 or sent by the Office will be 
     based on the document's timestamp information and used to 
     show the time that the document was filed or 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, [and] federal government holidays, and other full 
     days that the Office

[[Page S6367]]

     is officially closed for business shall be excluded in the 
     computation. To compute the number of days for taking any 
     action required or permitted under these rules, the first day 
     shall be the day after the event from which the time period 
     begins to run and the last day for filing or service shall be 
     included in the computation. When the last day falls on a 
     Saturday, Sunday, [or] federal government holiday, or a day 
     the Office is officially closed, the last day for taking the 
     action shall be the next regular federal government workday.
       [(c)](d) Time Allowances for Mailing, Fax, or Electronic 
     Delivery of Official Notices. Whenever a person or party has 
     the right or is required to do some act within a prescribed 
     period after the service of a notice or other document upon 
     him or her and the notice or document is served by [regular, 
     first-class] mail, five (5) days shall be added to the 
     prescribed period. [Only two (2) days shall be added if a 
     document is served by express mail or other form of expedited 
     delivery.] When documents are served by certified mail, 
     return receipt requested, the prescribed period shall be 
     calculated from the date of receipt as evidenced by the 
     return receipt. When documents are served electronically or 
     by FAX, the prescribed period shall be calculated from the 
     date of transmission by the Office.
       [(d) Service or filing of documents by certified mail, 
     return receipt requested. Whenever these rules permit or 
     require service or filing of documents by certified mail, 
     return receipt requested, such documents may also be served 
     or filed by express mail or other forms of expedited delivery 
     in which proof of date of receipt by the addressee is 
     provided.]

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

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

                           *   *   *   *   *

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

     [Sec. 9.02]  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]  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] U.S. Senate Select Committee on Ethics access to 
     the records of the hearings and decisions of the Hearing 
     Officers and the Board, including all written and oral 
     testimony in the possession of the Office. The identifying 
     information in these records may be redacted at the 
     discretion of the Executive Director. The Executive Director 
     shall not provide such access until the Executive Director 
     has consulted with the individual filing the complaint at 
     issue, and until a final decision has been entered under 
     section 405(g) or 406(e) of the Act.

     [Sec. 1.05]  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 for the purpose of receiving service, 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].
       (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]  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 in [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

[[Page S6368]]

     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 
     with permission from the party that is the subject of the 
     consultation, 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) Contents or Records of Confidential Proceedings. For 
     the purpose of this rule, the contents or records of 
     counseling, mediation or other proceeding includes the 
     information disclosed by participants to the proceedings, and 
     records disclosed by 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 in a confidential proceeding.
       (f) Sanctions. The Executive Director will advise all 
     participants in mediation and hearing at the time they become 
     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 Proceedings
     Sec. 2.06 Filing of Civil Action Certification of the 
         Official Record
     Sec. 2.07 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.] Individuals wishing to file a formal request 
     for counseling may call the Office for a form to use for this 
     purpose. [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.]
       (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.
       (c) When, How and Where to Request Counseling. A request 
     for counseling must be in writing, and shall be filed 
     pursuant to the requirements of section 2.03(a) of these 
     Rules with the Office of Compliance at Room LA-200, 110 
     Second Street, S.E., Washington, D.C. 20540-1999; FAX 202-
     426-1913; TDD 202-426-1912, not later than 180 days after the 
     alleged violation of the Act.
       (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.

[[Page S6369]]

     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] 
     an individual employee involved or of an employing 
     offices that are is the subject of a specific request for 
     counseling.
       (2) [The] In accord with section 416(a) of the Act, 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 is 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 and by agreement with the Architect 
     of the Capitol and the Capitol Police Board], when the 
     Executive Director makes such a recommendation, the following 
     procedures shall apply:
       (i) The Executive Director shall recommend in writing to 
     the employee that the employee use the grievance internal 
     procedures 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 
     Executive Director has recommended that the employee use 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 resulting from the internal procedure.
       (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, 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 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

[[Page S6370]]

     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, the case may 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 from a 
     master list developed and maintained pursuant to section 403 
     of the Act, 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 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 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 specifically requested. The 
     Office may participate in the mediation process, with 
     permission of the Mediator and the parties. 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 date 
     the mediation period ended 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, may not thereafter file a 
     complaint under section [5.01] 405 of the Act on the same 
     matter.

      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; and the date the 
     mediation period ended.
       (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.

     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--[RESERVED (SECTION 210--ADA PUBLIC SERVICES)]

     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

[[Page S6371]]

     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 Applications
     Sec. 4.29 Consolidation of Proceedings
     Sec. 4.30 Consent Findings and Rules or Orders
     Sec. 4.31 Order of Proceedings and Burden of Proof

     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.

[[Page S6372]]

       (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:
       (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, consistent with 
     section 404 of the CAA.
       (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, consistent with section 404 of the CAA.
       (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] 1.08 [1.07] 
     1.09 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 
     employees 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 or as soon as the 
     information is known, 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 reasonable prehearing discovery. In exercising that 
     discretion, the Hearing Officer may be guided by the Federal 
     Rules of Civil Procedure and the underlying statute.
       (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 requested by any

[[Page S6373]]

     party may be issued for the attendance or testimony of an 
     employee [with] of the Office of Compliance, a Counselor or a 
     Mediator, acting in their official capacity, 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
     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 of the Hearing
     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) 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, 
     sua sponte, 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 the 
     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),

[[Page S6374]]

     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.
       (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 Officer to forward 
     or decline to forward a request for review is not appealable.
       (e) Grant of Interlocutory Review Within Board's Sole 
     Discretion. Upon the Hearing Officer's certification and 
     decision to forward a request for review, [T]the Board, in 
     its sole discretion, may grant interlocutory review. The 
     Board's decision to grant or deny interlocutory review is not 
     appealable.

                           *   *   *   *   *

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

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

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

     Sec. 7.15 Closing the Record of the Hearing.

       (a) Except as provided in section 7.14, the record shall be 
     closed at the conclusion of the hearing. However, when the 
     Hearing Officer allows the parties to submit argument, 
     briefs, documents or additional evidence previously 
     identified for introduction, the record will remain open for 
     as much time as the Hearing Officer 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 the record;
       (3) contain findings of fact and conclusions of law, and 
     the reasons or bases therefore, on all the material issues of 
     fact, law, or discretion that were 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
      8.05 Application for Review of an Executive Director Action
      8.06 Exceptions to Arbitration Awards
      8.07 Expedited Review of Negotiability
      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 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

[[Page S6375]]

     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.

                           *   *   *   *   *


                           *   *   *   *   *


      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.

  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.

  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.

  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  9.01 Attorney's Fees and Costs
      9.04  9.02 Ex parte Communications
      9.05  9.03 Informal Resolutions and Settlement 
         Agreements
      9.06  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  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.
       (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

[[Page S6376]]

     services in the community in which the attorney ordinarily 
     practices; and
       (4) an itemization of costs related to the matter in 
     question[.]; and
       (5) evidence of an established attorney-client 
     relationship.

     [ 9.04  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

                           *   *   *   *   *

       (c) Prohibited Ex Parte Communications and Exceptions.

                           *   *   *   *   *

       (2) The Hearing Officer or the Office may initiate attempts 
     to settle a matter 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--

                           *   *   *   *   *


     [ 9.05  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 should not 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. 
     Settlements should include 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 at the discretion of 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 be filed with the Executive 
     Director, but 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 by the Executive Director 
     or designee, as appropriate.

     [ 9.06  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, unless a settlement has been reached in 
     the absence of a decision to be appealed.

      9.07  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.

                          ____________________