25158 Federal Register / Vol. 61, No. 98 / Monday, May 20, 1996 / Proposed Rules

1Misconduct by Agency employees, at any stage

of an Agency proceeding, will be dealt with under

internal disciplinary procedures.

Designations and Reporting Points,

dated August 17, 1995, and effective

September 16, 1995, is amended as

follows:

Paragraph 6005 Class E airspace areas

extending upward from 700 feet or more

above the surface of the earth.

* * * * *

ANM OR E5 Baker City, OR

Baker City Municipal Airport, OR

(lat. 44°50′17′′ N, long. 117°48′35′′ W)

Baker City VOR/DME

(lat. 44°50′26′′ N, long. 117°48′28′′ W)

That airspace extending upward from

1,200 feet above the surface within 7 miles

northeast and 5.3 miles southwest of the

Baker City VOR/DME 138° and 317° radials

extending from 12.2 miles southeast to 14

miles northwest of the VOR/DME, and within

8.7 miles west and 4.3 miles east of the Baker

City VOR/DME 345° radial extending from

the VOR/DME to the south edge of V–298,

and that airspace east of Baker City VOR/

DME bounded on the north by the south edge

of V–121, on the southeast by the northwest

edge of V–269, and on the southwest by the

northeast edge of V–4–444; excluding the

Boise, ID, Enroute Domestic Airspace Area.

* * * * *

Issued in Seattle, Washington, on May 3,

1996.

Richard E. Prang,

Acting Assistant Manager, Air Traffic

Division, Northwest Mountain Region.

[FR Doc. 96–12638 Filed 5–17–96; 8:45 am]

BILLING CODE 4910–13–M

NATIONAL LABOR RELATIONS

BOARD

29 CFR Part 102

Rules Governing Misconduct by

Attorneys or Party Representatives

Before the Agency

AGENCY: National Labor Relations

Board.

ACTION: Notice of proposed rulemaking.

SUMMARY: The National Labor Relations

Board (NLRB) is proposing to revise its

rules governing misconduct by attorneys

and party representatives before the

Agency. The proposed changes

consolidate the current misconduct

rules applicable to unfair labor practice

and representation proceedings into a

single rule, clarify and revise the current

rules to cover such misconduct at any

and all stages of any Agency proceeding,

whether or not it occurs during a

hearing, and set forth the procedures for

processing allegations of misconduct. In

addition, the proposed changes revise

Section 102.21 of the Board’s rules

governing the filing of answers to unfair

labor practice complaints to make that

section’s disciplinary provisions

applicable to non-attorney party

representatives as well as attorneys.

DATES: All comments must be received

on or before June 19, 1996.

ADDRESSES: All written comments

should be sent to Office of the Executive

Secretary, National Labor Relations

Board, 1099 14th Street, NW, Room

11600, Washington, DC 20570.

Telephone: (202) 273–1940. The

comments should be filed in eight

copies, double spaced, on 81⁄2 by 11

inch paper and shall be printed or

otherwise legibly duplicated.

FOR FURTHER INFORMATION CONTACT: John

J. Toner, Executive Secretary,

Telephone: (202) 273–1940.

SUPPLEMENTARY INFORMATION: The

NLRB’s rules governing misconduct by

attorneys and party representatives

before the Agency are currently set forth

in two separate sections of the Board’s

rules and regulations: Section 102.44

(unfair labor practice proceedings) and

102.66(d) (representation proceedings).

These sections, which are virtually

identical, currently provide that

misconduct at a hearing shall be

grounds for summary exclusion from

the hearing, and that ‘‘such misconduct

of an aggravated character’’ may also be

grounds for suspension or disbarment

by the Board from further practice

before it after due notice and hearing.

Applying these rules, the Board in

several cases has suspended or

disbarred attorneys or non-attorney

party representatives from further

practice before the Agency for engaging

in misconduct during the course of

unfair labor practice or representation

hearings. See, e.g., Joel Kieler, 316 NLRB

763 (1995); Sargent Karch, 314 NLRB

482 (1994); In re An Attorney, 307 NLRB

913 (1992); Kings Harbor Health Care,

239 NLRB 679 (1978); Roy T. Rhodes,

152 NLRB 912 (1965); Herbert J. Nichol,

111 NLRB 447 (1955); and Robert S.

Cahoon, 106 NLRB 831 (1953).

As currently written, however, the

Board’s rules have several deficiencies.

First, they do not specifically cover

misconduct that does not occur during

the course of a hearing. As a result, the

Board has been unable to take effective

and appropriate disciplinary action

against attorneys or party

representatives who are alleged to have

engaged in misconduct in the prehearing, investigative and/or

compliance stages of its proceedings.

Thus, for example, the Board recently

held that it was without authority under

its current rules to institute disciplinary

proceedings against an attorney who

allegedly suborned perjury during the

pre-complaint investigation of an unfair

labor practice charge. See H.P.

Townsend Mfg. Co., 317 NLRB 1169

(1995). The Board in that case instead

transferred the record to the State Bar

Association with a request that it

investigate whether disciplinary action

was warranted.

Second, the Board has found that the

language in the current rules,

‘‘misconduct of an aggravated

character,’’ has sometimes caused

confusion about what types of conduct

would be subject to suspension or

disbarment. See, e.g., Sargent Karch,

supra, 314 NLRB at 486. The courts

often consider both ‘‘aggravating’’ and

‘‘mitigating’’ factors in determining the

appropriate sanction for attorney

misconduct under the ABA Model Rules

of Professional Conduct and the various

state rules of professional conduct. See

ABA/BNA Lawyers Manual on

Professional Conduct 101:3101–3102

(1995). However, the phrase

‘‘aggravated’’ misconduct is not often

used as in the Board’s rules. This has

raised questions about whether the

Board’s rules are intended to cover the

same type of conduct covered by those

rules.

Third, the Board’s rules fail to set

forth the procedures to be followed in

processing allegations of misconduct.

Thus, the Board’s current rules fail to

advise parties how or where to file

allegations of misconduct or how such

allegations will be processed or what

their rights are.

The proposed changes are intended to

address each of these problems. First,

the Board is proposing to revise the

rules to cover misconduct at any and all

stages of any Agency proceeding,

whether or not it occurs during a

hearing. Unlike under the current rules,

under the new rule misconduct by

attorneys or party representatives will

be subject to disciplinary sanction even

if the misconduct occurs during the prehearing, investigative or compliance

stage of the proceeding.1

Second, the Board is proposing to

delete the phrase ‘‘aggravated’’

misconduct from the rules, and to

substitute the phrase ‘‘misconduct

including unprofessional or improper

behavior’’. By substituting this language

it is not the Board’s intent to make any

change in the kind of conduct currently

covered by the Board’s misconduct

rules. Rather, the Board is simply

attempting to make the current rule

more understandable by using language

that is more familiar to attorneys and

party representatives who practice

before the Board. The Board will
Federal Register / Vol. 61, No. 98 / Monday, May 20, 1996 / Proposed Rules 25159

2Courts have long held that attorney disciplinary

proceedings are in the nature of an internal

investigation concerning the protection and

integrity of the adjudicatory process rather than

adversarial disputes involving the conflicting rights

or obligations of private parties. Accordingly, they

have refused to grant party status or a right to

appeal to the complaining person or individual in

such proceedings, even if that person or individual

was a party or party representative in the case

where the alleged misconduct occurred and/or was

permitted to participate in the disciplinary hearing.

See Ramos Colon v. U.S. Attorney for the District

of Puerto Rico, 576 F.2d 1 (1st Cir. 1978);

Application of Phillips, 510 F.2d 126 (2d Cir. 1975);

In re Echeles, 430 F.2d 347 (7th Cir. 1970); and

Mattice v. Meyer, 353 F.2d 316 (8th Cir. 1965). See

also Matter of Doe, 801 F. Supp. 478 (D. N.M. 1992).

The Board believes that this policy is a sound one

and is properly applied in Agency disciplinary

proceedings as well.

continue to consider both aggravating

and mitigating factors in determining

the appropriate disciplinary sanction.

Third, the Board proposes to set forth

the procedures for the processing of

misconduct allegations. Under the

proposal, all such allegations would be

investigated by the Associate General

Counsel, Division of OperationsManagement or his/her designee (the

Investigating Officer). Following an

investigation, the Investigating Officer

would make a recommendation to the

General Counsel, who would make the

determination whether to institute

disciplinary proceedings against the

attorney or party representative (the

respondent). The General Counsel’s

determination not to institute such

proceedings would be final and nonreviewable. The procedures also set

forth the rights of the respondent to

respond and to request a hearing, and

the procedures for conducting the

hearing, where a hearing is found

warranted. Except as otherwise

provided, the procedures are similar to

those applied in unfair labor practice

proceedings.

The procedures also address the role

of the person bringing the allegations of

misconduct or petitioning for

disciplinary proceedings against the

respondent. The procedures provide

that any such person shall be permitted

to partipate in the disciplinary hearing

to a limited extent by examining and

cross-examining witnesses called by the

General Counsel and the respondent,

but shall not be a party to the

proceeding or afforded the rights of a

party to call witnesses or introduce

evidence, to file exceptions to the

administrative law judge’s decision, or

to appeal the Board’s decision. The

Board believes that this provision

strikes a proper balance by providing

such interested persons the opportunity

to participate to some extent in the

proceeding while ensuring that the

responsibility for prosecuting the

disciplinary complaint will at all times

remain with the General Counsel and

that the disciplinary proceeding will not

be transformed into an adversary

proceeding between the complaining

person and the respondent.2

Finally, the Board is also proposing to

revise Section 102.21 of its rules and

regulations governing the filing of

answers to unfair labor practice

complaints. The current rule provides

that the answer of a party represented

by counsel shall be signed by at least

one attorney of record; that the

attorney’s signature constitutes a

certificate by the attorney that he/she

has read the answer, there is good

ground to support it to the best of his/

her knowledge, information and belief,

and it is not interposed for delay; and

that the attorney may be subjected to

appropriate disciplinary action for

willful violations of the rule or if

scandalous or indecent matter is

inserted.

It is not required under the Board’s

rules, however, that a party

representative be an attorney. Further, it

is not infrequent that a party will be

represented by a non-attorney and that

the non-attorney party representative

will sign the answer on behalf of the

party. Accordingly, the Board believes

that Section 102.21 should be revised to

make the foregoing provisions of that

section applicable to non-attorney party

representatives as well as attorneys.

As required by the Regulatory

Flexibility Act (5 U.S.C. 601 et seq.), the

NLRB certifies that these rules will not

have a significant impact on small

business entities.

List of Subjects in 29 CFR Part 102

Administrative practice and

procedure, Labor management relations.

For the reasons set forth above, the

NLRB proposes to amend 29 CFR Part

102 as follows:

PART 102—RULES AND

REGULATIONS

1. The authority citation for 29 CFR

part 102 continues to read as follows:

Authority: Section 6, National Labor

Relations Act, as amended (29 U.S.C. 151,

156). Section 102.117(c) also issued under

Section 552(a)(4)(A) of the Freedom of

Information Act, as amended (5 U.S.C.

552(a)(4)(A)). Sections 102.143 through

102.155 also issued under Section 504(c)(1)

of the Equal Access to Justice Act, as

amended (5 U.S.C. 504(c)(1)).

2. Section 102.21 is revised to read as

follows:

§ 102.21 Where to file; service upon the

parties; form.

An original and four copies of the

answer shall be filed with the Regional

Director issuing the complaint.

Immediately upon the filing of his

answer, respondent shall serve a copy

thereof on the other parties. An answer

of a party represented by counsel or

non-attorney representative shall be

signed by at least one such attorney or

non-attorney representative of record in

his/her individual name, whose address

shall be stated. A party who is not

represented by an attorney or nonattorney representative shall sign his/

her answer and state his/her address.

Except when otherwise specifically

provided by rule or statute, an answer

need not be verified or accompanied by

affidavit. The signature of an attorney or

non-attorney party representative

constitutes a certificate by him/her that

he/she has read the answer; that to the

best of his/her knowledge, information,

and belief there is good ground to

support it; and that it is not interposed

for delay. If an answer is not signed or

is signed with intent to defeat the

purpose of this section, it may be

stricken as sham and false and the

action may proceed as though the

answer had not been served. For a

willful violation of this section an

attorney or non-attorney party

representative may be subjected to

appropriate disciplinary action. Similar

action may be taken if scandalous or

indecent matter is inserted.

§ 102.44 [Removed]

3. Section 102.44 is removed.

§ 102.66 [Amended]

3a. Paragraph (d) of § 102.66 is

removed, and paragraphs (e), (f), and (g)

are redesignated paragraphs (d), (e), and

(f), respectively.

4. The following new Subpart U—

Misconduct By Attorneys or Party

Representatives, consisting of new

§ 102.156, is added to read as follows:

Subpart U—Misconduct by Attorneys

or Party Representatives

§ 102.156 Exclusion from hearings;

Refusal of witness to answer questions;

Misconduct including unprofessional or

improper behavior by attorneys and party

representatives before the Agency;

Procedures for processing misconduct

allegations.

(a) Misconduct including

unprofessional or improper behavior at

any hearing before an administrative

law judge, hearing officer, or the Board

shall be ground for summary exclusion

from the hearing.
25160 Federal Register / Vol. 61, No. 98 / Monday, May 20, 1996 / Proposed Rules

(b) The refusal of a witness at any

such hearing to answer any question

which has been ruled to be proper shall,

in the discretion of the administrative

law judge or hearing officer, be ground

for striking all testimony previously

given by such witness on related

matters.

(c) Notwithstanding any action taken

under paragraph (a) of this section,

misconduct including unprofessional or

improper behavior by an attorney or

party representative before the Agency,

including but not limited to such

misconduct at any hearing, shall be

ground for appropriate discipline

including suspension and/or disbarment

from practice before the Agency and/or

other sanctions.

(d) Allegations of misconduct

pursuant to paragraph (c) of this section,

except for those involving the conduct

of Agency employees, shall be handled

in accordance with the following

procedures:

(1) Allegations that an attorney or

party representative has engaged in

misconduct may be brought to the

attention of the Investigating Officer by

any person. The Investigating Officer,

for purposes of this paragraph, shall be

the Associate General Counsel, Division

of Operations-Management, or his/her

designee.

(2) The Investigating Officer or his/her

designee shall conduct such

investigation as he/she deems

appropriate. Following an investigation,

the Investigating Officer shall make a

recommendation to the General

Counsel, who shall make the

determination whether to institute

disciplinary proceedings against the

attorney or party representative. If the

General Counsel determines not to

institute disciplinary proceedings, all

interested persons shall be notified of

the determination, which shall be final.

(3) If the General Counsel decides to

institute disciplinary proceedings

against the attorney or party

representative, the General Counsel or

his/her designee shall serve the

Respondent with a complaint which

shall include: a statement of the acts

which are claimed to constitute

misconduct including the approximate

date and place of such acts together

with a statement of the discipline

recommended; notification of the right

to a hearing before an administrative

law judge with respect to any material

issues of fact or mitigation; and an

explanation of the method by which a

hearing may be requested. Sections

102.24 through 102.51, rules applicable

to unfair labor practice proceedings,

shall be applicable to the extent that

they are not contrary to the provisions

of this section.

(4) Within 14 days of service of the

disciplinary complaint, the respondent

shall respond by admitting or denying

the allegations, and may request a

hearing. If no response is filed or no

material issue of fact or relevant to

mitigation warranting a hearing is

raised, the matter may be submitted

directly to the Board. If no response is

filed, then the allegations shall be

deemed admitted.

(5) The hearing shall be conducted at

a reasonable time, date, and place. In

setting the hearing date, the

administrative law judge shall give due

regard to the respondent’s need for time

to prepare an adequate defense and the

need of the Agency and the respondent

for an expeditious resolution of the

allegations.

(6) The hearing shall be public unless

otherwise ordered by the Board or the

administrative law judge.

(7) Any person bringing allegations of

misconduct or filing a petition for

disciplinary proceedings against an

attorney or party representative shall be

given notice of the scheduled hearing

and shall be afforded the opportunity to

examine or cross-examine witnesses

called by the General Counsel and

respondent at such hearing. Any such

questioning must be limited to the

issues raised in the General Counsel’s

complaint. Any such person shall not be

a party to the disciplinary proceeding,

however, and shall not be afforded the

rights of a party to call witnesses and

introduce evidence at the hearing, to file

exceptions to the administrative law

judge’s decision, or to appeal the

Board’s decision.

(8) The respondent will, upon request,

be provided with an opportunity to read

the transcript or listen to a recording of

the hearing.

(9) The General Counsel must

establish the alleged misconduct by a

preponderance of the evidence.

(10) At any stage of the proceeding

prior to hearing, the respondent may

submit a settlement proposal to the

General Counsel, who may approve the

settlement or elect to continue with the

proceedings. Any formal settlement

reached between the General Counsel

and the respondent, providing for entry

of a Board order, shall be subject to final

approval by the Board. In the event any

settlement, formal or informal, is

reached after opening of the hearing,

such settlement must be submitted to

the administrative law judge for

approval. In the event the

administrative law judge rejects the

settlement, either the General Counsel

or the respondent may appeal such

ruling to the Board as provided in

§ 102.26.

(11) If it is found that the respondent

has engaged in misconduct in violation

of paragraph (c) of this section, the

Board may issue a final order imposing

such disciplinary sanctions as it deems

appropriate, including suspension and/

or disbarment from practice before the

Agency, and/or other sanctions.

(12) Any person found to have

engaged in misconduct warranting

disciplinary sanctions under this

section may seek judicial review of the

administrative determination.

Dated: Washington, D.C., May 14, 1996.

By direction of the Board.

John J. Toner,

Executive Secretary.

[FR Doc. 96–12464 Filed 5–17–96; 8:45 am]

BILLING CODE 7545–01–P

DEPARTMENT OF THE INTERIOR

Minerals Management Service

30 CFR Chapter II

Review of Existing Regulations

AGENCY: Minerals Management Service

(MMS), Interior.

ACTION: Review of regulations; request

for comment.

SUMMARY: MMS performs annual

periodic reviews of its significant

regulations and asks the public to

participate in these reviews. The

purpose of the reviews is to identify and

eliminate regulations that are obsolete,

ineffective or burdensome. In addition,

the reviews are meant to identify

essential regulations that should be

revised because they are either unclear,

inefficient or interfere with normal

market conditions.

The purpose of this document is to:

Provide the public an opportunity to

comment on MMS regulations that

should be eliminated or revised; and

provide a status update of the actions

MMS has taken on comments

previously received from the public in

response to documents published March

1, 1994 and March 28, 1995.

DATES: Written comments must be

received by July 19, 1996.

ADDRESSES: Mail written comments to

Department of the Interior; Minerals

Management Service, Mail Stop 4013;

1849 C Street NW., Washington, DC

20240; Attention: Bettine Montgomery,

MMS Regulatory Coordinator, Policy

and Management Improvement.

FOR FURTHER INFORMATION CONTACT:

Bettine Montgomery, Policy and