[Congressional Record Volume 165, Number 103 (Wednesday, June 19, 2019)]
[House]
[Pages H4896-H4916]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      NOTICE OF ADOPTED RULEMAKING

                                          U.S. Congress, Office of


                               Congressional Workplace Rights,

                                    June 19, 2019, Washington, DC.
     Hon. Nancy Pelosi,
     Speaker of the House,
     House of Representatives, Washington, DC.
       Dear Madam 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 April 9, 2019, 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 sections 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 Congressional Workplace Rights to the Speaker of the House 
     of Representatives for publication in the House of 
     Representatives 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 Susan Tsui Grundmann, Executive 
     Director of the Office of Congressional Workplace Rights, 
     Room LA-200, 110 2nd Street, SE, Washington, DC 20540.
           Sincerely,

                                         Susan Tsui Grundmann,

                                               Executive Director,
                         Office of Congressional Workplace Rights.

[[Page H4897]]

  


 From the Executive Director of the Office of Congressional Workplace 
Rights: Notice of Adopted Rulemaking, as Required by 2 U.S.C. 1383, the 
          Congressional Accountability Act of 1995, as Amended

     Introductory Statement
       On April 9, 2019, a Notice of Proposed Rulemaking 
     concerning the Procedural Rules of the Office of 
     Congressional Workplace Rights (OCWR) was published in the 
     Congressional Record at S2334 and H3200. As required under 
     the Congressional Accountability Act of 1995 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 OCWR received a number of comments 
     regarding the proposed amendments. Specifically, the Office 
     received comments from the House Committee on Ethics, the 
     House Office of Employee Advocacy, the Office of House 
     Employment Counsel, the Architect of the Capitol, the Library 
     of Congress, the U.S. Capitol Police, the Fraternal Order of 
     Police/U.S. Capitol Police Labor Committee, District Council 
     20 of the American Federation of State, County, and Municipal 
     Employees, AFL-CIO, the U.S. Senate Disbursing Office, and 
     the U.S. Senate Chief Counsel for Employment.
       The Executive Director and the Board of Directors of the 
     OCWR, having reviewed all comments received regarding the 
     Notice, and having made certain additional changes to the 
     proposed amendments in response thereto, now issue the final 
     Procedural 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.'' 2 U.S.C. 1383(b). 
     These Procedural Rules of the Office of Congressional 
     Workplace Rights may be found on the Office's web site: 
     www.ocwr.gov.
 Supplementary Information
       The Congressional Accountability Act of 1995 (CAA or the 
     Act), Pub. L. No. 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 the 
     federal government. Section 301 of the CAA (2 U.S.C. 1381) 
     establishes the OCWR as an independent office within that 
     branch. Section 303 of the CAA (2 U.S.C. 1383) directs the 
     Executive Director, as Chief Operating Officer, to adopt 
     rules of procedure governing the OCWR, subject to approval by 
     the Board of Directors of the Office. The OCWR Rules of 
     Procedure establish the process by which alleged violations 
     of the 13 laws made applicable to the legislative branch 
     under the CAA are considered and resolved.
       On December 21, 2018, the Congressional Accountability Act 
     of 1995 Reform Act (CAARA or Reform Act) was signed into law. 
     (Pub. L. No. 115-397). The new law reflects the first set of 
     comprehensive reforms to the CAA since 1995. Among other 
     reforms, the Reform Act substantially modifies the 
     administrative dispute resolution (ADR) process under the 
     CAA, including: providing for preliminary hearing officer 
     review of claims; requiring current and former Members of 
     Congress to reimburse awards or settlement payments resulting 
     from harassment or retaliation claims; requiring certain 
     employing offices to reimburse payments resulting from 
     specified claims of discrimination; and appointing advisers 
     to provide confidential information to legislative branch 
     employees about their rights under the CAA. Most changes to 
     the ADR process will be effective on June 19, 2019--i.e., 
     upon the expiration of the 180-day period which begins on the 
     date of enactment of the Reform Act.
       The OCWR's responses to and discussion of the comments are 
     presented below:
     General Comments
       Several commenters highlighted typographical errors in the 
     proposed Procedural Rules, and we corrected those along with 
     any typographical errors we identified ourselves. We 
     appreciate the close and thorough review conducted by these 
     commenters.
       Many of the comments suggested modifications to the 
     language of the proposed Procedural Rules that would clarify 
     the Rules rather than make substantive changes. To the extent 
     we agreed that those clarifications were warranted, they 
     appear in the final Procedural Rules.
       We received some suggestions regarding the existing 
     Procedural Rules that the Board has not proposed to amend, or 
     that were subject to nomenclature changes only without any 
     substantive revisions. Although the Board always appreciates 
     feedback regarding ways to improve OCWR procedures, those 
     Procedural Rules have already been subject to the notice and 
     comment procedures set forth at section 303 of the Act. To 
     the extent that comments received in May 2019 pertain to 
     provisions in the Rules that have not changed in response to 
     the Reform Act, those comments are untimely. However, some of 
     these comments noted typographical errors or suggested 
     alterations for the purpose of clarity, and to the extent 
     that we agreed that those edits were warranted, they appear 
     in the final Procedural Rules.
       We received a suggestion that the references to the 
     sections of the CAA be changed to refer to the corresponding 
     sections of the U.S. Code instead. The Board declines to 
     alter its longstanding practice of referencing the section 
     numbers of the Act rather than the provisions of the U.S. 
     Code, but for easier reference we will include a table of the 
     Act sections and corresponding U.S. Code provisions at the 
     beginning of the printed version of the Procedural Rules and 
     the version that appears on the Office's web site.
       One commenter expressed a general concern that some of the 
     proposed Rules could prevent or inhibit the Congressional 
     ethics committees from obtaining information they need to 
     investigate alleged violations of workplace rights and other 
     misconduct by Members of Congress and staff. The Procedural 
     Rules related to confidentiality, disclosures, and referral 
     reflect the requirements of the Act, and the Board declines 
     to expand upon those statutory requirements. However, the 
     Office will work with the ethics committees to establish 
     procedures for providing information necessary for those 
     committees to fulfill their obligations, consistent with the 
     requirements of the Act and in a manner that will ensure 
     secure transmittal. We also note that certain internal 
     processes of the Office are outside the scope of the 
     Procedural Rules, but that the Office will comply with the 
     reporting requirements of the Act whether or not they are 
     specifically addressed in the Rules.
       Several commenters offered suggestions about the content of 
     the claim form as defined in section 1.02(e) of the Rules. We 
     have taken these comments into consideration in preparing the 
     claim form to be used for claims filed on or after June 19, 
     2019, which is available at www.ocwr.gov.
 One commenter asked the Board to explicitly affirm that it 
     will continue to follow its own existing precedent except to 
     the extent that the Reform Act may require deviation from 
     that existing precedent. The Board does not intend to change 
     its approach to considering and applying legal precedent, but 
     it is the Board's view that the Procedural Rules are not the 
     appropriate forum in which to address this subject, and the 
     Board therefore declines to adopt the commenter's suggestion.
       One commenter pointed out that the reimbursement 
     requirements of the Act at section 415 may be expanded by 
     rules of the Senate or the House of Representatives. We have 
     added language where appropriate to account for those 
     potentially broader requirements, including with respect to 
     notification of Members who may have the right to intervene. 
     The Board declines, however, to adopt the commenter's 
     suggestion to require Merits Hearing Officers to make 
     specific findings regarding violations and reimbursement 
     pursuant to the additional requirements imposed by such 
     expanded rules. The Board views such decisions as beyond the 
     jurisdiction conferred by the Act upon the OCWR and its 
     appointed Hearing Officers.
       Multiple commenters suggested imposing specific time frames 
     for various actions by the OCWR, by Mediators, or by Hearing 
     Officers. Where such deadlines are feasible and would further 
     the purposes of the Act, we have modified the proposed Rules 
     to include them. However, with respect to mediation and 
     administrative hearings, in the Board's experience such 
     deadlines are best established by Mediators and Hearing 
     Officers in consultation with the parties on a case-by-case 
     basis.
       One commenter suggested adding details to the Procedural 
     Rules regarding the process Members must follow in order to 
     intervene. We have added language to the Rules specifying 
     that Members will be notified of their right to intervene, as 
     well as the method for doing so, at three points in the 
     process: when a claim form is filed that contains allegations 
     of violations described in section 415(d)(1)(C) of the Act 
     committed personally by a Member; when mediation has been 
     requested with respect to a claim containing such 
     allegations; and when an administrative hearing has been 
     requested with respect to a claim containing such 
     allegations. However, the Board has determined that the 
     specific procedures for intervening will be set forth in the 
     notification itself rather than in these Rules.
       One commenter also requested that the rights and duties of 
     intervenor Members in OCWR proceedings be more clearly 
     delineated. We agree, and various provisions throughout the 
     Rules have been modified where appropriate to make clear 
     whether they apply to intervenor Members.
     Subpart A--General Provisions
       Several commenters requested that we change or clarify the 
     use of the terms ``claim'' and ``claim form.'' The CAARA uses 
     the term ``claim'' when referring to the filing a covered 
     employee must make to initiate dispute resolution 
     proceedings--indeed, Congress deliberately replaced the term 
     ``complaint'' with the term ``claim'' in passing the CAARA--
     and the Board has decided to follow the statutory language. 
     The Board therefore declines to revert to the term 
     ``complaint'' or to replace the statutory term ``claim'' with 
     another term not used in the statute, such as the suggested 
     alternative ``alleged violation.'' However, we have made 
     modifications to the Rules where appropriate to make clear 
     that a ``claim'' is an allegation of a violation of sections 
     102(c) or 201-207 of the Act, and a ``claim form'' is the 
     document filed to initiate proceedings with the Office in 
     cases that allege violations of sections 102(c) or 201-207 of 
     the Act. A claim form may contain one or more claims--in 
     other words, it may contain allegations of more than one 
     violation of the Act.
       One commenter correctly pointed out that the definition of 
     ``covered employee'' omitted employees of the Office of 
     Technology Assessment. That error has been corrected, and the 
     numbering of subparagraphs in section 1.02(m) has been 
     adjusted accordingly.

[[Page H4898]]

       A few commenters suggested adding to the definition of 
     ``party'' a list of the specific statutory provisions that 
     allow intervention. Because there are different types of 
     proceedings under the Act that allow intervention for various 
     reasons, and because the Rules allow intervention in 
     circumstances beyond those explicitly listed in the Act 
     (i.e., when a House or Senate rule requires reimbursement by 
     a Member for conduct beyond that described in section 
     415(d)(1)(C) of the Act), the Board has declined to modify 
     the definition of ``party'' in the manner suggested, as such 
     a definition would be overly restrictive.
       For clarification purposes, a definition of the term 
     ``Mediator'' has been added at section 1.02(gg) of the Rules. 
     The numbering of the definitions that follow in section 1.02 
     has been revised accordingly.
       Upon further consideration of the filing requirements, a 
     minimum font size of 12-point has been added to section 
     1.04(d) to clarify the size limitations for briefs, motions, 
     responses, and supporting memoranda filed with the Office.
       One commenter pointed out that covered employees who 
     participate in confidential advising before becoming 
     ``parties'' to a proceeding should be explicitly covered by 
     the confidentiality provisions of the Rules. We agree, and 
     have added covered employees to the definition of 
     ``participant'' in section 1.08(b).
       One commenter suggested adding an exception to the 
     confidentiality provisions of the Rules for disclosures made 
     between a party and that party's representative. We agree, 
     and language has been added to section 1.08(d) to make clear 
     that parties are not prohibited from disclosing confidential 
     information to their designated representatives, or vice 
     versa.
       One commenter suggested adding exceptions to section 
     1.08(d) that would allow for the disclosure of confidential 
     information in certain circumstances, including when required 
     by law, compelled by legal process, or requested in 
     conjunction with a criminal or security clearance 
     investigation. The Board declines to add these exceptions; 
     should such circumstances arise, Merits Hearing Officers or 
     the Board will address them on a case-by-case basis.
     Subpart D--Claims Procedures Applicable to Consideration of 
         Alleged Violations of Sections 102(c) and 201-207 of the 
         Congressional Accountability Act of 1995, as Amended by 
         the CAA Reform Act of 2018
       Several commenters suggested adding details regarding the 
     scope of the Confidential Advisor's role in section 4.03 of 
     the Proposed Rules. Because the Act specifically sets forth 
     the parameters of the Confidential Advisor's role, the Board 
     declines to depart from the language of the statute.
       One commenter suggested requiring the Confidential Advisor 
     to offer services regarding one of the employing offices' 
     employee assistance programs. The Board declines to expand 
     the scope of the Confidential Advisor's services set forth in 
     the Procedural Rules to include providing this type of 
     information. Different employing offices may have their own 
     employee assistance or counseling programs, and those 
     programs may change over time; moreover, as already noted, 
     the Act specifically sets forth the parameters of the 
     Confidential Advisor's role. We note, however, that the 
     OCWR's longstanding practice has been to provide employees 
     with information concerning such programs, and it will 
     continue to do so as appropriate.
       Two commenters included suggestions regarding the oversight 
     of the Confidential Advisor. The Board declines to revise the 
     Procedural Rules in this regard, and notes that the 
     Confidential Advisor is appointed by the Executive Director 
     of the OCWR and will be subject to the Executive Director's 
     oversight.
       One commenter noted that the language in section 4.03(c)(5) 
     of the Proposed Rules referenced a ``complaint'' with the 
     Congressional ethics committees, whereas the term 
     ``complaint'' in the context of those committees' 
     investigations may have a narrower meaning than intended by 
     the proposed Procedural Rule. We agree, and have changed the 
     language of this provision accordingly.
       Several commenters raised questions or concerns about 
     section 4.03(d), regarding privilege and confidentiality. 
     This provision follows from the directive in the Act that the 
     Confidential Advisor's services are to be provided ``on a 
     privileged and confidential basis.'' In response to the 
     comments, we have modified the language in the proposed Rule 
     to remove language that would have defined the contours of 
     this statutorily-created privilege in a way that, in the 
     Board's view, would be more appropriately developed in the 
     context of specific proceedings before Hearing Officers and 
     the Board.
       One commenter suggested removal of the words ``or the 
     claimant's representative'' in section 4.04(c), with respect 
     to who may sign a claim form under oath or affirmation. We 
     agree that the claim form should be signed by the claimant, 
     and have modified the language accordingly. The same 
     commenter suggested that claimants who have designated 
     representatives should not be required to provide their own 
     contact information, but the Board chooses to maintain its 
     longstanding practice of requiring contact information for 
     all claimants regardless of representation.
       One commenter suggested adding a subparagraph to section 
     4.04(c) of the proposed Rules that would require the claim 
     form to specify whether the challenged conduct meets the 
     criteria set forth in section 415(d) of the Act. The Board 
     has elected to leave this determination to the OCWR as part 
     of its internal process for claim intake, rather than assign 
     it to the claimant.
       One commenter suggested adding information to section 
     4.05(b) regarding the exceptions to the 70-day deadline for 
     filing a civil action after a claim form is filed. These 
     exceptions were described in other sections of the proposed 
     Procedural Rules concerning preliminary review and mediation, 
     but we agree that they should be included here as well, and 
     we have added clarifying language to this subsection 
     accordingly.
       We received a comment that the OCWR should notify employing 
     offices immediately upon receipt of notification that a 
     claimant has filed a civil action in federal district court. 
     The Board declines to include such a requirement in the 
     Procedural Rules, although as a practical matter the OCWR 
     will endeavor to notify employing offices, as well as any 
     intervening Members or Members who have not exercised their 
     right to intervene, without undue delay. In order to make 
     this practice more feasible and effective, the Board has 
     modified section 4.05(d) of the Procedural Rules to change 
     the time frame for claimants to notify the OCWR from 10 days 
     to 3 days after filing a civil action.
       Some commenters offered suggestions for how individual 
     Members should receive notifications required by the Act. The 
     Board prefers to work with the Senate and the House of 
     Representatives to devise a method of identifying points of 
     contact and providing notifications, rather than providing 
     for this in the Procedural Rules. One commenter also 
     suggested that the notification should inform the Member of 
     not only the right to intervene, but also the procedures for 
     doing so; we agree, and sections dealing with Member 
     notification now include language to that effect.
       One commenter correctly pointed out that the special rule 
     referenced in section 4.06(d) applies only to employees of 
     the Architect of the Capitol and the U.S. Capitol Police, not 
     the Library of Congress. We have removed the references to 
     the Library of Congress from this subsection.
       The proposed section 4.07(d) required immediate 
     notification of a Member with a right to intervene whenever 
     mediation is requested. Upon further review of the 
     requirements of the Act, the Board has changed the word 
     ``immediately'' to ``promptly.''
       One commenter noted that only claimants and respondents, 
     not intervening Members, have the statutory right to request 
     an extension of the mediation period. We agree, and have 
     modified the language of section 4.07(f)(2) accordingly.
       Several commenters pointed out that because mediation is 
     voluntary, the mediator lacks the authority to require the 
     physical presence of any party. We agree, and have changed 
     the language of section 4.07(i) from ``required'' to 
     ``requested.''
       One commenter noted an inconsistency between section 
     4.07(j) of the proposed Rules, which referenced both informal 
     resolutions and formal settlements during the meditation 
     period, and section 9.03(a) of the proposed Rules, which 
     concerned informal resolution before a covered employee files 
     a claim form. Because references to informal resolution have 
     been removed from section 9.03 for the reasons discussed 
     below, the inconsistency noted by the commenter no longer 
     exists. The Rules no longer address resolutions achieved 
     prior to the filing of a claim form; all settlements reached 
     between the parties after a claim form is filed, including 
     during mediation, must satisfy the requirements of section 
     414 of the Act and section 9.03 of these Rules.
       One commenter suggested adding a requirement that any 
     alleged confidentiality violation must be raised to the 
     Mediator during the mediation period. This is not required by 
     the statute, and the Board declines to add such a requirement 
     because it would be overly restrictive.
       One commenter suggested including additional exceptions to 
     confidentiality under section 4.07(n) of the proposed Rules. 
     While we agree that there might be other exceptions to 
     confidentiality, the intent of this subparagraph was to 
     direct the parties to the exceptions expressly set forth in 
     the statute itself.
       Several commenters requested that the Board include in the 
     Procedural Rules the qualifications required for Preliminary 
     Hearing Officers and Merits Hearing Officers. The Board 
     declines to do so. The Board notes that the statute at 
     section 405(c) already contains a requirement that the 
     Executive Director must develop master lists from which all 
     Hearing Officers must be selected for appointment, and sets 
     forth the qualifications that individuals must possess in 
     order to be included on those lists.
       Proposed section 4.08(b) was originally modeled on the 
     existing Procedural Rule governing the disqualification of a 
     Hearing Officer. Upon further consideration of the purpose 
     and scope of the preliminary review, the Board has determined 
     that requests to disqualify a Preliminary Hearing Officer 
     should be made to the Executive Director of the Office rather 
     than in the form of a motion to the Preliminary Hearing 
     Officer. Sections 4.08(b)(2) and (b)(3) have been revised 
     accordingly. Additionally, one commenter suggested adding a 
     provision requiring prompt notification of the parties once a 
     Preliminary Hearing Officer is appointed. We

[[Page H4899]]

     agree, and have added such a provision to section 4.08(a).
       Several commenters suggested that the Procedural Rules 
     should specifically state that in conducting the preliminary 
     review pursuant to section 403 of the Act, the Preliminary 
     Hearing Officer must apply the same standard during 
     preliminary review that federal courts apply under Federal 
     Rule of Civil Procedure 12(b)(6). Although some of the 
     language in section 403(b)(6) of the Act also appears in FRCP 
     12(b)(6), the Act specifically directs the Preliminary 
     Hearing Officer to make the determination whether the 
     claimant is a covered employee who has stated a claim upon 
     which relief can be granted ``on the basis of the assessments 
     made under paragraphs (1) through (5)'' of section 403(b). In 
     light of the foregoing, and in consideration of the purpose 
     of the preliminary review--i.e., to determine whether a 
     claimant may proceed to an administrative hearing or must 
     pursue his or her claims in federal court--the Board declines 
     to adopt a standard equivalent to that of FRCP 12(b)(6) for 
     the preliminary review of claim forms. We note, however, that 
     the Board has long applied a 12(b)(6) standard in considering 
     motions to dismiss; under these Procedural Rules, should a 
     claimant proceed to an administrative hearing, the parties 
     will continue to have a full and fair opportunity to litigate 
     over whether the claimant has satisfied the FRCP 12(b)(6) 
     pleading standard.
       We received a variety of comments regarding whether 
     amendments to the claim form should be permitted during the 
     preliminary review stage. The Board considered those 
     comments, as well as the purpose and scope of preliminary 
     review, and determined that no prejudice or undue delay would 
     result from adopting the suggestion made by one commenter 
     that claimants be allowed one amendment as of right within 15 
     days of the initial filing. Section 4.08(d) has been revised 
     accordingly. Section 4.08(e)(1) has also been revised to 
     provide that the Preliminary Hearing Officer must not issue 
     the preliminary review report until at least 20 days after 
     the claim form is filed, to ensure that the report is not 
     issued before the deadline for submitting an amended claim 
     form has passed.
       Several commenters suggested adding provisions for answers, 
     motions, and/or discovery before the Preliminary Hearing 
     Officer. The Board does not believe that allowing additional 
     pleadings, motions, or discovery during this stage would be 
     consistent with the limited purpose of preliminary review, 
     which is to determine whether a claimant may proceed to an 
     administrative hearing or must pursue his or her claims in 
     federal court. There is no indication in the statute that 
     Congress intended for the preliminary review by a Preliminary 
     Hearing Officer and subsequent administrative proceedings 
     before a Merits Hearing Officer to be duplicative processes 
     requiring the parties to litigate the same matter twice.
       One commenter suggested that the Preliminary Hearing 
     Officer's determinations should be appealable to the Board. 
     The statute does not grant the Board authority to review the 
     Preliminary Hearing Officer's determinations, and therefore 
     the Board declines to adopt that suggestion. Moreover, 
     nothing in the Act would permit the Board to toll the time 
     limit for filing a civil action pending the outcome of such 
     an appeal to the Board. Section 4.08(e)(5) has been added to 
     clarify that the preliminary review report is not subject to 
     appellate review by the Merits Hearing Officer or the Board.
       Another commenter suggested adding a provision to the 
     effect that the Preliminary Hearing Officer's report has no 
     evidentiary weight or preclusive effect on subsequent 
     administrative proceedings before a Merits Hearing Officer. 
     We agree, and we have added a subparagraph designated 
     4.08(e)(4) to incorporate that provision. It is the Board's 
     view that the limited purpose of the preliminary review is to 
     determine whether a claimant may request an administrative 
     hearing pursuant to section 405(a) of the Act.
       We received numerous comments suggesting that claimants 
     should not be allowed to pursue some claims through the OCWR 
     administrative process while pursuing others in federal 
     district court. We agree that bifurcation of claims in such a 
     manner is not practicable, efficient, or consistent with the 
     CAARA. One commenter suggested that if some claims on a claim 
     form pass the preliminary review but others do not, then a 
     claimant should be required to waive those claims that did 
     not pass preliminary review in order to pursue an 
     administrative hearing on those claims that did; most 
     commenters took the view that as long as a claimant has 
     succeeded at the preliminary review stage on at least one 
     claim, then the claimant should be allowed to request an 
     administrative hearing on all claims asserted in the claim 
     form. The Board agrees that as long as the Preliminary Review 
     Officer determines that the claimant is a covered employee 
     who has stated at least one claim for which relief may be 
     granted under the Act, then the employee may request a 
     hearing on all claims asserted in the claim form, and the 
     parties will be afforded a full and fair opportunity to 
     litigate those claims before the Merits Hearing Officer. 
     Accordingly, a new provision has been added to clarify the 
     effect of a Preliminary Hearing Officer's determination that 
     a claimant is a covered employee who has stated at least one 
     claim for which relief may be granted; that provision appears 
     at section 4.08(f) of the Rules, and the numbering of the 
     following subparagraphs in section 4.08 has been revised 
     accordingly.
       A paragraph has been added at section 4.09(c) providing for 
     notification of employing offices and Members who have the 
     right to intervene regarding the filing of a request for 
     administrative hearing. Subsequent paragraphs in section 4.09 
     have been renumbered accordingly.
       The proposed Procedural Rules did not address motions to 
     amend claim forms after the filing of a request for an 
     administrative hearing. A provision has been added regarding 
     amendments, and appears at section 4.09(e) of the Rules. 
     Subsequent paragraphs in section 4.09 have been renumbered 
     accordingly.
       Several commenters opposed the provision in the proposed 
     Procedural Rules that would reduce the time period for a 
     respondent to file an answer from 15 days to 10 days. Upon 
     further consideration, the Board agrees with these 
     commenters. The provision for answers to claim forms, which 
     is now located at section 4.09(f) of the Rules, has been 
     amended to reflect the 15-day deadline. Section 5.01(f) has 
     also been amended to reflect a 15-day deadline for 
     respondents to submit answers to complaints filed by the 
     General Counsel. Additionally, in response to a comment, the 
     language of section 4.09(f) has been modified to reflect that 
     the 15-day period begins to run as of the date that the 
     respondent is notified of the filing of the request for a 
     hearing, not the date that the request is filed.
       A few commenters suggested that the filing of a motion to 
     dismiss should stay the time period for filing an answer. The 
     Board feels that this determination should be left to the 
     discretion of the Merits Hearing Officer. Accordingly, 
     language from the proposed Rules stating that the filing of a 
     motion to dismiss does not stay the time period for filing an 
     answer has been removed. Corresponding language has also been 
     removed from section 5.01(f).
       Multiple commenters suggested that the Procedural Rules 
     specifically allow for respondents to state in an answer that 
     they lack sufficient knowledge to admit or deny specific 
     allegations, and that such a statement should constitute a 
     denial. We agree, and have added language to that effect in 
     section 4.09(f)(2). Corresponding language has also been 
     added to section 5.01(f)(2).
       For purposes of clarification, especially in light of the 
     many comments we received regarding the standard for 
     preliminary review, we have added provisions under section 
     4.10 to make clear that the Merits Hearing Officer may 
     dismiss claims for reasons equivalent to those specified in 
     Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). These 
     provisions parallel the provisions regarding dismissal of 
     complaints filed by the General Counsel under section 5.03 of 
     the Rules.
       Several commenters raised questions about the language in 
     section 4.10(b) of the proposed Rules regarding motions to 
     dismiss being treated as motions for summary judgment. The 
     language of that section has been modified and moved to 
     section 4.09(a) to clarify that motions to dismiss will be 
     treated as motions for summary judgment if matters outside 
     the pleadings are considered. New sections have been added to 
     clarify that parties still have the option to file motions to 
     dismiss and the Merits Hearing Officer has the authority to 
     dismiss claims based on the allegations set forth in the 
     claim form, prior to engaging in discovery; those provisions 
     are located at sections 4.09(g) and 4.10(a)-(b), and 
     subsequent paragraphs under section 4.10 have been renumbered 
     accordingly. Section 5.01(g), concerning motions to dismiss 
     complaints filed by the General Counsel, has been updated in 
     the same manner.
       One commenter suggested that section 4.10(e) of the 
     proposed Rules, which concerned the withdrawal of a 
     representative after an administrative hearing has been 
     requested, should be moved to section 1.07(c), which covers 
     designation of representatives. We agree, and have modified 
     those sections accordingly.
     Subpart F--Discovery and Subpoenas
       Several commenters observed that the proposed Rules at 
     section 6.01(a) retained a discovery standard from an 
     outdated version of the Federal Rules of Civil Procedure that 
     permitted discovery of nonprivileged information ``reasonably 
     calculated to lead to the discovery of admissible evidence.'' 
     The commenters suggested that, because OCWR Hearing Officers 
     frequently rely on case law interpreting the Federal Rules 
     when resolving discovery disputes under the CAA, section 
     6.01(a) should be updated to reflect the current standard 
     under Rule 26(b) which, among other things, requires 
     discovery requests to be relevant and proportional to the 
     needs of the case. We agree, and have revised section 6.01(a) 
     accordingly.
       The Board declines, however, to further amend the 
     Procedural Rules to incorporate specific timeframes or limits 
     on the forms or extent of discovery, or to more closely align 
     discovery under the Procedural Rules with discovery under the 
     Federal Rules of Civil Procedure. Administrative proceedings 
     under the CAA are intended to serve as a less formal, more 
     expeditious alternative to litigation in the federal courts 
     for resolving disputes. In the OCWR's experience, section 
     6.01 of the Rules--which grants the Merits Hearing Officer 
     the discretion to order reasonable prehearing discovery and 
     to issue orders setting forth the forms and extent of 
     discovery--is best suited to this purpose and to ensure that 
     discovery requests will be relevant and proportional to the 
     particular needs of each case.
     Subpart G--Hearings
       A commenter proposed that section 7.02(b)(4) be revised to 
     recognize the Merits

[[Page H4900]]

     Hearing Officer's discretion to dismiss an action in whole or 
     in part, with or without prejudice, when a claimant files a 
     claim that fails to meet the requirements of section 401(f) 
     of the Act. We agree, and have revised the Rule accordingly. 
     We have also revised section 7.02(b)(2) to recognize that the 
     Merits Hearing Officer has the same discretion if a party 
     fails to prosecute or defend a position.
       One commenter recommended that the prehearing procedures at 
     section 7.04 be modified to provide for two phases: the 
     initial establishment of a framework for prehearing 
     discovery, and subsequent preparation for a hearing, if any. 
     The commenter proposes two conferences: First, the Merits 
     Hearing Officer would conduct an initial conference soon 
     after the claimant requests an administrative hearing 
     pursuant to section 405 of the Act; during this conference, 
     the Merits Hearing Officer would establish an orderly process 
     for discovery and set a schedule for dispositive motions. 
     Second, after discovery has closed and shortly before the 
     commencement of the administrative hearing, the Merits 
     Hearing Officer would conduct a prehearing conference to 
     discuss the matters that were listed in section 7.04(d) of 
     the proposed Rules. We agree with the commenter that such a 
     modification would provide a more meaningful process for 
     prehearing discovery and hearing preparation. Section 7.04 
     has been revised accordingly.
       Several commenters proposed amending section 7.05, which 
     concerns scheduling the administrative hearing, to reflect 
     the new time limits set forth in the CAARA. We agree. As 
     amended by the CAARA, the CAA provides at section 405(d)(2) 
     that an administrative hearing must commence no later than 90 
     days after a claimant files a request for an administrative 
     hearing, and that this time limit may be extended by 30 days 
     upon mutual agreement of the parties or for good cause shown. 
     Paragraphs (a) and (b) of section 7.05 have been revised 
     accordingly.
       A commenter suggested that a new paragraph be added to 
     section 7.05 to expressly affirm that a Merits Hearing 
     Officer has the authority to open a hearing and stay 
     proceedings pending the resolution of dispositive motions and 
     other pretrial matters. The commenter further suggested that 
     section 7.05 should also expressly permit the Merits Hearing 
     Officer to open and stay proceedings for a reasonable amount 
     of time when jointly requested by the parties. We agree with 
     the commenter that, under existing practice, Hearing Officers 
     have the authority to open a hearing and stay proceedings 
     under the circumstances described above. This authority is 
     unaffected by the CAARA amendments, and the Board therefore 
     does not believe that it is necessary to amend section 7.05 
     in the manner proposed.
       A commenter recommended that section 7.07(f)--which grants 
     the Merits Hearing Officer the discretion to hold the hearing 
     without the claimant if the claimant's representative is 
     present--be amended to also grant the Merits Hearing Officer 
     the discretion to hold a hearing without the respondent if 
     the respondent's representative is present. The commenter 
     also proposed to revise section 7.07(f) to make allowances 
     for intervenor Members of Congress, whose presence throughout 
     the duration of a hearing may not be necessary and, in some 
     cases, may actually impede the progress of the hearing due to 
     the Member's need to fulfill his or her constitutional 
     duties. We agree with the commenter on both counts and have 
     amended section 7.07(f) in the manner suggested.
       A commenter suggested that section 7.16(e) be amended to 
     provide that, in the case of a decision in which an amount of 
     compensatory damages is found to be reimbursable as described 
     in section 7.16(c)(4) of the Rules, the OCWR shall promptly 
     provide a copy of the Merits Hearing Officer's written 
     decision to the Member responsible for that reimbursement, 
     regardless of whether the Member has intervened in the 
     action. We agree and have revised section 7.16(e) 
     accordingly.
     Subpart I--Other Matters of General Applicability
       One commenter suggested that section 9.01(b)(5), which 
     concerns the form of a motion for attorney's fees and costs, 
     be revised to require additional evidence of an established 
     attorney-client relationship only if a copy of the fee 
     agreement is not available. We agree, and have revised 
     section 9.01(b)(5) accordingly.
       A commenter objected to proposed section 9.01(c), which 
     would require the prevailing party in arbitration proceedings 
     to submit any request for attorney's fees and costs to the 
     arbitrator in accordance with the established arbitration 
     procedures. The commenter contends that OCWR's proposed rule 
     conflicts with the CAA. We disagree. Section 220(a) of the 
     CAA extends to employing offices, employees, and collective 
     bargaining representatives the rights, protections, and 
     responsibilities established under various portions of the 
     Federal Service Labor-Management Relations Statute 
     (``FSLMRS'') including 5 U.S.C. 7121-22, relating to 
     grievance arbitration. Under the FSLMRS, the entitlement to 
     attorney's fees is determined by reference to the Back Pay 
     Act. 5 U.S.C. 7701(g). The Federal Labor Relations Authority 
     has long recognized that the Back Pay Act confers 
     jurisdiction on an arbitrator to consider an attorney's fees 
     request filed after an arbitrator's decision awarding back 
     pay. Philadelphia Naval Shipyard & Philadelphia Metal Trades 
     Council, 32 F.L.R.A. 417 (1988); accord, Fraternal Order of 
     Police, U.S. Capitol Police Labor Comm. v. U.S. Capitol 
     Police, Case No. 17-ARB-04, 2018 WL 950096, *9 (OOC Feb. 15, 
     2018) (holding that arbitrator was authorized to award 
     attorney's fees in a case arising under section 220(a) of the 
     CAA). Section 9.01(c) clarifies that the proper procedure for 
     a party seeking an award of attorney's fees or costs in an 
     arbitration proceeding under the CAA is to submit the request 
     to the arbitrator in the first instance.
       A commenter suggested that section 9.03(a) of the proposed 
     Rules, which concerns informal resolution of disputes, would 
     improperly expand the scope of coverage of section 9.03(a) of 
     the existing Rules to place limits on an employing office and 
     a covered employee before that covered employee files a claim 
     with the OCWR. The commenter contends that this would be 
     inconsistent with section 414 of the Act, which only concerns 
     settlements entered into by the ``parties to a process'' 
     described in sections 210, 215, 220, or 401 of the CAA. We 
     agree with the commenter that section 9.03 should only 
     address resolutions between ``parties to a process'' under 
     section 414 of the Act, and that, in the case of alleged 
     violations of sections 102(c) or 201-207 of the Act, that 
     process begins when an employee files a claim form.
       Upon further consideration of section 9.03(a), the Board 
     has decided to eliminate the provisions of this section 
     concerning informal resolutions of disputes. Under section 
     414 of the Act, any settlement agreement entered into by 
     parties to a process must be in writing and approved by the 
     OCWR Executive Director. No mention is made of informal 
     resolutions in the CAA, and the Act makes no distinction 
     between agreements settling claims entered into before or 
     after the employee requests an administrative hearing. In 
     light of the foregoing, we believe that unnecessary confusion 
     would result if the OCWR includes in the Rules a provision 
     that concerns agreements outside the scope of section 414. 
     Rather, section 9.03 now emphasizes the statutory 
     requirements for settlement agreements under the CAA, 
     including the requirement that any agreement between the 
     parties that purports to create an obligation that is payable 
     from the account established by section 415(a) of the Act 
     must be in writing and approved by the OCWR Executive 
     Director.
       One commenter recommended that section 9.03 of the Rules 
     should clarify whether funds from the section 415(a) Treasury 
     Account are available to pay for disability-based claims, 
     such as a back pay award based on a finding of discrimination 
     due to a disability. Because section 415(c) of the Act 
     clearly sets forth the exceptions to the general rule that 
     only funds from the section 415(a) Treasury Account will be 
     used for the payment of any amount specified in an award or 
     settlement agreement, The Board declines to expand on these 
     exceptions in these Procedural Rules.
       A commenter noted that, although section 9.03 of the 
     Proposed Rules correctly states that certain section 201 and 
     206 claims are reimbursable under the CAARA, it should also 
     state that certain section 207 claims are also subject to the 
     new reimbursement requirement. Commenters also recommended 
     that section 9.03 should be amended to reflect the expanded 
     reimbursement requirements applicable to Members of Congress 
     under current House and Senate rules. We agree with these 
     recommendations, and we have revised this section 
     accordingly. We decline, however, to include citations to 
     specific House or Senate rules that currently require 
     reimbursement, as those rules are subject to modification.
       One commenter contends that section 9.04, which concerns 
     payments required pursuant to decisions, awards, or 
     settlements under section 415(a) of the Act, conflicts with 
     the Act because it requires employing offices, rather than 
     the OCWR, to pay awards and settlements under the CAA, and 
     because it permits the OCWR to circumvent certain tax 
     reporting obligations it incurs upon payment as the entity in 
     control of the section 415(a) Treasury Account. We disagree 
     for the reasons that follow.
       Section 415(a) of the CAA provides, in relevant part, that 
     ``only funds which are appropriated to an account of the 
     Office in the Treasury of the United States for the payment 
     of awards and settlements may be used for the payment of 
     awards and settlements under this chapter.'' Pursuant to 
     section 415(a), the OCWR, through its Executive Director, 
     prepares and processes requisitions for disbursements from 
     the Treasury account established pursuant to section 415(a) 
     when qualifying final decisions, awards, or approved 
     settlements require the payment of funds. Section 9.04 of the 
     Rules provides guidance for processing certifications of 
     payments from the funds appropriated to the section 415(a) 
     Treasury Account. These procedures are based on regulations 
     issued by the Department of the Treasury's Bureau of Fiscal 
     Services at 31 C.F.R. part 256 that provide guidance to 
     agencies in the executive branch for submitting requests for 
     payments from the Judgment Fund, which is a permanent, 
     indefinite appropriation that is available to pay many 
     judicially and administratively ordered monetary awards 
     against the United States.
       Like the Judgment Fund, the Section 415(a) Treasury Account 
     is a permanent, indefinite appropriation intended to pay 
     settlements and awards, including back pay awards, occasioned 
     by agency liability imposed by a statute. It is clear that 
     under existing appropriations law, an employing office must 
     use funds from the section 415(a) Treasury account to pay 
     awards and settlements under the CAA, and the Rules set

[[Page H4901]]

     forth the proper procedures for complying with this mandate. 
     In the OCWR's view, section 415(b), which ``authorizes to be 
     appropriated such sums as may be necessary for 
     administrative, personnel, and similar expenses of employing 
     offices which are needed to comply with'' the CAA, requires 
     employing offices, and not the OCWR, to perform these 
     administrative payment functions, including ensuring proper 
     tax withholding and reporting, and to pay the expenses 
     related to these functions.
       Several commenters suggested that section 9.04 be modified 
     to recognize that the employing offices of the House and the 
     Senate are not actively involved in administering finances or 
     disbursing payments, including making payments required by 
     decisions, awards, or settlements pursuant to section 415 of 
     the CAA. We agree, and we have amended section 9.04 to 
     clarify that employing offices or their designated payroll 
     administrators or disbursing offices may submit payment 
     requests to the OCWR.
       The Board declines to follow one commenter's recommendation 
     to withdraw sections 9.04(d) of the Rules concerning back 
     pay, as well as section 9.04(f) concerning tax reporting and 
     withholding obligations, until language consistent with the 
     statutes, rules, regulations, and procedures of both the 
     Senate and the OCWR can be determined. Instead, the Board has 
     amended section 9.04(d) to provide several options to 
     employing offices for disbursement of back pay, including 
     disbursement ``pursuant to a method mutually agreed upon by 
     the OCWR and the employing office, payroll administrator, or 
     disbursing office, as applicable.'' The OCWR welcomes this 
     commentator's invitation to work with it, as well as other 
     payroll administrators and disbursing offices, to craft 
     methods that are consistent with statutes, rules, 
     regulations, and procedures related to payroll 
     administration.
       Several commenters also suggested that the OCWR seek a 
     formal determination from the Comptroller General to ensure 
     that the provisions of section 4.09 are consistent with 
     governing appropriations law principles. The Board agrees, 
     and the OCWR will seek such a determination. Any resulting 
     amendments to section 4.09 will be effected pursuant to the 
     notice and comment procedures set forth in section 303 of the 
     Act, 2 U.S.C. 1383.
     Explanation Regarding the Text of the Proposed Amendments
       Only subsections of the Procedural Rules that include 
     proposed amendments are reproduced in this NOTICE. The 
     insertion of a series of five asterisks (* * * * *) indicates 
     that a whole section or paragraph, including its subordinate 
     sections paragraphs, is unchanged, and has not been 
     reproduced in this document. The insertion of a series of 
     three asterisks (* * *) indicates that the unamended text of 
     higher level sections or paragraphs remain unchanged when 
     text is changed at a subordinate level, or that preceding or 
     remaining sentences in a paragraph are unchanged. For the 
     text of other portions of the Procedural Rules which are not 
     proposed to be amended, please access the Office of 
     Congressional Workplace Rights public website at 
     www.ocwr.gov.

 ADOPTED AMENDMENTS

                          SUBPART A--[AMENDED]

       1. Subpart A has been amended to read as follows:
     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 Filing, Service, and Size Limitations of Motions, 
         Briefs, Responses, and Other Documents
     Sec. 1.05 Signing of Pleadings, Motions, and Other Filings; 
         Violation of Rules; Sanctions
     Sec. 1.06 Availability of Official Information
     Sec. 1.07 Designation of Representative; Revocation of 
         Designation
     Sec. 1.08 Confidentiality
     Sec. 1.01 Scope and Policy.
       These Rules of the Office of Congressional Workplace Rights 
     (OCWR) govern the procedures for considering and resolving 
     alleged violations of the laws made applicable by the 
     Congressional Accountability Act of 1995 (CAA), as amended by 
     the Congressional Accountability Act of 1995 Reform Act of 
     2018 (CAARA). The Rules include definitions and procedures 
     for seeking confidential advice, filing a claim with the 
     OCWR, and participating in administrative dispute resolution 
     proceedings at the OCWR. The Rules also address the 
     procedures for occupational safety and health inspections, 
     investigations, and enforcement. The Rules include procedures 
     for the conduct of hearings held as a result of the filing of 
     a claim or complaint and for appeals to the OCWR Board of 
     Directors from Merits Hearing Officers' decisions, as well as 
     other matters of general applicability to the dispute 
     resolution process and to the OCWR's operations. It is the 
     OCWR's policy 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, the following 
     are the definitions of terms used in these Rules:
       (a) Act.--The term ``Act'' means the Congressional 
     Accountability Act of 1995, as amended by the Congressional 
     Accountability Act of 1995 Reform Act of 2018.
       (b) Board.--The term ``Board'' means the Board of Directors 
     of the Office of Congressional Workplace Rights.
       (c) Chair.--The term ``Chair'' means the Chair of the Board 
     of Directors of the Office of Congressional Workplace Rights.
       (d) Claim.--The term ``claim'' means the allegations of 
     fact that the claimant contends constitute a violation of 
     sections 102(c) or 201-207 of the Act.
       (e) Claim Form.--The term ``claim form'' means the written 
     pleading filed by an individual or his or her designated 
     representative to initiate proceedings with the Office of 
     Congressional Workplace Rights, which describes the facts and 
     law supporting one or more alleged violations of section 
     102(c) or 201-207 of the Act.
       (f) Claimant.--The term ``claimant'' means the individual 
     filing a claim form with the Office of Congressional 
     Workplace Rights, or on whose behalf a claim is filed by a 
     designated representative.
       (g) Complaint.--The term ``complaint'' means the written 
     pleading filed with the Office of Congressional Workplace 
     Rights by the General Counsel, which describes the facts and 
     law supporting the alleged violation of sections 210, 215, or 
     220 of the Act.
       (h) Confidential Advisor.--The term ``Confidential 
     Advisor'' means, pursuant to section 302 of the Act, a lawyer 
     appointed or designated by the Executive Director to offer to 
     provide covered employees certain services, on a privileged 
     and confidential basis, which a covered employee may accept 
     or decline. A Confidential Advisor is not the covered 
     employee's designated representative.
       Covered Employee.--see ``Employee, Covered,'' below.
       (i) 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.
       (j) Direct Act.--The term ``direct act,'' with regard to a 
     Library claimant, means a statute (other than the Act) that 
     is specified in sections 201, 202, or 203 of the Act.
       (k) Direct Provision.--The term ``direct provision,'' with 
     regard to a Library claimant, means a direct act provision 
     (including a definitional provision) that applies the rights 
     or protections of a direct act (including the rights and 
     protections relating to non-retaliation or non-coercion).
       (l) Employee.--The term ``employee'' includes an applicant 
     for employment and a former employee.
       (m) Employee, Covered.--The term ``covered employee'' 
     means:
       (1) any employee of the House of Representatives;
       (2) any employee of the Senate;
       (3) any employee of the Office of Congressional 
     Accessibility Services;
       (4) any employee of the Capitol Police;
       (5) any employee of the Congressional Budget Office;
       (6) any employee of the Office of the Architect of the 
     Capitol;
       (7) any employee of the Office of the Attending Physician;
       (8) any employee of the Office of Congressional Workplace 
     Rights;
       (9) any employee of the Office of Technology Assessment;
       (10) any employee of the Library of Congress, except for 
     purposes of section 220 of the Act;
       (11) any employee of the John C. Stennis Center for Public 
     Service Training and Development;
       (12) any employee of the China Review Commission, the 
     Congressional Executive China Commission, or the Helsinki 
     Commission;
       (13) to the extent provided by sections 204-207 and 215 of 
     the Act, any employee of the Government Accountability 
     Office; or
       (14) unpaid staff, as defined below in section 1.02(r) of 
     these Rules.
       (n) 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.
       (o) Employee of the Capitol Police.--The term ``employee of 
     the Capitol Police'' includes civilian employees and any 
     member or officer of the Capitol Police.
       (p) 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 Chief Administrative Officer of the House of 
     Representatives, or another official designated by the House 
     of Representatives, or any employment position in an entity 
     that is paid with funds derived from the clerk-hire allowance 
     of the House of Representatives, but not any such individual 
     employed by any entity listed in subparagraphs (3) through 
     (13) of paragraph (m) above.
       (q) Employee of the Senate.--The term ``employee of the 
     Senate'' includes any employee whose pay is disbursed by the 
     Secretary of the Senate, but not any such individual employed 
     by any entity listed in subparagraphs (3) through (13) of 
     paragraph (m) above.
       (r) Employee, Unpaid Staff.--The terms ``unpaid staff'' and 
     ``unpaid staff member'' mean any staff member of an employing 
     office who carries out official duties of the employing 
     office but who is not paid by the employing office for 
     carrying out such duties, including an intern, an individual 
     detailed to an employing office, and an individual 
     participating in a fellowship program. This definition 
     includes a former unpaid staff member, if the act(s) that may 
     be a violation of section 201(a) of the Act occurred during 
     the

[[Page H4902]]

     service of the former unpaid staff member for the employing 
     office.
       (s) Employing Office.--The term ``employing office'' means:
       (1) the personal office of a Member of the House of 
     Representatives or a Senator;
       (2) a committee of the House of Representatives or the 
     Senate or a joint committee;
       (3) any other office headed by a person with the final 
     authority to appoint, hire, discharge, and set the terms, 
     conditions, or privileges of the employment of an employee of 
     the House of Representatives or the Senate;
       (4) the 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 Congressional Workplace Rights;
       (5) the Library of Congress, except for section 220 of the 
     Act;
       (6) the John C. Stennis Center for Public Service Training 
     and Development, the Office of Technology Assessment, the 
     China Review Commission, the Congressional Executive China 
     Commission, and the Helsinki Commission; or
       (7) to the extent provided by sections 204-207 and 215 of 
     the Act, the Government Accountability Office.
       (t) Executive Director.--The term ``Executive Director'' 
     means the Executive Director of the Office of Congressional 
     Workplace Rights.
       (u) Final Disposition.--The term ``final disposition'' 
     under section 416(d) of the Act means any of the following:
       (1) an order or agreement to pay an award or settlement, 
     including an agreement reached pursuant to mediation under 
     section 404 of the Act;
       (2) a final decision of a Merits Hearing Officer under 
     section 405(g) of the Act that is no longer subject to review 
     by the Board under section 406;
       (3) a final decision of the Board under section 406(e) of 
     the Act that is no longer subject to appeal to the United 
     States Court of Appeals for the Federal Circuit under section 
     407; or
       (4) a final decision in a civil action under section 408 of 
     the Act that is no longer subject to appeal.
       (v) General Counsel.--The term ``General Counsel'' means 
     the General Counsel of the Office of Congressional Workplace 
     Rights.
       (w) Hearing.--A ``hearing'' means an administrative hearing 
     as provided in section 405 of the Act, subject to Board 
     review as provided in section 406 of the Act and judicial 
     review in the United States Court of Appeals for the Federal 
     Circuit as provided in section 407 of the Act.
       (x) Hearing Officer.--The term ``Hearing Officer'' means 
     any individual appointed by the Executive Director to preside 
     over administrative proceedings within the Office of 
     Congressional Workplace Rights.
       (y) Hearing Officer, Merits.--The term ``Merits Hearing 
     Officer'' means any individual appointed by the Executive 
     Director to preside over an administrative hearing conducted 
     on matters within the Office's jurisdiction under section 405 
     of the Act.
       (z) Hearing Officer, Preliminary.--The term ``Preliminary 
     Hearing Officer'' means an individual appointed by the 
     Executive Director to make a preliminary review of claim(s) 
     filed, and to issue a preliminary review report on such 
     claim(s), as provided in section 403 of the Act.
       (aa) Intern.--The term ``intern,'' for purposes of section 
     201(a) and (b) of the Act, means an individual who, for an 
     employing office, performs service which is uncompensated by 
     the United States to earn credit awarded by an educational 
     institution or to learn a trade or occupation, and includes 
     any individual participating in a page program operated by 
     any House of Congress.
       (bb) Library Claimant.--A ``Library claimant'' is a covered 
     employee of the Library of Congress who initially brings a 
     claim, complaint, or charge under a direct provision for a 
     proceeding before the Library of Congress and who may, prior 
     to requesting a hearing under the Library of Congress's 
     procedures, elect to--
       (1) continue with the Library of Congress' procedures and 
     preserve the option (if any) to bring any civil action 
     relating to the claim, complaint, or charge, that is 
     available to the Library claimant; or
       (2) file a claim with the Office under section 402 of the 
     Act and continue with the corresponding procedures of this 
     Act available and applicable to a covered employee.
       (cc) Library Visitor.--The term ``Library visitor'' means 
     an individual who is eligible to allege a violation under 
     title II or III of the Americans with Disabilities Act of 
     1990 (other than a violation for which the exclusive remedy 
     is under section 201 of the Act) against the Library of 
     Congress.
       (dd) Member or Member of Congress.--The terms ``Member'' 
     and ``Member of Congress'' mean a United States Senator, a 
     Representative in the House of Representatives, a Delegate to 
     Congress, or the Resident Commissioner from Puerto Rico.
       Merits Hearing Officer.--see ``Hearing Officer, Merits,'' 
     above.
       (ee) Office.--The term ``Office'' means the Office of 
     Congressional Workplace Rights.
       (ff) Party.--The term ``party'' means:
       (1) a covered employee or employing office in a proceeding 
     to address an alleged violation of sections 102(c) or 201-207 
     of the Act;
       (2) a charging individual, an entity alleged to be 
     responsible for correcting a violation, or the General 
     Counsel in a proceeding under section 210 of the Act;
       (3) a covered employee, an employing office, or the General 
     Counsel in a proceeding under section 215 of the Act;
       (4) a labor organization, an employing office or entity, or 
     the General Counsel in a proceeding under section 220 of the 
     Act; or
       (5) any individual, employing office, or Member of Congress 
     that has intervened in a proceeding pursuant to the Act or 
     these Rules.
       Preliminary Hearing Officer.--see ``Hearing Officer, 
     Preliminary,'' above.
       (gg) Mediator.--The term ``Mediator'' means an individual 
     appointed by the Executive Director as an independent neutral 
     who serves in a confidential, interactive process 
     communicating with the parties jointly or separately in an 
     attempt to achieve a mutually acceptable resolution of a 
     claim. The Mediator cannot serve in any other capacity with 
     respect to a claim in connection with which he or she has 
     been appointed to conduct mediation.
       (hh) Respondent.--The term ``respondent'' means the party 
     against which a claim, a complaint, or a petition is filed.
       (ii) Senior Staff.--The term ``senior staff,'' for purposes 
     of the reporting requirement to the House and Senate Ethics 
     Committees under the Act, means any individual who is 
     employed in the House of Representatives or the Senate who, 
     at the time a violation occurred, was required to file a 
     report under title I of the Ethics in Government Act of 1978 
     (5 U.S.C. App. 101 et seq.).
       Unpaid Staff.--see ``Employee, Unpaid Staff,'' above.
     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. The filing 
     of all documents is subject to the limitations set forth 
     below. The Board, Hearing Officers, 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.
       (1) In Person.--A document shall be deemed timely filed if 
     it is hand delivered to the Office at: Adams Building, Room 
     LA-200, 110 Second Street, SE, Washington, D.C. 20540-1999, 
     before 5:00 p.m. Eastern Time on the last day of the 
     applicable time period.
       (2) By Mail.--Documents are deemed filed on the date of 
     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. Absent 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, SE, Washington, D.C. 20540-1999, by mail 
     within five (5) days of the expiration of the applicable 
     filing period.
       (3) By Fax.--Documents transmitted by fax machine will be 
     deemed filed on the date received at the Office at 202-426-
     1913, or on the date received at the Office of the General 
     Counsel at 202-426-1663 if received by 11:59 p.m. Eastern 
     Time. Faxed documents received after 11:59 p.m. Eastern Time 
     will be deemed filed the following business day. A fax filing 
     will be timely only if the document is received no later than 
     11:59 p.m. Eastern Time on the last day of the applicable 
     filing period. Any party using a fax machine to file a 
     document is responsible for ensuring both that the document 
     is timely and accurately transmitted and confirming that the 
     Office has received a facsimile of the document. 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 filing date is determined by the 
     date the brief, motion, response, or supporting memorandum is 
     received in the Office, rather than by the date the 
     attachments are 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] or 
     [email protected], if received by 11:59 p.m. Eastern Time. 
     Documents received electronically after 11:59 p.m. Eastern 
     Time will be deemed filed the following business day. An 
     electronic filing will be timely only if the document is 
     received no later than 11:59 p.m. Eastern Time on the last 
     day of the applicable filing period. Any party filing a 
     document electronically is responsible for ensuring both that 
     the document is timely and accurately transmitted and for 
     confirming that the Office has received the document. The 
     time displayed as received by the Office will be used to show 
     the time that the document has been filed. When the Office 
     serves a document electronically, the time displayed as sent 
     by the Office will be used to show the time that the document 
     was served. The time displayed as received or sent by the 
     Office will be based

[[Page H4903]]

     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.
       (c) Computation of Time.--All time periods in these Rules 
     that are stated in terms of days are calendar days unless 
     otherwise noted. However, when the period of time prescribed 
     is five (5) days or less, intermediate Saturdays, Sundays, 
     Federal government holidays, and other full days that the 
     Office is officially closed for business shall be excluded in 
     the computation. To compute the number of days for taking any 
     action required or permitted under these Rules, the first day 
     shall be the day after the event from which the time period 
     begins to run and the last day for filing or service shall be 
     included in the computation. When the last day falls on a 
     Saturday, Sunday, 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.
       (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 mail, 5 
     days shall be added to the prescribed period. 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.
     Sec. 1.04 Filing, Service, and Size Limitations of Motions, 
         Briefs, Responses, and Other Documents.
       (a) Filing with the Office; Number and Form.--One copy of 
     claims, General Counsel complaints, requests for mediation, 
     requests for inspection under OSH, unfair labor practice 
     charges, charges under titles II and III of the Americans 
     with Disabilities Act of 1990, all motions, briefs, 
     responses, and other documents must be filed with the Office. 
     A party may file an electronic version of any submission in a 
     manner designated by the Board, the Executive Director, the 
     General Counsel, or the Merits Hearing Officer, with receipt 
     confirmed by electronic transmittal in the same manner.
       (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 a request for advising, a 
     request for mediation, or a claim. 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.
       (c) Time Limitations for Response to Motions or Briefs and 
     Reply.--Unless otherwise specified by the Merits Hearing 
     Officer or these Rules, a party shall file and serve 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 Merits Hearing 
     Officer's advance approval may either party file additional 
     responses or replies.
       (d) Size Limitations.--Except as otherwise specified, no 
     brief, motion, response, or supporting memorandum filed with 
     the Office shall exceed 35 double-spaced pages, exclusive of 
     the table of contents, table of authorities, and attachments. 
     Footnotes, endnotes, and block quotes may be single-spaced. 
     The Board, the Executive Director, or the Merits Hearing 
     Officer may modify this limitation upon motion and for good 
     cause shown, or on their own initiative. Briefs, motions, 
     responses, and supporting memoranda shall be on standard 
     letter-size paper (8\1/2\" x 11") and shall use a font size 
     no smaller than 12-point. If a filing exceeds 35 double-
     spaced pages, the Board, the Executive Director, or the 
     Merits Hearing Officer may, in their discretion, reject the 
     filing in whole or in part, and may provide the parties an 
     opportunity to refile.
     Sec. 1.05 Signing of Pleadings, Motions, and Other Filings; 
         Violation of Rules; Sanctions.
       (a) Signing.--Every pleading, motion, and other filing of a 
     party represented by an attorney or other designated 
     representative shall be signed by the attorney or 
     representative, except that a claim form must be signed by 
     the claimant under oath or affirmation pursuant to section 
     4.04(c) of these Rules. 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, and that to the best of 
     the signer's knowledge, information, and belief formed after 
     reasonable inquiry, each of the following is correct:
       (1) it is not presented for any improper purpose, such as 
     to harass, cause unnecessary delay, or needlessly increase 
     the cost of resolution of the matter;
       (2) the claims, defenses, and other legal contentions the 
     party advocates are warranted by existing law or by a 
     nonfrivolous argument for extending, modifying, or reversing 
     existing law or for establishing new law;
       (3) the factual contentions have evidentiary support or, if 
     specifically so identified, will likely have evidentiary 
     support after a reasonable opportunity for further review or 
     discovery; and
       (4) the denials of factual contentions are warranted on the 
     evidence or, if specifically so identified, are reasonably 
     based on belief or a lack of information.
       (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 their own 
     initiative, may impose an appropriate sanction, which may 
     include the sanctions specified in section 7.02 of these 
     Rules.
     Sec. 1.06 Availability of Official Information.
       (a) Policy.--It is the policy of the Board, the 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.
       (b) Availability.--Any person may examine and copy items 
     described in paragraph (a) above at the Office of 
     Congressional Workplace Rights, Adams Building, Room LA-200, 
     110 Second Street SE, Washington, D.C. 20540-1999, under 
     conditions prescribed by the Office, including requiring 
     payment for copying costs, and at reasonable times during 
     normal working hours so long as it does not interfere with 
     the efficient operations of the Office. As ordered by the 
     Board, the Office may withhold or place under seal 
     identifying details or other necessary matters, and, in each 
     case, the reason for the withholding or sealing shall be 
     stated in writing.
       (c) Copies of Forms.--Copies of blank forms prescribed by 
     the Office for the filing of claims, complaints, and other 
     actions or requests may be obtained from the Office or online 
     at www.ocwr.gov.
 (d) Final Decisions.--Pursuant to section 416(e) of the 
     Act, a final decision entered by a Hearing Officer or by the 
     Board under section 405(g) or 406(e) of the Act that is in 
     favor of the claimant, or is in favor of the charging party 
     under section 210 of the Act, or reverses a Hearing Officer's 
     decision which had been in favor of a claimant or charging 
     party, shall be made public. The Board may make public any 
     other decision at its discretion.
       (e) Release of Records for Judicial Action.--The records of 
     Hearing Officers and the Board may be made public if required 
     for the purpose of judicial review under section 407 of the 
     Act.
     Sec. 1.07 Designation of Representative; Revocation of 
         Designation.
       (a) Designation of Representative.--A party wishing to be 
     represented must file with the Office a written notice of 
     designation of representative. 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. No more than one 
     representative, 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.
       (b) Service When There is a Representative.--Service of 
     documents shall be on the representative unless and until 
     such time as the represented party or representative, with 
     notice to the party, notifies the Executive Director in 
     writing of a modification or revocation of the designation of 
     representative. Where a designation of representative is in 
     effect, all time limitations for receipt of materials shall 
     be computed in the same manner as for those who are 
     unrepresented, with service of the documents, however, 
     directed to the representative.
       (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. A 
     representative who withdraws after an administrative hearing 
     has been requested under section 405 of the Act must provide 
     sufficient notice to the Merits Hearing Officer and the 
     parties of record of his or her withdrawal from the case. The 
     revocation will be deemed effective the date of receipt by 
     the Office. Consistent with any applicable statutory time 
     limit, 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. Until the party 
     designates another representative in writing, the party will 
     be regarded as appearing pro se.
     Sec. 1.08 Confidentiality.
       (a) Policy.--Except as provided in sections 302(d) and 
     416(c), (d), and (e) of the Act, the Office shall maintain 
     confidentiality in the confidential advising process, 
     mediation, and the proceedings and deliberations of Hearing 
     Officers and the Board in accordance with sections 
     302(d)(2)(B) and 416(a)-(b) of the Act.
       (b) Participant.--For the purposes of this rule, 
     ``participant'' means an individual or

[[Page H4904]]

     entity who takes part as either a covered employee, party, 
     witness, or designated representative in confidential 
     advising under section 302(d) of the Act, mediation under 
     section 404, the claim and hearing process under section 405, 
     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 
     the confidential advising process, mediation, or other 
     proceedings made confidential under section 416 of the Act 
     may disclose a written or an oral communication that is 
     prepared for the purpose of or that occurs during the 
     confidential advising process, mediation, or the proceedings 
     or deliberations of Hearing Officers or the Board.
       (d) Exceptions.--Nothing in these Rules prohibits a party 
     or its representative from disclosing information obtained in 
     mediation or hearings 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 disclosures between a party and that party's 
     designated representative, provided that the party or 
     designated representative to whom the information is 
     disclosed maintains the confidentiality of such information. 
     These Rules do not preclude a Mediator from consulting with 
     the Office, except that when the covered employee is an 
     employee of the Office, a Mediator shall not consult with any 
     individual within the Office who is or who might be a party 
     or witness. These Rules do not preclude the Office from 
     reporting information to the Senate and House of 
     Representatives as required by the Act.
       (e) Contents or Records of Mediation or Hearings.--For the 
     purpose of this rule, the contents or records of the 
     confidential advising process, 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 mediation or hearing. 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, a claimant 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 claimant may be disclosed by that claimant, 
     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 the mediation and hearing at the time they 
     became participants of the confidentiality requirements of 
     section 416 of the Act and that sanctions may be imposed by a 
     Hearing Officer for a violation of those requirements. No 
     sanctions may be imposed except for good cause, the 
     particulars of which must be stated in the sanction order.

                          SUBPART B--[AMENDED]

       2. Subpart B has been amended by:
       (a) Removing sections 2.01 through 2.07; and
       (b) Reserving subpart B for rules concerning ``Compliance, 
     Investigation, and Enforcement under Section 210 of the Act 
     (ADA Public Services)--Inspections and Complaints''

                 SUBPART C--[REDESIGNATED AND AMENDED]

       3. Subpart C has been amended by:
       (a) Redesignating subpart D as subpart C, and amending the 
     references as indicated in the table below:

------------------------------------------------------------------------
            Old Section                          New Section
------------------------------------------------------------------------
                      4.01                                 3.01
                      4.02                                 3.02
                      4.03                                 3.03
                      4.04                                 3.04
                      4.05                                 3.05
                      4.06                                 3.06
                      4.07                                 3.07
                      4.08                                 3.08
                      4.09                                 3.09
                      4.10                                 3.10
                      4.11                                 3.11
                      4.12                                 3.12
                      4.13                                 3.13
                      4.14                                 3.14
                      4.15                                 3.15
                      4.20                                 3.20
                      4.21                                 3.21
                      4.22                                 3.22
                      4.23                                 3.23
                      4.24                                 3.24
                      4.25                                 3.25
                      4.26                                 3.26
                      4.27                                 3.27
                      4.28                                 3.28
                      4.29                                 3.29
                      4.30                                 3.30
                      4.31                                 3.31
------------------------------------------------------------------------

       (b) In subpart C, when referencing sections 4.01 through 
     4.15 or 4.20 through 4.31, writing the corresponding new 
     section number as indicated in the table above.
       (c) Amending redesignated section 3.07 by revising the last 
     sentence of paragraph (g)(1) as follows:

                           *   *   *   *   *

     Sec. 3.07 Conduct of Inspections.

                           *   *   *   *   *

       (g) Trade Secrets.
       (1) * * * In any such proceeding the Merits Hearing Officer 
     or the Board shall issue such orders as may be appropriate to 
     protect the confidentiality of trade secrets.
       (d) Amending redesignated section 3.14 by revising the 
     second sentence of paragraph (b) as follows:
     Sec. 3.14 Failure to Correct a Violation for Which a Citation 
         Has Been Issued; Notice of Failure to Correct Violation; 
         Complaint.

                           *   *   *   *   *

       (b) * * * The complaint shall be submitted to a Merits 
     Hearing Officer for decision pursuant to subsections (b) 
     through (h) of section 405 of the Act, subject to review by 
     the Board pursuant to section 406. * * *
       (e) Amending redesignated section 3.22 by revising the 
     second sentence as follows:
     Sec. 3.22 Effect of Variances.
       * * * In its discretion, the Board may decline to entertain 
     an application for a variance on a subject or issue 
     concerning which a citation has been issued to the employing 
     office involved and a proceeding on the citation or a related 
     issue concerning a proposed period of abatement is pending 
     before the General Counsel, a Merits Hearing Officer, or the 
     Board until the completion of such proceeding.
       (f) Amending redesignated section 3.25 by:
       (i) Revising the second sentence of paragraph (a); and
       (ii) Revising the second sentence of paragraph (c)(1).
       The revisions read as follows:
     Sec. 3.25 Applications for Temporary Variances and Other 
         Relief.
       (a) Application for Variance. * * * Pursuant to section 
     215(c)(4) of the Act, the Board shall refer any matter 
     appropriate for hearing to a Merits Hearing Officer under 
     subsections (b) through (h) of section 405, subject to review 
     by the Board pursuant to section 406. * * *

                           *   *   *   *   *

       (c) Interim Order.
       (1) Application. * * * The Merits Hearing Officer to whom 
     the Board has referred the application may rule ex parte upon 
     the application.

                           *   *   *   *   *

       (g) Amending redesignated section 3.26 by:
       (i) Revising the second sentence of paragraph (a); and
       (ii) Revising the second sentence of paragraph (c)(1).
       The revisions read as follows:
     Sec. 3.26 Applications for Permanent Variances and Other 
         Relief.
       (a) Application for Variance. * * * Pursuant to section 
     215(c)(4) of the Act, the Board shall refer any matter 
     appropriate for hearing to a Merits Hearing Officer under 
     subsections (b) through (h) of section 405, subject to review 
     by the Board pursuant to section 406.

                           *   *   *   *   *

       (c) Interim Order.
       (1) Application. * * * The Merits Hearing Officer to whom 
     the Board has referred the application may rule ex parte upon 
     the application.

                           *   *   *   *   *

       (h) Amending redesignated section 3.28 by revising 
     paragraph (a)(1) as follows:
     Sec. 3.28 Action on Applications.
       (a) Defective Applications.
       (1) If an application filed pursuant to sections 3.25(a), 
     3.26(a), or 3.27 of these Rules does not conform to the 
     applicable section, the Merits Hearing Officer or the Board, 
     as applicable, may deny the application.

                           *   *   *   *   *

       (i) Amending redesignated section 3.29 by revising it as 
     follows:
     Sec. 3.29 Consolidation of Proceedings.
       On the motion of the Merits Hearing Officer or the Board or 
     that of any party, the Merits Hearing Officer or the Board 
     may consolidate or contemporaneously consider two or more 
     proceedings which involve the same or closely related issues.
       (j) Amending redesignated section 3.30 by
       (i) Revising the second sentence of paragraph (a)(1);
       (ii) Revising paragraph (b)(3);
       (iii) Revising paragraph (c); and
       (iv) Revising paragraph (d).
       The revisions read as follows:
     Sec. 3.30 Consent Findings and Rules or Orders.
       (a) General. * * * The allowance of such opportunity and 
     the duration thereof shall be in the discretion of the Merits 
     Hearing Officer, after consideration of the nature of the 
     proceeding, the requirements of the public interest, the 
     representations of the parties, and the probability of an 
     agreement which will result in a just disposition of the 
     issues involved.
       (b) Contents. Any agreement containing consent findings and 
     rule or order disposing of a proceeding shall also provide:

                           *   *   *   *   *

       (3) a waiver of any further procedural steps before the 
     Merits Hearing Officer and the Board; and

                           *   *   *   *   *

       (c) Submission. On or before the expiration of the time 
     granted for negotiations, the parties or their counsel may:
       (1) submit the proposed agreement to the Merits Hearing 
     Officer for his or her consideration; or

[[Page H4905]]

       (2) inform the Merits Hearing Officer that agreement cannot 
     be reached.
       (d) Disposition. In the event an agreement containing 
     consent findings and rule or order is submitted within the 
     time allowed therefor, the Merits Hearing Officer may accept 
     such agreement by issuing his or her decision based upon the 
     agreed findings.
       (k) Amending redesignated section 3.31 by revising 
     paragraph (a) as follows:
     Sec. 3.31 Order of Proceedings and Burden of Proof.
       (a) Order of Proceeding. Except as may be ordered otherwise 
     by the Merits Hearing Officer, the party applicant for relief 
     shall proceed first at a hearing.

                           *   *   *   *   *


                          SUBPART D--[AMENDED]

       4. Subpart D has been amended as follows:

  Subpart D--Claims Procedures Applicable to Consideration of Alleged 
    Violations of Sections 102(c) and 201-207 of the Congressional 
 Accountability Act of 1995, as amended by the CAA Reform Act of 2018.

     Sec. 4.01 Matters Covered by this Subpart
     Sec. 4.02 Requests for Advice and Information
     Sec. 4.03 Confidential Advising Services
     Sec. 4.04 Claims
     Sec. 4.05 Right to File a Civil Action
     Sec. 4.06 Initial Processing and Transmission of Claim; 
         Notification Requirements
     Sec. 4.07 Mediation
     Sec. 4.08 Preliminary Review of Claim
     Sec. 4.09 Request for Administrative Hearing
     Sec. 4.10 Dismissal, Summary Judgment, and Withdrawal of 
         Claim
     Sec. 4.11 Confidentiality
     Sec. 4.12 Automatic Referral to Congressional Ethics 
         Committees
     Sec. 4.01 Matters Covered by this Subpart.
       (a) These Rules govern the processing of any allegation 
     that sections 102(c) or 201 through 206 of the Act have been 
     violated and any allegation of intimidation or reprisal 
     prohibited under section 207 of the Act. Sections 102(c) and 
     201-206 of the Act apply to covered employees and employing 
     offices certain rights and protections of the following laws:
       (1) the Fair Labor Standards Act of 1938
       (2) title VII of the Civil Rights Act of 1964
       (3) title I of the Americans with Disabilities Act of 1990
       (4) the Age Discrimination in Employment Act of 1967
       (5) the Family and Medical Leave Act of 1993
       (6) the Employee Polygraph Protection Act of 1988
       (7) the Worker Adjustment and Retraining Notification Act
       (8) the Rehabilitation Act of 1973
       (9) chapter 43 (relating to veterans' employment and re-
     employment) of title 38, United States Code
       (10) chapter 35 (relating to veterans' preference) of title 
     5, United States Code
       (11) the Genetic Information Nondiscrimination Act of 2008
       (b) This subpart applies to the covered employees and 
     employing offices as defined in sections 1.02(m) and 1.02(s) 
     of these Rules and any activities within the coverage of 
     sections 102(c) and 201-207 of the Act and referenced above 
     in section 4.01(a) of these Rules.
     Sec. 4.02 Requests for Information.
       At any time, an employee or an employing office may seek 
     from the Office information on the protections, rights, 
     responsibilities, and available procedures under the Act. The 
     Office will maintain the confidentiality of requests for such 
     information.
     Sec. 4.03 Confidential Advising Services.
       (a) Appointment or Designation of Confidential Advisors. 
     The Executive Director shall appoint or designate one or more 
     Confidential Advisors to carry out the duties set forth in 
     section 302(d)(2) of the Act.
       (1) Qualifications. A Confidential Advisor appointed or 
     designated by the Executive Director must be a lawyer who is 
     admitted to practice before, and is in good standing with, 
     the bar of a State or territory of the United States or the 
     District of Columbia, and who has experience representing 
     clients in cases involving the laws incorporated by section 
     102 of the Act. A Confidential Advisor may be an employee of 
     the Office. A Confidential Advisor cannot serve as a Mediator 
     in any mediation conducted pursuant to section 404 of the 
     Act.
       (2) Restrictions. A Confidential Advisor may not act as the 
     designated representative for any covered employee in 
     connection with the covered employee's participation in any 
     proceeding, including any proceeding under the Act, any 
     judicial proceeding, or any proceeding before any committee 
     of Congress. A Confidential Advisor may not offer or provide 
     any of the services in section 302(d)(2) of the Act if the 
     covered employee has designated an attorney representative in 
     connection with the employee's participation in any 
     proceeding under the Act, except that the Confidential 
     Advisor may provide general assistance and information to the 
     attorney representative regarding the Act and the role of the 
     Office, as the Confidential Advisor deems appropriate.
       (3) Continuity of Service.--Once a covered employee has 
     accepted and received any services offered under section 
     302(d)(2) of the Act from a Confidential Advisor, any other 
     services requested under section 302(d)(2) by the covered 
     employee shall be provided, to the extent practicable, by the 
     same Confidential Advisor.
       (b) Who May Obtain the Services of a Confidential 
     Advisor.--The services provided by a Confidential Advisor are 
     available to any covered employee, including any unpaid staff 
     and any former covered employee, except that a former covered 
     employee may only request such services if the alleged 
     violation occurred during the employment or service of the 
     employee; and a covered employee may only request such 
     services before the end of the 180-day period described in 
     section 402(d) of the Act.
       (c) Services Provided by a Confidential Advisor.--A 
     Confidential Advisor shall offer to provide the following 
     services to covered employees, on a privileged and 
     confidential basis, which may be accepted or declined:
       (1) informing, on a privileged and confidential basis, a 
     covered employee who has been subject to a practice that may 
     be a violation of sections 102(c) or 201-207 of the Act about 
     the employee's rights under the Act;
       (2) consulting, on a privileged and confidential basis, 
     with a covered employee who has been subject to a practice 
     that may be a violation of sections 102(c) or 201-207 of the 
     Act regarding--
       (A) the roles, responsibilities, and authority of the 
     Office; and
       (B) the relative merits of securing private counsel, 
     designating a non-attorney representative, or proceeding 
     without representation for proceedings before the Office;
       (3) advising and consulting, on a privileged and 
     confidential basis, with a covered employee who has been 
     subject to a practice that may be a violation of sections 
     102(c) or 201-207 of the Act regarding any claims the covered 
     employee may have under title IV of the Act, the factual 
     allegations that support each such claim, and the relative 
     merits of the procedural options available to the employee 
     for each such claim;
       (4) assisting, on a privileged and confidential basis, a 
     covered employee who seeks consideration under title IV of an 
     allegation of a violation of sections 102(c) or 201-207 of 
     the Act in understanding the procedures, and the significance 
     of the procedures, described in title IV, including--
       (A) assisting or consulting with the covered employee 
     regarding the drafting of a claim form to be filed under 
     section 402(a) of the Act; and
       (B) consulting with the covered employee regarding the 
     procedural options available to the covered employee after a 
     claim form is filed, and the relative merits of each option; 
     and
       (5) informing, on a privileged and confidential basis, a 
     covered employee about the option of providing information to 
     the Committee on Ethics of the House of Representatives or 
     the Select Committee on Ethics of the Senate.
       (d) Privilege and Confidentiality.--Although the 
     Confidential Advisor is not the employee's representative, 
     the services provided under paragraph (c) of this section, 
     and any related communications between the Confidential 
     Advisor and the employee before or after the filing of a 
     claim, shall be strictly confidential and shall be privileged 
     from discovery. All documents reflecting the Confidential 
     Advisor's communications with the employee are not records of 
     the Office within the meaning of section 301(m) of the Act. 
     Upon request from the Office, the Confidential Advisor may 
     provide the Office with statistical information about the 
     number of contacts from covered employees and the general 
     subject matter of the contacts from covered employees.
     Sec. 4.04 Claims.
       (a) Who May File.--A covered employee alleging any 
     violation of sections 102(c) or 201-207 of the Act may 
     commence a proceeding by filing a timely claim pursuant to 
     section 402 of the Act.
       (b) When to File.
       (1) A covered employee may not file a claim under this 
     section alleging a violation of law after the expiration of 
     the 180-day period that begins on the date of the alleged 
     violation.
       (2) Special Rule for Library of Congress Claimants.--A 
     claim filed by a Library claimant shall be deemed timely 
     filed under section 402 of the Act:
       (A) if the Library claimant files the claim within the time 
     period specified in subparagraph (1); or
       (B) the Library claimant:
       (i) initially filed a claim under the Library of Congress's 
     procedures set forth in the applicable direct provision under 
     section 401(d)(1)(B) of the Act;
       (ii) met any initial deadline under the Library of 
     Congress's procedures for filing the claim; and
       (iii) subsequently elected to file a claim with the Office 
     under section 402 of the Act prior to requesting a hearing 
     under the Library of Congress's procedures.
       (c) Form and Contents.--All claims shall be on the form 
     provided by the Office either on paper or electronically, 
     signed manually or electronically under oath or affirmation 
     by the claimant, and contain the following information, if 
     known:
       (1) the name, mailing and e-mail addresses, and telephone 
     number(s) of the claimant;
       (2) the name of the employing office against which the 
     claim is brought;
       (3) the name(s) and title(s) of the individual(s) involved 
     in the conduct that the employee alleges is a violation of 
     the Act;
       (4) a description of the conduct being challenged, 
     including the date(s) of the conduct;
       (5) a description of why the claimant believes the 
     challenged conduct is a violation of the Act;
       (6) a statement of the specific relief or remedy sought; 
     and

[[Page H4906]]

       (7) the name, mailing and e-mail addresses, and telephone 
     number of the representative, if any, who will act on behalf 
     of the claimant.
       (d) Election of Remedies for Library of Congress 
     Employees.--A Library claimant who initially files a claim 
     for an alleged violation as provided in section 402 of the 
     Act may, at any time before the date that is 10 days after a 
     Preliminary Hearing Officer submits the report on the 
     preliminary review of the claim pursuant to section 403, 
     elect instead to bring the claim before the Library of 
     Congress under the corresponding direct provision.
     Sec. 4.05 Right to File a Civil Action.
       (a) Civil Action.--A covered employee may file a civil 
     action in Federal district court pursuant to section 401(b) 
     of the Act if the covered employee:
       (1) has timely filed a claim as provided in section 402 of 
     the Act; and
       (2) has not submitted a request for an administrative 
     hearing on the claim pursuant to section 405(a) of the Act.
       (b) Period for Filing a Civil Action.--A civil action 
     pursuant to section 401(b) of the Act must be filed within a 
     70-day period beginning on the date the claim form was filed, 
     except where:
       (1) the 70-day period is tolled as a result of the parties 
     engaging in mediation prior to the conclusion of the 70-day 
     period, or
       (2) the Preliminary Hearing Officer determines that the 
     claimant is not a covered employee who has stated a claim for 
     which relief may be granted, as provided in section 4.08(f) 
     of these Rules, in which case the civil action must be filed 
     within a 90-day period beginning on the date the claimant 
     receives written notice of the Preliminary Hearing Officer's 
     decision.
       (c) Effect of Filing a Civil Action.--If a claimant files a 
     civil action concerning a claim during a preliminary review 
     of that claim pursuant to section 403 of the Act, the review 
     terminates immediately upon the filing of the civil action, 
     and the Preliminary Hearing Officer has no further 
     involvement.
       (d) Notification of Filing a Civil Action.--A claimant 
     filing a civil action in Federal district court pursuant to 
     section 401(b) of the Act shall notify the Office within 3 
     days of the filing.
     Sec. 4.06 Initial Processing and Transmission of Claim; 
         Notification Requirements.
       (a) After receiving a claim form, the Office shall record 
     the pleading, transmit immediately (i.e., without undue 
     delay) a copy of the claim form to the head of the employing 
     office and the designated representative of that office, and 
     provide the parties with all relevant information regarding 
     their rights under the Act, as well as a service list 
     containing the names and addresses of the parties and their 
     designated representatives. An employee filing an amended 
     claim form shall serve a copy of the amended claim form upon 
     all other parties in the manner provided by section 1.04(b). 
     A copy of these Rules also may be provided to the parties 
     upon request.
       (b) Notification of Availability of Mediation.
       (1) Upon receipt of a claim form, the Office shall notify 
     the covered employee who filed the claim form about the 
     mediation process under section 4.07 of these Rules below and 
     the deadlines applicable to mediation.
       (2) Upon transmission to the employing office of the claim, 
     the Office shall notify the employing office about the 
     mediation process under the Act and the deadlines applicable 
     to mediation.
       (c) Special Notification Requirements for Claims Based on 
     Acts by Members of Congress.--When a claim alleges a Member 
     personally committed a violation described in section 
     415(d)(1)(C) of the Act, or a violation of an applicable rule 
     of the Senate or the House of Representatives that would 
     require reimbursement by the Member of the Treasury account 
     established by section 415(a) of the Act, the Office shall 
     notify immediately (i.e., without undue delay) such Member of 
     the claim, the possibility that the Member may be required to 
     reimburse the account described in section 415(a) of the Act 
     for the reimbursable portion of any award or settlement in 
     connection with the claim, and the right of the Member under 
     section 415(d)(8) to intervene in any mediation, hearing, or 
     civil action under the Act concerning the claim, as well as 
     the method of intervening.
       (d) Special Rule for Architect of the Capitol and Capitol 
     Police Employees.--The Executive Director, after receiving a 
     claim filed under section 402 of the Act, may recommend that 
     a claimant use, for a specific period of time, the grievance 
     procedures referenced in any Memorandum of Understanding 
     between the Office and the Architect of the Capitol or the 
     Capitol Police. Any pending deadline in the Act relating to a 
     claim for which the claimant uses such grievance procedures 
     shall be stayed during that specific period of time.
     Sec. 4.07 Mediation.
       (a) Overview.--Mediation is a process by which covered 
     employees, including unpaid staff for purposes of section 201 
     of the Act, employing offices, and their representatives, if 
     any, meet with a Mediator trained to assist them in resolving 
     disputes. As participants in the mediation, employees, 
     employing offices, and their representatives discuss 
     alternatives to continuing their dispute, including the 
     possibility of reaching a voluntary, mutually satisfactory 
     resolution. The Mediator cannot impose a specific resolution, 
     and all information discussed or disclosed in the course of 
     any mediation shall be strictly confidential, pursuant to 
     section 416 of the Act. Notwithstanding the foregoing, 
     section 416 expressly provides that a covered employee may 
     disclose the ``factual allegations underlying the covered 
     employee's claim'' and an employing office may disclose ``the 
     factual allegations underlying the employing office's defense 
     to the claim[.]''
       (b) Availability of Optional Mediation.--Upon receipt of a 
     claim filed pursuant to section 402 of the Act, the Office 
     shall notify the covered employee and the employing office 
     about the process for mediation and applicable deadlines. If 
     the claim alleges a Member personally committed a violation 
     described in section 415(d)(1)(C) of the Act, or a violation 
     of an applicable rule of the Senate or the House of 
     Representatives that would require reimbursement by the 
     Member of the Treasury account established by section 415(a) 
     of the Act, the Office shall permit the Member to intervene 
     in the mediation. The request for mediation shall contain the 
     claim number, the requesting party's name, office or personal 
     address, e-mail address, telephone number, and the opposing 
     party's name.
       (c) Timing.--The covered employee or the employing office 
     may file a written request for mediation beginning on the 
     date that the covered employee or employing office, 
     respectively, receives notice from the Office about the 
     mediation process. The time to request mediation under these 
     Rules ends on the date on which a Merits Hearing Officer 
     issues a written decision on the claim, or the covered 
     employee files a civil action.
       (d) Notice of Commencement of the Mediation.--The Office 
     shall promptly notify the opposing party or its designated 
     representative, and any intervenor Member or the intervenor 
     Member's designated representative, of the request for 
     mediation and the deadlines applicable to such mediation. 
     When a claim alleges a Member personally committed a 
     violation described in section 415(d)(1)(C) of the Act, or a 
     violation of an applicable rule of the Senate or the House of 
     Representatives that would require reimbursement by the 
     Member of the Treasury account established by section 415(a) 
     of the Act, if the Member has not already intervened in the 
     matter, the Office shall notify promptly such Member of the 
     right to intervene in any mediation concerning the claim, as 
     well as the method of intervening.
       (e) Selection of Mediators; Disqualification.--Upon receipt 
     of the opposing party's agreement to mediate, the Executive 
     Director shall assign one or more Mediators from a master 
     list developed and maintained pursuant to section 404 of the 
     Act, to commence the mediation process. Should the Mediator 
     consider himself 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 
     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.
       (f) Duration and Extension.
       (1) The mediation period shall be 30 days beginning on the 
     first day after the opposing party agrees to mediate the 
     matter.
       (2) The Executive Director shall extend the mediation 
     period an additional 30 days upon the joint written request 
     of the claimant and respondent, or of the appointed Mediator 
     on behalf of the claimant and respondent. The request shall 
     be written and filed with the Executive Director no later 
     than the last day of the mediation period.
       (g) Effect of Mediation on Proceedings.
       Upon the claimant's and respondent's agreement to mediate a 
     claim, any deadline relating to the processing of that claim 
     that has not already passed by the first day of the mediation 
     period, including the deadline for filing a civil action, 
     shall be stayed during the mediation period.
       (h) Procedures.
       (1) The Mediator's Role.--After assignment of the case, the 
     Mediator will contact the parties. The Mediator has the 
     responsibility to conduct the mediation, including deciding 
     how many meetings are necessary and who may participate in 
     each meeting. The Mediator may accept and may ask the parties 
     to provide written submissions.
       (2) The Agreement to Mediate.--At the commencement of the 
     mediation, the Mediator will ask the participants and/or 
     their representative to sign an agreement prepared by the 
     Office (``the Agreement to Mediate''). The Agreement to 
     Mediate will define what is to be kept confidential during 
     mediation and set out the conditions under which mediation 
     will occur, including the requirement that the participants 
     adhere to the confidentiality of the process and a notice 
     that a breach of the mediation agreement could result in 
     sanctions later in the proceedings.
       (i) Participation.--The parties, including an intervenor 
     Member, 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 requested. The 
     Office may participate in the mediation process through a 
     representative and/or observer. The Mediator may determine, 
     as best serves the interests of mediation, whether the 
     participants may meet jointly or separately with the 
     Mediator. At the request of any of the parties,

[[Page H4907]]

     the parties shall be separated during mediation.
       (j) Settlement Agreements.--At any time during mediation 
     the parties may settle a dispute in accordance with section 
     9.03 of these Rules.
       (k) 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, the Member 
     (when applicable), the employing office, and their 
     representatives, with written notice that the mediation 
     period has concluded. The written notice will be e-filed, e-
     mailed, sent by first-class mail, faxed, or personally 
     delivered.
       (l) Independence of the Mediation Process and the 
     Mediator.--The Office will maintain the independence of the 
     mediation process and the Mediator. No individual 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.
       (m) Violation of Confidentiality in Mediation.--An 
     allegation of a violation of the confidentiality provisions 
     may be made by a party in mediation to the Mediator during 
     the mediation period and, if not resolved by agreement in 
     mediation, to a Merits Hearing Officer during proceedings 
     brought under section 405 of the Act.
       (n) Exceptions to Confidentiality in Mediation.--It shall 
     not be a violation of confidentiality to provide the 
     information required by sections 301(l) and 416(d) of the 
     Act.
     Sec. 4.08 Preliminary Review of Claims.
       (a) Appointment of Preliminary Hearing Officer.--Not later 
     than 7 days after transmission to the employing office of a 
     claim or claims, the Executive Director shall appoint a 
     Hearing Officer to conduct a preliminary review of the claim 
     or claims filed by the claimant. The appointment of the 
     Preliminary Hearing Officer shall be in accordance with the 
     requirements of section 405(c) of the Act. The Office shall 
     promptly notify the parties of the appointment of the 
     Preliminary Hearing Officer, with the notice to include the 
     Preliminary Hearing Officer's name.
       (b) Disqualifying a Preliminary Hearing Officer.
       (1) In the event that a Preliminary Hearing Officer 
     considers himself or herself disqualified, either because of 
     personal bias or of an interest in the case or for some other 
     disqualifying reason, he or she shall withdraw from the case, 
     stating in writing or on the record the reasons for his or 
     her withdrawal, and shall immediately notify the Office of 
     the withdrawal.
       (2) Any party may submit a request to the Executive 
     Director that a Preliminary Hearing Officer withdraw on the 
     basis of personal bias or of an interest in the case or for 
     some other disqualifying reason. This request shall 
     specifically set forth the reasons supporting the request and 
     be submitted as soon as the party has reason to believe that 
     there is a basis for disqualification.
       (3) The Executive Director shall promptly decide on the 
     withdrawal request. If the request is granted, the Executive 
     Director will appoint another Preliminary Hearing Officer 
     within 3 days. Any objection to the Executive Director's 
     decision on the withdrawal motion shall not be deemed waived 
     by a party's further participation in the preliminary review 
     process. Such objection will not stay the conduct of the 
     preliminary review process.
       (c) Assessments Required.--In conducting a preliminary 
     review of a claim or claims under this section, the 
     Preliminary Hearing Officer shall assess each of the 
     following:
       (1) whether the claimant is a covered employee authorized 
     to obtain relief relating to the claim(s) under the Act;
       (2) whether the office which is the subject of the claim(s) 
     is an employing office under the Act;
       (3) whether the individual filing the claim(s) has met the 
     applicable deadlines for filing the claim(s) under the Act;
       (4) the identification of factual and legal issues in the 
     claim(s);
       (5) the specific relief sought by the claimant;
       (6) whether, on the basis of the assessments made under 
     subparagraphs (1) through (5), the claimant is a covered 
     employee who has stated a claim for which, if the allegations 
     contained in the claim are true, relief may be granted under 
     the Act; and
       (7) the potential for the settlement of the claim(s) 
     without a formal hearing as provided under section 405 of the 
     Act or a civil action as provided under section 408 of the 
     Act.
       (d) Amendments to Claims.--A claimant may file one amended 
     claim form as a matter of right within 15 days after the 
     filing of the initial claim form.
       (e) Report on Preliminary Review.
       (1) Except as provided in subparagraph (3), not earlier 
     than 20 days but not later than 30 days after a claim form is 
     filed, the Preliminary Hearing Officer shall submit to the 
     parties, including any intervenor Member, a report on the 
     preliminary review. The report shall include a determination 
     whether the claimant is a covered employee who has stated at 
     least one claim for which, if the allegations contained in 
     the claim are true, relief may be granted under the Act. 
     Submitting the report concludes the preliminary review.
       (2) In determining whether a claimant has stated a claim 
     for which relief may be granted under the Act, the 
     Preliminary Hearing Officer shall:
       (A) be guided by judicial and Board decisions under the 
     laws made applicable by section 102 of the Act; and
       (B) consider whether the legal contentions the claimant 
     advocates are warranted by existing law or by a nonfrivolous 
     argument for extending, modifying, or reversing existing law 
     or for establishing new law.
       (3) Extension of Deadline.--The Preliminary Hearing Officer 
     may, upon notice to the individual filing the claim(s) and 
     the respondent(s), use an additional period of not to exceed 
     30 days to conclude the preliminary review.
       (4) No Evidentiary Value or Preclusive Effect.--The 
     determinations in a report on preliminary review shall have 
     no evidentiary value or preclusive effect in any 
     administrative hearing before a Merits Hearing Officer or in 
     any appeal to the Board.
       (5) No Appellate Review.--A report on preliminary review is 
     not subject to review by the Merits Hearing Officer or the 
     Board.
       (f) Effect of Determination That a Claimant Is a Covered 
     Employee Who Has Stated a Claim for Which Relief May Be 
     Granted.
       (1) If the Preliminary Hearing Officer's report under 
     paragraph (e) includes the determination that the claimant is 
     a covered employee who has stated at least one claim for 
     which relief may be granted under the Act:
       (A) the claimant (including a Library claimant) may either 
     obtain an administrative hearing as provided under section 
     405 of the Act concerning all claims asserted in the claim 
     form, or file a civil action as provided under section 408 of 
     the Act concerning all claims asserted in the claim form; and
       (B) the Preliminary Hearing Officer shall provide the 
     claimant and the Executive Director with written notice that 
     the claimant may either obtain an administrative hearing or 
     file a civil action pursuant to subparagraph (A).
       (2) A claimant who chooses to obtain an administrative 
     hearing must make a request for a hearing not later than 10 
     days after receiving the written notice referred to in 
     subparagraph (1)(B).
       (3) A claimant who chooses to file a civil action must do 
     so not later than 70 days after the initial filing of the 
     claim form.
       (g) Effect of Determination That a Claimant Is Not a 
     Covered Employee Who Has Stated a Claim for Which Relief May 
     Be Granted.
       (1) If the Preliminary Hearing Officer's report under 
     paragraph (e) includes the determination that the claimant is 
     not a covered employee who has stated at least one claim for 
     which relief may be granted under the Act:
       (A) the claimant (including a Library claimant) may not 
     obtain an administrative hearing as provided under section 
     405 of the Act concerning the claims asserted in the claim 
     form; and
       (B) the Preliminary Hearing Officer shall provide the 
     claimant and the Executive Director with written notice that 
     the claimant may file a civil action concerning the claims 
     asserted in the claim form in accordance with section 408 of 
     the Act.
       (2) The claimant must file the civil action not later than 
     90 days after receiving the written notice referred to in 
     subparagraph (1)(B).
       (h) Transmission of Report on Preliminary Review of Certain 
     Claims to Congressional Ethics Committees.--When a 
     Preliminary Hearing Officer issues a report on the 
     preliminary review of a claim alleging a violation described 
     in section 415(d)(1)(C) of the Act, the Preliminary Hearing 
     Officer shall transmit the report to--
       (1) the Committee on Ethics of the House of 
     Representatives, in the case of such an alleged act by a 
     Member of the House of Representatives (including a Delegate 
     or Resident Commissioner to the Congress); or
       (2) the Select Committee on Ethics of the Senate, in the 
     case of such an alleged act by a Senator.
     Sec. 4.09 Request for Administrative Hearing.
       (a) Except as provided in paragraph (b), a claimant may 
     submit to the Executive Director a written request for an 
     administrative hearing under section 405 of the Act not later 
     than 10 days after the Preliminary Hearing Officer submits 
     the report on the preliminary review of a claim under section 
     403(c).
       (b) A claimant may not request an administrative hearing 
     under section 405 of the Act if--
       (1) the preliminary review report of the claim under 
     section 403(c) of the Act includes the determination that the 
     individual filing the claim is not a covered employee who has 
     stated at least one claim for which relief may be granted, as 
     described in section 403(d) of the Act; or
       (2) the covered employee files a civil action concerning 
     any of the claims asserted in the claim form as provided in 
     section 408 of the Act.
       (c) Notification of Request for Administrative Hearing.--
     The Office shall promptly notify the employing office or its 
     designated representative, as well as any intervenor Member 
     or the intervenor Member's designated representative, of the 
     claimant's request for an administrative hearing. When a 
     claim alleges a Member personally committed a violation 
     described in section 415(d)(1)(A) of the Act, or a violation 
     of an applicable rule of the Senate or the House of 
     Representatives that would require reimbursement by the 
     Member of the Treasury account established

[[Page H4908]]

     by section 415(a) of the Act, if the Member has not already 
     intervened in the matter, the Office shall notify promptly 
     such Member of the right to intervene in any hearing 
     concerning the claim, as well as the method of intervening.
       (d) Appointment of the Merits Hearing Officer.
       (1) Upon the filing of a request for an administrative 
     hearing under paragraph (a) of this section, the Executive 
     Director shall appoint an independent Merits Hearing Officer 
     to consider the claim(s) and render a decision, who shall 
     have the authority specified in sections 4.10 and 7.01 of 
     these Rules below.
       (2) The Preliminary Hearing Officer shall not serve as the 
     Merits Hearing Officer in the same case.
       (e) Amendments to Claims. Any request to amend the claim(s) 
     after a hearing has been requested must be made by motion to 
     the Merits Hearing Officer. The motion must be accompanied by 
     a copy of the proposed amended claim form. Amendments to 
     claims may be permitted in the Merits Hearing Officer's 
     discretion provided that:
       (1) the amendments relate to the claims that were subject 
     to preliminary review pursuant to section 4.08 of these 
     Rules; and
       (2) such amendments will not unduly prejudice the rights of 
     the employing office or of other parties, unduly delay the 
     proceedings, or otherwise interfere with or impede the 
     proceedings.
       (f) Answer.
       (1) Within 15 days after receiving notice of a request for 
     an administrative hearing under paragraph (a), the 
     respondent(s) shall file an answer with the Office and serve 
     one copy on the claimant.
       (2) In answering a claim form, a respondent must state in 
     short and plain terms its defenses to each claim asserted 
     against it, and admit or deny the allegations asserted 
     against it. If the respondent lacks knowledge or information 
     sufficient to form a belief about the truth of an allegation, 
     the respondent must so state, and the statement has the 
     effect of a denial.
       (3) Failure to deny an allegation, other than one relating 
     to the amount of damages, or to raise a 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 claim form shall be deemed waived.
       (4) 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) Motions to Dismiss.--In addition to an answer, a 
     respondent or intervening Member may file a motion to 
     dismiss, or other responsive pleading with the Office and 
     serve one copy on the claimant. Responses to any motions 
     shall comply with section 1.04(c) of these Rules. If, on a 
     motion to dismiss for failure to state a claim upon which 
     relief can be granted, matters outside the pleadings are 
     presented to and not excluded by the Merits Hearing Officer, 
     the motion must be treated as one for summary judgment, and 
     all parties must be given a reasonable opportunity to present 
     all the material that is pertinent to the motion.
     Sec. 4.10 Dismissal, Summary Judgment, and Withdrawal of 
         Claim.
       (a) A Merits Hearing Officer may, after notice and an 
     opportunity to respond, dismiss any claim that the Merits 
     Hearing Officer finds to be frivolous or that fails to state 
     a claim upon which relief may be granted. The findings of the 
     Preliminary Hearing Officer shall have no evidentiary value 
     or preclusive effect on the Merits Hearing Officer's 
     determination.
       (b) A Merits Hearing Officer may, after notice and an 
     opportunity to respond, dismiss a claim because it fails to 
     comply with the applicable time limits or other requirements 
     under the Act or these Rules. The findings of the Preliminary 
     Hearing Officer shall have no evidentiary value or preclusive 
     effect on the Merits Hearing Officer's determination.
       (c) Failure to Proceed.--If a claimant fails to proceed 
     with a claim, the Merits Hearing Officer may dismiss the 
     claim with prejudice.
       (d) Summary Judgment.--A Merits Hearing Officer may, after 
     notice and an opportunity for the parties to address the 
     question of summary judgment, issue summary judgment on the 
     claim.
       (e) Appeal.--A final decision by the Merits Hearing Officer 
     made under section 4.10 or 7.16 of these Rules may be subject 
     to appeal before the Board if the aggrieved party files a 
     timely petition for review under section 8.01 of these Rules. 
     A final decision under sections 4.10(a)-(d) of these Rules 
     that does not resolve all of the issues in the case before 
     the Merits Hearing Officer may not be appealed to the Board 
     in advance of a final decision entered under section 7.16 of 
     these Rules, except as authorized pursuant to section 7.13.
       (f) Withdrawal of Claim. At any time, a claimant may 
     withdraw his or her own claim(s) by filing a notice with the 
     Office for transmittal to the Preliminary or Merits Hearing 
     Officer and by serving a copy on the respondent(s). Any such 
     withdrawal must be approved by the relevant Hearing Officer 
     and may be with or without prejudice to refile at that 
     Hearing Officer's discretion.
     Sec. 4.11 Confidentiality.
       (a) Pursuant to section 416 of the Act, except as provided 
     in subsections 416(c), (d) and (e), all proceedings and 
     deliberations of Hearing Officers and the Board, including 
     any related records, shall be confidential. A violation of 
     the confidentiality requirements of the Act and these Rules 
     may result in the imposition of procedural or evidentiary 
     sanctions. See also sections 1.08 and 7.12 of these Rules.
       (b) The fact that a request for an administrative hearing 
     has been filed with the Office by a covered employee shall be 
     kept confidential by the Office, except as allowed by these 
     Rules.
     Sec. 4.12 Automatic Referral to Congressional Ethics 
         Committees.
       (a) Pursuant to section 416(d) of the Act, upon the final 
     disposition of a claim alleging a violation described in 
     section 415(d)(1)(C) committed personally by a Member of the 
     House of Representatives (including a Delegate or Resident 
     Commissioner to the Congress) or a Senator, or by a senior 
     staff member of the House of Representatives or Senate, the 
     Executive Director shall refer the claim to--
       (1) the Committee on Ethics of the House of 
     Representatives, in the case of a Member or senior staff of 
     the House; or
       (2) the Select Committee on Ethics of the Senate, in the 
     case of a Senator or senior staff of the Senate.
       (b) Within 5 business days after the referral of a claim to 
     the Committee on Ethics of the House of Representatives or 
     the Select Committee on Ethics of the Senate pursuant to 
     paragraph (a), the Executive Director shall provide the 
     Committee with access to the records of any preliminary 
     reviews, hearings, or decisions of the Hearing Officers and 
     the Board concerning the claim, and any information relating 
     to an award or settlement paid in response to the claim.

                          SUBPART E--[AMENDED]

       5. Subpart E has been amended as follows:
     Subpart E--General Counsel Complaints
     Sec. 5.01 Complaints
     Sec. 5.02 Appointment of the Merits Hearing Officer
     Sec. 5.03 Dismissal, Summary Judgment, and Withdrawal of 
         Complaint
     Sec. 5.04 Confidentiality
     Sec. 5.01 Complaints.
       (a) Who May File.
       The General Counsel may timely file a complaint alleging a 
     violation of sections 210, 215 or 220 of the Act.
       (b) When to File.
       A complaint may be filed by the General Counsel:
       (1) after the investigation of a charge filed under section 
     210 or 220 of the Act, or
       (2) after the issuance of a citation or notification under 
     section 215 of the Act.
       (c) Form and Contents.
       A complaint filed by the General Counsel shall be in 
     writing, signed by the General Counsel, or his or her 
     designee, and shall contain the following information:
       (1) the name, mail and e-mail addresses, if available, and 
     telephone number of the employing office, as applicable:
       (A) each entity responsible for correction of an alleged 
     violation of section 210(b) of the Act;
       (B) each employing office alleged to have violated section 
     215 of the Act; or
       (C) each employing office and/or labor organization alleged 
     to have violated section 220, against which the complaint is 
     brought;
       (2) notice of the charge filed alleging a violation of 
     section 210 or 220 of the Act and/or issuance of a citation 
     or notification under section 215;
       (3) a description of the acts and conduct that are alleged 
     to be violations of the Act, including all relevant dates and 
     places, and the names and titles of the responsible 
     individuals; and
       (4) a statement of the relief or remedy sought.
       (d) Amendments.--Amendments to the complaint may be 
     permitted by the Office or, after assignment, by a Merits 
     Hearing Officer, on the following conditions: that all 
     parties to the proceeding have adequate notice to prepare to 
     address the new allegations; that the amendments, as 
     appropriate, relate to the charge(s) investigated and/or the 
     citation or notification issued by the General Counsel; and 
     that permitting such amendments will not unduly prejudice the 
     rights of the employing office, the labor organization, or 
     other parties, unduly delay the completion of the hearing, or 
     otherwise interfere with or impede the proceedings.
       (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 first-
     class mail, e-mail, or facsimile with a copy of the complaint 
     or amended complaint; written notice of the availability of 
     these Rules at www.ocwr.gov; and a service list containing 
     the names and addresses of the parties and their designated 
     representatives. A copy of these Rules may also be provided 
     if requested by either party.
       (f) Answer.
       (1) 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 General Counsel.
       (2) In answering a complaint, a respondent must state in 
     short and plain terms its defenses to each alleged violation, 
     and admit or deny the allegations asserted against it by an 
     opposing party. If a respondent lacks knowledge or 
     information sufficient to form

[[Page H4909]]

     a belief about the truth of an allegation, the respondent 
     must so state, and the statement has the effect of a denial.
       (3) Failure to deny an allegation, other than one relating 
     to the amount of damages, or to raise a 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.
       (4) 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 comply with 
     section 1.04(c) of these Rules. If, on a motion to dismiss 
     for failure to state a claim upon which relief can be 
     granted, matters outside the pleadings are presented to and 
     not excluded by the Merits Hearing Officer, the motion must 
     be treated as one for summary judgment, and all parties must 
     be given a reasonable opportunity to present all the material 
     that is pertinent to the motion.
     Sec. 5.02 Appointment of the Merits Hearing Officer.
       Upon the filing of a complaint, the Executive Director will 
     appoint an independent Merits Hearing Officer, who shall have 
     the authority specified in sections 5.03 and 7.01(b) of these 
     Rules.
     Sec. 5.03 Dismissal, Summary Judgment, and Withdrawal of 
         Complaints.
       (a) A Merits Hearing Officer may, after notice and an 
     opportunity to respond, dismiss any complaint that the Merits 
     Hearing Officer finds to be frivolous or that fails to state 
     a claim upon which relief may be granted.
       (b) A Merits Hearing Officer may, after notice and an 
     opportunity to respond, dismiss a complaint because it fails 
     to comply with the applicable time limits or other 
     requirements under the Act or these Rules.
       (c) If the General Counsel fails to proceed with an action, 
     the Merits Hearing Officer may dismiss the complaint with 
     prejudice.
       (d) Summary Judgment.--A Merits Hearing Officer may, after 
     notice and an opportunity for the parties to address the 
     question of summary judgment, issue summary judgment on some 
     or all of the complaint.
       (e) Appeal.--A final decision by the Merits Hearing Officer 
     made under sections 5.03(a)-(d) or 7.16 of these Rules may be 
     subject to appeal before the Board if the aggrieved party 
     files a timely petition for review under section 8.01. A 
     final decision under sections 5.03(a)-(d) that does not 
     resolve all of the issues in the case(s) before the Merits 
     Hearing Officer may not be appealed to the Board in advance 
     of a final decision entered under section 7.16 of these 
     Rules, except as authorized pursuant to section 7.13.
       (f) Withdrawal of Complaint by the General Counsel.--At any 
     time prior to the opening of the hearing, the General Counsel 
     may withdraw his or her complaint by filing a notice with the 
     Office for transmittal to the Merits Hearing Officer and by 
     serving a copy on the respondent. After the opening of the 
     hearing, any such withdrawal must be approved by the Merits 
     Hearing Officer and may be with or without prejudice to 
     refile at the Merits Hearing Officer's discretion.
       (g) Withdrawal from a Case by a Representative.--A 
     representative must provide sufficient notice to the Merits 
     Hearing Officer and the parties of record of his or her 
     withdrawal from a case. Until the party designates another 
     representative in writing, the party will be regarded as 
     appearing pro se.
     Sec. 5.04 Confidentiality.
       Pursuant to section 416(b) of the Act, except as provided 
     in subsections 416(c) and (f), all proceedings and 
     deliberations of Merits Hearing Officers and the Board, 
     including any related records, shall be confidential. Section 
     416(b) does not apply to proceedings under section 215 of the 
     Act, but does apply to the deliberations of Merits Hearing 
     Officers and the Board under section 215. A violation of the 
     confidentiality requirements of the Act and these Rules may 
     result in the imposition of procedural or evidentiary 
     sanctions. See also sections 1.08 and 7.12 of these Rules.

                          SUBPART F--[AMENDED]

       6. Subpart F has been amended as follows:
     Subpart F--Discovery and Subpoenas
     Sec. 6.01 Discovery
     Sec. 6.02 Requests for Subpoenas
     Sec. 6.03 Service of Subpoena
     Sec. 6.04 Proof of Service of Subpoena
     Sec. 6.05 Motion to Quash or Limit Subpoena
     Sec. 6.06 Enforcement of Subpoena
     Sec. 6.07 Requirements for Sworn Statements in Support of 
         Subpoena
     Sec. 6.01 Discovery.
       (a) Description.--Discovery is the process by which a party 
     may obtain from another person, including a party, 
     information that is not privileged and that is relevant to 
     any party's cause of action or defense and proportional to 
     the needs of the case, considering the importance of the 
     issues at stake in the action, the amount in controversy, the 
     parties' relative access to relevant information, the 
     parties' resources, the importance of the discovery in 
     resolving legal issues, and whether the burden or expense of 
     the proposed discovery outweighs its likely benefit. 
     Information within the scope of discovery need not be 
     admissible in evidence in order to be discoverable. No 
     discovery, whether oral or written, by any party shall be 
     taken of or from an employee of the Office of Congressional 
     Workplace Rights (including but not limited to a Board 
     member, the Executive Director, the General Counsel, a 
     Confidential Advisor, a Mediator, a Hearing Officer, or 
     unpaid staff), including files, records, or notes produced 
     during the confidential advising, mediation, and hearing 
     phases of a case and maintained by the Office, the 
     Confidential Advisor, the Mediator, or the Hearing Officer.
       (b) Initial Disclosure.--Within 14 days after the initial 
     conference in cases commenced by the filing of a claim 
     pursuant to section 402(a) of the Act, and except as 
     otherwise stipulated or ordered by the Merits 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 causes of action 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, reasonable prehearing discovery may be permitted at 
     the Merits Hearing Officer's discretion.
       (1) The 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 admissions. Nothing in 
     section 415(d) of the Act--dealing with reimbursements by 
     Members of Congress of amounts paid as settlements and 
     awards--may be construed to require the claimant to be 
     deposed by counsel for the intervening member in a deposition 
     that is separate from any other deposition taken of the 
     claimant in connection with the hearing.
       (2) The Merits 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 also may limit the length of depositions.
       (3) The Merits Hearing Officer may issue any other order to 
     prevent discovery or disclosure of confidential or privileged 
     materials or information, as well as hearing preparation 
     materials and any other information deemed not discoverable, 
     or to protect a party or person from annoyance, 
     embarrassment, oppression, or undue burden or expense.
       (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 of privilege expressly in writing 
     and shall describe the nature of the documents, 
     communications or things not produced or disclosed in a 
     manner that, without revealing whether the information itself 
     is 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 to produce the information.
       (2) Information Produced as Inadvertent Disclosure; Sealing 
     All or Part of the Record.--If information produced in 
     discovery is subject to a claim of privilege or of protection 
     as hearing preparation material, the party making the claim 
     of privilege may notify any party that received the 
     information of the claim of privilege 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 of privilege 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 Merits Hearing Officer or the Board under 
     seal for a determination of the claim of privilege. The 
     producing party must preserve the information until the claim 
     of privilege is resolved.
     Sec. 6.02 Request for Subpoena.
       (a) Authority to Issue Subpoenas.--At the request of a 
     party, the Merits 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 shall be issued for the 
     attendance or testimony of an employee or agent of the Office 
     of Congressional Workplace Rights (including but not limited 
     to a Board member, the Executive Director, the General 
     Counsel, a Confidential Advisor, a Mediator, a Hearing 
     Officer, or unpaid staff), or for the production of files, 
     records, or notes created by such employee of the Office 
     during the confidential advising process, in mediation, or at 
     the hearing. Employing offices shall endeavor to make their 
     employees available for discovery and hearing without 
     requiring a subpoena.

[[Page H4910]]

       (b) Request.--A request to issue a subpoena requiring the 
     attendance and testimony of witnesses or the production of 
     documents or other evidence under paragraph (a) above shall 
     be submitted to the Merits Hearing Officer at least 15 days 
     before the scheduled hearing date. If the subpoena is sought 
     as part of the discovery process, the request shall be 
     submitted to the Merits Hearing Officer at least 10 days 
     before the date that a witness must attend a deposition or 
     the date for the production of documents. The Merits Hearing 
     Officer may waive the time limits stated above for good 
     cause.
       (c) Forms and Showing.--Requests for subpoenas shall be 
     submitted in writing to the Merits Hearing Officer and shall 
     specify with particularity the witness, correspondence, 
     books, papers, documents, or other records desired and shall 
     be supported by a showing of general relevance and reasonable 
     scope.
       (d) Rulings.--The Merits Hearing Officer shall promptly 
     rule on subpoena requests.
     Sec. 6.03 Service of Subpoena.
       Subpoenas shall be served in the manner provided under Rule 
     45(b) of the Federal Rules of Civil Procedure. Service of a 
     subpoena may be made by any person who is over 18 years of 
     age and is not a party to the proceeding.
     Sec. 6.04 Proof of Service of Subpoena.
       When service of a subpoena is effected, the person serving 
     the subpoena shall certify the date and the manner of 
     service. The party on whose behalf the subpoena was issued 
     shall file the server's certification with the Merits Hearing 
     Officer.
     Sec. 6.05 Motion to Quash or Limit Subpoena.
       Any person against whom a subpoena is directed may file a 
     motion to quash or limit the subpoena setting forth the 
     reasons why the subpoena should not be complied with or why 
     it should be limited in scope. This motion shall be filed 
     with the Merits Hearing Officer before the time specified in 
     the subpoena for compliance and not later than 10 days after 
     service of the subpoena. The Merits Hearing Officer should 
     promptly rule on a motion to quash or limit and ensure that 
     the person receiving the subpoena is made aware of the 
     ruling.
     Sec. 6.06 Enforcement of Subpoena.
       (a) Objections and Requests for Enforcement.--If a person 
     has been served with a subpoena pursuant to section 6.03 of 
     these Rules, but fails or refuses to comply with its terms or 
     otherwise objects to it, the party or person objecting or the 
     party seeking compliance may seek a ruling from the Merits 
     Hearing Officer. The request for a ruling shall be submitted 
     in writing to the Merits Hearing Officer. However, it may be 
     made orally on the record at the hearing at the discretion of 
     the Merits Hearing Officer. The party seeking compliance 
     shall present the proof of service and, except when the 
     witness was required to appear before the Merits Hearing 
     Officer, shall submit evidence, by affidavit or declaration, 
     of the failure or refusal to obey the subpoena.
       (b) Ruling by the Merits Hearing Officer.
       (1) The Merits Hearing Officer shall promptly rule on the 
     request for enforcement and/or the objection(s).
       (2) On request of the objecting witness or any party, the 
     Merits Hearing Officer shall--or on the Merits Hearing 
     Officer's own initiative, the Merits Hearing Officer may--
     refer the ruling to the Board for review.
       (c) Review by the Board.--The Board may overrule, modify, 
     remand, or affirm the Merits Hearing Officer's ruling and, in 
     its discretion, may direct the General Counsel to apply in 
     the name of the Office for an order from a United States 
     district court to enforce the subpoena.
       (d) Application to an Appropriate Court; Civil Contempt.--
     If a person fails to comply with a subpoena, the Board may 
     direct the General Counsel to apply, in the name of the 
     Office, to an appropriate United States district court for an 
     order requiring that person to appear before the Merits 
     Hearing Officer to give testimony or produce records. Any 
     failure to obey a lawful order of the district court may be 
     held by such court to be a civil contempt thereof.
     Sec. 6.07 Requirements for Sworn Statements.
       Any time that the Merits Hearing Officer requires an 
     affidavit or sworn statement from a party or a witness, he or 
     she should refer the party or witness to a sample declaration 
     under 28 U.S.C. Sec. 1746, which substantially requires:
       (a) If executed within the United States, its territories, 
     possessions, or commonwealths: ``I declare (or certify, 
     verify, or state) under penalty of perjury that the foregoing 
     is true and correct. Executed on (date). (Signature).''
       (b) If executed outside the United States: ``I declare (or 
     certify, verify, or state) under penalty of perjury under the 
     laws of the United States of America that the foregoing is 
     true and correct. Executed on (date). (Signature).''

                          SUBPART G--[AMENDED]

       7. Subpart G has been amended as follows:
     Subpart G--Hearings
     Sec. 7.01 The Merits Hearing Officer
     Sec. 7.02 Sanctions
     Sec. 7.03 Disqualification or Withdrawal of a Merits Hearing 
         Officer
     Sec. 7.04 Motions, Initial Conference, and Prehearing 
         Conference
     Sec. 7.05 Scheduling the Hearing
     Sec. 7.06 Consolidation and Joinder of Cases
     Sec. 7.07 Conduct of Hearing; Disqualifying a Representative
     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 Merits Hearing 
         Officer's Ruling
     Sec. 7.14 Proposed Findings of Fact and Conclusions of Law; 
         Posthearing Briefs
     Sec. 7.15 Closing the Record
     Sec. 7.16 Merits Hearing Officer Decisions; Entry in Office 
         Records; Correcting the Record; Motions to Alter, Amend 
         or Vacate the Decision.
     Sec. 7.01 The Merits Hearing Officer.
       This subpart concerns the duties and responsibilities of 
     Merits Hearing Officers, who are appointed by the Executive 
     Director to preside over the administrative hearings under 
     the Act. The duties and responsibilities of Preliminary 
     Hearing Officers are contained in section 4.08 of these 
     Rules.
       (a) Exercise of Authority.--The Merits Hearing Officer may 
     exercise authority as provided in paragraph (b) of this 
     section upon his or her own initiative or upon a party's 
     motion, as appropriate.
       (b) Authority.--Merits Hearing Officers shall conduct fair 
     and impartial hearings and take all necessary action to avoid 
     undue delay in disposing 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:
       (1) administer oaths and affirmations;
       (2) rule on motions to disqualify designated 
     representatives;
       (3) issue subpoenas in accordance with section 6.02 of 
     these Rules;
       (4) rule upon offers of proof and receive relevant 
     evidence;
       (5) rule upon discovery issues as appropriate under 
     sections 6.01 to 6.06 of these Rules;
       (6) hold initial and prehearing conferences for simplifying 
     issues and exploring settlement;
       (7) convene a hearing, regulate the course of the hearing, 
     maintain decorum at the hearing, and exclude from the hearing 
     any person who disrupts, or threatens to disrupt, that 
     decorum;
       (8) exclude from the hearing any person, except any 
     claimant, any party, the attorney or representative of any 
     claimant or party, or any witness while testifying;
       (9) rule on all motions, witness and exhibit lists, and 
     proposed findings, including motions for summary judgment;
       (10) require the filing of briefs, memoranda of law, and 
     the presentation of oral argument as to any question of fact 
     or law;
       (11) order the production of evidence and the appearance of 
     witnesses;
       (12) impose sanctions as provided under section 7.02 of 
     these Rules;
       (13) file decisions on the issues presented at the hearing;
       (14) dismiss any claim, complaint, or portion thereof that 
     is found to be frivolous or that fails to state a claim upon 
     which relief may be granted;
       (15) maintain and enforce the confidentiality of 
     proceedings; and
       (16) waive or modify any procedural requirements of 
     subparts F and G of these Rules so long as permitted by the 
     Act.
     Sec. 7.02 Sanctions.
       (a) When necessary to regulate the course of the 
     proceedings (including the hearing), the Merits Hearing 
     Officer may impose an appropriate sanction, which may 
     include, but is not limited to, the sanctions specified in 
     this section, on the parties and/or their representatives.
       (b) The Merits Hearing Officer may impose sanctions upon 
     the parties and/or their representatives based on, 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 to submit to a 
     deposition, to produce evidence within the party's 
     possession, custody, or control, or to produce witnesses), 
     the Merits Hearing Officer may:
       (A) draw an inference in favor of the requesting party on 
     the issue related to the information sought;
       (B) stay further proceedings until the order is obeyed;
       (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) permit the requesting party to introduce secondary 
     evidence concerning the information sought;
       (E) strike, in whole or in part, the claim, complaint, 
     briefs, answer, or other submissions of the party failing to 
     comply with the order, as appropriate; or
       (F) direct judgment against the non-complying party in 
     whole or in part.
       (2) Failure to Prosecute or Defend.--If a party fails to 
     prosecute or defend a position, the Merits Hearing Officer 
     may dismiss the action in whole or in part, with or without 
     prejudice, or decide the matter when appropriate.
       (3) Failure to Make Timely Filing.--The Merits Hearing 
     Officer may refuse to consider any request, motion, or other 
     action that is not filed in a timely fashion in compliance 
     with this subpart.
       (4) Frivolous Claims, Defenses, and Arguments.--If a party 
     or the party's designated representative files a claim that 
     fails to meet the requirements of section 401(f) of the Act, 
     the Merits Hearing Officer may dismiss the claim in whole or 
     in part, with or without prejudice, or decide the matter for 
     the

[[Page H4911]]

     opposing party. If a party or the party's designated 
     representative presents a pleading, discovery request or 
     response, motion, or other paper containing claims, defenses, 
     or other legal contentions, for any improper purpose, such as 
     to harass, cause unnecessary delay, or needlessly increase 
     the cost of resolution of the matter, the Merits Hearing 
     Officer may reject the pleading, discovery request or 
     response, motion, or other paper, in whole or in part. A 
     pleading, discovery request or response, motion, or other 
     paper containing claims, defenses, or other legal contentions 
     shall not be subject to sanctions if it is supported by or 
     constitutes a nonfrivolous argument for extending, modifying, 
     or reversing existing law or for establishing new law.
       (5) Failure to Maintain Confidentiality.--An allegation 
     regarding a violation of the confidentiality provisions 
     contained in the Act, these Rules, or an order of a Merits 
     Hearing Officer may be made to a Merits Hearing Officer in 
     proceedings under section 405 of the Act. If, after notice 
     and hearing, the Merits Hearing Officer determines that a 
     party has violated confidentiality, the Merits 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 contends;
       (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, the particulars of which must be stated in 
     the sanction order.
     Sec. 7.03 Disqualification or Withdrawal of a Merits Hearing 
         Officer.
       (a) In the event that a Merits Hearing Officer considers 
     himself or herself disqualified, either because of personal 
     bias or of an interest in the case or for some other 
     disqualifying reason, he or she shall withdraw from the case, 
     stating in writing or on the record the reasons for his or 
     her withdrawal, and shall immediately notify the Office of 
     the withdrawal.
       (b) Any party may file a motion requesting that a Merits 
     Hearing Officer withdraw on the basis of personal bias or of 
     an interest in the case or for some other disqualifying 
     reason. This motion shall specifically set forth the reasons 
     supporting the request and be filed as soon as the party has 
     reason to believe that there is a basis for disqualification.
       (c) The Merits Hearing Officer shall promptly rule on the 
     withdrawal motion. If the motion is granted, the Executive 
     Director will appoint another Merits Hearing Officer within 5 
     days. Any objection to the Merits Hearing Officer's ruling on 
     the withdrawal motion shall not be deemed waived by a party's 
     further participation in the hearing and may be the basis for 
     an appeal to the Board from the Merits Hearing Officer's 
     decision under section 8.01 of these Rules. Such objection 
     will not stay the conduct of the hearing.
     Sec. 7.04 Motions, Initial Conference, and Prehearing 
         Conference.
       (a) Motions.--Unless otherwise provided in these Rules, 
     motions shall be filed with the Merits Hearing Officer and 
     shall be in writing except for oral motions made on the 
     record during the hearing. All written motions and any 
     responses to them shall include a proposed order, when 
     applicable. Only with the Merits Hearing Officer's advance 
     approval may either party file additional responses to the 
     motion or to the response to the motion. Motions for 
     extension of time will be granted only for good cause shown.
       (b) Scheduling the Initial Conference.--Within 7 days after 
     a claim is assigned to a Merits Hearing Officer, the Merits 
     Hearing Officer shall serve on the parties and their 
     designated representatives written notice setting forth the 
     time, date, and place of the initial conference, except that 
     the Executive Director may, for good cause, extend up to an 
     additional 7 days the time for serving notice of the initial 
     conference. As required by section 6.01(b) of these Rules, 
     initial disclosures shall be due within 14 days of the 
     initial conference.
       (c) Initial Conference Memoranda.--The Merits Hearing 
     Officer may order each party to prepare an initial conference 
     memorandum. The memorandum may include:
       (1) a proposed discovery plan, including the number of 
     depositions, interrogatories, requests for production, 
     requests for admissions, and other discovery devices that the 
     party anticipates requesting;
       (2) a proposed schedule for the filing of any dispositive 
     motions;
       (3) a proposed date for the prehearing conference; and
       (4) a proposed schedule for the hearing.
       (d) The Prehearing Conference.--Within 7 days after the 
     initial conference, the Merits Hearing Officer shall serve on 
     the parties and their designated representatives written 
     notice setting forth the time, date, and place of the 
     prehearing conference, which shall not take place until the 
     period provided for discovery, if any, has ended. The Merits 
     Hearing Officer may order each party to prepare a prehearing 
     conference memorandum after discovery has concluded. The 
     memorandum may include:
       (1) the major factual contentions and legal issues that the 
     party intends to raise at the hearing in short, successive, 
     and numbered paragraphs, along with any proposed stipulations 
     of fact or law;
       (2) an estimate of the time necessary for presenting the 
     party's case;
       (3) the specific relief, including, when known, a 
     calculation 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, a list of 
     documents that the party is seeking from the opposing party, 
     and 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
       (5) a brief description of any other unresolved issues.
       (d) At the prehearing conference, the Merits Hearing 
     Officer may discuss the subjects specified in paragraph (d) 
     above and the manner in which the hearing will be conducted. 
     In addition, the Merits Hearing Officer may explore 
     settlement possibilities and consider how the factual and 
     legal issues might be simplified and any other issues that 
     might expedite resolving the dispute. The Merits Hearing 
     Officer shall issue an order, which recites the actions taken 
     at the conference and the parties' agreements as to any 
     matters considered, and which limits the issues to those not 
     disposed of by the parties' admissions, stipulations, or 
     agreements. Such order, when entered, shall control the 
     course of the hearing, subject to later modification by the 
     Merits 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.
       (a) Date, Time, and Place of Hearing.--The Office shall 
     issue the notice of hearing, which shall fix the date, time, 
     and place of hearing. Absent a postponement granted by the 
     Office, a hearing on a claim pursuant to section 405 of the 
     Act must commence no later than 90 days after the Executive 
     Director receives the claimant's request for a hearing under 
     section 405 of the Act.
       (b) Motions for Postponement of Commencement of a 
     Hearing.--Motions for postponement of the commencement of a 
     hearing by either party shall be made in writing to the 
     Office, shall set forth the reasons for the request, and 
     shall state whether the opposing party consents to or opposes 
     postponement. Upon mutual agreement of the parties or for 
     good cause shown, the Office shall extend the time for 
     commencing a hearing for not more than an additional 30 days.
       (c) Continuance of Hearing after Commencement.--A party 
     seeking a continuance of a hearing may do so by oral or 
     written motion to the Merits Hearing Officer. Such motion 
     shall include the reasons for the requested continuance and 
     shall state whether any opposing party consents to or opposes 
     the requested continuance. The Merits Hearing Officer may 
     grant such a motion upon mutual agreement of the parties or 
     for good cause shown.
     Sec. 7.06 Consolidation and Joinder of Cases.
       (a) Explanation.
       (1) Consolidation is when two or more parties have cases 
     that might be treated as one because they contain identical 
     or similar issues or in such other appropriate circumstances.
       (2) Joinder is when one party has two or more cases pending 
     and they are united for consideration. For example, joinder 
     might be warranted when a single party has one case pending 
     challenging a 30-day suspension and another case pending 
     challenging a subsequent dismissal.
       (b) Authority.--The Executive Director (before assigning a 
     Merits Hearing Officer to adjudicate a claim), a Merits 
     Hearing Officer (prior to or during the hearing), or the 
     Board (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 case processing and not adversely affect the 
     parties' interests, taking into account the confidentiality 
     requirements of section 416 of the Act.
     Sec. 7.07 Conduct of Hearing; Disqualifying a Representative.
       (a) Pursuant to section 405(d)(1) of the Act, the Merits 
     Hearing Officer shall conduct the hearing in closed session 
     on the record. Only the Merits Hearing Officer, the parties 
     and their representatives, and witnesses during the time they 
     are testifying, shall be permitted to attend the hearing, 
     except that the Office may not be precluded from observing 
     the hearing. The Merits Hearing Officer, or a person 
     designated by the Merits Hearing Officer or the Executive 
     Director, shall record the proceedings electronically and/or 
     stenographically.
       (b) The hearing shall be conducted as an administrative 
     proceeding. Witnesses shall testify under oath or 
     affirmation. Except as specified in the Act and in these 
     Rules, the Merits Hearing Officer shall conduct the hearing, 
     to the greatest extent practicable, consistent with the 
     principles and procedures in sections 554 through 557 of 
     title 5 of the United States Code (the Administrative 
     Procedure Act).
       (c) No later than the commencement of the hearing, or as 
     otherwise ordered by the Merits Hearing Officer, each party 
     shall submit

[[Page H4912]]

     to the Merits Hearing Officer and to each opposing party 
     typed lists of the party's hearing exhibits and the witnesses 
     the party expects to call to testify. A party may exclude 
     from the lists any documents or witnesses intended solely for 
     impeachment or rebuttal.
       (d) At the commencement of the hearing, or as otherwise 
     ordered by the Merits Hearing Officer, the Merits Hearing 
     Officer may consider any stipulations of facts and law 
     pursuant to section 7.10 of these Rules, take official notice 
     of certain facts pursuant to section 7.11 of these Rules, 
     rule on the parties' objections, and hear witness testimony. 
     Each party must present his or her case in a concise manner, 
     limiting the testimony of witnesses and submission of 
     documents to relevant matters.
       (e) Any evidentiary objection not timely made before a 
     Merits Hearing Officer shall, absent clear error, be deemed 
     waived on appeal to the Board.
       (f) Failure of any party to appear at the hearing, to 
     present witnesses or evidence, or to respond to an 
     evidentiary order may result in an adverse finding or ruling 
     by the Merits Hearing Officer. At the Merits Hearing 
     Officer's discretion, the hearing also may be held without a 
     party if the party's representative is present. Unless called 
     to testify as a witness, an intervenor Member shall be 
     permitted, but not required, to attend the hearing either in 
     person or through the presence of a representative.
       (g) If the Merits Hearing Officer concludes that the 
     representative of a claimant, 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, the Merits Hearing Officer 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.
       (a) Preparation.--The Office shall keep an accurate 
     electronic or stenographic hearing record, which shall be the 
     sole official record of the proceeding. The Office shall be 
     responsible for the cost of transcribing the hearing. Upon 
     request, a copy of the hearing transcript shall be furnished 
     to each party, provided, however, that such party has first 
     agreed to maintain and respect the confidentiality of such 
     transcript in accordance with the applicable rules prescribed 
     by the Office or the Merits Hearing Officer to effectuate 
     section 416(b) of the Act. Additional copies of transcripts 
     shall be made available to a party at the party's expense. 
     The Office may grant exceptions to the payment requirement 
     for good cause shown. A motion for an exception shall be made 
     in writing, accompanied by an affidavit or a declaration 
     setting forth the reasons for the request, and submitted to 
     the Office. Requests for copies of transcripts also shall be 
     directed to the Office. The Office may, by agreement with the 
     person making the request, arrange with the official hearing 
     reporter for required services to be charged to the 
     requester.
       (b) Corrections.--Corrections to the official transcript of 
     the hearing will be permitted. Motions for correction must be 
     submitted within 10 days of service of the transcript upon 
     the parties. Corrections to the official transcript will be 
     permitted only upon the approval of the Merits Hearing 
     Officer. The Merits Hearing Officer may make corrections at 
     any time with notice to the parties.
     Sec. 7.09 Admissibility of Evidence.
       The Merits Hearing Officer shall apply the Federal Rules of 
     Evidence to the greatest extent practicable. The Merits 
     Hearing Officer may exclude evidence if, among other things, 
     it constitutes inadmissible hearsay or its probative value is 
     substantially outweighed by the danger of unfair prejudice, 
     by confusion of the issues, or by considerations of undue 
     delay, waste of time, or needless presentation of cumulative 
     evidence.
     Sec. 7.10 Stipulations.
       The parties may stipulate as to any matter of fact. Such a 
     stipulation will satisfy a party's burden of proving the fact 
     alleged.
     Sec. 7.11 Official Notice.
       (a) The Merits Hearing Officer on his or her own motion or 
     on motion of a party, may take official notice of a fact that 
     is not subject to reasonable dispute because it is either:
       (1) a matter of common knowledge; or
       (2) capable of accurate and ready determination by resort 
     to sources whose accuracy cannot reasonably be questioned. 
     Official notice taken of any fact satisfies a party's burden 
     of proving the fact noticed.
       (b) When a decision, or part thereof, rests on the official 
     notice of a material fact not appearing in the evidence in 
     the record, the fact of official notice shall be so stated in 
     the decision, and any party, upon timely request, shall be 
     afforded an opportunity to show the contrary.
     Sec. 7.12 Confidentiality.
       (a) Pursuant to section 416 of the Act and section 1.08 of 
     these Rules, all proceedings and deliberations of Merits 
     Hearing Officers and the Board, including the hearing 
     transcripts and any related records, shall be confidential, 
     except as specified in sections 416(c), (d), (e), and (f) of 
     the Act and section 1.08(d) of these Rules. All parties to 
     the proceeding and their representatives, and witnesses who 
     appear at the hearing, will be advised of the importance of 
     confidentiality in this process and of their obligations, 
     subject to sanctions, to maintain it. This provision shall 
     not apply to proceedings under section 215 of the Act, but 
     shall apply to the Merits Hearing Officers' and the Board's 
     deliberations under that section.
       (b) Violation of Confidentiality.--A Merits Hearing 
     Officer, under section 405 of the Act, may resolve an alleged 
     violation of confidentiality that occurred during a hearing. 
     After providing notice and an opportunity to the parties to 
     be heard, the Merits Hearing Officer, under section 1.08(f) 
     of these Rules, may find a violation of confidentiality and 
     impose appropriate procedural or evidentiary sanctions, to 
     include the sanctions listed in section 7.02 of these Rules.
     Sec. 7.13 Immediate Board Review of a Hearing Officer's 
         Ruling.
       (a) Review Strongly Disfavored.--Board review of a Merits 
     Hearing Officer's ruling while a proceeding is ongoing (an 
     interlocutory appeal) is strongly disfavored. In general, the 
     Board may consider a request for interlocutory appeal only if 
     the Merits Hearing Officer, on his or her own motion or on 
     motion of a party, certifies and forwards a request for 
     interlocutory appeal to the Board.
       (b) Time for Filing.--A party must file a motion for 
     interlocutory appeal of a Merits Hearing Officer's ruling 
     with the Merits Hearing Officer within 5 days after service 
     of the ruling upon the parties. The motion shall include 
     arguments in support of both interlocutory appeal and the 
     requested determination 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.
       (c) Standards for Review.--In determining whether to 
     certify and forward a request for interlocutory appeal to the 
     Board, the Merits Hearing Officer shall consider the 
     following:
       (1) whether the ruling involves a significant question of 
     law or policy about which there is substantial ground for 
     difference of opinion;
       (2) whether an immediate Board review of the Merits Hearing 
     Officer's ruling will materially advance completing the 
     proceeding; and
       (3) whether denial of immediate review will cause undue 
     harm to a party or the public.
       (d) Merits Hearing Officer Action.--If all the conditions 
     set forth in paragraph (c) are met, the Merits Hearing 
     Officer shall certify and forward a request for interlocutory 
     appeal to the Board for its immediate consideration. Any such 
     submission shall explain the basis on which the Merits 
     Hearing Officer concluded that the standards in paragraph (c) 
     have been met. The Merits Hearing Officer's decision to 
     forward or decline to forward a request for review is not 
     appealable.
       (e) Granting or Denying an Interlocutory Appeal Is Within 
     the Board's Sole Discretion.--The Board, in its sole 
     discretion, may grant or deny an interlocutory appeal, upon 
     the Merits Hearing Officer's certification and decision to 
     forward a request for review. The Board's decision to grant 
     or deny an interlocutory appeal is not appealable.
       (f) Stay Pending Interlocutory Appeal.--Unless otherwise 
     directed by the Board, the stay of any proceedings during the 
     pendency of either a request for interlocutory appeal or the 
     appeal itself shall be within the Merits Hearing Officer's 
     discretion, provided that no stay shall serve to toll the 
     time limits set forth in section 405(d) of the Act. If the 
     Merits Hearing Officer does not stay the proceedings, the 
     Board may do so while an interlocutory appeal is pending 
     before it.
       (g) Procedures Before the Board.--Upon its decision to 
     grant interlocutory appeal, the Board shall issue an order 
     setting forth the procedures that will be followed in the 
     conduct of that review.
       (h) Appeal of a Final Decision.--Denial of interlocutory 
     appeal 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 of these Rules from the Merits 
     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.
       The Merits Hearing Officer may 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.
     Sec. 7.15 Closing the Record.
       (a) Except as provided in section 7.14 of these Rules, the 
     record shall close when the hearing ends. However, the Merits 
     Hearing Officer may hold the record open as necessary to 
     allow the parties to submit arguments, briefs, documents, or 
     additional evidence previously identified for introduction.
       (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 before 
     the record closed, or that the additional evidence or 
     argument is being provided in rebuttal to new evidence or 
     argument that another party submitted just before the record 
     closed. The Merits Hearing Officer also shall make part of 
     the record an approved correction to the transcript.
     Sec. 7.16 Merits Hearing Officer Decisions; Entry in Office 
         Records; Corrections to the Record; Motions to Alter, 
         Amend, or Vacate the Decision.
       (a) The Merits Hearing Officer shall issue a written 
     decision no later than 90 days after the hearing ends, 
     pursuant to section 405(g) of the Act.

[[Page H4913]]

       (b) The Merits Hearing Officer's written decision shall:
       (1) state the issues raised in the claim form or 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 presented on the record;
       (4) determine whether a violation has occurred; and
       (5) order such remedies as are appropriate under the Act.
       (c) If the Merits Hearing Officer's written decision 
     concerns a claim alleging a violation or violations described 
     in section 415(d)(1)(C) of the Act, the written decision 
     shall include the following findings:
       (1) whether the alleged violation or violations occurred;
       (2) whether any violation or violations found to have 
     occurred were committed personally by an individual who, at 
     the time of committing the violation, was a Member of the 
     House of Representatives (including a Delegate or Resident 
     Commissioner to the Congress) or a Senator;
       (3) the amount of compensatory damages, if any, awarded 
     pursuant to section 415(d)(1)(B) of the Act; and
       (4) the amount, if any, of compensatory damages that is the 
     ``reimbursable portion'' as defined by section 415(d) of the 
     Act.
       (d) Upon issuance, the Merits Hearing Officer's written 
     decision shall be entered into the Office's records.
       (e) The Office shall promptly provide a copy of the Merits 
     Hearing Officer's written decision to the parties. In the 
     case of a decision that finds that an amount of damages is 
     reimbursable, as described in subparagraph (c)(4) of this 
     section, the Office shall promptly provide a copy of the 
     Merits Hearing Officer's written decision to the Member 
     responsible for that reimbursement, regardless of whether the 
     Member has intervened in the action.
       (f) If there is no appeal of a Merits Hearing Officer's 
     decision, that decision becomes a final decision of the 
     Office, which is subject to enforcement under section 8.03 of 
     these Rules.
       (g) Corrections to the Record.--After a Merits Hearing 
     Officer's decision has been issued, but before an appeal is 
     made to the Board, or absent an appeal, before the decision 
     becomes final, the Merits Hearing Officer may issue an 
     erratum notice to correct simple errors or easily correctible 
     mistakes. The Merits Hearing Officer may do so on a party's 
     motion or on his or her own motion with or without advance 
     notice.
       (h) After a Merits Hearing Officer's decision has been 
     issued, but before an appeal is made to the Board, or absent 
     an appeal, before the decision becomes final, a party to the 
     proceeding before the Merits 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; 
     (5) the decision has been satisfied, released, or discharged; 
     (6) the decision is based on an earlier decision that has 
     been reversed or vacated or on a provision of law that has 
     been amended, repealed, or ruled unconstitutional; or (7) 
     applying the decision prospectively is no longer equitable. 
     The motion shall be filed within 15 days after service of the 
     Merits Hearing Officer's decision. No response shall be filed 
     unless the Merits 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 Merits Hearing Officer's action unless the Merits 
     Hearing Officer so orders.

                          SUBPART H--[AMENDED]

       8. Subpart H has been amended as follows:
     Subpart H--Proceedings before the Board
     Sec. 8.01 Appeal to the Board
     Sec. 8.02 Reconsideration
     Sec. 8.03 Compliance with Final Decisions, Requests for 
         Enforcement
     Sec. 8.04 Judicial Review
     Sec. 8.05 Application for Review of an Executive Director 
         Action
     Sec. 8.06 Exceptions to Arbitration Awards
     Sec. 8.07 Expedited Review of Negotiability
     Sec. 8.08 Procedures of the Board in Impasse Proceedings
     Sec. 8.01 Appeal to the Board.
       (a) Petition for Review.--No later than 30 days after the 
     entry of the decision of the Merits Hearing Officer in the 
     records of the Office pursuant to section 7.16(d) of these 
     Rules, 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 all 
     opposing parties or their representatives.
       (b) No Appeal of Report on Preliminary Review.--A Report on 
     Preliminary Review issued pursuant to section 403(c) of the 
     Act is not appealable to the Board.
       (c) Briefs on Appeal.
       (1) Unless otherwise ordered by the Board, within 21 days 
     following the filing of a petition for review by the Board, 
     the appellant shall file and serve a supporting brief in 
     accordance with section 1.04 of these Rules. That brief shall 
     identify with particularity those findings or conclusions in 
     the Merits Hearing Officer's decision that are being 
     challenged and shall refer specifically to the portions of 
     the record and the provisions of statutes or rules that are 
     alleged to support each assertion made on appeal.
       (2) Unless otherwise ordered by the Board, within 21 days 
     following the service of the appellant's brief, any opposing 
     party may file and serve a responsive brief. Unless otherwise 
     ordered by the Board, within 10 days following the service of 
     the responsive brief(s), the appellant may file and serve a 
     reply brief.
       (3) 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; 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.
       (d) Oral Argument.--Upon the request of any party or upon 
     its own order, the Board, in its discretion, may hold oral 
     argument on an appeal.
       (e) Decision of the Board.--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 of the Merits 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.
       (f) Remand.--The Board may remand the matter to a Merits 
     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 Merits Hearing 
     Officer shall render a decision or report to the Board, as 
     ordered, at the conclusion of proceedings on the remanded 
     matters. 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.
       (g) Standard of Review.--Pursuant to section 406(c) of the 
     Act, in conducting its review of the decision of a Merits 
     Hearing Officer, the Board shall set aside a decision if it 
     determines that the decision was:
       (1) arbitrary, capricious, an abuse of discretion, or 
     otherwise not consistent with law;
       (2) not made consistent with required procedures; or
       (3) unsupported by substantial evidence.
       (h) Review of Record.--In making determinations under 
     paragraph (g), the Board shall review the whole record, or 
     those parts of it cited by a party, and due account shall be 
     taken of the rule of prejudicial error.
       (i) Record.--The docket sheet, claim form or complaint and 
     any amendments, preliminary review report, request for 
     hearing, 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 Merits 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) Amicus Participation.--The Board may invite amicus 
     participation, in appropriate circumstances, in a manner 
     consistent with the requirements of section 416 of the Act.
       (k) Withdrawal of Petition for Review.--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 or deny 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) Compliance Report and Petitions.--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

[[Page H4914]]

     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 
     attorney's 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.
       (b) Additional Reports.--The Office may require additional 
     reports as necessary.
       (c) Failure to File Compliance Report.--If the Office does 
     not receive notice of compliance in accordance with paragraph 
     (a) of this section, the Office shall make inquiries to 
     determine the status of compliance. If the Office cannot 
     determine that full compliance is forthcoming, the Office 
     shall report the failure to comply to the Board and recommend 
     whether court enforcement of the decision should be sought.
       (d) Petition for Enforcement.--To the extent provided in 
     section 407(a) of the Act and section 8.04 of these Rules, 
     the appropriate 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.
       (e) Notice to Show Cause.--Upon receipt of a report of 
     noncompliance or a petition for enforcement of a final 
     decision, or as it otherwise determines, the Board may issue 
     a notice to any person or party to show cause why the Board 
     should not seek judicial enforcement of its decision or 
     order.
       (f) Petition to Court.--The Board, in its discrection, may 
     direct the General Counsel to petition the court for 
     enforcement under section 407(a)(2) of the Act of a decision 
     under section 406(e) of the Act whenever the Board finds that 
     a party has failed to comply with its decision and order.
     Sec. 8.04 Judicial Review.
       Pursuant to section 407 of the Act,
       (a) the United States Court of Appeals for the Federal 
     Circuit shall have jurisdiction over any proceeding commenced 
     by a petition of:
       (1) a party aggrieved by a final decision of the Board 
     under section 406(e) of the Act in cases arising under 
     sections 102(c) or 201-207 of the Act;
       (2) a charging individual or respondent before the Board 
     who files a petition under section 210(d)(4) of the Act;
       (3) the General Counsel or a respondent before the Board 
     who files a petition under section 215(c)(5) of the Act; or
       (4) the General Counsel or a respondent before the Board 
     who files a petition under section 220(c)(3) of the Act.
       (b) The United States Court of Appeals for the Federal 
     Circuit shall have jurisdiction over any petition of the 
     General Counsel, filed in the name of the Office and at the 
     direction of the Board, to enforce a final decision under 
     section 405(g) or 406(e) of the Act with respect to a 
     violation of part A, B, C, or D of title II of the Act.
       (c) The party filing a petition for review shall serve a 
     copy on the opposing party or parties or their 
     representative(s).
     Sec. 8.05 Application for Review of an Executive Director's 
         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.ocwr.gov.
 Sec. 8.06 Expedited Review of Negotiability Issues.
       For additional rules on the procedures pertaining to the 
     Board's expedited review of negotiability issues, refer to 
     part 2424 of the Substantive Regulations of the Board, 
     available at www.ocwr.gov.
 Sec. 8.07 Review of Arbitration Awards.
       For additional rules on the procedures pertaining to the 
     Board's review of arbitration awards, refer to part 2425 of 
     the Substantive Regulations of the Board, available at 
     www.ocwr.gov.
 Sec. 8.08 Procedures of the Board in Impasse Proceedings.
       For additional rules on the procedures of the Board in 
     impasse proceedings, refer to part 2471 of the Substantive 
     Regulations of the Board, available at www.ocwr.gov.

 SUBPART I--[AMENDED]

       9. Subpart I has been amended as follows:
     Subpart I--Other Matters of General Applicability
     Sec. 9.01 Attorney's Fees and Costs
     Sec. 9.02 Ex Parte Communications
     Sec. 9.03 Settlement of Claims and Complaints
     Sec. 9.04 Payments Required Pursuant to Decisions, Awards, or 
         Settlements under section 415(a) of the Act
     Sec. 9.05 Revocation, Amendment or Waiver of Rules
     Sec. 9.06 Notices
     Sec. 9.07 Training and Education Programs
     Sec. 9.01 Attorney's Fees and Costs.
       (a) Request.--No later than 30 days after the entry of a 
     final decision of the Office, the prevailing party may submit 
     to the Merits Hearing Officer who decided the case a motion 
     for the award of reasonable attorney's fees and costs, 
     following the form specified in paragraph (b) below. The 
     Merits Hearing Officer, after giving the respondent an 
     opportunity to reply, shall rule on the motion. Decisions 
     regarding attorney's fees and costs are collateral and do not 
     affect the finality or appealability of a final decision 
     issued by the Office.
       (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:
       (1) accurate and contemporaneous time records;
       (2) a copy of the terms of the fee agreement (if any);
       (3) the attorney's customary billing rate for similar work 
     with evidence that the rate is consistent with the prevailing 
     community rate for similar services in the community in which 
     the attorney ordinarily practices;
       (4) an itemization of costs related to the matter in 
     question; and
       (5) evidence of an established attorney-client relationship 
     (if a copy of the fee agreement is not available).
       (c) Arbitration Awards.--In arbitration proceedings, the 
     prevailing party must submit any request for attorney's fees 
     and costs to the arbitrator in accordance with the 
     established arbitration procedures.
     Sec. 9.02 Ex Parte Communications.
       (a) Definitions.
       (1) The term ``interested person outside the Office'' means 
     any covered employee and agent thereof who is not an employee 
     or agent of the Office, any labor organization and agent 
     thereof, any employing office and agent thereof, and any 
     individual or organization and agent thereof, who is or may 
     reasonably be expected to be involved in a proceeding or a 
     rulemaking, and the General Counsel and any agent thereof 
     when prosecuting a complaint proceeding before the Office 
     pursuant to sections 210, 215, or 220 of the Act. The term 
     also includes any employee of the Office who becomes a party 
     or a witness for a party other than the Office in proceedings 
     as defined in these Rules.
       (2) The term ``ex parte communication'' means an oral or 
     written communication--
       (A) that is between an interested person outside the Office 
     and a Board member or Hearing Officer who is or may 
     reasonably be expected to be involved in a proceeding or a 
     rulemaking;
       (B) that is related to a proceeding or a rulemaking;
       (C) that is not made on the public record;
       (D) that is not made in the presence of all parties to a 
     proceeding or a rulemaking; and
       (E) that is made without reasonable prior notice to all 
     parties to a proceeding or a rulemaking.
       (3) For purposes of this section, the term ``proceeding'' 
     means a hearing proceeding under section 405 of the Act, an 
     appeal to the Board under section 406 of the Act, a pre-
     election investigatory hearing under section 220 of the Act, 
     and any other proceeding of the Office established pursuant 
     to regulations issued by the Board under the Act.
       (4) The term ``period of rulemaking'' means the period 
     commencing with the issuance of an advance notice of proposed 
     rulemaking or of a notice of proposed rulemaking, whichever 
     issues first, and concluding with the issuance of a final 
     rule.
       (b) Exception to Coverage.--The Rules set forth in this 
     section do not apply during periods that the Board designates 
     as periods of negotiated rulemaking in accordance with the 
     procedures set forth in the Administrative Procedure Act, 5 
     U.S.C. Sec. 500 et seq.
       (c) Prohibited Ex Parte Communications and Exceptions.
       (1) During a proceeding, it is prohibited knowingly to make 
     or cause to be made:
       (A) a written ex parte communication if copies thereof are 
     not promptly served by the communicator on all parties to the 
     proceeding in accordance with section 1.04 of these Rules; or
       (B) an oral ex parte communication unless all parties have 
     received advance notice thereof by the communicator and have 
     an adequate opportunity to be present.
       (2) The Hearing Officer or the Office may initiate attempts 
     to settle a matter informally at any time. The parties may 
     agree to waive the prohibitions against ex parte 
     communications during settlement discussions, and they may 
     agree to any limits on the waiver.
       (3) During the period of rulemaking, it is prohibited 
     knowingly to make or cause to be made a written or an oral ex 
     parte communication. During the period of rulemaking, the 
     Office shall treat any written ex parte communication as a 
     comment in response to the advance notice of proposed 
     rulemaking or the notice of proposed rulemaking, whichever is 
     pending, and such communications will therefore be part of 
     the public rulemaking record.
       (4) Notwithstanding the prohibitions set forth in 
     subparagraphs (1) and (2) above, the following ex parte 
     communications are not prohibited:
       (A) those which relate solely to matters which the Board 
     member or Hearing Officer is authorized by law, Office rules, 
     or order of the Board or Hearing Officer to entertain or 
     dispose of on an ex parte basis;
       (B) those which all parties to the proceeding agree, or 
     which the responsible official formally rules, may be made on 
     an ex parte basis;
       (C) those which concern only matters of general 
     significance to the field of labor and employment law or 
     administrative practice;
       (D) those from the General Counsel to the Office or the 
     Board when the General Counsel is acting on behalf of the 
     Office or the Board under any section of the Act; and

[[Page H4915]]

       (E) those which could not reasonably be construed to create 
     either unfairness or the appearance of unfairness in a 
     proceeding or rulemaking.
       (5) It is prohibited knowingly to solicit or cause to be 
     solicited any prohibited ex parte communication.
       (d) Reporting of Prohibited Ex Parte Communications.
       (1) Any Board member or Hearing Officer who is or may 
     reasonably be expected to be involved in a proceeding or a 
     rulemaking and who determines that he or she is being asked 
     to receive a prohibited ex parte communication shall refuse 
     to do so and inform the communicator of this Rule.
       (2) Any Board member or Hearing Officer who is or may 
     reasonably be expected to be involved in a proceeding who 
     knowingly receives a prohibited ex parte communication shall 
     (i) notify the parties to the proceeding that such a 
     communication has been received; and (ii) provide the parties 
     with a copy of the communication and of any response thereto 
     (if written) or with a memorandum stating the substance of 
     the communication and any response thereto (if oral). If a 
     proceeding is then pending before either the Board or a 
     Hearing Officer, and if the Board or Hearing Officer so 
     orders, these materials shall then be placed in the record of 
     the proceeding. Upon order of the Hearing Officer or the 
     Board, the parties may be provided with a full opportunity to 
     respond to the alleged prohibited ex parte communication and 
     to address what action, if any, should be taken in the 
     proceeding as a result of the prohibited communication.
       (3) Any Board member involved in a rulemaking who knowingly 
     receives a prohibited ex parte communication shall cause to 
     be published in the Congressional Record a notice that such a 
     communication has been received and a copy of the 
     communication and of any response thereto (if written) or 
     with a memorandum stating the substance of the communication 
     and any response thereto (if oral). Upon order of the Board, 
     these materials shall then be placed in the record of the 
     rulemaking and the Board shall provide interested persons 
     with a full opportunity to respond to the alleged prohibited 
     ex parte communication and to address what action, if any, 
     should be taken in the proceeding as a result of the 
     prohibited communication.
       (4) Any Board member or Hearing Officer who is or may 
     reasonably be expected to be involved in a proceeding or a 
     rulemaking and who knowingly receives a prohibited ex parte 
     communication and who fails to comply with the requirements 
     of subparagraphs (1), (2), or (3) above, is subject to 
     internal censure or discipline through the same procedures 
     that the Board uses to address and resolve ethical issues.
       (e) Penalties and Enforcement.
       (1) When a person is alleged to have made or caused another 
     to make a prohibited ex parte communication, the Board or the 
     Hearing Officer (as appropriate) may issue to the person a 
     notice to show cause, returnable within a stated period not 
     less than 7 days from the date thereof, why the Board or the 
     Hearing Officer should not determine that the interests of 
     law or justice require that the person be sanctioned by, when 
     applicable, dismissal of his or her claim or interest, the 
     striking of his or her answer, or the imposition of some 
     other appropriate sanction, including but not limited to the 
     award of attorney's fees and costs incurred in responding to 
     a prohibited ex parte communication. Sanctions shall be 
     commensurate with the seriousness and unreasonableness of the 
     offense, accounting for, among other things, the advertency 
     or inadvertency of the prohibited communication.
       (2) Any Board member or Hearing Officer who is or may 
     reasonably be expected to be involved in a proceeding or a 
     rulemaking and who knowingly makes or causes to be made a 
     prohibited ex parte communication is subject to internal 
     censure or discipline through the same procedures that the 
     Board uses to address and resolve ethical issues.
     Sec. 9.03 Settlement of Claims and Complaints.
       (a) Settlement Agreements.--Parties to a process described 
     in section 210, 215, 220, or 401 of the CAA may agree to 
     settle all or part of a disputed matter. In accordance with 
     section 414 of the Act, 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 for disapproval, and shall render 
     the settlement ineffective.
       (b) Obligations Payable from Account Established by Section 
     415(a) of the Act.--Any agreement between the parties that 
     purports to create an obligation that is payable from the 
     account established by section 415(a) of the Act (``Section 
     415(a) Treasury Account'') must be in writing and approved by 
     the Executive Director.
       (c) General Requirements for Approval of Settlement 
     Agreements.--Except as provided in paragraph (d), a 
     settlement agreement must contain the signatures of all 
     parties or their designated representatives on the agreement 
     document. A settlement agreement cannot be approved by the 
     Executive Director until the appropriate revocation periods 
     have expired and the employing office has fully completed and 
     submitted the Office's Section 415(a) Account Requisition 
     Form. A 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. All 
     settlement agreements must also:
       (1) specify the amount of each payment to be made from the 
     Section 415(a) Treasury Account;
       (2) identify the portion of any payment that is subject to 
     the reimbursement provisions of section 415(e) of the Act 
     because it is being used to settle an alleged violation of 
     section 201(a) or 206(a) of the Act;
       (3) identify each payment that is back pay and indicate the 
     net amount that will be paid to the employee after tax 
     withholding and authorized deductions; and
       (4) certify that, except for funds to correct alleged 
     violations of sections 201(a)(3), 210, or 215 of the Act, 
     only funds from the Section 415(a) Treasury Account will be 
     used for the payment of any amount specified in the 
     settlement agreement.
       (d) Requirements for Approval of Settlement Agreements 
     Involving Claims Against Members of Congress.--If a 
     settlement agreement concerns allegations against a Member of 
     Congress subject to the payment reimbursement provisions of 
     section 415(d) of the Act or any applicable rule of the 
     Senate or the House of Representatives that would require 
     reimbursement by the Member of the Treasury account 
     established by section 415(a) of the Act, the settlement 
     agreement must comply with sections 9.03(c)(1), (3) and (4) 
     of these Rules, and:
       (1) specify the amount, if any, that is the ``reimbursable 
     portion'' as defined by section 415(d) of the Act because it 
     is being used to settle an allegation that a Member 
     personally committed a violation of section 201(a), 206(a), 
     or 207 of the Act; and
       (2) contain the signature of any individual (or the 
     representative of any individual) who has exercised his or 
     her right to intervene pursuant to section 415(d)(8) of the 
     Act or an applicable provision of these Rules.
       (e) Violation of a Settlement Agreement.--Parties are 
     encouraged to include in their settlements specific dispute 
     resolution proceedings. If a party should allege that a 
     settlement agreement has been violated, the issue shall be 
     determined by reference to those procedures. If the 
     settlement agreement does not have a stipulated method for 
     dispute resolution of an alleged violation, the Office may 
     provide assistance in resolving the dispute, including the 
     services of a Mediator as determined by the Executive 
     Director. When the settlement agreement does not have a 
     stipulated method for resolving violation allegations, an 
     allegation of a violation must be filed with the Executive 
     Director no later than 60 days after the party to the 
     agreement becomes aware of the alleged violation. Such 
     allegations will be reviewed, investigated or mediated, as 
     appropriate, by the Executive Director or designee.
     Sec. 9.04 Payments Required Pursuant to Decisions, Awards, or 
         Settlements under Section 415(a) of the Act.
       (a) In General.--Whenever an award or settlement requires 
     the payment of funds pursuant to section 415(a) of the Act, 
     the award or settlement must be submitted to the Executive 
     Director together with a fully completed Section 415(a) 
     Account Requisition Form for processing by the Office.
       (b) Requesting Payments.
       (1) Only an employing office under section 101 of the Act, 
     or its designated payroll administrator, or disbursing 
     office, as applicable, may submit a payment request from the 
     Section 415(a) Treasury Account.
       (2) Employing offices, payroll administrators, or 
     disbursing offices must submit requests for payments from the 
     Section 415(a) Treasury Account on the Office's Section 
     415(a) Account Requisition Forms.
       (c) Duty to Cooperate.--Each employing office, payroll 
     administrator, or disbursing office has a duty to cooperate 
     with the Executive Director or his or her designee by 
     promptly responding to any requests for information and to 
     otherwise assist the Executive Director in providing prompt 
     payments from the Section 415(a) Treasury Account. Failure to 
     cooperate may be grounds for disapproval of the settlement 
     agreement.
       (d) Back Pay.--When the award or settlement specifies a 
     payment as back pay, the employing office, payroll 
     administrator, or disbursing office, as applicable, may 
     request that the payment be disbursed from the Section 415(a) 
     Treasury Account pursuant to one of the following methods:
       (1) The gross amount of the back pay will be disbursed to 
     the employing office, payroll administrator, or disbursing 
     office, as applicable, which will then promptly issue amounts 
     representing back pay (and interest if authorized) to the 
     employee and retain amounts representing withholding and 
     deductions;
       (2) Deductions from gross back pay will be disbursed to the 
     employing office, payroll administrator, or disbursing 
     office, as applicable. Net back pay (and interest if 
     authorized), will be disbursed to the employee or to the 
     employee's attorney, as directed by the submitting employing 
     office, payroll administrator, or disbursing office; or
       (3) The payment will be disbursed pursuant to a method 
     mutually agreed upon by the OCWR and the employing office, 
     payroll administrator, or disbursing office, as applicable.
       (e) Attorney's Fees.--When the award or settlement 
     specifies a payment as attorney's fees, the attorney's fees 
     are paid directly to the attorney from the Section 415(a) 
     Treasury Account.
       (f) Tax Reporting and Withholding Obligations.--The Office 
     does not report Section

[[Page H4916]]

     415(a) Treasury Account payments as potential taxable income 
     to the Internal Revenue Service (IRS) and is not responsible 
     for tax withholding or reporting. To the extent that W-2 or 
     1099 forms need to be issued, it is the responsibility of the 
     employing office, payroll administrator, or disbursing office 
     submitting the payment request to do so. The employing office 
     or its designated payroll administrator, or disbursing 
     office, as applicable, should also consult IRS regulations 
     for guidance in reporting the amount of any back pay award as 
     wages on a W-2 Form.
       (g) Method of Payment.--Section 415(a) Treasury Account 
     payments are made by electronic funds transfer. The Office 
     will issue an electronic payment to the payee's account as 
     specified on the appropriate Section 415(a) Treasury Account 
     form.
       (h) Reimbursement of the Section 415(a) Treasury Account.
       (1) Members of Congress.--Section 415(d) of the Act 
     requires Members of the House of Representatives and the 
     Senate to reimburse the compensatory damages portion of a 
     decision, award or settlement for certain violations of 
     section 201(a), 206(a), or 207 that the Member is found to 
     have committed personally. Reimbursement shall be in 
     accordance with the timetable and procedures established by 
     the applicable congressional committee for the withholding of 
     amounts from the compensation of an individual who is a 
     Member of the House of Representatives or a Senator.
       (2) Other Employing Offices.--Section 415(e) of the Act 
     requires employing offices (other than an employing office of 
     the House or Senate) to reimburse awards and settlements paid 
     from the Section 415(a) Treasury Account in connection with 
     claims alleging violations of section 201(a) or 206(a) of the 
     Act.
       (A) As soon as practicable after the Executive Director is 
     made aware that a payment of an award or settlement under 
     this Act has been made from the Section 415(a) Treasury 
     Account in connection with a claim alleging a violation of 
     section 201(a) or 206(a) of the Act by an employing office 
     (other than an employing office of the House of 
     Representatives or an employing office of the Senate), the 
     Executive Director will notify the head of the employing 
     office and the employing office's designated representative 
     that the payment has been made. The notice will include a 
     statement of the payment amount.
       (B) Reimbursement must be made within 180 days after 
     receipt of notice from the Executive Director, and is to be 
     transferred to the Section 415(a) Treasury Account out of 
     funds available for the employing office's operating 
     expenses.
       (C) The Office will notify employing offices of any 
     outstanding receivables on a quarterly basis. Employing 
     offices have 30 days from the date of the notification of an 
     outstanding receivable to respond to the Office regarding the 
     accuracy of the amounts in the notice.
       (D) Receivables outstanding for more than 30 days from the 
     date of the notification will be noted as such on the 
     Office's public website and in the Office's annual report to 
     Congress on awards and settlements requiring payments from 
     the Section 415(a) Treasury Account.
       (3) [reserved]
     Sec. 9.05 Revocation, Amendment, or Waiver of Rules.
       (a) The Executive Director, subject to the approval of the 
     Board, may revoke or amend these Rules by publishing proposed 
     changes in the Congressional Record and providing for a 
     comment period of not less than 30 days. Following the 
     comment period, any changes to the Rules are final once they 
     are published in the Congressional Record.
       (b) The Board or a Hearing Officer may waive a procedural 
     rule in an individual case for good cause shown if 
     application of the rule is not required by law.
     Sec. 9.06 Notices.
       (a) All employing offices are required to post and keep 
     posted the notice provided by the Office that:
       (1) describes the rights, protections, and procedures 
     applicable to covered employees of the employing office under 
     this Act, concerning violations described in 2 U.S.C. 
     Sec. 1362(b); and
       (2) includes contact information for the Office.
       (b) The notice must be displayed in all premises of the 
     covered employer in conspicuous places where notices to 
     employees are customarily posted.
     Sec. 9.07 Training and Education Programs.
       (a) Not later than June 19, 2019 (i.e., 180 days after the 
     date of the enactment of the Reform Act), and not later than 
     45 days after the beginning of each Congress (beginning with 
     the 117th Congress), each employing office shall submit a 
     report both to the Committee on House Administration of the 
     House of Representatives and the Committee on Rules and 
     Administration of the Senate on the implementation of the 
     training and education program required under section 438(a) 
     of the Act.
       (b) Exception for Offices of Congress.--This section does 
     not apply to any employing office of the House of 
     Representatives or any employing office of the Senate.

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