February 26, 2004 CONGRESSIONAL RECORD — HOUSE H693 Gutierrez, Gil Gutknecht, Ralph M. Hall, S. Smith, Nick Smith, Vic Snyder, Hilda L. hearing on December 2, 2003 regarding the Jane Harman, Katherine Harris, Melissa A. Solis, Mark E. Souder, John M. Spratt, Jr., proposed procedural rule amendments was Hart, J. Dennis Hastert, Alcee L. Hastings, Cliff Stearns, Charles W. Stenholm, Ted published in the Congressional Record at Doc Hastings, Robin Hayes, J.D. Hayworth, Strickland, Bart Stupak, John Sullivan, H9475 and S12599. On November 21, 2003, a No- Joel Hefley, Jeb Hensarling, Wally Herger, John E. Sweeney, Thomas G. Tancredo, John tice of the cancellation of the December 2, Baron P. Hill, Maurice D. Hinchey, Rube´n S. Tanner, Ellen O. Tauscher, W.J. (Billy) 2003 hearing was published in the Congres- Hinojosa, David L. Hobson, Joseph M. Tauzin, Charles H. Taylor, Gene Taylor, Lee sional Record at S15394 and H12304. Hoeffel, Peter Hoekstra, Tim Holden, Rush Terry, William M. Thomas, Bennie G. The Board of Directors of the Office of D. Holt, Michael M. Honda, Darlene Hooley, Thompson, Mike Thompson, Mac Thorn- Compliance has determined to issue this Sec- John N. Hostettler, Amo Houghton, Steny H. berry, Todd Tiahrt, Patrick J. Tiberi, John ond Notice of Proposed Amendment to the Hoyer, Kenny C. Hulshof, Duncan Hunter, F. Tierney, Patrick J. Toomey, Edolphus Procedural Rules, which includes changes to Henry J. Hyde, Jay Inslee, Johnny Isakson, Towns, Jim Turner, Michael R. Turner, the initial proposed amendments, together Steve Israel, Darrell E. Issa, Ernest J. Mark Udall, Tom Udall, Fred Upton, Chris with a brief discussion of each proposed Istook, Jr., Jesse L. Jackson, Jr., Sheila Van Hollen, Nydia M. Vela´ zquez, Peter J. amendment. As set forth in greater detail Jackson-Lee, William J. Janklow, William J. Visclosky, David Vitter, Greg Walden, James herein below, interested parties are being af- Jefferson, William L. Jenkins, Christopher T. Walsh, Zach Wamp, Maxine Waters, Diane forded another opportunity to comment on John, Eddie Bernice Johnson, Nancy L. E. Watson, Melvin L. Watt, Henry A. Wax- these proposed amendments. Johnson, Sam Johnson, Timothy V. Johnson, man, Anthony D. Weiner, Curt Weldon, Dave The complete existing Procedural Rules of the Office of Compliance may be found on Stephanie Tubbs Jones, Walter B. Jones, Weldon, Jerry Weller, Robert Wexler, Ed the Office’s web site: www.compliance.gov. Paul E. Kanjorski, Marcy Kaptur, Ric Keller, Whitfield, Roger F. Wicker, Heather Wilson, How to submit comments: Sue W. Kelly, Mark R. Kennedy, Patrick J. Joe Wilson, Frank R. Wolf, Lynn C. Woolsey, Kennedy, Dale E. Kildee, Carolyn C. Kil- Comments regarding the proposed amend- David Wu, Albert Russell Wynn, C.W. Bill ments to the Rules of Procedure of the Office patrick, Ron Kind, Peter T. King, Steve Young, Don Young. King, Jack Kingston, Mark Steven Kirk, of Compliance set forth in this NOTICE are Gerald D. Kleczka, John Kline, Joe Knollen- f invited for a period of thirty (30) days fol- lowing the date of the appearance of this NO- berg, Jim Kolbe, Ray LaHood, Nick NOTICE OF PROPOSED Lampson, James R. Langevin, Tom Lantos, TICE in the Congressional Record. In addi- Rick Larsen, John B. Larson, Tom Latham, RULEMAKING tion to being posted on the Office of Compli- ance’s section 508 compliant web site Steven C. LaTourette, James A. Leach, Bar- U.S. CONGRESS, (www.compliance.gov), this NOTICE is also bara Lee, Sander M. Levin, Jerry Lewis, OFFICE OF COMPLIANCE, available in the following alternative for- John Lewis, Ron Lewis, John Linder, Wil- Washington, DC, February 26, 2004. mats: Large Print, Braille. Requests for this liam O. Lipinski, Frank A. LoBiondo, Zoe Hon. J. DENNIS HASTERT, NOTICE in an alternative format should be Lofgren, Nita M. Lowey, Frank D. Lucas, Speaker, House of Representatives, Washington, made to: Bill Thompson, Executive Director, Ken Lucas, Stephen F. Lynch, Denise L. DC. Majette, Carolyn B. Maloney, Donald A. or Alma Candelaria, Deputy Executive Di- DEAR MR. SPEAKER: Pursuant to Section rector, Office of Compliance, at 202–724–9250 Manzullo, Edward J. Markey, Jim Marshall, 303(b) of the Congressional Accountability Jim Matheson, Robert T. Matsui, Carolyn (voice) or 202–426–1912 (TDD). Act of 1995 (2 U.S.C. 1384(b)) (‘‘Act’’), I am Submission of comments must be made in McCarthy, Karen McCarthy, Betty McCol- transmitting on behalf of the Board of Direc- writing to the Executive Director, Office of lum, Thaddeus G. McCotter, Jim McCrery, tors of the Office of Compliance the enclosed Compliance, 110 Second Street, S.E., Room James P. McGovern, John M. McHugh, Scott Second Notice of Proposed Procedural Rule LA–200, Washington, D.C. 20540–1999. It is re- McInnis, Mike McIntyre, Howard P. ‘‘Buck’’ Making for publication in the Congressional quested, but not required, that an electronic McKeon, Michael R. McNulty, Martin T. Record. version of any comments be provided on an Meehan, Kendrick B. Meek, Gregory W. We request that this notice be republished accompanying computer disk. Comments Meeks, Robert Menendez, John L. Mica, Mi- in the Congressional Record. It was first pub- may also be submitted by facsimile to the chael H. Michaud, Juanita Millender-McDon- lished in the Congressional Record of the Executive Director at 202–426–1913 (a non- ald, Brad Miller, Candice S. Miller, Gary G. House on February 24, 2004. However, the Act toll-free number.) Those wishing to receive Miller, Jeff Miller, Alan B. Mollohan, Dennis specifies that the enclosed Notice be pub- confirmation of the receipt of their com- Moore, James P. Moran, Jerry Moran, Tim lished on the first day on which both Houses ments are requested to provide a self-ad- Murphy, John P. Murtha, Marilyn N. are in session following this transmittal. Be- dressed, stamped post card with their sub- Musgrave, Sue Wilkins Myrick, Jerrold Nad- cause the Senate was unable to publish its mission. ler, Grace F. Napolitano, Richard E. Neal, Notice of these procedural rules on February Copies of submitted comments will be George R. Nethercutt, Jr., Randy 24th, we are re-transmitting this Notice to available for review on the Office’s web site Neugebauer, Robert W. Ney, Anne M. both the House and Senate so that this No- at www.compliance.gov, and at the Office of Northup, Eleanor Holmes Norton, Charlie tice may be published in the Record of the Compliance, 110 Second Street, S.E., Wash- Norwood, Devin Nunes, Jim Nussle, James L. House and Senate on the same day. ington, D.C. 20540–1999, on Monday through Oberstar, David R. Obey, John W. Olver, Sol- Any inquiries regarding this notice should Friday (non-Federal holidays) between the omon P. Ortiz, Tom Osborne, Doug Ose, C.L. be addressed to the Office of Compliance, hours of 9:30 a.m. and 4:30 p.m. ‘‘Butch’’ Otter, Major R. Owens, Michael G. Room LA–200, 110 2nd Street, S.E., Wash- Supplementary Information: The Congres- Oxley, Frank Pallone, Jr., Bill Pascrell, Jr., ington, DC 20540; 202–724–9250, TDD 202–426– sional Accountability Act of 1995 (CAA), PL Ed Pastor, Ron Paul, Donald M. Payne, 1912. 104–1, was enacted into law on January 23, Stevan Pearce, Nancy Pelosi, Mike Pence, Sincerely, 1995. The CAA applies the rights and protec- Collin C. Peterson, John E. Peterson, Thom- SUSAN S. ROBFOGEL, tions of 11 federal labor and employment as E. Petri, Charles W. ‘‘Chip’’ Pickering, Jo- Chair. statutes to covered employees and employ- seph R. Pitts, Todd Russell Platts, Richard Attachment. ing offices within the Legislative Branch of W. Pombo, Earl Pomeroy, Jon C. Porter, Rob Government. Section 301 of the CAA (2 OFFICE OF COMPLIANCE Portman, David E. Price, Deborah Pryce, U.S.C. 1381) establishes the Office of Compli- Adam H. Putnam, Jack Quinn, George The Congressional Accountability Act of ance as an independent office within that Radanovich, Nick J. Rahall II, Jim Ramstad, 1995: Second Notice of Proposed Amendments Branch. Section 303 (2 U.S.C. 1383) directs Charles B. Rangel, Ralph Regula, Dennis R. to the Procedural Rules. that the Executive Director, as the Chief Op- Rehberg, Rick Renzi, Silvestre Reyes, Thom- Introductory statement: erating Officer of the agency, adopt rules of as M. Reynolds, Ciro D. Rodriguez, Harold On September 4, 2003, a Notice of Proposed procedure governing the Office of Compli- Rogers, Mike Rogers (AL), Mike Rogers (MI), Amendments to the Procedural Rules of the ance, subject to approval by the Board of Di- Dana Rohrabacher, Ileana Ros-Lehtinen, Office of Compliance was published in the rectors of the Office of Compliance. The Mike Ross, Steven R. Rothman, Lucille Roy- Congressional Record at S11110, and H7944. rules of procedure generally establish the bal-Allard, Edward R. Royce, C.A. Dutch As specified by the Congressional Account- process by which alleged violations of the Ruppersberger, Bobby L. Rush, Paul Ryan, ability Act of 1995 (‘‘Act’’) at Section 303(b) laws made applicable to the Legislative Timothy J. Ryan, Jim Ryun, Martin Olav (2 U.S.C.1384(b)), a 30 day period for com- Branch under the CAA will be considered and Sabo, Linda T. Sa´ nchez, Loretta Sanchez, ments from interested parties ensued. In re- resolved. The rules include procedures for Bernard Sanders, Max Sandlin, Jim Saxton, sponse, the Office received a number of com- counseling, mediation, and election between Janice D. Schakowsky, Adam B. Schiff, Ed- ments regarding the proposed amendments. filing an administrative complaint with the ward L. Schrock, David Scott, Robert C. At the request of a commenter, for good Office of Compliance or filing a civil action Scott, F. James Sensenbrenner, Jr., Jose´ E. reason shown, the Board of Directors ex- in U.S. District Court. The rules also include Serrano, Pete Sessions, John B. Shadegg, E. tended the 30 day comment period until Oc- the procedures for processing Occupational Clay Shaw, Jr., Christopher Shays, Brad tober 20, 2003. The extension of the comment Safety and Health investigations and en- Sherman, Don Sherwood, John Shimkus, Bill period was published in the Congressional forcement, as well as the process for the con- Shuster, Rob Simmons, Michael K. Simpson, Record on October 2, 2003 at H9209 and S12361. duct of administrative hearings held as the Ike Skelton, Louise McIntosh Slaughter, On October 15, 2003, an announcement that result of the filing of an administrative com- Adam Smith, Christopher H. Smith, Lamar the Board of Directors intended to hold a plaint under all of the statutes applied by

VerDate feb 26 2004 02:32 Feb 27, 2004 Jkt 029060 PO 00000 Frm 00059 Fmt 4634 Sfmt 0634 E:\CR\FM\A26FE7.067 H26PT1 H694 CONGRESSIONAL RECORD — HOUSE February 26, 2004 the Act, and for appeals of a decision by a §4.14 Failure to Correct a Violation for Which a overnight and other expedited delivery. hearing officer to the Board of Directors of Citation Has Been Issued; Notice When specifically authorized by the Executive the Office of Compliance, and for the filing of of Failure to Correct Violation; Director, or by the Board of Directors in the an appeal of a decision by the Board of Direc- Complaint case of an appeal to the Board, any document tors to the United States Court of Appeals §4.15 Informal Conferences may also be filed by electronic transmittal in a for the Federal Circuit. The rules also con- §4.16 Comments on Occupational Safety and designated format. Requests for counseling tain other matters of general applicability to Health Reports under section 2.03, requests for mediation the dispute resolution process and to the op- Rules of Practice for Variances, Limitations, under section 2.04 and complaints under sec- eration of the Office of Compliance. Variations, Tolerances, and Exemptions tion 5.01 of these rules may also be filed by These proposed amendments to the Rules facsimile (FAX) transmission..... §4.20 Purpose and Scope Discussion: The electronic filing option is of Procedure are the result of the experience §4.21 Definitions in addition to existing filing procedures, and of the Office in processing disputes under the §4.22 Effect of Variances represents the decision of this agency to CAA during the period since the original §4.23 Public Notice of a Granted Variance, Lim- begin to explore the process of migration to- adoption of these rules in 1995. itation, Variation, Tolerance, or ward electronic filing. In response to com- How to read the proposed amendments: Exemption ments, the Board has added Board of Direc- The text of the proposed amendments §4.24 Form of Documents tors authorization authority to ensure that shows [deletions within brackets], and added §4.25 Applications for Temporary Variances and the Executive Director cannot unilaterally text in italic. Textual additions which have other Relief assume Board authority regarding a matter been made for the first time in this second §4.26 Applications for Permanent Variances and pending before the Board. Because of limits notice of the proposed amendments are other Relief shown as italicized bold. Textual deletions §4.27 Modification or Revocation of Orders in available technology, it will remain nec- which have been made for the first time in §4.28 Action on Applications essary to designate a particular format for this second notice of the proposed amend- §4.29 Consolidation of Proceedings electronic transmittal. Requiring a des- ments [[ are bracketed with double brackets. §4.30 Consent Findings and Rules or Orders ignated format does not impose an undue ]] Only subsections of the rules which in- §4.31 Order of Proceedings and Burden of Proof burden, since electronic filing is not re- quired. Stipulating a web address and system clude proposed amendments are reproduced Subpart E—Complaints in this notice. The insertion of a series of for confirmation of receipt of electronic §5.01 Complaints small dots (.....) indicates additional, transmittal is not appropriate for a formal §5.02 Appointment of the Hearing Officer rule, since all documents will not necessarily unamended text within a section has not §5.03 Dismissal, Summary Judgment, and With- been reproduced in this document. The inser- be filed at the same address, and not all fil- drawal of Complaint ing requires proof of receipt. Not including tion of a series of stars (*****) indicates §5.04 Confidentiality that the unamended text of entire sections of such information also better safeguards the the Rules have not been reproduced in this Subpart F—Discovery and Subpoenas security of document filing. (d) Service or filing of documents by certified document. For the text of other portions of §6.01 Discovery mail, return receipt requested. Whenever these the Rules which are not proposed to be §6.02 Requests for Subpoenas rules permit or require service or filing of docu- amended, please access the Office of Compli- §6.03 Service ments by certified mail, return receipt requested, ance web site at www.compliance.gov. §6.04 Proof of Service §6.05 Motion to Quash such documents may also be served or filed by PROPOSED PROCEDURAL RULE AMENDMENTS §6.06 Enforcement express mail or other forms of expedited delivery PART I—OFFICE OF COMPLIANCE in which proof of [[delivery to]] date of receipt Subpart G—Hearings Office of Compliance Rules of Procedure by the addressee is provided. §7.01 The Hearing Officer Discussion: Section 1.03(a)(2)(i) permits As Amended—February 12, 1998 (Subpart A, §7.02 Sanctions ‘‘other expedited delivery’’ of documents section 1.02, ‘‘Definitions’’), and as proposed §7.03 Disqualification of the Hearing Officer being filed for which proof of delivery is not to be amended in 2004. §7.04 Motions and Prehearing Conference required. However, there is no similar provi- TABLE OF CONTENTS §7.05 Scheduling the Hearing sion with regard to certified mail, return re- Subpart A—General Provisions §7.06 Consolidation and Joinder of Cases ceipt requested. Such a service method is §7.07 Conduct of Hearing; Disqualification of specifically required in Sections 2.03(l), §1.01 Scope and Policy Representatives §1.02 Definitions 2.04(i), and 5.01(e). Particularly in view of the §7.08 Transcript lengthened time required to process mail §1.03 Filing and Computation of Time §7.09 Admissibility of Evidence §1.04 Availability of Official Information through the U.S. Postal Service since 9–11, §7.10 Stipulations the Board has determined that additional §1.05 Designation of Representative §7.11 Official Notice flexibility in the use of other mail delivery §1.06 Maintenance of Confidentiality §7.12 Confidentiality services is also needed as an alternative to §1.07 Breach of Confidentiality Provisions §7.13 Immediate Board Review of a Ruling by a certified mail, return receipt requested. Subpart B—Pre-Complaint Procedures Appli- Hearing Officer cable to Consideration of Alleged Violations §7.14 Briefs ***** of Part A of Title II of the Congressional Ac- §7.15 Closing the record 1.05 Designation of Representative. countability Act of 1995 §7.16 Hearing Officer Decisions; Entry in AMENDMENT DELETED (a) An employee, §2.01 Matters Covered by Subpart B Records of the Office other charging individual or party, a wit- §2.02 Requests for Advice and Information Subpart H—Proceedings before the Board ness, a labor organization, an employing of- §2.03 Counseling §8.01 Appeal to the Board fice, an entity alleged to be responsible for §2.04 Mediation §8.02 Reconsideration correcting a violation wishing to be rep- §2.05 Election of Proceedings §8.03 Compliance with Final Decisions, Requests resented by another individual must file §2.06 Filing of Civil Action for Enforcement with the Office a written notice of designa- Subpart C—[Reserved (Section 210—ADA §8.04 Judicial Review tion of representative. The representative Public Services)] Subpart I—Other Matters of General may be, but is not required to be, an attor- Subpart D—Compliance, Investigation, En- Applicability ney. [[During the period of counseling and me- diation, upon the request of a party, if the Exec- forcement and Variance Procedures under §9.01 Filing, Service and Size Limitations of Mo- utive Director concludes that a representative of Section 215 of the CAA (Occupational Safety tions, Briefs, Responses and other an employee, of a charging party, of a labor or- and Health Act of 1970) Inspections, Cita- Documents ganization, of an employing office, or of an en- tions, and Complaints §9.02 Signing of Pleadings, Motions and Other tity alleged to be responsible for correcting a §4.01 Purpose and Scope Filings; Violations of Rules; Sanc- violation has a conflict of interest, the Executive §4.02 Authority for Inspection tions Director may, after giving the representative an §4.03 Request for Inspections by Employees and §9.03 Attorney’s Fees and Costs opportunity to respond, disqualify the rep- Employing Offices §9.04 Ex parte Communications resentative. In that event, the period for coun- §4.04 Objection to Inspection §9.05 Settlement Agreements §4.05 Entry Not a Waiver §9.06 Destruction of Closed Files seling or mediation may be extended by the Ex- §4.06 Advance Notice of Inspection §9.07 Payments [[ of]] pursuant to Decisions or ecutive Director for a reasonable time to afford §4.07 Conduct of Inspections Awards under Section 415(a) of the party an opportunity to obtain another rep- §4.08 Representatives of Employing Offices and the Act. resentative.]] Discussion: Upon further consideration, Employees §9.0[6]8 Revocation, Amendment or Waiver of the Board has deleted this proposed amend- §4.09 Consultation with Employees Rules ment. The Board does not agree with the as- §4.10 Inspection Not Warranted; Informal Re- ***** sertion by a commenter that the current view §4.11 Citations §1.03 Filing and Computation of Time. version of this rule is in excess of the author- §4.12 Imminent Danger (a) Method of Filing. Documents may be ity of this Board under the Act. §4.13 Posting of Citations filed in person or by mail, including express, *****

VerDate feb 26 2004 01:49 Feb 27, 2004 Jkt 029060 PO 00000 Frm 00060 Fmt 4634 Sfmt 0634 E:\CR\FM\A26FE7.052 H26PT1 February 26, 2004 CONGRESSIONAL RECORD — HOUSE H695 2.03 Counseling. ance procedures of the Architect of the Cap- ation is received, unless the Office grants an (a) Initiating a Proceeding; Formal Re- itol or the Capitol Police. The term ‘griev- extension. quest for Counseling. In order to initiate a ance procedures’ refers to internal proce- (2) The Office may extend the mediation proceeding under these rules, an employee dures of the Architect of the Capitol and the period upon the joint written request of the shall [formally] file a written request for Capitol Police that can provide a resolution parties or of the appointed mediator on be- counseling [from] with the Office regarding of the matter(s) about which counseling was half of the parties to the attention of the Exec- an alleged violation of the Act, as referred to requested. Pursuant to section 401 of the Act utive Director. The request [may be oral or] in section 2.01(a) above. All [formal] requests and by agreement with the Architect of the shall be written and [shall be noted and] filed for counseling shall be confidential, unless Capitol and the Capitol Police Board, when with the Office no later than the last day of the employee agrees to waive his or her right the Executive Director makes such a rec- the mediation period. The request shall set to confidentiality under section 2.03(e)(2), ommendation, the following procedures shall forth the joint nature of the request and the below. apply: reasons therefor, and specify when the par- Discussion: The purpose of this amendment ..... ties expect to conclude their discussions. Re- is to delete the undefined term ‘‘formal’’, (ii) After having contacted the Office and quest for additional extensions may be made and require simply that the request be made having utilized the grievance procedures of in the same manner. Approval of any exten- in written form. Several commenters sug- the Architect of the Capitol or of the Capitol sions shall be within the sole discretion of gested that institution of a requirement that Police Board, the employee may notify the the Office. the counseling request be in writing would Office that he or she wishes to return to the Discussion: The amendment assures that constitute a ‘‘waiver’’ of the statutory re- procedures under these rules: (A) within [10] an adequate record of such a request be quirement of absolute confidentiality in 60 days after the expiration of the period rec- made. In response to comments, the Board counseling mandated by section 416(a) of the ommended by the Executive Director, if the has added language allowing the assigned Act. Requiring a written counseling request matter has not [[been resolved]] resulted in a mediator to submit the request on behalf of does not constitute or suggest a ‘‘waiver’’ of final decision; or (B) within 20 days after the parties. confidentiality in any way. Such a waiver service of a final decision resulting from the ..... may only occur when ‘‘the Office and a cov- grievance procedures of the Architect of the (i) Conclusion of the Mediation Period and ered employee . . . agree to notify the em- Capitol or the Capitol Police Board. Notice. If, at the end of the mediation pe- ploying office of the allegations.’’ 2 U.S.C. (iii) The period during which the matter is riod, the parties have not resolved the mat- 1416(a). The process for such a waiver is set pending in the internal grievance procedure ter that forms the basis of the request for out in the existing Procedural Rules at sec- shall not count against the time available mediation, the Office shall provide the em- tion 2.03(e)(2), which requires a written waiv- for counseling or mediation under the Act. If ployee, and the employing office, and their er form. A written request for counseling is the grievance is resolved to the employee’s representatives, with written notice that the an entirely different document. satisfaction, the employee shall so notify the mediation period has concluded. The written Office within 20 days after the employee has ..... notice to the employee will be sent by cer- received service of the final decision resulting (c) When, How, and Where to Request tified mail, return receipt requested, or will from the grievance procedure. [[or i]] If no re- be [hand] personally delivered, evidenced by a Counseling. A [formal] request for coun- quest to return to the procedures under these seling must be in writing, and [: (1)] shall be written receipt, and it will also notify the rules is received within [[the applicable time employee of his or her right to elect to file [made] filed with the Office of Compliance at period]] 60 days after the expiration of the pe- Room LA–200, 110 Second Street, S.E., Wash- a complaint with the Office in accordance riod recommended by the Executive Director, with section 5.01 of these rules or to file a ington, D.C. 20540–1999; [[telephone 202–724– the Office will [[consider the case to be civil action pursuant to section 408 of the 9250;]] FAX 202–426–1913; TDD 202–426–1912, not closed in its official files]] issue a Notice of Act and section 2.06 of these rules. later than 180 days after the alleged viola- End of Counseling, as specified in section tion of the Act.[; (2) may be made to the Of- Discussion: The purpose of this amendment 2.04(i) of these Rules. is to reflect the provision of the flexibility of fice in person, by telephone, or by written re- Discussion: The amendment reflects the personal delivery. In response to comments, quest; (3) shall be directed to: Office of Com- Board’s conclusion that controversies re- the Board has also formalized the require- pliance, Adams Building, Room LA–200, 110 ferred to agency grievance procedures may ment that proof of delivery be evidenced by Second Street, S.E., Washington, D.C. 20540– be close to disposition at or near the end of a written receipt. 1999; telephone 202–724–9250; FAX 202–426–1913; the stipulated referral period. In such cir- TDD 202–426–1912.] cumstances, the requirement for a return by ***** Discussion: This amendment conforms to the employee to the Office’s procedures with- 2.06 Filing of Civil Action. the requirement that a written request for in 10 days can actually have the effect of dis- ..... counseling must be filed with the Office. rupting the completion of the grievance (c) Communication Regarding Civil Actions ..... process. Therefore, the Board proposes an ex- tension of that time frame to 60 days. The Filed with District Court. [(1)] The party filing (l) Conclusion of the Counseling Period and any civil action with the United States District Notice. The Executive Director shall notify time during which a controversy has been re- ferred to an agency grievance proceeding as- Court pursuant to sections 404(2) and 408 of the the employee in writing of the end of the Act [should simultaneously provide a copy of counseling period, by certified mail, return sumes that there will have been joinder of issues between the employee and the em- the complaint] shall provide a written notice receipt requested, or by personal delivery evi- ploying office. Certainly, there can be no to the Office that the party has filed a civil ac- denced by a written receipt. The Executive tion, specifying the district court in which the Director, as part of the notification of the doubt that the employing office has been placed on notice of the existence of the con- civil action was filed and the case number. end of the counseling period, shall inform Discussion: The Office has the responsi- troversy. The amended proposal ensures that the employee of the right and obligation, bility to be aware of judicial applications the employee will not be penalized by reason should the employee choose to pursue his or and interpretations of the Act. In this re- of an employing office’s failure to process a her claim, to file with the Office a request gard, see also proposed rule 9.06. In response grievance in a timely manner by stipulating for mediation within 15 days after receipt by to comments, the Board has replaced the that the Office will issue an end of coun- the employee of the notice of the end of the proposed requirement that a copy of the seling Notice to the parties 60 days after the counseling period. complaint be provided, with a notice of filing end of the referral period. A commenter’s Discussion: This amendment reflects the of a civil action. The Office also intends to suggestion that the referral time frame un- provision of flexibility to the Office in pro- include notice of this requirement in its No- lawfully extends counseling beyond the 30 viding notice. In response to comments, we tice of End of Mediation. have added the requirement for appropriate day maximum period ignores section 401 of AMENDMENT DELETED: [[(2) No party to documentation in the case of personal deliv- the Act, which specifically stipulates that any civil action referenced in paragraph (1) ery. A suggestion that a copy of the end of all time during which a matter is referred to shall request information from the Office re- counseling notice be served on ‘‘opposing the grievance procedures of the Architect of garding the proceedings which took place pur- counsel’’ would cause a violation of the con- the Capitol or the Capitol Police ‘‘shall not suant to sections 402 or 403 related to said civil fidentiality requirement for counseling re- count against the time available for coun- action, unless said party notifies the other quired by section 416(a) of the Act, and would seling or mediation.’’ Issuing a Notice of End party(ies) to the civil action of the request to the contradict the non-adversarial nature of of Counseling is preferable to administrative Office. The Office will determine whether the re- counseling. closure of a case, since the closure may pe- lease of such information is appropriate under nalize an employee who is still waiting for the Act and the Rules of Procedure.]] ..... the employing office to issue a final decision. (m) Employees of the Office of the Archi- Discussion: Upon further consideration, tect of the Capitol and the Capitol Police. ***** the Board has deleted this proposed amend- (1) Where an employee of the Office of the 2.04 Mediation. ment. Architect of the Capitol or of the Capitol Po- ..... ***** lice requests counseling under the Act and (e) Duration and Extension. §4.16 Comments on Occupational Safety and these rules, the Executive Director may rec- (1) The mediation period shall be 30 days Health Reports. [[The General Counsel will pro- ommend that the employee use the griev- beginning on the date the request for medi- vide to responsible employing office(s) a copy of

VerDate feb 26 2004 01:49 Feb 27, 2004 Jkt 029060 PO 00000 Frm 00061 Fmt 4634 Sfmt 0634 E:\CR\FM\A26FE7.052 H26PT1 H696 CONGRESSIONAL RECORD — HOUSE February 26, 2004 any report issued for general distribution not view under section 8.01. A final decision to comments, the Board has required written less than seven days prior to the date scheduled under section 5.03(a)–(c) which does not re- delegation of authority, and has limited that for its issuance. If a responsible employing office solve all of the claims or issues in the case(s) delegation to submissions after a petition for wishes to have its written comments appended before the Hearing Officer may not be ap- review has been filed. The Board has also to the report, it shall submit such comments to pealed to the Board in advance of a final de- prohibited such a delegation in any case in the General Counsel no later than 48 hours prior cision entered under section 7.16 of these which the Executive Director has issued a to the scheduled issuance date. The General rules, except as authorized pursuant to sec- determination on the merits in the under- Counsel shall either include the written com- tion 7.13 of these rules. lying proceeding. ments without alteration as an appendix to the ([e]f) ..... report, or immediately decline the request for ([f]g) ..... ***** their inclusion. If the General Counsel declines Discussion: Hearing Officers have plenary § 9.01 Filing, Service and Size Limitations of to include the submitted comments, the employ- authority to conduct hearings and make Motions, Briefs, Responses and other Docu- ing office(s) may submit said denial to the final decisions, including summary judg- ments. Board of Directors which, in its sole discretion, ment, pursuant to section 405 of the Act. The shall review the matter and issue a final and amendments more adequately reflect the ex- (a) Filing with the Office; Number. One non-appealable decision solely regarding inclu- isting authority of Hearing Officers. In re- original and three copies of all motions, sion of the employing office(s) comments prior to sponse to a comment, the Board has included briefs, responses, and other documents must the issuance of the report. Submissions to the the requirement that the parties be given be filed, whenever required, with the Office Board of Directors in this regard shall be made the opportunity to address the issue. The or Hearing Officer. However, when a party expeditiously and without regard to the require- Board has also addressed the circumstance of aggrieved by the decision of a Hearing Offi- ments of subpart H of these rules. In no event a partial disposition of a case. cer or other matter or determination reviewable shall the General Counsel be required by the ***** by the Board files an appeal with the Board, Board to postpone the issuance of a report for one original and seven copies of both any ap- more than five days.]] With respect to any re- § 7.02 Sanctions peal brief and any responses must be filed port authorized under section 215(c)(1) or (a) The Hearing Officer may impose sanctions with the Office. The Officer, Hearing Officer, 215(e)(2) of the Act that is intended by the on a party’s representative [[for inappropriate or Board may also [[require]] request a party to General Counsel for general public distribu- or unprofessional conduct]] necessary to regu- submit an electronic version of any submission tion, the General Counsel shall, before mak- late the course of the hearing. on a disk in a designated format. ing such general public distribution, first (b) The Hearing Officer may impose sanc- transmit a copy thereof to the responsible em- tions upon the parties under, but not limited ..... ploying office(s), together with a notification to, the circumstances set forth in this sec- Discussion: The addition of ‘‘other matter that the employing office(s) has 10 days with- tion. or determination reviewable by the Board’’ ([a] ) Failure to Comply with an Order. in which to submit any written comments that 1 is intended to address: collective bargaining When a party fails to comply with an order it wishes to be appended in their entirety as representation decisions made pursuant to (including an order for the taking of a depo- an appendix to the report. In the event the Part 2422 of the Office of Compliance Rules sition, for the production of evidence within General Counsel declines to append to the re- regarding labor-management relations, nego- the party’s control, or for production of wit- port timely submitted comments of an employ- tiability determinations made pursuant to nesses), the Hearing Officer may: ing office, the General Counsel shall not issue Part 2424 of the same Rules, review of arbi- ([1]a) ..... the report for general public distribution, and tration awards under Part 2425 of the same ([2]b) ..... will promptly notify that office in writing of Rules, determination of bargaining consulta- ([3]c) ..... the basis for such declination. Upon written tion rights under Part 2426 of the same request to the Board of Directors submitted by ([4]d) ..... Discussion: In response to comments, and Rules, requests for general statements of the employing office within 10 days of the policy or guidance under Part 2427 of the date of notification of declination by the Gen- upon further consideration, the Board has amended this proposal to better reflect exist- same Rules, enforcement of standards of con- eral Counsel, with a copy thereof served on duct decisions and orders by the Assistant the General Counsel, the Board of Directors ing statutory authority. Section 556(c)(5) of the Administrative Procedure Act, ref- Secretary of Labor for Labor Management shall promptly review the matter, including Relations pursuant to Part 2428 of the same any submission filed by the General Counsel erenced in section 405(d)(3) of the Act, spe- cifically authorizes a presiding official to Rules, and determinations regarding collec- within 10 days of the employing office’s re- tive bargaining impasses pursuant to Part quest, and issue a final and non-appealable ‘‘regulate the course of the hearing’’. The amendment authorizes a Hearing Officer to 2470 of the same Rules. The term ‘‘matter’’ decision determining the issue of inclusion of was included by the Board on further consid- the employing office’s comments prior to the carry out that responsibility when required by a representative’s conduct. eration, because some of the procedures ref- general public distribution of the report. In erenced in the labor-management relations no event shall the General Counsel be re- ***** Rules are addressed to the Board in the first quired by the Board to delay issuance of a re- § 8.01 Appeal to the Board. instance. Submission by electronic version is port covered by this procedure for more than ..... in addition to the existing methods for filing 15 days after the employing office’s request for submissions. This addition reflects the deci- review is submitted to the Board of Directors. (b)(1) Unless otherwise ordered by the sion of this agency to begin exploring the Discussion: The proposed amendment, as Board, within 21 days following the filing of process of migration toward electronic fil- reworded, provides a mechanism for employ- a petition for review to the Board, the appel- ing. Because of limits in available tech- ing office comments to be appended to re- lant shall file and serve a supporting brief in nology, it remains necessary to designate a ports issued by the General Counsel regard- accordance with section 9.01 of these rules. particular format for electronic disk trans- ing Occupational Safety and Health inspec- That brief shall identify with particularity mittal. In response to comments, the Board tions. The Board has amended the proposal those findings or conclusions in the decision has amended the proposal to allow for a ‘‘re- to clarify further the categories of OSH re- and order that are challenged and shall refer quest’’ rather than a requirement. The avail- ports resulting from inspection requests. The specifically to the portions of the record and ability of submissions on disk, particularly Board has extended the time periods within the provisions of statutes or rules that are of lengthy documents, can save the Office which the dispute resolution procedure takes alleged to support each assertion made on time and expense in handling such docu- place. The Board has also added a require- appeal. ments. ment that any General Counsel declination (2) Unless otherwise ordered by the Board, must be provided in writing to the employ- within 21 days following the service of the ***** ing office. appellant’s brief, the opposing party may file and serve a reply brief. § 9.03 Attorney’s fees and costs. ***** (3) Upon delegation by the Board, the written (a) Request. No later than 20 days after the §5.03 Dismissal, Summary Judgment, and Executive Director is authorized to determine entry of a Hearing Officer’s decision under Withdrawal of Complaints. any request for extensions of time to file any section 7.16 or after service of a Board deci- document or submission ..... post-petition for review sion by the Office, the complainant, if he or with the Board (d) Summary Judgment. A Hearing Officer in any case in which the Exec- she is a prevailing party, may submit to the utive Director has not rendered a determina- may, after notice and an opportunity for the Hearing Officer who heard the case initially tion on the merits. Such delegation shall con- parties to address the question of summary a motion for the award of reasonable attor- tinue until revoked by the Board. judgment, [[to respond,]] issue summary judg- ney’s fees and costs, following the form spec- ment on some or all of the complaint...... ified in paragraph (b) below. All motions for ([d]e) Appeal. A [dismissal] final decision by Discussion: The amendment authorizes the attorney’s fees and costs shall be submitted to the Hearing Officer made under section Executive Director to perform the ministe- the Hearing Officer. [The Board or t] The 5.03(a)–(c) or 7.16 of these rules may be sub- rial act of granting extensions of time in Hearing Officer, after giving the respondent ject to appeal before the Board if the ag- which to file documents when specifically an opportunity to reply, shall rule on the grieved party files a timely petition for re- authorized to do so by the Board. In response motion.

VerDate feb 26 2004 01:49 Feb 27, 2004 Jkt 029060 PO 00000 Frm 00062 Fmt 4634 Sfmt 0634 E:\CR\FM\A26FE7.052 H26PT1 February 26, 2004 CONGRESSIONAL RECORD — HOUSE H697 ..... proceedings in relation thereto occurs, which- 5 U.S.C. 801(a)(1)(A); to the Committee on Fi- Discussion: This amendment clarifies the ever period ends later.]] nancial Services. rules to exclude the filing of motions for at- Discussion: The Executive Director and the 6823. A letter from the Assistant Director, torney’s fees with the Board of Directors. Board of Directors have been made aware Legislative and Regulatory Activities Divi- that the Office of Compliance appears to be sion, Comptroller of the Currency, Depart- ***** an agency covered by the requirements of ment of the Treasury, transmitting the De- § 9.05 Informal Resolutions and Settlement the Federal Records Act (found at Title 44 of partment’s final rule — Bank Activities and Agreements. the U.S. Code). The Records Act requires Operations; Real Estate Lending and Ap- ..... that an agency consult with the Archivist of praisals [Docket No. 04-04] (RIN: 1557-AC73) received January 20, 2004, pursuant to 5 (b) Formal Settlement Agreement. The the United States regarding any record de- U.S.C. 801(a)(1)(A); to the Committee on Fi- parties may agree formally to settle all or struction program. Therefore, the Executive nancial Services. part of a disputed matter in accordance with Director and the Board are withdrawing this 6824. A letter from the Deputy Associate section 414 of the Act. In that event, the proposal at this time, and will issue a new Administrator, Environmental Protection agreement shall be in writing and submitted Notice regarding this subject matter after Agency, transmitting the Agency’s final rule to the Executive Director for review and ap- the requirements of the Federal Records Act — Approval of Section 112(I) Authority for proval. If the Executive Director does not ap- have been satisfied. Hazardous Air Pollutants; Equivalency by prove the settlement, such disapproval shall be § 9.0[7]6 Payments [[of]] required pursuant Permit Provisions; National Emission Stand- in writing, shall set forth the grounds therefor, to Decisions, Awards, or Settlements under sec- ards for Hazardous Air Pollutants from the and shall render the settlement ineffective. tion 415(a) of the Act. Whenever a decision or Pulp and Paper Industry; State of South (c) Requirements for a Formal Settlement award pursuant to sections 405(g), 406(e), 407, or Carolina [SC-112L-2004-1-FRL-7623-8] received Agreement. A formal settlement agreement re- 408 of the Act, or an approved settlement pursu- February 20, 2004, pursuant to 5 U.S.C. quires the signature of all parties on the agree- ant to section 414 of the Act, require the pay- 801(a)(1)(A); to the Committee on Energy and ment document before the agreement can be sub- ment of funds pursuant to section 415(a) of the Act, the decision, award, or settlement shall be Commerce. mitted to the Executive Director. A formal settle- 6825. A letter from the Deputy Associate ment agreement cannot be rescinded after the submitted to the Executive Director to be proc- essed by the Office for requisition from the ac- Administrator, Environmental Protection signatures of all parties have been affixed to the Agency, transmitting the Agency’s final rule agreement, unless by written revocation of the count of the Office of Compliance in the Depart- ment of the Treasury, and payment. — Approval and Promulgation of Air Quality agreement voluntarily signed by all parties, or Implementation Plans; Montana; Thompson as otherwise [[required]] permitted by law. Discussion: This proposed rule reflects the existing procedure for processing payments Falls PM Nonattainment Area Control Plan (d) Violation of a Formal Settlement Agree- [SIP No. MT-001-0005, MT-001-0006; FRL-7609- ment. If a party should allege that a formal set- under section 415(a) of the Act. Since section 415 does not authorize automatic stays of 1] received February 6, 2004, pursuant to 5 tlement agreement has been violated, the issue U.S.C. 801(a)(1)(A); to the Committee on En- shall be determined by reference to the formal judgments or awards pending appeal, parties are advised to seek such a stay from the ap- ergy and Commerce. dispute resolution procedures of the agreement. 6826. A letter from the Deputy Associate If the particular formal settlement agreement propriate forum. Adding an automatic stay of payment until all appeals have been ex- Administrator, Environmental Protection does not have a stipulated method for dispute Agency, transmitting the Agency’s final rule resolution of an alleged violation of the agree- hausted would require an amendment of the Act. — Approval and Promulgation of Air Quality ment, the following dispute resolution procedure Implementation Plans; Pennsylvania; Revi- shall be deemed to be a part of each formal set- § 9.0[6]7 Revocation, Amendment or Waiver of sions to Update the 1-Hour Ozone Mainte- tlement agreement approved by the Executive Rules. nance Plan for the Reading Area (Berks Director pursuant to section 414 of the Act: Any f County) [PA 210-4302; FRL-7616-6] received complaint regarding a violation of a formal set- EXECUTIVE COMMUNICATIONS, February 6, 2004, pursuant to 5 U.S.C. tlement agreement may be filed with the Execu- 801(a)(1)(A); to the Committee on Energy and tive Director no later than 60 days after the ETC. Commerce. party to the agreement becomes aware of the al- Under clause 8 of rule XII, executive 6827. A letter from the Deputy Associate leged violation. Such complaints may be referred Administrator, Environmental Protection by the Executive Director to a Hearing Officer communications were taken from the Speaker’s table and referred as follows: Agency, transmitting the Agency’s final rule for a final and binding decision. The procedures — Approval and Promulgation of Air Quality for hearing and determining such complaints 6818. A letter from the Deputy Associate Implementation Plans; West Virginia; shall be governed by subparts F, G, and H of Administrator, Environmental Protection MOBILE6-Based Motor Vehicle Emission these rules. Agency, transmitting the Agency’s final rule Budgets for Greenbrier County and the Discussion: The Board disagrees with com- — Aminoethoxyvenylglycine hydrochloride Charleston, Huntington, and Parkersburg 1- ments that assert the Office has no statutory (aviglycine HCI); Pesticide Tolerance [OPP- Hour Ozone Maintenance Areas [WV063-6032a; authority to settle disputes regarding the al- 2003-0389; FRL-7341-6] received February 20, FRL-7612-9] received February 6, 2004, pursu- leged violation of settlement agreements. 2004, pursuant to 5 U.S.C. 801(a)(1)(A); to the ant to 5 U.S.C. 801(a)(1)(A); to the Committee Under section 414 of the Act, the Executive Committee on Agriculture. on Energy and Commerce. Director is clearly given plenary authority 6819. A letter from the Deputy Associate 6828. A letter from the Deputy Associate to approve all settlement agreements under Administrator, Environmental Protection Administrator, Environmental Protection the Act entered into at any stage of the ad- Agency, transmitting the Agency’s final rule Agency, transmitting the Agency’s final rule ministrative or judicial process. No settle- — Bifenazate; Pesticide Tolerances for Emer- — Approval and Promulgation of Implemen- ment agreement can ‘‘become effective’’ un- gency Exemptions [OPP-2003-0370; FRL-7335- tation Plans Tennessee: Knox County Main- less and until such approval has been given. 6] received February 6, 2004, pursuant to 5 tenance Plan Update [TN-257-200402(a); FRL- The Office is concerned that many settle- U.S.C. 801(a)(1)(A); to the Committee on Ag- 7616-2] received February 6, 2004, pursuant to ment agreements do not include provisions riculture. 5 U.S.C. 801(a)(1)(A); to the Committee on for disposition of controversies regarding al- 6820. A letter from the Deputy Associate Energy and Commerce. leged violations of the agreement. Rather Administrator, Environmental Protection 6829. A letter from the Deputy Associate than consider initiating a practice of with- Agency, transmitting the Agency’s final rule Administrator, Environmental Protection holding approval of settlement agreements — Aldicarb, Atrazine, Cacodylic Acid, Agency, transmitting the Agency’s final rule which do not include provisions setting forth Carbofuran, et al.; Tolerance Actions [OPP- — Approval and Promulgation of Implemen- dispute resolution procedures, the Office is 2003-0344; FRL-7338-3] received February 11, tation Plans; Connecticut; Motor Vehicle providing all parties, by notice and rule, the 2004, pursuant to 5 U.S.C. 801(a)(1)(A); to the Emissions Budgets for 2005 and 2007 using option to include their own dispute resolu- Committee on Agriculture. MOBILE6.2 for the Connecticut portion of tion provisions, or default to the dispute res- 6821. A letter from the Deputy Associate the New York-Northern New Jersey-Long Is- olution procedure stipulated in this proposed Administrator, Environmental Protection land nonattainment area and for 2007 for the Rule when they enter into a settlement Agency, transmitting the Agency’s final rule Greater Connecticut nonattainment area. agreement. The word ‘‘permitted’’ was in- — Thifensulfuron mehtyl; Tolerances Ac- [CT-057-7216g; A-1-FRL-7617-8] received Feb- serted in place of ‘‘required’’ as a clarifica- tions [OPP-2003-0363; FRL-7338-6] received ruary 6, 2004, pursuant to 5 U.S.C. tion, since in this context a rescission of an February 11, 2004, pursuant to 5 U.S.C. 801(a)(1)(A); to the Committee on Energy and approved agreement would rarely, if ever, be 801(a)(1)(A); to the Committee on Agri- Commerce. required by operation of law. culture. 6830. A letter from the Deputy Associate [[§ 9.06 Destruction of Closed Files. Closed case 6822. A letter from the Assistant Director, Administrator, Environmental Protection files regarding counseling, mediation, hearing, Legislative and Regulatory Activities Divi- Agency, transmitting the Agency’s final rule and/or appeal to the Board of Directors may be sion, Comptroller of the Currency, Depart- — Approval and Promulgation of State Im- destroyed during the calendar year in which the ment of the Treasury, transmitting the De- plementation Plans; Michigan [MI83-03; fifth anniversary of the closure date occurs, or partment’s final rule — Bank Activities and FRL-7617-7] received February 6, 2004, pursu- during the calendar year in which the fifth an- Operations [Docket No. 04-03] (RIN: 1557- ant to 5 U.S.C. 801(a)(1)(A); to the Committee niversary of the conclusion of all adversarial AC78) received January 20, 2004, pursuant to on Energy and Commerce.

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