[Federal Register Volume 68, Number 135 (Tuesday, July 15, 2003)]
[Proposed Rules]
[Pages 41742-41751]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-17785]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 68, No. 135 / Tuesday, July 15, 2003 / 
Proposed Rules  

[[Page 41742]]



GENERAL ACCOUNTING OFFICE

4 CFR Parts 27, 28 and 29


Personnel Appeals Board; Procedural Rules

AGENCY: General Accounting Office Personnel Appeals Board.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The General Accounting Office Personnel Appeals Board (PAB) 
has authority with respect to employment practices within the General 
Accounting Office (GAO or agency), pursuant to the General Accounting 
Office Personnel Act of 1980. The PAB is proposing to revise its 
procedural regulations. The changes are intended to clarify the meaning 
of some sections, to correct a few provisions affected by changes in 
law or agency structure, and to refine certain procedures. The Board 
invites public comment on the proposed regulations.

DATES: Comments must be received on or before September 15, 2003, in 
order to be considered.

ADDRESSES: Comments may be mailed to: Clerk of the Board, General 
Accounting Office Personnel Appeals Board, Suite 560, Union Center 
Plaza II, 441 G Street NW., Washington, DC 20548. Comments may also be 
submitted by facsimile transmission to 202-512-7525.

FOR FURTHER INFORMATION CONTACT: Beth Don, Executive Director, or Susan 
Inzeo, Solicitor, 202-512-6137.

SUPPLEMENTARY INFORMATION: The General Accounting Office Personnel 
Appeals Board is authorized by Congress, pursuant to 31 U.S.C. 751-755, 
to hear and decide cases brought by GAO employees concerning various 
personnel matters including adverse or performance-based actions, 
claims of discrimination, alleged prohibited personnel practices, and 
labor-management relations. The Board also exercises oversight 
authority over equal employment opportunity at the agency, and has 
authority to consider, decide, and order corrective action in labor-
management representation matters. The Board's current procedural 
regulations applicable to GAO appear at 4 CFR parts 27 and 28. The 
Board is proposing to revise these regulations. The changes are 
intended to clarify the meaning of some sections, to correct a few 
provisions affected by changes in law or agency structure, and to 
streamline certain procedures. The significant proposed changes are 
described below.
    The Board no longer has jurisdiction over claims concerning 
employment practices at the Architect of the Capitol. As a result, the 
regulations in part 29 are being repealed and the part reserved. This 
also necessitates a few conforming changes to the provisions in parts 
27 and 28.

Highlights of Significant Changes in the Proposed Regulations

    The proposed revisions contain several significant refinements to 
the Board's procedures. Over the last several years, the Board has 
repeatedly observed that litigants not represented by the PAB Office of 
General Counsel (PAB/OGC) have been confused by such terms as the 
``Right to Appeal Letter'' issued by that Office following an 
investigation and the ``Petition for Review'' to be filed with the 
Board. Many individuals misinterpreted the previous terminology to mean 
that the Board was reviewing the investigation or conclusion of its 
Office of General Counsel, or where applicable, GAO's Office of 
Opportunity and Inclusiveness, rather than exercising de novo authority 
to review the underlying agency action that was the subject of 
investigation. For this reason, the term ``Right to Petition Letter'' 
has been substituted for ``Right to Appeal Letter'' and the term 
``Petition'' has been substituted for ``Petition for Review.'' 
Similarly, the revisions clarify that an ``appeal'' before the PAB is 
the stage of a Board proceeding when the full Board reviews the 
decision of a single member, panel of members, or appointed 
administrative judge.
    Other notable proposed changes to the Board's regulations are 
summarized below:
    Section 27.1 (The Board): Reference to part 29 is deleted, and the 
last sentence is revised to reflect the Board's role of reviewing 
rather than reconsidering the action of an individual member, panel or 
appointed administrative judge; reconsideration refers to the process 
whereby the same decisionmaker examines whether or not to change a 
decision.
    Section 28.2 (Jurisdiction): The introductory language of paragraph 
(a) is streamlined. Subsection (b)(3) is revised to clarify that the 
Board's jurisdiction extends to determination of the appropriateness of 
a unit for collective bargaining.
    Section 28.3 (General definitions): Several clarifying changes are 
found in the definitions section. Definitions for Clerk of the Board, 
Director of EEO Oversight, and Executive Director of the Personnel 
Appeals Board are new. The definition of Charge is revised to clarify 
that the term applies to requests for the PAB Office of General Counsel 
to investigate a matter. References to Recommended Decisions and 
Exceptions are deleted, in conformity with the Board's decision to 
delete section 28.86. ``Notice of Appeal'' is substituted for ``Request 
for Review'' to more clearly define the process of appealing an initial 
decision to the full Board. The definition of Pleading is revised to 
specifically include documents pertaining to a request for appellate 
review by the full Board. Workforce Restructuring Action (WRA), as 
defined by GAO Order 2351.1 (January 21, 2003), is added in the 
definition section and substituted throughout the regulations for 
Reduction in Force (RIF).
    Section 28.8 (Informal procedural advice): This provision is 
revised to expand the list of persons who provide informal procedural 
advice at the Board.
    Section 28.11 (Filing a charge with the Office of General Counsel): 
The section is revised to clarify the options as to how to file a 
charge. Subsection (d)(2) is revised to state that the PAB Office of 
General Counsel investigates rather than reviews actions underlying a 
charge.
    Section 28.12 (General Counsel procedures): ``Right to Petition 
Letter'' is substituted for ``Right to Appeal Letter,'' and 
``Petition'' is substituted for ``Petition for Review,'' throughout 
this section. Subsection (d) is reorganized and further divided into 
subdivisions (1), (2) and (3). Subsection (d)(2) is amplified to 
clarify that a charging party may file a Petition with the Board in 
accordance with Sec.  28.18 even if the PAB Office of General Counsel 
does not find

[[Page 41743]]

reasonable grounds to proceed on behalf of the charging party.
    New subsection (i) is added to explain the PAB Office of General 
Counsel policy on maintaining confidentiality of documents.
    Section 28.13 (Special procedure for Workforce Restructuring 
Action): This provision is revised to reflect the agency's change in 
terminology, replacing ``Reduction in Force'' terminology with 
``Workforce Restructuring Action'' and ``Civil Rights Office'' with 
``Office of Opportunity and Inclusiveness.'' In addition, the provision 
is revised to clarify that the streamlined procedure, where applicable, 
may also extend to individuals raising civil rights claims.
    Section 28.17 (Internal petitions of Board employees): Subsection 
(a)(2) is revised to designate the Board's Executive Director or 
General Counsel as alternate contact persons for Board employees who 
believe they have charges involving employment discrimination. The 
change also reflects that the employee may seek procedural advice from 
either the Board's Solicitor or its Office of General Counsel. 
Subsection (a)(3) is revised to specify that the PAB General Counsel 
arranges for processing of an internal complaint through the Board's 
Executive Director. The language of subsections (b)(1) and (2) is 
streamlined. In addition, reference to section 28.86(c) is deleted from 
subsection (c)(3) because of the Board's decision to delete 28.86.
    Section 28.18 (Filing a petition with the Board): In addition to 
conforming changes of terminology, the revision clarifies the methods 
for filing and formalizes the 4 p.m. deadline that is Board operating 
practice.
    Section 28.19 (Content of response by charged party): Subsection 
(a)(1) is revised to require that the pleading filed in response to a 
Petition clearly identify the specific allegations to which each 
responsive answer refers. This provision addresses the difficulty in 
understanding responses that do not contain specific references to the 
Petition, particularly where the response attempts to divide an answer. 
In addition, the section is reorganized to provide separately in new 
subsection (a)(2) that any other defenses shall be contained in the 
response. Previous subsection (a)(2) becomes (a)(3).
    Section 28.21 (Amendments to petitions and motions practice):
    Previous Sec.  28.21(d) (General Counsel settlements) has been 
moved and redesignated as Sec.  28.12(i).
    Paragraph (b) is reorganized and further divided to more clearly 
delineate the specific requirements of motions practice before the 
Board. Section 28.21(b)(1), which includes filing requirements for 
motions practice before a single administrative judge, is revised to 
make clear that filings are made with the Clerk of the Board rather 
than the administrative judge. New Sec.  28.22(b)(2) specifies the 
number of copies required when a matter is before the full Board. Both 
subsections (b)(1) and (b)(2) specify that responses must be filed in 
the same number as required for motions and within 20 days of service 
of the motion. New subsection (b)(3) requires that a motion for 
extension of time or other procedural motion must include a statement 
concerning the other party's position on the motion. New subsection 
(b)(4) states the Board operating procedure that motions or related 
submissions must be filed with the Board by 4 p.m. Subsection (b)(5) 
states the requirement that written motions and responses include a 
proposed order. Subsection (b)(6) states the governing standard that 
extensions of time will be granted for good cause only. Subsection 
(b)(7) provides that the administrative judge has discretion to allow 
oral argument on a motion.
    New subsection (c) specifies rules and standards applicable to 
motions for summary judgment. The Board believes that written, specific 
procedures on such motions will provide clarification to parties about 
the method for seeking, the appropriateness of, and the standard 
applicable to a motion for summary judgment.
    Section 28.24 (Sanctions): The introductory text of subsection (a) 
and subsection (a)(2) are revised to expressly include failure to 
comply with a subpoena as cause for imposing sanctions.
    Section 28.42 (Discovery procedures and protective orders): 
Subsection (d)(5) is revised to set the discovery period to begin with 
service of notice of filing rather than with filing of a Petition. This 
change is necessary because of the unpredictable time accounted for 
when a Petition is filed by mail.
    Section 28.46 (Motion for subpoena): Subsection (d), providing a 
procedure for obtaining a subpoena where the presiding administrative 
judge is not a Board member, is deleted.
    Section 28.57 (Public hearings): Subsection (b) is revised to 
substitute ``management representative'' for ``technical 
representative.''
    Section 28.61 (Burden and degree of proof): The definition of 
``harmful error'' is tightened for clarity.
    Sections 28.62 (Decision on the record) and 28.63 (Closing the 
record): Previous Sec.  28.62 is redesignated Sec.  28.63 to allow for 
a new Sec.  28.62 specifying procedures to follow when the parties 
agree to forego a hearing and have the case decided on the record 
submitted. This streamlined procedure will save time and financial 
resources where appropriate.
    Section 28.66 (Admissibility): This section is revised to expressly 
incorporate privilege as a grounds for exclusion of evidence. In 
addition, the revision clarifies that formal rules of evidence are not 
binding but may provide guidance in Board cases.
    Section 28.86 (Board procedures; recommended decisions): This 
section is repealed and reserved. The Board believes the provision on 
initial decisions, 28.87, including the standard for full Board review, 
adequately addresses the rare instance of decisionmaking by an 
administrative judge who is not a Board member. In addition, providing 
a unified procedure will simplify the Board process for parties 
involved in adjudication.
    Section 28.87 (Board procedures; initial decisions): Subsection (a) 
is revised to include reference to a decision by an administrative 
judge who is not a member of the Board. Subsection (g) is revised to 
clarify the standard applicable when a case is heard by the full Board. 
In particular, the Board's deference to demeanor-based credibility 
determinations is made explicit.
    Section 28.88 (Board procedures; enforcement): The provision on 
compliance is revised for clarity and streamlining of requirements. The 
revision includes specific reference to those settlement agreements 
over which the Board retains jurisdiction.
    Section 28.89 (Attorney's fees and costs): Reference to filing fee 
requests with the administrative judge who heard the case is deleted, 
as this provision did not encompass a request filed after an 
administrative judge has left the Board.
    Section 28.97 (Class actions in EEO cases): This section is revised 
to clarify the different procedures for class actions in EEO cases. The 
revision explains that while there is no right to a de novo Board 
hearing in these cases, either party may request an evidentiary hearing 
at the Board or the Board may on its own determine that such a hearing 
is needed.
    Section 28.101 (Termination of Board proceedings when suit is filed 
in Federal District Court): This section is revised to clarify when a 
proceeding before the Board will be terminated because of a suit 
pending in Federal District Court on the same cause of action.
    Section 28.112 (Who may file petitions): Subsection (a)(3) is 
revised to

[[Page 41744]]

clarify the standard applicable when GAO files a representation 
petition.
    Section 28.113 (Contents of representation petitions): Subsections 
(a)(7), (b), and (c) are revised to clarify the required contents of a 
representation petition.
    Section 28.122 (Negotiability issues): Subsection (e) is revised to 
refer to Sec.  28.87 for finality provisions, because of the repeal of 
Sec.  28.86.
    Section 28.132 (Disciplinary proceedings): Subsection (e) is 
revised by streamlining the description of the process for appealing 
from a final order involving disciplinary action.
    Section 28.133 (Stay proceedings): This provision is revised 
substantially.
    Subsection (a) is revised to clarify the conditions when an ex 
parte stay request may be filed.
    Subsection (b) is revised to state the purpose for which either a 
further temporary stay or a permanent stay may be requested.
    Subsection (c) is revised to provide for the Board or its presiding 
member to require further submissions or proceedings on a stay request, 
and to provide for an additional 30-day period to decide a pending 
request where necessary.
    Subsection (d) is revised to clarify the standard applicable to a 
request for a further temporary stay under paragraph (b)(1).
    Subsection (e) is revised to streamline and clarify the balancing 
test applicable to a request for permanent stay pending a decision on 
the merits.
    Subpart K--Access to Records
    New Subpart K, including Sec. Sec.  28.160 and 28.161, is added to 
state the procedures governing an individual's request for information 
pertaining to himself or herself and maintained in the custody of the 
Personnel Appeals Board Office of General Counsel.

List of Subjects in 4 CFR Parts 27, 28 and 29

    Administrative practice and procedures, Equal employment 
opportunity, Government employees, Labor management relations.
    For the reasons stated in the preamble, the General Accounting 
Office Personnel Appeals Board proposes to amend 4 CFR Chapter I, 
Subchapter B, parts 27, 28, and 29 as follows:

PART 27--GENERAL ACCOUNTING OFFICE PERSONNEL APPEALS BOARD; 
ORGANIZATION

    1. The authority citation for part 27 continues to read as follows:

    Authority: 31 U.S.C. 753.


Sec.  27.1  [Amended]

    2. Amend Sec.  27.1 as follows:
    a. Remove the words ``parts 28 and 29'' in the second sentence and 
add in their place ``part 28'';
    b. In the third sentence, remove the word ``reconsideration'' and 
add in its place the word ``review''.
    3. Amend Sec.  27.3 by revising the last sentence to read as 
follows:


Sec.  27.3  The General Counsel.

    * * * The General Counsel, at the request of the Board, shall 
investigate matters under the jurisdiction of the Board, and otherwise 
assist the Board in carrying out its functions.

PART 28--GENERAL ACCOUNTING OFFICE PERSONNEL APPEALS BOARD; 
PROCEDURES APPLICABLE TO CLAIMS CONCERNING EMPLOYMENT PRACTICES AT 
THE GENERAL ACCOUNTING OFFICE

    4. The authority citation continues to read as follows:

    Authority: 31 U.S.C. 753.

Subpart A--Purpose, General Definitions, and Jurisdiction

    5. Amend Sec.  28.1 by revising paragraphs (a), (b), and (c) to 
read as follows:


Sec.  28.1  Purpose and scope.

    (a) The regulations in this part implement the Board's authority 
with respect to employment practices within the General Accounting 
Office (GAO), pursuant to the General Accounting Office Personnel Act 
of 1980 (GAOPA), 31 U.S.C. 751-755.
    (b) The purpose of the rules in this part is to establish the 
procedures to be followed by:
    (1) The GAO, in its dealings with the Board;
    (2) Employees of the GAO or applicants for employment with the GAO, 
or groups or organizations claiming to be affected adversely by the 
operations of the GAO personnel system;
    (3) Employees or organizations petitioning for protection of rights 
or extension of benefits granted to them under Subchapters III and IV 
of Chapter 7 of Title 31, United States Code; and
    (4) The Board, in carrying out its responsibilities under 
Subchapters III and IV of Chapter 7 of Title 31, United States Code.
    (c) The scope of the Board's operations encompasses the 
investigation and adjudication of cases arising under 31 U.S.C. 753.* * 
*
* * * * *
    6. Amend Sec.  28.2 by revising paragraphs (a) introductory text, 
and (b)(1) and (b)(3) to read as follows:


Sec.  28.2  Jurisdiction.

    (a) The Board has jurisdiction to hear and decide the following:
* * * * *
    (b) * * *
    (1) An officer or employee petition involving a removal, suspension 
for more than 14 days, reduction in grade or pay, or furlough of not 
more than 30 days;
    (2) * * *
    (3) The appropriateness of a unit of employees for collective 
bargaining;
* * * * *
    7. Revise Sec.  28.3 to read as follows:


Sec.  28.3  General definitions.

    In this part--
    Charge means any request filed with the PAB Office of General 
Counsel to investigate any matter within the jurisdiction of the Board, 
under the provisions of Subchapter IV of Chapter 7 of Title 31, United 
States Code.
    Charging Party means any person filing a charge with the PAB Office 
of General Counsel for investigation.
    Clerk of the Board means the Clerk of the Personnel Appeals Board.
    Comptroller General means the Comptroller General of the United 
States.
    Days means calendar days.
    Director of EEO Oversight means the Personnel Appeals Board 
Director of EEO Oversight.
    Executive Director means the Executive Director of the Personnel 
Appeals Board.
    GAO means the General Accounting Office.
    General Counsel means the General Counsel of the Board, as provided 
for under 31 U.S.C. 752.
    Initial Decision means the adjudicatory statement of a case that is 
issued by an administrative judge who is a member of or appointed by 
the Board.
    Notice of Appeal means a request filed with the full Board 
appealing from an initial decision.
    Person means an employee, an applicant for employment, a former 
employee, a labor organization or the GAO.
    Petition means any request filed with the Board for action to be 
taken on matters within the jurisdiction of the Board, under the 
provisions of Subchapter IV of Chapter 7 of Title 31, United States 
Code.
    Petitioner means any person filing a petition for Board 
consideration.
    Pleading means a document that initiates a cause of action before 
the

[[Page 41745]]

Board, responds to a cause of action, amends a cause of action, 
responds to an amended cause of action, requests reconsideration of a 
decision, responds to such a request, requests appellate review by the 
full Board or responds to such a request.
    Request for Reconsideration means a request, filed with the 
administrative judge who rendered the initial decision, to reconsider 
that decision in whole or part.
    Solicitor means the attorney appointed by the Board to provide 
advice and assistance to the Board in carrying out its adjudicatory 
functions and to otherwise provide assistance as directed by the Board.
    Workforce Restructuring Action (WRA) means the release of an 
employee from a job group by separation, demotion, reassignment 
requiring displacement, or furlough for more than 30 days when the 
cause of action is lack of work, shortage of funds, insufficient 
personnel ceiling, reorganization or realignment, an individual's 
exercise of reemployment or reinstatement rights, correction of skills 
imbalances, or reduction of high-grade supervisor or managerial 
positions.
    8. Amend Sec.  28.4 by adding paragraph (d) to read as follows:


Sec.  28.4  Computation of time.

* * * * *
    (d) No written submission shall be accepted by the Clerk of the 
Board after 4:00 p.m., Monday through Friday.

Subpart B--Procedures

    9. Amend Sec.  28.8 by revising paragraph (a) to read as follows:


Sec.  28.8  Informal procedural advice.

    (a) Persons may seek informal advice on all aspects of the Board's 
procedures by contacting the Board's Executive Director, Director of 
EEO Oversight, Solicitor, General Counsel or the Clerk of the Board.
* * * * *
    10. Amend Sec.  28.10 by revising the heading and the first 
sentence of paragraph (a) and paragraph (b)(1) to read as follows:


Sec.  28.10  Notice of petition rights.

    (a) The GAO shall be responsible for ensuring that employees are 
routinely advised of their rights to petition the Board and that 
employees who are the object of an adverse or performance-based action 
are, at the time of the action, adequately advised of their rights to 
petition the Board.* * *
    (b) * * *
    (1) Time limits for filing a petition with the Board and the 
address of the Board;
* * * * *
    11. Amend Sec.  28.11 by revising the heading and paragraphs (c), 
(d)(2) and the last sentence of paragraph (e) to read as follows:


Sec.  28.11  Filing a charge with the Office of General Counsel.

* * * * *
    (c) How to file. Charges may be filed with the Office of General 
Counsel by personal delivery (including commercial carrier) or by mail. 
The address to be used differs for the two kinds of filing.
    (1) A charge may be filed by personal delivery at the Office of 
General Counsel, Personnel Appeals Board, GAO, Suite 580, Union Center 
Plaza II, 820 First Street, NE., Washington, DC 20002.
    (2) A charge may be filed by mail addressed to the Office of 
General Counsel, Personnel Appeals Board, Suite 580, Union Center Plaza 
II, 441 G Street, NW., Washington, DC 20548 or Office of General 
Counsel, Personnel Appeals Board, GAO, Suite 580, Union Center Plaza 
II, 820 First Street, NE., Washington, DC 20002. When filed by mail, 
the postmark shall be the date of filing for all submissions to the 
Office of General Counsel.
    (d) * * *
    (2) The names and titles of persons, if any, responsible for 
actions the charging party wishes to have the Office of General Counsel 
investigate;
* * * * *
    (e) * * * When attorney fees are the only issue raised in a charge 
to the Office of General Counsel, the General Counsel shall transmit 
the charge to the Board for processing under Sec. Sec.  28.18 through 
28.88 as a petition.
    12. Amend Sec.  28.12 as follows:
    a. Revise paragraphs (c), (d), and (g).
    b. Redesignate Sec.  28.21(d) as paragraph (h) and revise 
redesignated paragraph (h).
    c. Add new paragraph (i).
    The additions and revisions read as follows:


Sec.  28.12  General Counsel procedures.

* * * * *
    (c) Following the investigation, the Office of General Counsel 
shall provide the charging party with a Right to Petition Letter. 
Accompanying this letter will be a statement of the General Counsel 
advising the charging party of the results of the investigation. This 
statement of the General Counsel is not subject to discovery and may 
not be introduced into evidence before the Board.
    (d)(1) If the General Counsel determines that there are reasonable 
grounds to believe that the charging party's rights under Subchapters 
III and IV of Chapter 7 of Title 31, United States Code, have been 
violated, then the General Counsel shall represent the charging party 
unless the charging party elects not to be represented by the Office of 
General Counsel.
    (2) If, following the investigation, the General Counsel determines 
that there are not reasonable grounds to believe that the charging 
party's rights under Subchapters III and IV of Chapter 7 of Title 31, 
United States Code, have been violated, then the General Counsel shall 
not represent the charging party. The charging party may nonetheless 
file a petition with the Board in accordance with Sec.  28.18.
    (3) Any charging party may represent him or herself or obtain other 
representation.
* * * * *
    (g) If 180 days have elapsed since the filing of the charge, and 
the Office of General Counsel has not completed the investigation and 
issued a Right to Petition Letter, the charging party may bring his or 
her case directly to the Board by filing a petition in accordance with 
Sec.  28.18. If a charging party exercises this option to file a 
petition with the Board without waiting for the completion of the 
investigation, the Office of General Counsel shall not represent the 
charging party in proceedings before the Board. The charging party may 
represent him- or herself or obtain other representation. The Office of 
General Counsel shall close the investigation of the charge upon being 
notified by the Clerk of the Board that the charging party has filed a 
petition with the Board under this paragraph (g).
    (h) Office of General Counsel settlement: Where the General Counsel 
under paragraph (a) of this section transmits a settlement which has 
been agreed to by the parties, the settlement agreement shall be the 
final disposition of the case.
    (i) Confidentiality: (1) It is the Office of General Counsel's 
policy to protect against the disclosure of documents obtained during 
the investigation, as a means of ensuring that Office's continuing 
ability to obtain all relevant information. However, if the Office of 
General Counsel files a petition with the Personnel Appeals Board on 
behalf of a charging party pursuant to this section, that Office may 
disclose the identity of witnesses and a synopsis of their

[[Page 41746]]

expected testimony. Documents to be offered into evidence at the 
hearing may be disclosed as required by the prehearing disclosure 
requirements of Sec.  28.56.
    (2) Unless so ordered by a court of competent jurisdiction, no 
employee of the Personnel Appeals Board Office of General Counsel shall 
produce or disclose any information or records acquired as part of the 
performance of his/her official duties or because of his/her official 
status. Before producing or disclosing such information or records 
pursuant to court order, an employee shall notify the General Counsel.
    13. Revise Sec.  28.13 to read as folows:


Sec.  28.13  Special procedure for Workforce Restructuring Action.

    In the event of a Workforce Restructuring Action (WRA) resulting in 
an individual's separation from employment, an aggrieved employee may 
choose to file a petition directly with the Personnel Appeals Board, 
without first filing the charge with the PAB's Office of General 
Counsel pursuant to Sec.  28.11. Pursuant to Sec.  28.98, individuals 
raising discrimination issues in connection with a WRA action need not 
file a complaint with GAO's Office of Opportunity and Inclusiveness 
before pursuing a WRA challenge alleging discrimination, either by 
filing directly with the PAB or by filing a charge with the Board's 
Office of General Counsel.

Hearing Procedures for Cases Before the Board--General

    14. Amend Sec.  28.15 by removing the word ``appeals'' and adding 
in its place the word ``petitions'' in the first sentence.
    15. Amend Sec.  28.17 by revising the heading, paragraphs (a)(2) 
and (a)(3), paragraphs (b)(1) and (b)(2) and paragraphs (c)(1), (c)(2), 
and (c)(3) to read as follows:


Sec.  28.17  Internal petitions of Board employees.

    (a) * * *
    (2) When an employee of the Board believes that he or she has been 
denied his or her right to equal employment opportunity, the employee 
shall bring this matter to the attention of the Board's Executive 
Director or General Counsel. If the matter cannot be resolved within 10 
days, the Executive Director shall notify the employee of his or her 
right to file an EEO complaint. The employee may consult with either 
the Board's Solicitor or General Counsel and seek advice with regard to 
procedural matters concerning the filing of an EEO charge. The employee 
shall have 20 days from service of this notice to file an EEO charge 
with the PAB Office of General Counsel. Upon receipt of an EEO charge, 
the General Counsel shall arrange with the Executive Director for 
processing in accordance with paragraph (b) of this section. If the EEO 
allegations involve challenge to a WRA-based separation, the employee 
may choose to expedite the procedures by filing a petition directly 
with the Board.
    (3) When an employee of the Board wishes to raise any other issue 
that would be subject to the Board's jurisdiction, the employee shall 
file a charge with the General Counsel and the General Counsel shall 
arrange with the Executive Director for processing in accordance with 
paragraph (b) of this section. If the challenged action is a WRA-based 
separation from employment, the employee may choose to expedite the 
procedures by filing a petition directly with the Board.
    (b) * * *
    (1) If agreed to by the Office of Special Counsel or the EEOC, as 
appropriate, that body will appoint and detail a person from among its 
attorneys to perform the functions of the General Counsel.
    (2) If the Special Counsel or the EEOC does not agree to such a 
procedure, an appointment of an attorney will be sought from the 
Federal Mediation and Conciliation Service (FMCS).
    (3) * * *
    (c) * * *
    (1) If agreed to by the MSPB or the EEOC, as appropriate, that body 
will appoint and detail one of its administrative law judges (ALJ) or 
administrative judges (AJ) to perform the Board's adjudicative 
functions.
    (2) If neither the MSPB nor the EEOC agrees to such a procedure, an 
appointment of an arbitrator will be sought from the FMCS.
    (3) In any event, whoever is so appointed shall possess all of the 
powers and authority possessed by the Board in employee cases. The 
decision of the administrative law judge, administrative judge or 
arbitrator shall be a final decision of the Board. The procedure for 
judicial review of the decision shall be the same as that described in 
Sec.  28.90.
* * * * *
    16. Amend Sec.  28.18 by revising paragraphs (a), (b), (c), (d), 
introductory text, (e) and (f) to read as follows:


Sec.  28.18  Filing a petition with the Board.

    (a) Who may file. Any person who is claiming to be affected 
adversely by GAO action or inaction that is within the Board's 
jurisdiction under Subchapter IV of Chapter 7 of Title 31, United 
States Code, or who is alleging that GAO or a labor organization 
engaged or is engaging in an unfair labor practice, may file a petition 
if one of the following is met:
    (1) The person has received a Right to Petition Letter from the 
Board's Office of General Counsel; or
    (2) At least 180 days have elapsed from the filing of the charge 
with the Board's Office of General Counsel and that Office has not 
issued a Right to Petition Letter; or
    (3) The person was separated due to a Workforce Restructuring 
Action and chooses to file a petition directly with the Board, without 
first filing with the Board's Office of General Counsel, as provided in 
Sec.  28.13.
    (b) When to file. (1) Petitions filed pursuant to paragraph (a)(1) 
of this section must be filed within 30 days after receipt by the 
charging party of the Right to Petition Letter from the Board's Office 
of General Counsel.
    (2) Petitions filed pursuant to paragraph (a)(2) of this section 
may be filed at any time after 180 days have elapsed from the filing of 
the charge with the Board's Office of General Counsel, provided that 
that Office has not issued a Right to Petition Letter concerning the 
charge.
    (3) Petitions filed pursuant to paragraph (a)(3) of this section 
must be filed within 30 days after the effective date of the separation 
due to a Workforce Restructuring Action.
    (c) How to file. (1) A petition may be filed by hand delivery at 
the office of the Board, Suite 560, Union Center Plaza II, 820 First 
Street NE., Washington, DC 20002. It must be received by 4 p.m., Monday 
through Friday, on the date that it is filed.
    (2) A petition may be filed by mail addressed to the Personnel 
Appeals Board, GAO, Suite 560, Union Center Plaza II, 441 G Street NW., 
Washington, DC 20548 or Personnel Appeals Board, GAO, Suite 560, Union 
Center Plaza II, 820 First Street NE., Washington, DC 20002. When filed 
by mail, the postmark shall be the date of filing for all submissions 
to the Board.
    (d) What to file. The petition shall include the following 
information:
* * * * *
    (e) Failure to raise a claim or defense. Failure to raise a claim 
or defense in the petition shall not bar its submission later unless to 
do so would prejudice the rights of the other parties or unduly delay 
the proceedings.
    (f) Non-EEO class actions. One or more persons may file a petition 
as representatives of a class in any matter

[[Page 41747]]

within the Board's jurisdiction. For the purpose of determining whether 
it is appropriate to treat a petition as a class action, the 
administrative judge will be guided, but not controlled, by the 
applicable provisions of the Federal Rules of Civil Procedure. See 
Sec.  28.97 for EEO class actions.
    17. Revise Sec.  28.19(a) to read as follows:


Sec.  28.19  Content of response by charged party.

    (a) Within 20 days after service of a copy of a petition, the GAO 
or other charged party shall file a response containing at least the 
following:
    (1) A statement of the position of the charged party on each 
allegation set forth therein, including admissions, denials or 
explanations. If the petition contains numbered paragraphs, the 
responses should reference the paragraph numbers. If the petition does 
not contain numbered paragraphs, the responses should quote or 
otherwise clearly identify the specific allegations of the petition.
    (2) Any other defenses to the petition.
    (3) Designation of, and signature by, the representative authorized 
to act for the charged party in the matter.
* * * * *
    18. Amend Sec.  28.20 by revising the first and last sentences of 
paragraph (b)(1) and the first two sentences of paragraph (b)(2) to 
read as follows:


Sec.  28.20  Number of pleadings, service and response.

* * * * *
    (b) Service. (1) The Board will serve copies of a petition upon the 
parties to the proceeding by mail and/or by facsimile. * * * The Board 
will not serve copies of any pleadings, motions, or other submissions 
by the parties after the initial petition.
    (2) The parties shall serve on each other one copy of all pleadings 
other than the initial petition. Service shall be made by mailing, by 
facsimile or by delivering personally a copy of the pleading to each 
party on the service list previously provided by the Board. * * *
* * * * *
    19. Revise Sec.  28.21 to read as follows:


Sec.  28.21  Amendments to petitions and motions practice.

    (a) Amendments to petitions. The Board, at its discretion, may 
allow amendments to a petition as long as all persons who are parties 
to the proceeding have adequate notice to prepare for the new 
allegations and if to do so would not prejudice the rights of the other 
parties or unduly delay the proceedings.
    (b) Motions practice. (1) When an action is before an 
administrative judge, motions of the parties shall be filed with the 
Clerk of the Board and shall be in writing except for oral motions made 
during the hearing. An original and 3 copies of written motions shall 
be filed with the Clerk of the Board. An original and 3 copies of 
responses in opposition to written motions must be filed with the Clerk 
of the Board within 20 days of service of the motion unless the 
administrative judge requires a shorter time.
    (2) When an action is before the full Board, an original and 7 
copies of any motion shall be filed with the Clerk of the Board. An 
original and 7 copies of any responses in opposition to motions must be 
filed with the Clerk of the Board within 20 days of service of the 
motion unless the Board requires a shorter time.
    (3) A party filing a motion for extension of time, a motion for 
postponement of a hearing, or any other procedural motion must first 
contact the other party to determine whether there is any objection to 
the motion and must state in the motion whether the other party has any 
objection.
    (4) No motions, responses or other submissions will be accepted for 
filing by the Clerk of the Board after 4:00 p.m., Monday through 
Friday. All written submissions shall be served simultaneously upon the 
other parties to the proceeding. A certificate of service must be 
attached showing service by mail, facsimile or personal delivery of the 
submission to the other parties. Further submissions by either party 
may be filed only with the approval of the administrative judge or full 
Board.
    (5) All written motions and responses thereto shall include a 
proposed order, where applicable.
    (6) Motions for extension of time will be granted only upon a 
showing of good cause.
    (7) Oral argument. The administrative judge may allow oral argument 
on the motion at his or her discretion.
    (c) Motions for summary judgment. (1) Either party may move for 
summary judgment by filing a written motion no later than 14 days prior 
to the commencement of the hearing or as otherwise ordered by the 
administrative judge.
    (2) Motions for summary judgment must be accompanied by a statement 
of material facts for which there is no genuine dispute and a statement 
of reasons in support of the motion. The motion may be supported by 
documents, affidavits, or other evidence.
    (3) Summary judgment will be granted if the pleadings, depositions, 
answers to interrogatories, admissions, affidavits, if any, and other 
documents show that there is no genuine issue as to any material fact 
and that the moving party is entitled to judgment as a matter of law.
    (4) A party moving for summary judgment must make a showing 
sufficient to establish the existence of each element essential to that 
party's cause of action and for which that party bears the burden of 
proof.
    (5) When a party moves for summary judgment, the Board will 
evaluate the motion on its own merits, resolving all reasonable 
inferences against the moving party.


Sec.  28.22  [Amended]

    20. Amend Sec.  28.22 by removing the words ``File recommended or'' 
and adding the word ``Issue'' in their place in paragraph (b)(12).
    21. Amend Sec.  28.24 as follows:
    a. Revise paragraph (a), introductory text, and paragraph (a)(2) 
and
    b. In paragraph (b), remove the words ``an appeal'' and add the 
words ``a petition''.
    The revision reads as follows:


Sec.  28.24  Sanctions.

* * * * *
    (a) Failure to comply with an order or subpoena. When a party fails 
to comply with an order or subpoena (including an order for the taking 
of a deposition, for the production of evidence within the party's 
control, for an admission, or for production of witnesses), the 
administrative judge may:
    (1) * * *
    (2) Prohibit the party failing to comply with such order or 
subpoena from introducing, or otherwise relying upon, evidence relating 
to the information sought.
* * * * *

Parties, Practitioners and Witnesses

    22. Revise the first two sentences of paragraph (a) of Sec.  28.25 
to read as follows:


Sec.  28.25  Representation.

    (a) All parties to a petition may be represented in any matter 
relating to the petition. The parties shall designate their 
representatives, if any, in the petition or responsive pleading. * * *
* * * * *
    23. Amend Sec.  28.27 by revising the first two sentences of 
paragraph (c) to read as follows:


Sec.  28.27  Intervenors.

* * * * *

[[Page 41748]]

    (c) A motion for permission to intervene will be granted where a 
determination is made by the administrative judge or the Board, where 
the case is being heard en banc, that the requestor will be affected 
directly by the outcome of the proceeding. Denial of a motion for 
intervention may be appealed to the full Board. * * *
* * * * *


Sec.  28.28  [Amended]

    24. Amend Sec.  28.28 by removing the word ``appeal'' and adding 
the word ``petition'' in its place in paragraph (a).
    25. Amend Sec.  28.29 by revising paragraph (a)(2) as follows:


Sec.  28.29  Consolidation or joinder.

    (a) * * *
    (2) Joinder may occur where one person has two or more petitions 
pending and they are united for consideration. For example, a single 
petitioner who has one petition pending challenging a 30-day suspension 
and another petition pending challenging a subsequent dismissal might 
have the cases joined.
* * * * *

Discovery

    26. Amend Sec.  28.41 by removing the word ``appeal'' in the first 
sentence and add in its place the word ``review'' in paragraph (b).
    27. Amend Sec.  28.42 by revising the first sentence of paragraph 
(d)(5) to read as follows:


Sec.  28.42  Discovery procedures and protective orders.

* * * * *
    (d) * * *
    (5) Discovery shall be completed by the time designated by the 
administrative judge, but no later than 65 days after the service of 
the notice of filing of a petition. * * *

Subpoenas

    28. Amend Sec.  28.46 as follows:
    a. Revise paragraph (b).
    b. Remove paragraph (d).
    The revision reads as follows:


Sec.  28.46  Motion for subpoena.

* * * * *
    (b) Motion. (1) A motion for the issuance of a subpoena requiring 
the attendance and testimony of witnesses or the production of 
documents or other evidence under Sec.  28.46(a) shall be submitted to 
the administrative judge at least 15 days in advance of the date 
scheduled for the commencement of the hearing.
    (2) If the subpoena is sought as part of the discovery process, the 
motion shall be submitted to the administrative judge at least 15 days 
in advance of the date set for the attendance of the witness at a 
deposition or the production of documents.
* * * * *

Hearings

    29. Amend Sec.  28.56 by adding a second sentence in paragraph (f) 
to read as follows:


Sec.  28.56  Hearing procedures, conduct and copies of exhibits.

* * * * *
    (f) * * * Multiple exhibits shall be indexed and tabbed.
* * * * *
    30. Amend Sec.  28.57 by revising paragraph (b) to read as follows:


Sec.  28.57  Public hearings.

* * * * *
    (b) At the hearing, the petitioner, the petitioner's 
representative, GAO's legal representative, and a GAO management 
representative, who is not expected to testify, each have a right to be 
present. The Agency management representative shall be designated prior 
to the hearing.
    31. Amend Sec.  28.61 as follows:
    a. In paragraph (b) introductory text, remove the word ``may'' and 
add in its place the word ``shall,''
    b. Revise the definition of harmful error in paragraph (d).
    The revision reads as follows:


Sec.  28.61  Burden and degree of proof.

* * * * *
    (d) Definitions. For purposes of this section, the following 
definitions shall apply:
    Harmful error means error by the agency in the application of its 
procedures which, in the absence or cure of the error, might have 
caused the agency to reach a conclusion different from the one reached.
* * * * *
    32. Redesignate Sec.  28.62 as Sec.  28.63, and add a new Sec.  
28.62 to read as follows:


Sec.  28.62  Decision on the record.

    (a) The parties may agree to forego a hearing and request that the 
matter be decided by the presiding administrative judge based upon the 
record submitted.
    (b) If the parties agree to forego a hearing under this subpart, 
the record will close on the date that the administrative judge sets as 
the final date for the receipt or filing of submissions of the parties. 
Once the record closes, no additional evidence or argument will be 
accepted unless the party seeking to submit it demonstrates that the 
evidence was not available before the record closed.
    (c) In matters submitted for decision on the record under this 
section, the parties bear the same burdens of proof set forth in Sec.  
28.61.
    (d) A decision obtained under this section is a decision on the 
merits of the case and is appealable as if the matter had been 
adjudicated in an evidentiary hearing.


Sec.  28.63  Closing the record. [Redesignated from Sec.  28.62]

Evidence

    33. Revise Sec.  28.66 to read as follows:


Sec.  28.66  Admissibility.

    Evidence or testimony may be excluded from consideration by the 
administrative judge if it is irrelevant, immaterial, unduly 
repetitious or protected by privilege. The administrative judge is not 
bound by formal evidentiary rules but may rely on the Federal Rules of 
Evidence for guidance.
    34. Revise Sec.  28.69 to read as follows:


Sec.  28.69  Judicial notice.

    The administrative judge on his or her own motion or on motion of a 
party, may take judicial notice of a fact which is not subject to 
reasonable dispute because it is either: A matter of common knowledge; 
or A matter capable of accurate and ready determination by resort to 
sources whose accuracy cannot reasonably be questioned. Judicial notice 
taken of any fact satisfies a party's burden of proving the fact 
noticed.

Board Decisions, Attorney's Fees and Judicial Review


Sec.  28.86  [Removed and reserved]

    35. Remove and reserve Sec.  28.86.
    36. Amend Sec.  28.87 by revising paragraphs (a) and (b) and 
paragraph (g), introductory text,to read as follows:


Sec.  28.87  Board procedures; initial decisions.

    (a) When a case is heard in the first instance by a single Board 
member, a panel of members, or a non-member appointed by the Board, an 
initial decision shall be issued by that member, panel or individual 
and served upon the parties.
    (b) An aggrieved party may seek reconsideration of or may appeal 
the initial decision in the following manner:
    (1) Within 10 days of the service of the initial decision, such a 
party may file and serve a request for reconsideration with the 
administrative judge or panel rendering that decision. Filing of the 
request for reconsideration shall toll the commencement of the 15 day 
period for filing a notice of appeal

[[Page 41749]]

with the full Board, pending disposition of the request for 
reconsideration by the administrative judge or panel. The 
administrative judge or panel shall determine if a response is 
required, and if so, will fix by order the time for the filing of the 
response. A motion for reconsideration will not be granted without 
providing an opportunity for response.
    (2) Within 15 days of the service of the initial decision, such a 
party may appeal to the full Board by filing and serving a notice of 
appeal to the Board.
* * * * *
    (g) In conducting its examination of the initial decision, the 
Board may substitute its own findings of fact and conclusions of law, 
but the Board generally will defer to demeanor-based credibility 
determinations made in the initial decision. In determining whether 
some action other than affirmance of the initial decision is required, 
the Board will also consider whether:
* * * * *
    37. Amend Sec.  28.88 as follows:
    a. Revise paragraphs (a), (b), and (d),
    b. Add paragraphs (e) and (f).
    The revisions and additions read as follows:


Sec.  28.88  Board procedures; enforcement.

    (a) All decisions and orders of the Board shall be complied with 
promptly. Whenever a Board decision or order requires a person or party 
to take any action, the Board may require such person or party to 
provide the Board and all parties with a compliance report.
    (b) When the Board does not receive a report of compliance in 
accordance with paragraph (a) of this section, the Solicitor shall make 
inquiries to determine the status of the compliance report and shall 
report upon the results of the inquiry to the Board.
* * * * *
    (d) Upon receipt of a non-compliance report from its Solicitor or 
of a petition for enforcement of a final decision, the Board may issue 
a notice to any person to show cause why there was non-compliance. 
Apart from remedies available to the parties, the Board may seek 
judicial enforcement of a decision or order issued pursuant to a show 
cause proceeding.
    (e) If the parties enter into a settlement agreement that has been 
reviewed and approved by the administrative judge, the Board retains 
jurisdiction to enforce the terms of such settlement agreement.
    (f) Any party to a settlement agreement over which the Board 
retains jurisdiction may petition the Board for enforcement of the 
terms of such settlement agreement.
    38. Revise Sec.  28.89 to read as follows:


Sec.  28.89  Attorney's fees and costs.

    Within 20 days after service of a final decision by the Board, or 
within 20 days after the date on which an initial decision becomes 
final pursuant to Sec.  28.87(d), the petitioner, if he or she is the 
prevailing party, may submit a request for the award of reasonable 
attorney's fees and costs. GAO may file a response within 20 days after 
service of the request. Motions for attorney's fees shall be filed in 
accordance with Sec.  28.21 of these regulations. Rulings on attorney's 
fees and costs shall be consistent with the standards set forth at 5 
U.S.C. 7701(g). The decision of the administrative judge concerning 
attorney's fees and costs shall be subject to review and shall become 
final according to the provisions of Sec.  28.87.

Subpart D--Special Procedures; Equal Employment Opportunity (EEO) 
Cases

    39. Amend Sec.  28.95 by revising paragraphs (a) and (d) to read as 
follows:


Sec.  28.95  Purpose and scope.

* * * * *
    (a) Section 717 of the Civil Rights Act of 1964, as amended (42 
U.S.C. 2000e-16), prohibiting discrimination based on race, color, 
religion, sex or national origin;
* * * * *
    (d) Title I of the Americans with Disabilities Act of 1990 (42 
U.S.C. 12101 et seq.) and sections 501 and 505 of the Rehabilitation 
Act of 1973 (29 U.S.C. 791, 794a) prohibiting discrimination on the 
basis of disability; or
* * * * *
    40. Amend Sec.  28.97 by revising paragraph (b), introductory text, 
the first sentence of paragraph (c), paragraphs (d), and (e) to read as 
follows:


Sec.  28.97  Class actions in EEO cases.

* * * * *
    (b) An appeal from GAO's disposition of any EEO class complaint may 
be submitted to the Board at the following times:
* * * * *
    (c) In EEO class actions, employees shall not file charges with the 
Board's Office of General Counsel and that Office shall not undertake 
an independent investigation of a class complaint that has been filed 
with GAO. * * *
    (d) An appeal of a GAO disposition of an EEO class complaint shall 
be decided by the Board based upon a review of the administrative 
record, including any recommended findings and conclusions, developed 
in the GAO class complaint process. In such cases, the Board will 
employ the same standards of review set forth in Sec.  28.87.
    (e) The parties to an EEO class complaint do not have a right to a 
de novo evidentiary hearing before the Board. However, either the class 
representative or GAO may file a motion requesting an evidentiary 
hearing, rather than having the Board decide the case upon review of 
the administrative record already developed by GAO. The Board, in its 
discretion, may grant such motion or, upon its own review of the 
administrative record, may direct that a new hearing be conducted. If 
the Board orders a new evidentiary hearing, the class representative 
shall file a petition on behalf of the class and the case shall be 
adjudicated before an administrative judge of this Board pursuant to 
the procedures applicable to an individual EEO complaint processed 
under Sec.  28.98 of these regulations. For the purpose of determining 
whether it is appropriate to treat a petition as a class action, the 
administrative judge will be guided, but not controlled, by the 
applicable provisions of the Federal Rules of Civil Procedure.
    41. Amend Sec.  28.98 by revising paragraphs (d) and (e)(1) to read 
as follows:


Sec.  28.98  Individual charges in EEO cases.

* * * * *
    (d) Special rules for WRA based actions. An individual alleging 
discrimination issues in connection with a WRA-based separation may 
follow the procedures outlined above in paragraph (c) of this section 
for adverse and performance based actions, or may choose instead a 
third option. In accordance with the provisions of Sec.  28.13, such an 
individual may challenge that action by filing directly with the PAB, 
thus bypassing both the Office of Opportunity and Inclusiveness and the 
Board's Office of General Counsel.
    (e)(1) The charging party shall file the charge with the Board's 
Office of General Counsel in accordance with Sec.  28.11. That Office 
shall investigate the charge in accordance with Sec.  28.12.
* * * * *


Sec.  28.99  [Amended]

    42. Amend Sec.  28.99 as follows:
    a. Remove ``for review'' in the heading,
    b. In paragraph (b)(1), add ``Agency'' after ``Provision for.''
    43. Revise Sec.  28.101to read as follows:

[[Page 41750]]

Sec.  28.101  Termination of Board proceedings when suit is filed in 
Federal District Court.

    Any proceeding before the Board shall be terminated when an 
employee or applicant who is alleging violation of Title VII of the 
Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e-16, Title I of 
the Americans with Disabilities Act of 1990, 42 U.S.C. 12101 et seq., 
the Age Discrimination in Employment Act, 29 U.S.C. 633a, or the 
Rehabilitation Act, 29 U.S.C. 791, files suit in Federal District Court 
on the same cause of action pending before the Personnel Appeals Board.
    44. Amend Sec.  28.112 by revising paragraph (a)(3) to read as 
follows:


Sec.  28.112  Who may file petitions.

    (a) * * *
    (3) The GAO if it has a good faith reason to doubt that a majority 
of employees in the bargaining unit wish to be represented by the labor 
organization which is currently the exclusive representative of those 
employees;
* * * * *
    45. Amend Sec.  28.113 by revising paragraph (a)(7), the second 
sentence of paragraph (b), and the first sentence of paragraph (c) to 
read as follows:


Sec.  28.113  Contents of representation petitions.

    (a) * * *
    (7) Membership cards, dues records, or signed statements by 
employees indicating their desire to support the petition of the labor 
organization, or similar evidence acceptable to the Board, showing that 
at least 30 percent of the employees in the proposed unit support the 
representation petition.
    (b) * * * Additionally, a petition under Sec.  28.112(a)(2) shall 
include evidence satisfactory to the Board that at least 30 percent of 
the employees in the unit support the petition to determine whether the 
employees wish to continue to be represented by the labor organization 
currently having bargaining rights.
    (c) The contents of petitions filed under Sec.  28.112(a)(3) shall 
conform to those provided in petitions under paragraph (a) of this 
section except that the information required by paragraphs (a)(4) and 
(a)(7) of this section need not be supplied. * * *
* * * * *

Subpart F--Special Procedures; Unfair Labor Practices

    46. Amend Sec.  28.121(c) as follows:
    a. Remove ``for review'' after the word ``petition'',
    b. Remove the term ``14b'' and add in its place the term ``15e'',
    c. Add the words ``Office of `` before the phrase ``General 
Counsel''.
    47. Amend Sec.  28.122 as follows:
    a. Remove ``; compelling need'' from the heading,
    b. In paragraph (e) remove ``Sec. Sec.  28.86-28.87'' and in its 
place add ``Sec.  28.87''.
    48. Amend Sec.  28.123 as follows:
    a. Revise paragraph (a)(4),
    b. In paragraph (c), remove the words ``Labor/Management 
Relations'' and add the words ``Employment Standards'' in their place.
    The revision reads as follows:


Sec.  28.123  Standards of conduct for labor organizations.

    (a) * * *
    (4) Fiscal integrity.
* * * * *

Subpart G--Corrective Action, Disciplinary and Stay Proceedings


Sec.  28.131  [Amended]

    49. Amend paragraph (d) of Sec.  28.131 by removing the words ``for 
review'' after ``petition'' and adding the words ``Board's Office of'' 
before the phrase ``General Counsel''.


Sec.  28.132  [Amended]

    50. Amend Sec.  28.132 by removing the first sentence in paragraph 
(e).
    51. Amend Sec.  28.133 by revising paragraphs (a), (b), (c), (d), 
and (e) to read as follows:


Sec.  28.133  Stay proceedings.

    (a) Prior to the effective date of any proposed personnel action, 
the Board's Office of General Counsel may request, ex parte, the 
issuance of an initial stay of the proposed personnel action for a 
period not to exceed 30 days if the General Counsel believes that the 
proposed personnel action arises out of a prohibited personnel 
practice. The request shall be in writing and shall specify the nature 
of the action to be stayed and the basis for the General Counsel's 
belief. The Board's Office of General Counsel shall serve a copy of the 
request on the GAO. Within three business days of its filing, the 
request shall be granted by the Board member designated by the Board 
Chair to entertain the request unless that Board member determines that 
the request either:
    (1) Fails to satisfy the requirements of this paragraph or
    (2) On its face, conclusively establishes that the proposed 
personnel action did not arise out of an alleged prohibited personnel 
practice as specified by the General Counsel.
    (b) The Board's Office of General Counsel may request the issuance 
of either:
    (1) Further temporary stays for the purpose of allowing additional 
time to pursue its investigation or
    (2) A permanent stay for the purpose of staying the proposed 
personnel action until a final decision is rendered.
    (c) Requests for stays under paragraph (b) of this section shall be 
received by both the Board and the GAO no less than 10 days before the 
expiration of any stay then in effect. Any response from GAO to the 
request shall be received by both the Board and the Board's Office of 
General Counsel no less than three days before the expiration of any 
stay then in effect. Any request for stay under this paragraph shall be 
decided by the Board member who issued the prior stay under paragraph 
(a) of this section, unless the Board Chair determines that it should 
be decided by the Board en banc. The Board member, or Board en banc, 
may require further briefing, oral argument, submission of affidavits 
or other documentary evidence, or may conduct an evidentiary hearing 
before rendering a decision. Any stay then in effect may be extended, 
sua sponte, for a period not to exceed 30 days to enable the Board 
member, or Board en banc, a reasonable opportunity to render a 
decision.
    (d) A temporary stay under paragraph (b)(1) of this section may be 
issued if the Board member, or Board en banc, determines that under all 
of the circumstances the interests of justice would be served by 
providing more time for the Board's Office of General Counsel to pursue 
the investigation. However, the duration of any single temporary stay 
shall not exceed the amount of time reasonably necessary to acquire 
sufficient information to support a request for a permanent stay in the 
exercise of a high degree of diligence and, in no event, shall any 
single temporary stay exceed 60 days except as provided under paragraph 
(c) of this section for the purpose of allowing time to render a 
decision.
    (e) In determining whether a permanent stay under paragraph (b)(2) 
of this section should be issued, the Board member, or Board en banc, 
shall:
    (1) Assess the evidence adduced by each side as to whether the 
proposed personnel action arises out of an alleged prohibited personnel 
practice as specified by the Board's General Counsel;
    (2) Assess the nature and gravity of any harm that could inure to 
each side if the request for permanent stay is either granted or 
denied; and

[[Page 41751]]

    (3) Balance the assessments conducted under paragraphs (e)(1) and 
(2) of this section.
* * * * *

Subpart I--Ex Parte Communications

    52. Amend Sec.  28.146 by revising the second sentence of paragraph 
(a) to read as follows:


Sec.  28.146  Explanation and definitions.

    (a) * * * The only ex parte communications that are prohibited are 
those that involve the merits of the case or those that violate other 
rules requiring submissions to be in writing. * * *
* * * * *
    53. Add Subpart K, consisting of Sec. Sec.  28.160 and 28.161 to 
read as follows:
Subpart K--Access to Records
Sec.
28.160 Request for records.
28.161 Denial of access to information--Appeals.

Subpart K--Access to Records


Sec.  28.160  Request for records.

    (a) Individuals may request access to records pertaining to them 
that are maintained as described in 4 CFR part 83, by addressing an 
inquiry to the PAB General Counsel either by mail or by appearing in 
person at the Personnel Appeals Board Office of General Counsel, 820 
First Street, NE., Suite 580, Washington, DC 20002, during business 
hours on a regular business day. Requests in writing should be clearly 
and prominently marked ``Privacy Act Request.'' Requests for copies of 
records shall be subject to duplication fees set forth in 4 CFR 83.17.
    (b) Individuals making a request in person shall be required to 
present satisfactory proof of identity, preferably a document bearing 
the individual's photograph. Requests by mail or submitted other than 
in person should contain sufficient information to enable the General 
Counsel to determine with reasonable certainty that the requester and 
the subject of the record are one and the same. To assist in this 
process, individuals should submit their names and addresses, dates and 
places of birth, social security number, and any other known 
identifying information such as an agency file number or identification 
number and a description of the circumstances under which the records 
were compiled.
    (c) Exemptions from disclosure. The Personnel Appeals Board General 
Counsel and the Personnel Appeals Board, in deciding what records are 
exempt from disclosure, will follow the policies set forth in 4 CFR 
part 83.


Sec.  28.161  Denial of Access to Information--Appeals.

    (a) If a request for access to information under Sec.  28.150 is 
denied, the General Counsel shall give the requester the following 
information:
    (1) The General Counsel's name and business mailing address;
    (2) The date of the denial;
    (3) The reasons for the denial, including citation of appropriate 
authorities; and
    (4) The individual's right to appeal the denial as set forth in 
paragraphs (b) and (c) of this section.
    (b) Any individual whose request for access to records of the PAB 
General Counsel has been denied in whole or part by the General Counsel 
may, within 30 days of receipt of the denial, challenge that decision 
by filing a written request for review of the decision with the 
Personnel Appeals Board, 820 First Street, NE., Suite 560, Washington, 
DC 20002.
    (c) The appeal shall describe:
    (1) The initial request made by the individual for access to 
records;
    (2) The General Counsel's decision denying the request; and
    (3) The reasons why that decision should be modified by the Board.
    (d) The Board, en banc, may in its discretion render a decision 
based on the record, may request oral argument, or may conduct an 
evidentiary hearing.

PART 29--[REMOVED AND RESERVED]

    54. Remove and reserve Part 29.

Anne M. Wagner,
Chair, Personnel Appeals Board, General Accounting Office.
[FR Doc. 03-17785 Filed 7-14-03; 8:45 am]
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