[Congressional Record Volume 144, Number 7 (Thursday, February 5, 1998)]
[House]
[Pages H382-H384]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




              SUPPLEMENTARY NOTICE OF PROPOSED RULEMAKING

                                                    U.S. Congress,


                                         Office of Compliance,

                                 Washington, DC, January 26, 1998.
     The Hon. Newt Gingrich,
     Speaker of the House, U.S. House of Representatives, 
         Washington, DC.
       Dear Mr. Speaker: Pursuant to Section 303 of the 
     Congressional Accountability Act of 1995, 2 U.S.C. Sec. 1383, 
     I am transmitting the enclosed Supplementary Notice of 
     Proposed Rulemaking (requesting further comment on proposed 
     amendments to procedural rules previously adopted) for 
     publication in the Congressional Record.
       The Congressional Accountability Act specifies that the 
     enclosed notices be published on the first day on which both 
     Houses are in session following this transmittal.
           Sincerely yours,
                                                  Ricky Silberman,
                                               Executive Director.
       Enclosure.


                          office of compliance

       The Congressional Accountability Act of 1995: Amendments to 
     Procedural Rules.


              supplementary notice of proposed rulemaking

       Summary: On October 1, 1997, the Executive Director of the 
     Office of Compliance (``Office'') published a Notice of 
     Proposed Rulemaking (``NPRM'') to amend the Procedural Rules 
     of the Office of Compliance to cover the General Accounting 
     Office (``GAO'') and the Library of Congress (``Library'') 
     and their employees. 143 Cong. Rec. S10291 (daily ed. Oct. 1, 
     1997). The Congressional Accountability Act of 1995 (``CAA'') 
     applies rights and protections of eleven labor, employment, 
     and public access laws to the Legislative Branch. Sections 
     204-206 and 215 of the CAA, which apply rights and 
     protections of the Employee Polygraph Protection Act of 1988 
     (``EPPA''), the Worker Adjustment and Retraining Notification 
     Act (``WARN Act''), the Uniformed Services Employment and 
     Reemployment Act of 1994 (``USERRA''), and the Occupational 
     Safety and Health Act of 1970 (``OSHAct''), became effective 
     with respect to GAO and the Library on December 30, 1997. The 
     NPRM proposed to extend the Procedural Rules to cover GAO and 
     the Library and their employees for purposes of: (1) 
     proceedings relating to these sections 204-206 and 215, (2) 
     proceedings relating to section 207 of the CAA, which 
     prohibits intimidation and reprisal for the exercise of 
     rights under the CAA, and (3) regulating ex parte 
     communications.
       In the only comments received in response to the NPRM, the 
     Library questioned whether the CAA authorizes employees of 
     the Library to initiate proceedings under the administrative 
     and judicial procedures of the CAA alleging violations of 
     sections 304-207 of the Act. The Office is publishing this 
     Supplementary Notice of Proposed Rulemaking (this ``Notice'') 
     to give the regulated community an opportunity to provide 
     further comment on the questions raised by the Library's 
     submission.
       With respect to proceedings relating to section 215 of the 
     CAA (OSHAct) and with respect to ex parte communications, a 
     separate Notice of Adoption of Amendments is being prepared 
     to extend the Procedural Rules to cover GAO and the Library 
     and their employees and to respond to relevant portions of 
     the Library's comments, and will be published shortly.
       Dates: Comments are due within 30 days after the date of 
     publication of this Notice.
       Addresses: Submit comments in writing (an original and 10 
     copies) to the Executive Director, Office of Compliance, Room 
     LA 200, John Adams Building, 110 Second Street, S.E., 
     Washington, D.C. 20540-1999. Those wishing to receive 
     notification of receipt of comments are requested to include 
     a self-addressed, stamped post card. Comments may also be 
     transmitted by facsimile (``FAX'') machine to (202) 426-1913. 
     This is not a toll-free call.
       Availability of comments for public review: Copies of 
     comments received by the Office will be available for public 
     review at the Law Library Reading Room, Room LM-201, Law 
     Library of Congress, James Madison Memorial Building, 
     Washington, DC, Monday through Friday, between the hours 
     of 9:30 a.m. and 4:00 p.m.
       For further information contact: Executive Director, Office 
     of Compliance, at (202) 724-9250 (voice), (202) 426-1912 
     (TTY). This Notice will also be made available in large print 
     or braille or on computer disk upon request to the Office of 
     Compliance.


                       supplementary information

       The Congressional Accountability Act of 1995 (``CAA'' or 
     the ``Act''), Pub. L. 104-1, 2

[[Page H383]]

     U.S.C. Sec. Sec. 1301-1438, applies the rights and 
     protections of eleven labor, employment, and public access 
     laws to certain defined ``covered employees'' and ``employing 
     offices'' in the Legislative Branch. The CAA expressly 
     provides that GAO and the Library and their employees are 
     included within the definitions of ``covered employees'' and 
     ``employing offices'' for purposes of four sections of the 
     Act:
       (a) EPPA. Section 204, making applicable the rights and 
     protections of the Employee Polygraph Protection Act of 1988 
     (``EPPA'')--in which subsection (a) generally prohibits an 
     employing office from requiring a covered employee to take a 
     lie detector test, regardless of whether the covered employee 
     works in that employing office; and subsection (b) provides 
     that the remedy for a violation shall be such legal and 
     equitable relief as may be appropriate, including employment, 
     reinstatement, promotion, and payment of lost wages and 
     benefits.
       (b) WARN Act. Section 205, making applicable the rights and 
     protections of the Worker Adjustment and Retraining 
     Notification Act (``WARN Act'')--in which subsection (a) 
     prohibits the closure of an employing office or a mass layoff 
     until 60 days after the employing office has served written 
     notice on the covered employees or their representatives; and 
     subsection (b) provides that the remedy for a violation shall 
     generally be back pay and benefits for up to 60 days of 
     violation.
       (c) USERRA. Section 206, making applicable the rights and 
     protections of section 2 of the Uniformed Services Employment 
     and Reemployment Rights Act of 1994 (``USERRA'')--in which 
     subsection (a) protects covered employees who serve in the 
     military and other uniformed services against discrimination, 
     denial of reemployment rights, and denial of benefits by 
     employing offices; and subsection (b) provides that the 
     remedy for a violation shall include requiring compliance, 
     requiring compensation for lost wages or benefits and, in 
     case of a willful violation, an equal amount as liquidated 
     damages, and the use of the ``full equity powers'' of ``[t]he 
     court'' to fully vindicate rights and benefits.
       (d) OSHAct. Section 215, making applicable the rights and 
     protections of the Occupational Safety and Health Act of 1970 
     (``OSHAct'')--in which subsection (a) protects the safety and 
     health of covered employees from hazards in their places of 
     employment; subsection (b) provides that the remedy for a 
     violation shall be an order to correct the violation; and 
     subsection (c) specifies procedures by which the Office of 
     Compliance conducts inspections, issues and enforces 
     citations, and grants variances.
       Sections 204-206 and 215 go into effect by their own terms 
     with respect to GAO and the Library one year after 
     transmission to Congress of the study under section 230 of 
     the CAA. The Board of Directors of the Office (``Board'') 
     transmitted its study (the ``Section 230 Study'') to Congress 
     on December 30, 1996, and sections 204-206 and 215 therefore 
     went into effect at GAO and the Library on December 30, 1997.
       The NPRM proposed to extend the Procedural Rules of the 
     Office, which govern the consideration and resolution of 
     alleged violations of the CAA, to cover GAO and the Library 
     and their employees in four respects:
       (1) Sections 401-408 of the CAA establish administrative 
     and judicial procedures for considering alleged violations of 
     part A of Title II of the CAA, which includes sections 204-
     206, and the Procedural Rules detail the procedures 
     administered by the Office under sections 401-406. On the 
     premise that GAO and the Library and their employees are 
     covered by the statutory procedures of sections 401-408 when 
     there is an allegation that sections 204-206 have been 
     violated, the NPRM proposed to extend the Procedural Rules to 
     include GAO and the Library and their employees for the 
     purpose of resolving any allegation of a violation of these 
     sections.
       (2) Section 207 prohibits employing offices from 
     intimidating or taking reprisal against any covered employee 
     for exercising rights under the CAA. On the premise that GAO 
     and the Library and their employees are covered under section 
     207, as well as under the statutory procedures of sections 
     401-408 when there is an allegation that section 207 has been 
     violated, the NPRM proposed to extend the Procedural Rules to 
     include GAO and the Library and their employees for the 
     purpose of resolving any allegation of intimidation or 
     reprisal prohibited under section 207.
       (3) Section 215 specifies the procedures by which the 
     Office conducts inspections, issues citations, grants 
     variances, and otherwise enforces section 215, and the 
     Procedural Rules detail the procedures administered by the 
     Office under that section. As these statutory procedures are 
     part of section 215, which expressly covers GAO and the 
     Library and their employees, the NPRM proposed to extend the 
     Procedural Rules to cover these instrumentalities and 
     employees for purposes of proceedings under section 215.
       (4) Section 9.04 of the Procedural Rules, which regulates 
     ex parte communications, includes within its coverage any 
     covered employee and employing office ``who is or may 
     reasonably be expected to be involved in a proceeding or 
     rulemaking.'' As GAO and the Library and their employees may 
     reasonably be expected to be involved in proceedings and 
     rulemakings, the NPRM proposed to extend the Procedural Rules 
     to cover these instrumentalities and employees for purposes 
     of section 9.04.
       As to proceedings under section 215 of the CAA (OSHAct) and 
     ex parte communications, the Library's comments argue that 
     the Library should not now come under the Office's Procedural 
     Rules generally or under the Rules relating to section 215 
     proceedings specifically. After considering those arguments, 
     the Executive Director, with the approval of the Board, has 
     decided to amend the Procedural Rules to cover GAO and the 
     Library and their employees with respect to proceedings under 
     section 215 and ex parte communications, and a Notice of 
     Adoption of Amendments to accomplish this and to respond to 
     relevant portions of the Library's comments is being prepared 
     and will be published shortly.
       However, as to whether CAA procedures cover GAO and the 
     Library and their employees for purposes of resolving 
     disputes under section 205-207, the Library's comments raises 
     issues of statutory interpretation upon which the Office 
     seeks comments. The Library argues that Congress ``expressly 
     excluded'' the Library and other instrumentalities from the 
     application of all procedural and other provisions of the CAA 
     other than the substantive provisions in Title II. The 
     Library states: ``A fair reading of the CAA is that Congress 
     intended to ensure that the Library's employees were covered 
     by the substantive protections of the law, but that no 
     procedural regulations should affect the Library's employees 
     until the Office of Compliance completed its study [under 
     section 230], made it legislative recommendations, and 
     Congress acted on those recommendations.'' (The Office of 
     Compliance has made the Library's entire submission available 
     for public review in the Law Library Reading Room of the Law 
     Library of Congress, at the address and times stated at the 
     beginning of this Notice.) The Office hereby invites the 
     views of the entire regulated community on the issues raised 
     by the Library, including the following specific questions:


                    supplemental request for comment

       1. Can GAO and Library employees use the administrative and 
     judicial procedures of sections 401-408 of the CAA when a 
     violation of sections 204-206 (EPPA, WARN Act, USERRA) is 
     alleged?
       As noted above, the NPRM was premised on the view that the 
     administrative and judicial procedures of section 401-408 
     cover GAO and the Library and their employees with respect to 
     proceedings where violations of sections 204-206 are alleged. 
     Because the procedures in section 401-408 can only be invoked 
     upon an allegation that substantive rights granted in Title 
     II have been violated, the procedures arguably derive their 
     scope from the substantive provision involved in a particular 
     proceeding. Sections 204-206 expressly cover GAO and the 
     Library and their employees, and, if the premise of the NPRM 
     is correct, proceedings under sections 401-408 that involve 
     alleged violations of sections 204-206 may likewise cover 
     those instrumentalities and employees. However, the Library's 
     comment challenged this premise, arguing that Congress 
     ``expressly excluded'' the Library and other 
     instrumentalities from the application of all portions of the 
     CAA except the substantive provisions of Title II.
       Commenters are asked to provide their views as to whether 
     the statutory procedures under sections 401-408 should be 
     construed as covering GAO and the Library and their employees 
     where violations of sections 204-206 are alleged, and are 
     requested to present the legal rationales that may bear on 
     this inquiry. Commenters should address:
       The relationship, if any, between the substantive 
     requirements and remedies granted in part A of Title II and 
     the procedures established in Title IV of the CAA.
       The definitions and usage of the defined terms ``covered 
     employee'' and ``employing office'' in various portions of 
     the Act.
       Whether the statute can be read to provide substantive 
     rights and remedies but not procedures.
       The provision in section 415 of the CAA prohibiting the use 
     of the Office's awards-and-settlements account for awards and 
     settlements involving GAO and the Library.
       The effect that section 225(d) of the CAA should have in 
     determining this issue.
       The canons of construction requiring that statutes in 
     derogation of sovereign immunity must be construed strictly 
     in favor of the sovereign and that a statutory construction 
     which raises constitutional questions such as separation-of-
     powers may be adopted only if clearly required by the 
     statutory text.
       2. Notwithstanding whether the procedures established under 
     the CAA apply, are other procedures, whether internal or 
     external to GAO and the Library, available for considering 
     alleged violations of sections 204-206 and for imposing the 
     remedies available under those section?
       In conducting the Section 230 Study, the Board received 
     information from GAO and the Library and their employees 
     indicating that a variety of internal and external venues are 
     available for consideration of employee allegations of 
     violations of workplace rights and protections. Commenters 
     are invited to provide their views on the extent to which 
     procedures other than those established by the CAA are 
     available to GAO and the Library and their employees where a 
     violation of sections 204-206 is alleged and the monetary and 
     equitable remedies specified in those sections are sought. 
     Furthermore, insofar as existing procedures may not 
     comprehensively cover any dispute or provide any remedy 
     afforded under the CAA, do GAO, the Library, and other 
     employing offices

[[Page H384]]

     have the authority to craft new procedures and, through such 
     procedures, to grant whatever monetary and non-monetary 
     remedies the CAA provides?
       In responding to this inquiry, commenters are also asked to 
     consider the implications of several provisions in the CAA. 
     Do the following provisions limit the availability to GAO and 
     the Library and their employees of the administrative, 
     judicial, and negotiated procedures that might otherwise be 
     available to them where violations of sections 204-206 are 
     alleged and remedies granted under those sections are sought.
       Section 225(d) and (e) and 401 contain provisions 
     specifying, in general terms, what procedures must be used to 
     consider a CAA violation and to seek a CAA remedy.
       Section 409 and 410 allow judicial review of CAA 
     regulations and of CAA compliance only pursuant to the 
     procedures of section 407, which provides for judicial review 
     of Board decisions, and section 408, which provides a private 
     right of action.
       Commenters are also requested to be clear as to whether 
     procedures available outside of the CAA cover claims by 
     applicants for employment, former employees, and temporary 
     and intermittent employees, and whether these procedures 
     cover allegations by GAO or Library employees that their 
     rights granted under the CAA were violated by other employing 
     offices and allegations by employees of other employing 
     offices that their CAA rights were violated by GAO or the 
     Library.
       3. Does section 207 of the CAA cover GAO and the Library 
     and their employees with respect to sections 204-206 and 215? 
     If not, do other laws, regulations, and procedures covering 
     GAO and the Library and their employees afford similar 
     protection against intimidation and reprisal for exercising 
     CAA rights?
       The RPRM proposed to amend the Procedural Rules to cover 
     GAO and the Library and their employees with respect to ``any 
     allegation of intimidation or reprisal prohibited under 
     section 207 of the Act.'' While the Library did not object to 
     this proposal, section 207 does not expressly cover GAO and 
     the Library and their employees. Comment is therefore invited 
     on whether the prohibition against intimidation and reprisal 
     established by section 207 should be construed as covering 
     GAO and the Library and their employees.
       If section 207 is construed not to apply, would other laws 
     and regulations covering GAO and the Library and their 
     employees afford protection against intimidation and reprisal 
     for exercising rights under the CAA Would these laws and 
     regulations afford the same substantive rights and remedies 
     as section 207? What procedures would be available to 
     consider violations and to impose such remedies? Commenters 
     are requested to be clear as to whether such laws, 
     regulations, and procedures outside of the CAA cover 
     applicants for employment, former employees, and temporary 
     and intermittent employees, and whether these laws, 
     regulations, and procedures cover allegations that GAO or the 
     Library intimidated or took reprisal against employees of 
     other employing offices and allegations that other employing 
     offices intimidated or took reprisal against GAO or Library 
     employees for exercising rights granted under the CAA.

                           *   *   *   *   *

       No decision will be made as to whether the Procedural Rules 
     will be amended to cover GAO and the Library and their 
     employees for purposes of alleged violations of sections 204-
     207 until after the comments requested in this Notice have 
     been received and considered. During this interim period, the 
     Office will accept requests for counseling under section 402, 
     requests for mediation under section 403, and complaints 
     under section 405 filed by GAO or Library employees and/or 
     alleging violations by GAO or the Library where violations of 
     sections 204-207 of the CAA are alleged. Any objections to 
     jurisdiction may be made to the hearing officer or the Board 
     under sections 405-406 or to the court during proceedings 
     under sections 407-408. The Office will counsel any employees 
     who initiate such proceedings that a question has been raised 
     as to the Office's jurisdiction and that the employees may 
     wish to preserve their rights under any other available 
     procedural avenues.
       Signed at Washington, D.C., on this 26th day of January, 
     1998.

                                              Ricky Silberman,

                                               Executive Director,
     Office of Compliance.

                          ____________________