[Congressional Record (Bound Edition), Volume 150 (2004), Part 2]
[House]
[Pages 2337-2341]
[From the U.S. Government Publishing Office, www.gpo.gov]


                     NOTICE OF PROPOSED RULEMAKING

                                                    U.S. Congress,


                                         Office of Compliance,

                                Washington, DC, February 12, 2004.
     Hon. J. Dennis Hastert,
     Speaker of the House, House of Representatives, Washington, 
         DC.
       Dear Mr. Speaker: Pursuant to Section 303(b) of the 
     Congressional Accountability Act of 1995 (2 U.S.C. 1384(b)) 
     (``Act''), I am transmitting on behalf of the Board of 
     Directors of the Office of Compliance the enclosed Second 
     Notice of Proposed Procedural Rule Making for publication in 
     the Congressional Record.
       We request that this notice be published in the 
     Congressional Record. The Act specifies that the enclosed 
     Notice be published on the first day on which both Houses are 
     in session following this transmittal. Any inquiries 
     regarding this notice should be addressed to the Office of 
     Compliance, Room LA-200, 110 2nd Street, S.E., Washington, 
     D.C. 20540; 202-724-9250, TDD 202-426-1912.
           Sincerely,
                                                Susan S. Robfogel,
                                                            Chair.
       Attachment.


                          office of compliance

       The Congressional Accountability Act of 1995: Second Notice 
     of Proposed Amendments to the Procedural Rules.
       Introductory statement:
       On September 4, 2003, a Notice of Proposed Amendments to 
     the Procedural Rules of the Office of Compliance was 
     published in the Congressional Record at S11110, and H7944. 
     As specified by the Congressional Accountability Act of 1995 
     (``Act'') at Section 303(b) (2 U.S.C.1384(b)), a 30 day 
     period for comments from interested parties ensued. In 
     response, the Office received a number of comments regarding 
     the proposed amendments.
       At the request of a commenter, for good reason shown, the 
     Board of Directors extended the 30 day comment period until 
     October 20, 2003. The extension of the comment period was 
     published in the Congressional Record on October 2, 2003 at 
     H9209 and S12361.
       On October 15, 2003, an announcement that the Board of 
     Directors intended to hold a hearing on December 2, 2003 
     regarding the proposed procedural rule amendments was 
     published in the Congressional Record at H9475 and S12599. On 
     November 21, 2003, a Notice of the cancellation of the 
     December 2, 2003 hearing was published in the Congressional 
     Record at S15394 and H12304.
       The Board of Directors of the Office of Compliance has 
     determined to issue this Second Notice of Proposed Amendment 
     to the Procedural Rules, which includes changes to the 
     initial proposed amendments, together with a brief discussion 
     of each proposed amendment. As set forth in greater detail 
     herein below, interested parties are being afforded another 
     opportunity to comment on these proposed amendments.
       The complete existing Procedural Rules of the Office of 
     Compliance may be found on the Office's web site: 
     www.compliance.gov.
       How to submit comments:
       Comments regarding the proposed amendments to the Rules of 
     Procedure of the Office of Compliance set forth in this 
     NOTICE are invited for a period of thirty (30) days following 
     the date of the appearance of this NOTICE in the 
     Congressional Record. In addition to being posted on the 
     Office of Compliance's section 508 compliant web site 
     (www.compliance.gov), this NOTICE is also available in the 
     following alternative formats: Large Print, Braille. Requests 
     for this NOTICE in an alternative format should be made to: 
     Bill Thompson, Executive Director, or Alma Candelaria, Deputy 
     Executive Director, Office of Compliance, at 202-724-9250 
     (voice) or 202-426-1912 (TDD).
       Submission of comments must be made in writing to the 
     Executive Director, Office of Compliance, 110 Second Street, 
     S.E., Room LA-200, Washington, D.C. 20540-1999. It is 
     requested, but not required, that an electronic version of 
     any comments be provided on an accompanying computer disk. 
     Comments may also be submitted by facsimile to the Executive 
     Director at 202-426-1913 (a non-toll-free number.) Those 
     wishing to receive confirmation of the receipt of their 
     comments are requested to provide a self-addressed, stamped 
     post card with their submission.
       Copies of submitted comments will be available for review 
     on the Office's web site at www.compliance.gov, and at the 
     Office of Compliance, 110 Second Street, S.E., Washington, 
     D.C. 20540-1999, on Monday through Friday (non-Federal 
     holidays) between the hours of 9:30 a.m. and 4:30 p.m.
       Supplementary Information: The Congressional Accountability 
     Act of 1995 (CAA), PL 104-1, was enacted into law on January 
     23, 1995. The CAA applies the rights and protections of 11 
     federal labor and employment statutes to covered employees 
     and employing offices within the Legislative Branch of 
     Government. Section 301 of the CAA (2 U.S.C. 1381) 
     establishes the Office of Compliance as an independent office 
     within that Branch. Section 303 (2 U.S.C. 1383) directs that 
     the Executive Director, as the Chief Operating Officer of the 
     agency, adopt rules of procedure governing the Office of 
     Compliance, subject to approval by the Board of Directors of 
     the Office of Compliance. The rules of procedure generally 
     establish the process by which alleged violations of the laws 
     made applicable to the Legislative Branch under the CAA will 
     be considered and resolved. The rules include procedures for 
     counseling, mediation, and election between filing an 
     administrative complaint with the Office of Compliance or 
     filing a civil action in U.S. District Court. The rules also 
     include the procedures for processing Occupational Safety and 
     Health investigations and enforcement, as well as the process 
     for the conduct of administrative hearings held as the result 
     of the filing of an administrative complaint under all of the 
     statutes applied by the Act, and for appeals of a decision by 
     a hearing officer to the Board of Directors of the Office of 
     Compliance, and for the filing of an appeal of a decision by 
     the Board of Directors to the United States Court of Appeals 
     for the Federal Circuit. The rules also contain other matters 
     of general applicability to the dispute resolution process 
     and to the operation of the Office of Compliance.
       These proposed amendments to the Rules of Procedure are the 
     result of the experience of the Office in processing disputes 
     under the CAA during the period since the original adoption 
     of these rules in 1995.
       How to read the proposed amendments:
       The text of the proposed amendments shows [deletions within 
     brackets], and added text in italic. Textual additions which 
     have been made for the first time in this second notice of 
     the proposed amendments are shown as italicized bold. Textual 
     deletions which have been made for the first time in this 
     second notice of the proposed amendments [[ are bracketed 
     with double brackets. ]] Only subsections of the rules which 
     include proposed amendments are reproduced in this notice. 
     The insertion of a series of small dots (. . . . .) indicates 
     additional, unamended text within a section has not been 
     reproduced in this document. The insertion of a series of 
     stars (* * * * *) indicates that the unamended text of entire 
     sections of the Rules have not been reproduced in this 
     document. For the text of other portions of the Rules which 
     are not proposed to be amended, please access the Office of 
     Compliance web site at www.compliance.gov.

                  Proposed Procedural Rule Amendments

                      PART I--OFFICE OF COMPLIANCE

                Office of Compliance Rules of Procedure

       As Amended--February 12, 1998 (Subpart A, section 1.02, 
     ``Definitions''), and as proposed to be amended in 2004.

                           Table of Contents

                     Subpart A--General Provisions

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

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

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

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

    Subpart D--Compliance, Investigation, Enforcement and Variance 
Procedures under Section 215 of the CAA (Occupational Safety and Health 
          Act of 1970) Inspections, Citations, and Complaints

Sec. 4.01 Purpose and Scope
Sec. 4.02 Authority for Inspection
Sec. 4.03 Request for Inspections by Employees and Employing Offices
Sec. 4.04 Objection to Inspection
Sec. 4.05 Entry Not a Waiver
Sec. 4.06 Advance Notice of Inspection
Sec. 4.07 Conduct of Inspections
Sec. 4.08 Representatives of Employing Offices and Employees
Sec. 4.09 Consultation with Employees
Sec. 4.10 Inspection Not Warranted; Informal Review
Sec. 4.11 Citations
Sec. 4.12 Imminent Danger
Sec. 4.13 Posting of Citations
Sec. 4.14 Failure to Correct a Violation for Which a Citation Has Been 
              Issued; Notice of Failure to Correct Violation; Complaint
Sec. 4.15 Informal Conferences
Sec. 4.16 Comments on Occupational Safety and Health Reports

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

Sec. 4.20 Purpose and Scope
Sec. 4.21 Definitions
Sec. 4.22 Effect of Variances
Sec. 4.23 Public Notice of a Granted Variance, Limitation, Variation, 
              Tolerance, or Exemption
Sec. 4.24 Form of Documents
Sec. 4.25 Applications for Temporary Variances and other Relief
Sec. 4.26 Applications for Permanent Variances and other Relief
Sec. 4.27 Modification or Revocation of Orders

[[Page 2338]]

Sec. 4.28 Action on Applications
Sec. 4.29 Consolidation of Proceedings
Sec. 4.30 Consent Findings and Rules or Orders
Sec. 4.31 Order of Proceedings and Burden of Proof

                         Subpart E--Complaints

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

                   Subpart F--Discovery and Subpoenas

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

                          Subpart G--Hearings

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

                Subpart H--Proceedings before the Board

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

           Subpart I--Other Matters of General Applicability

Sec. 9.01 Filing, Service and Size Limitations of Motions, Briefs, 
              Responses and other Documents
Sec. 9.02 Signing of Pleadings, Motions and Other Filings; Violations 
              of Rules; Sanctions
Sec. 9.03 Attorney's Fees and Costs
Sec. 9.04 Ex parte Communications
Sec. 9.05 Settlement Agreements
Sec. 9.06 Destruction of Closed Files
Sec. 9.07 Payments [[ of]] pursuant to Decisions or Awards under 
              Section 415(a) of the Act.
Sec. 9.0[6]8 Revocation, Amendment or Waiver of Rules

                           *   *   *   *   *


     Sec. 1.03 Filing and Computation of Time.

       (a) Method of Filing. Documents may be filed in person or 
     by mail, including express, overnight and other expedited 
     delivery. When specifically authorized by the Executive 
     Director, or by the Board of Directors in the case of an 
     appeal to the Board, any document may also be filed by 
     electronic transmittal in a designated format. Requests for 
     counseling under section 2.03, requests for mediation under 
     section 2.04 and complaints under section 5.01 of these rules 
     may also be filed by facsimile (FAX) transmission. . . . .
       Discussion: The electronic filing option is in addition to 
     existing filing procedures, and represents the decision of 
     this agency to begin to explore the process of migration 
     toward electronic filing. In response to comments, the Board 
     has added Board of Directors authorization authority to 
     ensure that the Executive Director cannot unilaterally assume 
     Board authority regarding a matter pending before the Board. 
     Because of limits in available technology, it will remain 
     necessary to designate a particular format for electronic 
     transmittal. Requiring a designated format does not impose an 
     undue burden, since electronic filing is not required. 
     Stipulating a web address and system for confirmation of 
     receipt of electronic transmittal is not appropriate for a 
     formal rule, since all documents will not necessarily be 
     filed at the same address, and not all filing requires proof 
     of receipt. Not including such information also better 
     safeguards the security of document filing.
       (d) Service or filing of documents by certified mail, 
     return receipt requested. Whenever these rules permit or 
     require service or filing of documents by certified mail, 
     return receipt requested, such documents may also be served 
     or filed by express mail or other forms of expedited delivery 
     in which proof of [[delivery to]] date of receipt by the 
     addressee is provided.
       Discussion: Section 1.03(a)(2)(i) permits ``other expedited 
     delivery'' of documents being filed for which proof of 
     delivery is not required. However, there is no similar 
     provision with regard to certified mail, return receipt 
     requested. Such a service method is specifically required in 
     Sections 2.03(l), 2.04(i), and 5.01(e). Particularly in view 
     of the lengthened time required to process mail through the 
     U.S. Postal Service since 9-11, the Board has determined that 
     additional flexibility in the use of other mail delivery 
     services is also needed as an alternative to certified mail, 
     return receipt requested.

                           *   *   *   *   *


     1.05 Designation of Representative.

       AMENDMENT DELETED (a) An employee, other charging 
     individual or party, a witness, a labor organization, an 
     employing office, an entity alleged to be responsible for 
     correcting a violation wishing to be represented by another 
     individual must file with the Office a written notice of 
     designation of representative. The representative may be, but 
     is not required to be, an attorney. [[During the period of 
     counseling and mediation, upon the request of a party, if the 
     Executive Director concludes that a representative of an 
     employee, of a charging party, of a labor organization, of an 
     employing office, or of an entity alleged to be responsible 
     for correcting a violation has a conflict of interest, the 
     Executive Director may, after giving the representative an 
     opportunity to respond, disqualify the representative. In 
     that event, the period for counseling or mediation may be 
     extended by the Executive Director for a reasonable time to 
     afford the party an opportunity to obtain another 
     representative.]]
       Discussion: Upon further consideration, the Board has 
     deleted this proposed amendment. The Board does not agree 
     with the assertion by a commenter that the current version of 
     this rule is in excess of the authority of this Board under 
     the Act.

                           *   *   *   *   *


     2.03 Counseling.

       (a) Initiating a Proceeding; Formal Request for Counseling. 
     In order to initiate a proceeding under these rules, an 
     employee shall [formally] file a written request for 
     counseling [from] with the Office regarding an alleged 
     violation of the Act, as referred to in section 2.01(a) 
     above. All [formal] requests for counseling shall be 
     confidential, unless the employee agrees to waive his or her 
     right to confidentiality under section 2.03(e)(2), below.
       Discussion: The purpose of this amendment is to delete the 
     undefined term ``formal'', and require simply that the 
     request be made in written form. Several commenters suggested 
     that institution of a requirement that the counseling request 
     be in writing would constitute a ``waiver'' of the statutory 
     requirement of absolute confidentiality in counseling 
     mandated by section 416(a) of the Act. Requiring a written 
     counseling request does not constitute or suggest a 
     ``waiver'' of confidentiality in any way. Such a waiver may 
     only occur when ``the Office and a covered employee . . . 
     agree to notify the employing office of the allegations.'' 2 
     U.S.C. 1416(a). The process for such a waiver is set out in 
     the existing Procedural Rules at section 2.03(e)(2), which 
     requires a written waiver form. A written request for 
     counseling is an entirely different document.

                               . . . . .

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

                               . . . . .

       (l) Conclusion of the Counseling Period and Notice. The 
     Executive Director shall notify the employee in writing of 
     the end of the counseling period, by certified mail, return 
     receipt requested, or by personal delivery evidenced by a 
     written receipt. The Executive Director, as part of the 
     notification of the end of the counseling period, shall 
     inform the employee of the right and obligation, should the 
     employee choose to pursue his or her claim, to file with the 
     Office a request for mediation within 15 days after receipt 
     by the employee of the notice of the end of the counseling 
     period.
       Discussion: This amendment reflects the provision of 
     flexibility to the Office in providing notice. In response to 
     comments, we have added the requirement for appropriate 
     documentation in the case of personal delivery. A suggestion 
     that a copy of the end of counseling notice be served on 
     ``opposing counsel'' would cause a violation of the 
     confidentiality requirement for counseling required by 
     section 416(a) of the Act, and would contradict the non-
     adversarial nature of counseling.

                               . . . . .

       (m) Employees of the Office of the Architect of the Capitol 
     and the Capitol Police.
       (1) Where an employee of the Office of the Architect of the 
     Capitol or of the Capitol Police requests counseling under 
     the Act and these rules, the Executive Director may recommend 
     that the employee use the grievance procedures of the 
     Architect of the Capitol or the Capitol Police. The term 
     `grievance procedures' refers to internal procedures of the 
     Architect of the Capitol and the Capitol Police that can 
     provide a resolution of the matter(s) about which counseling 
     was requested. Pursuant to section 401 of the Act and by 
     agreement with the Architect of the Capitol and the Capitol 
     Police Board, when

[[Page 2339]]

     the Executive Director makes such a recommendation, the 
     following procedures shall apply:

                               . . . . .

       (ii) After having contacted the Office and having utilized 
     the grievance procedures of the Architect of the Capitol or 
     of the Capitol Police Board, the employee may notify the 
     Office that he or she wishes to return to the procedures 
     under these rules: (A) within [10] 60 days after the 
     expiration of the period recommended by the Executive 
     Director, if the matter has not [[been resolved]] resulted in 
     a final decision; or (B) within 20 days after service of a 
     final decision resulting from the grievance procedures of the 
     Architect of the Capitol or the Capitol Police Board.
       (iii) The period during which the matter is pending in the 
     internal grievance procedure shall not count against the time 
     available for counseling or mediation under the Act. If the 
     grievance is resolved to the employee's satisfaction, the 
     employee shall so notify the Office within 20 days after the 
     employee has received service of the final decision resulting 
     from the grievance procedure. [[or i]] If no request to 
     return to the procedures under these rules is received within 
     [[the applicable time period]] 60 days after the expiration 
     of the period recommended by the Executive Director, the 
     Office will [[consider the case to be closed in its official 
     files]] issue a Notice of End of Counseling, as specified in 
     section 2.04(i) of these Rules.
       Discussion: The amendment reflects the Board's conclusion 
     that controversies referred to agency grievance procedures 
     may be close to disposition at or near the end of the 
     stipulated referral period. In such circumstances, the 
     requirement for a return by the employee to the Office's 
     procedures within 10 days can actually have the effect of 
     disrupting the completion of the grievance process. 
     Therefore, the Board proposes an extension of that time frame 
     to 60 days. The time during which a controversy has been 
     referred to an agency grievance proceeding assumes that there 
     will have been joinder of issues between the employee and the 
     employing office. Certainly, there can be no doubt that the 
     employing office has been placed on notice of the existence 
     of the controversy. The amended proposal ensures that the 
     employee will not be penalized by reason of an employing 
     office's failure to process a grievance in a timely manner by 
     stipulating that the Office will issue an end of counseling 
     Notice to the parties 60 days after the end of the referral 
     period. A commenter's suggestion that the referral time frame 
     unlawfully extends counseling beyond the 30 day maximum 
     period ignores section 401 of the Act, which specifically 
     stipulates that all time during which a matter is referred to 
     the grievance procedures of the Architect of the Capitol or 
     the Capitol Police ``shall not count against the time 
     available for counseling or mediation.'' Issuing a Notice of 
     End of Counseling is preferable to administrative closure of 
     a case, since the closure may penalize an employee who is 
     still waiting for the employing office to issue a final 
     decision.

                           *   *   *   *   *


     2.04 Mediation.

                               . . . . .

       (e) Duration and Extension.
       (1) The mediation period shall be 30 days beginning on the 
     date the request for mediation is received, unless the Office 
     grants an extension.
       (2) The Office may extend the mediation period upon the 
     joint written request of the parties or of the appointed 
     mediator on behalf of the parties to the attention of the 
     Executive Director. The request [may be oral or] shall be 
     written and [shall be noted and] filed with the Office no 
     later than the last day of the mediation period. The request 
     shall set forth the joint nature of the request and the 
     reasons therefor, and specify when the parties expect to 
     conclude their discussions. Request for additional extensions 
     may be made in the same manner. Approval of any extensions 
     shall be within the sole discretion of the Office.
       Discussion: The amendment assures that an adequate record 
     of such a request be made. In response to comments, the Board 
     has added language allowing the assigned mediator to submit 
     the request on behalf of the parties.

                               . . . . .

       (i) Conclusion of the Mediation Period and Notice. If, at 
     the end of the mediation period, the parties have not 
     resolved the matter that forms the basis of the request for 
     mediation, the Office shall provide the employee, and the 
     employing office, and their representatives, with written 
     notice that the mediation period has concluded. The written 
     notice to the employee will be sent by certified mail, return 
     receipt requested, or will be [hand] personally delivered, 
     evidenced by a written receipt, and it will also notify the 
     employee of his or her right to elect to file a complaint 
     with the Office in accordance with section 5.01 of these 
     rules or to file a civil action pursuant to section 408 of 
     the Act and section 2.06 of these rules.
       Discussion: The purpose of this amendment is to reflect the 
     provision of the flexibility of personal delivery. In 
     response to comments, the Board has also formalized the 
     requirement that proof of delivery be evidenced by a written 
     receipt.

                           *   *   *   *   *


     2.06 Filing of Civil Action.

                               . . . . .

       (c) Communication Regarding Civil Actions Filed with 
     District Court. [(1)] The party filing any civil action with 
     the United States District Court pursuant to sections 404(2) 
     and 408 of the Act [should simultaneously provide a copy of 
     the complaint] shall provide a written notice to the Office 
     that the party has filed a civil action, specifying the 
     district court in which the civil action was filed and the 
     case number.
       Discussion: The Office has the responsibility to be aware 
     of judicial applications and interpretations of the Act. In 
     this regard, see also proposed rule 9.06. In response to 
     comments, the Board has replaced the proposed requirement 
     that a copy of the complaint be provided, with a notice of 
     filing of a civil action. The Office also intends to include 
     notice of this requirement in its Notice of End of Mediation.
       AMENDMENT DELETED: [[(2) No party to any civil action 
     referenced in paragraph (1) shall request information from 
     the Office regarding the proceedings which took place 
     pursuant to sections 402 or 403 related to said civil action, 
     unless said party notifies the other party(ies) to the civil 
     action of the request to the Office. The Office will 
     determine whether the release of such information is 
     appropriate under the Act and the Rules of Procedure.]]
       Discussion: Upon further consideration, the Board has 
     deleted this proposed amendment.

                           *   *   *   *   *

       Sec. 4.16 Comments on Occupational Safety and Health 
     Reports. [[The General Counsel will provide to responsible 
     employing office(s) a copy of any report issued for general 
     distribution not less than seven days prior to the date 
     scheduled for its issuance. If a responsible employing office 
     wishes to have its written comments appended to the report, 
     it shall submit such comments to the General Counsel no later 
     than 48 hours prior to the scheduled issuance date. The 
     General Counsel shall either include the written comments 
     without alteration as an appendix to the report, or 
     immediately decline the request for their inclusion. If the 
     General Counsel declines to include the submitted comments, 
     the employing office(s) may submit said denial to the Board 
     of Directors which, in its sole discretion, shall review the 
     matter and issue a final and non-appealable decision solely 
     regarding inclusion of the employing office(s) comments prior 
     to the issuance of the report. Submissions to the Board of 
     Directors in this regard shall be made expeditiously and 
     without regard to the requirements of subpart H of these 
     rules. In no event shall the General Counsel be required by 
     the Board to postpone the issuance of a report for more than 
     five days.]] With respect to any report authorized under 
     section 215(c)(1) or 215(e)(2) of the Act that is intended by 
     the General Counsel for general public distribution, the 
     General Counsel shall, before making such general public 
     distribution, first transmit a copy thereof to the 
     responsible employing office(s), together with a notification 
     that the employing office(s) has 10 days within which to 
     submit any written comments that it wishes to be appended in 
     their entirety as an appendix to the report. In the event the 
     General Counsel declines to append to the report timely 
     submitted comments of an employing office, the General 
     Counsel shall not issue the report for general public 
     distribution, and will promptly notify that office in writing 
     of the basis for such declination. Upon written request to 
     the Board of Directors submitted by the employing office 
     within 10 days of the date of notification of declination by 
     the General Counsel, with a copy thereof served on the 
     General Counsel, the Board of Directors shall promptly review 
     the matter, including any submission filed by the General 
     Counsel within 10 days of the employing office's request, and 
     issue a final and non-appealable decision determining the 
     issue of inclusion of the employing office's comments prior 
     to the general public distribution of the report. In no event 
     shall the General Counsel be required by the Board to delay 
     issuance of a report covered by this procedure for more than 
     15 days after the employing office's request for review is 
     submitted to the Board of Directors.
       Discussion: The proposed amendment, as reworded, provides a 
     mechanism for employing office comments to be appended to 
     reports issued by the General Counsel regarding Occupational 
     Safety and Health inspections. The Board has amended the 
     proposal to clarify further the categories of OSH reports 
     resulting from inspection requests. The Board has extended 
     the time periods within which the dispute resolution 
     procedure takes place. The Board has also added a requirement 
     that any General Counsel declination must be provided in 
     writing to the employing office.

                           *   *   *   *   *


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

                               . . . . .

       (d) Summary Judgment. A Hearing Officer may, after notice 
     and an opportunity for the parties to address the question of 
     summary judgment, [[to respond,]] issue summary judgment on 
     some or all of the complaint.
       ([d]e) Appeal. A [dismissal] final decision by the Hearing 
     Officer made under section

[[Page 2340]]

     5.03(a)-(c) or 7.16 of these rules may be subject to appeal 
     before the Board if the aggrieved party files a timely 
     petition for review under section 8.01. A final decision 
     under section 5.03(a)-(c) which does not resolve all of the 
     claims or issues in the case(s) before the Hearing Officer 
     may not be appealed to the Board in advance of a final 
     decision entered under section 7.16 of these rules, except as 
     authorized pursuant to section 7.13 of these rules.
       ([e]f) . . . . .
       ([f]g) . . . . .
       Discussion: Hearing Officers have plenary authority to 
     conduct hearings and make final decisions, including summary 
     judgment, pursuant to section 405 of the Act. The amendments 
     more adequately reflect the existing authority of Hearing 
     Officers. In response to a comment, the Board has included 
     the requirement that the parties be given the opportunity to 
     address the issue. The Board has also addressed the 
     circumstance of a partial disposition of a case.

                           *   *   *   *   *


     Sec. 7.02 Sanctions

       (a) The Hearing Officer may impose sanctions on a party's 
     representative [[for inappropriate or unprofessional 
     conduct]] necessary to regulate the course of the hearing.
       (b) The Hearing Officer may impose sanctions upon the 
     parties under, but not limited to, the circumstances set 
     forth in this section.
       ([a]1) Failure to Comply with an Order. When a party fails 
     to comply with an order (including an order for the taking of 
     a deposition, for the production of evidence within the 
     party's control, or for production of witnesses), the Hearing 
     Officer may:
       ([1]a) . . . . .
       ([2]b) . . . . .
       ([3]c) . . . . .
       ([4]d) . . . . .
       Discussion: In response to comments, and upon further 
     consideration, the Board has amended this proposal to better 
     reflect existing statutory authority. Section 556(c)(5) of 
     the Administrative Procedure Act, referenced in section 
     405(d)(3) of the Act, specifically authorizes a presiding 
     official to ``regulate the course of the hearing''. The 
     amendment authorizes a Hearing Officer to carry out that 
     responsibility when required by a representative's conduct.

                           *   *   *   *   *


     Sec. 8.01 Appeal to the Board.

                               . . . . .

       (b)(1) Unless otherwise ordered by the Board, within 21 
     days following the filing of a petition for review to the 
     Board, the appellant shall file and serve a supporting brief 
     in accordance with section 9.01 of these rules. That brief 
     shall identify with particularity those findings or 
     conclusions in the decision and order that are challenged and 
     shall refer specifically to the portions of the record and 
     the provisions of statutes or rules that are alleged to 
     support each assertion made on appeal.
       (2) Unless otherwise ordered by the Board, within 21 days 
     following the service of the appellant's brief, the opposing 
     party may file and serve a reply brief.
       (3) Upon written delegation by the Board, the Executive 
     Director is authorized to determine any request for 
     extensions of time to file any post-petition for review 
     document or submission with the Board in any case in which 
     the Executive Director has not rendered a determination on 
     the merits. Such delegation shall continue until revoked by 
     the Board.

                               . . . . .

       Discussion: The amendment authorizes the Executive Director 
     to perform the ministerial act of granting extensions of time 
     in which to file documents when specifically authorized to do 
     so by the Board. In response to comments, the Board has 
     required written delegation of authority, and has limited 
     that delegation to submissions after a petition for review 
     has been filed. The Board has also prohibited such a 
     delegation in any case in which the Executive Director has 
     issued a determination on the merits in the underlying 
     proceeding.

                           *   *   *   *   *


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

       (a) Filing with the Office; Number. One original and three 
     copies of all motions, briefs, responses, and other documents 
     must be filed, whenever required, with the Office or Hearing 
     Officer. However, when a party aggrieved by the decision of a 
     Hearing Officer or other matter or determination reviewable 
     by the Board files an appeal with the Board, one original and 
     seven copies of both any appeal brief and any responses must 
     be filed with the Office. The Officer, Hearing Officer, or 
     Board may also [[require]] request a party to submit an 
     electronic version of any submission on a disk in a 
     designated format.

                               . . . . .

       Discussion: The addition of ``other matter or determination 
     reviewable by the Board'' is intended to address: collective 
     bargaining representation decisions made pursuant to Part 
     2422 of the Office of Compliance Rules regarding labor-
     management relations, negotiability determinations made 
     pursuant to Part 2424 of the same Rules, review of 
     arbitration awards under Part 2425 of the same Rules, 
     determination of bargaining consultation rights under Part 
     2426 of the same Rules, requests for general statements of 
     policy or guidance under Part 2427 of the same Rules, 
     enforcement of standards of conduct decisions and orders by 
     the Assistant Secretary of Labor for Labor Management 
     Relations pursuant to Part 2428 of the same Rules, and 
     determinations regarding collective bargaining impasses 
     pursuant to Part 2470 of the same Rules. The term ``matter'' 
     was included by the Board on further consideration, because 
     some of the procedures referenced in the labor-management 
     relations Rules are addressed to the Board in the first 
     instance. Submission by electronic version is in addition to 
     the existing methods for filing submissions. This addition 
     reflects the decision of this agency to begin exploring the 
     process of migration toward electronic filing. Because of 
     limits in available technology, it remains necessary to 
     designate a particular format for electronic disk 
     transmittal. In response to comments, the Board has amended 
     the proposal to allow for a ``request'' rather than a 
     requirement. The availability of submissions on disk, 
     particularly of lengthy documents, can save the Office time 
     and expense in handling such documents.

                           *   *   *   *   *


     Sec. 9.03 Attorney's fees and costs.

       (a) Request. No later than 20 days after the entry of a 
     Hearing Officer's decision under section 7.16 or after 
     service of a Board decision by the Office, the complainant, 
     if he or she is a prevailing party, may submit to the Hearing 
     Officer who heard the case initially a motion for the award 
     of reasonable attorney's fees and costs, following the form 
     specified in paragraph (b) below. All motions for attorney's 
     fees and costs shall be submitted to the Hearing Officer. 
     [The Board or t] The Hearing Officer, after giving the 
     respondent an opportunity to reply, shall rule on the motion.

                               . . . . .

       Discussion: This amendment clarifies the rules to exclude 
     the filing of motions for attorney's fees with the Board of 
     Directors.

                           *   *   *   *   *


     Sec. 9.05 Informal Resolutions and Settlement Agreements.

                               . . . . .

       (b) Formal Settlement Agreement. The parties may agree 
     formally to settle all or part of a disputed matter in 
     accordance with section 414 of the Act. In that event, the 
     agreement shall be in writing and submitted to the Executive 
     Director for review and approval. If the Executive Director 
     does not approve the settlement, such disapproval shall be in 
     writing, shall set forth the grounds therefor, and shall 
     render the settlement ineffective.
       (c) Requirements for a Formal Settlement Agreement. A 
     formal settlement agreement requires the signature of all 
     parties on the agreement document before the agreement can be 
     submitted to the Executive Director. A formal settlement 
     agreement cannot be rescinded after the signatures of all 
     parties have been affixed to the agreement, unless by written 
     revocation of the agreement voluntarily signed by all 
     parties, or as otherwise [[required]] permitted by law.
       (d) Violation of a Formal Settlement Agreement. If a party 
     should allege that a formal settlement agreement has been 
     violated, the issue shall be determined by reference to the 
     formal dispute resolution procedures of the agreement. If the 
     particular formal settlement agreement does not have a 
     stipulated method for dispute resolution of an alleged 
     violation of the agreement, the following dispute resolution 
     procedure shall be deemed to be a part of each formal 
     settlement agreement approved by the Executive Director 
     pursuant to section 414 of the Act: Any complaint regarding a 
     violation of a formal settlement agreement may be filed with 
     the Executive Director no later than 60 days after the party 
     to the agreement becomes aware of the alleged violation. Such 
     complaints may be referred by the Executive Director to a 
     Hearing Officer for a final and binding decision. The 
     procedures for hearing and determining such complaints shall 
     be governed by subparts F, G, and H of these rules. 
       Discussion: The Board disagrees with comments that assert 
     the Office has no statutory authority to settle disputes 
     regarding the alleged violation of settlement agreements. 
     Under section 414 of the Act, the Executive Director is 
     clearly given plenary authority to approve all settlement 
     agreements under the Act entered into at any stage of the 
     administrative or judicial process. No settlement agreement 
     can ``become effective'' unless and until such approval has 
     been given. The Office is concerned that many settlement 
     agreements do not include provisions for disposition of 
     controversies regarding alleged violations of the agreement. 
     Rather than consider initiating a practice of withholding 
     approval of settlement agreements which do not include 
     provisions setting forth dispute resolution procedures, the 
     Office is providing all parties, by notice and rule, the 
     option to include their own dispute resolution provisions, or 
     default to the dispute resolution procedure stipulated in 
     this proposed Rule when they enter into a settlement 
     agreement. The word ``permitted'' was inserted in place of 
     ``required'' as a clarification, since in this context a 
     rescission of an

[[Page 2341]]

     approved agreement would rarely, if ever, be required by 
     operation of law.
       [[Sec. 9.06 Destruction of Closed Files. Closed case files 
     regarding counseling, mediation, hearing, and/or appeal to 
     the Board of Directors may be destroyed during the calendar 
     year in which the fifth anniversary of the closure date 
     occurs, or during the calendar year in which the fifth 
     anniversary of the conclusion of all adversarial proceedings 
     in relation thereto occurs, whichever period ends later.]]
       Discussion: The Executive Director and the Board of 
     Directors have been made aware that the Office of Compliance 
     appears to be an agency covered by the requirements of the 
     Federal Records Act (found at Title 44 of the U.S. Code). The 
     Records Act requires that an agency consult with the 
     Archivist of the United States regarding any record 
     destruction program. Therefore, the Executive Director and 
     the Board are withdrawing this proposal at this time, and 
     will issue a new Notice regarding this subject matter after 
     the requirements of the Federal Records Act have been 
     satisfied.
       9.0[7]6 Payments [[of]] required pursuant to Decisions, 
     Awards, or Settlements under section 415(a) of the Act. 
     Whenever a decision or award pursuant to sections 405(g), 
     406(e), 407, or 408 of the Act, or an approved settlement 
     pursuant to section 414 of the Act, require the payment of 
     funds pursuant to section 415(a) of the Act, the decision, 
     award, or settlement shall be submitted to the Executive 
     Director to be processed by the Office for requisition from 
     the account of the Office of Compliance in the Department of 
     the Treasury, and payment.
       Discussion: This proposed rule reflects the existing 
     procedure for processing payments under section 415(a) of the 
     Act. Since section 415 does not authorize automatic stays of 
     judgments or awards pending appeal, parties are advised to 
     seek such a stay from the appropriate forum. Adding an 
     automatic stay of payment until all appeals have been 
     exhausted would require an amendment of the Act.

     Sec. 9.0[6]7 Revocation, Amendment or Waiver of Rules.

. . . . .

                          ____________________