[Congressional Record Volume 144, Number 14 (Tuesday, February 24, 1998)]
[House]
[Pages H568-H570]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


            NOTICE OF ADOPTION OF AMENDMENTS TO REGULATIONS

                                                    U.S. Congress,


                                         Office of Compliance,

                                 Washington, DC, February 9, 1998.
     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 Notice of Adoption of 
     Amendments (amending 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.


                    notice of adoption of amendments

       Summary: The Executive Director of the Office of Compliance 
     (``Office''), with the approval of the Board of Directors 
     (``Board''), having considered comments received in response 
     to the Notice of Proposed Rulemaking (``NPRM'') published on 
     October 1, 1997, 143 Cong. Rec. S10291 (daily ed. Oct. 1, 
     1997), has amended the Procedural Rules of the Office of 
     Compliance to cover the General Accounting Office (``GAO'') 
     and the Library of Congress (``Library'') and their employees 
     under the rules governing: (1) proceedings involving 
     Occupational Safety and Health inspections, citations, and 
     variances under section 215 of the Congressional 
     Accountability Act of 1995 (``CAA''), and (2) ex parte 
     communications.
       The NPRM also proposed to extend the Procedural Rules to 
     cover GAO and the Library and their employees for purposes of 
     processing allegations of violation of sections 204-206 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''), 
     and the Uniformed Services

[[Page H569]]

     Employment and Reemployment Rights Act of 1994 (``USERRA''), 
     and of section 207 of the CAA, which prohibits employing 
     offices from intimidating or taking reprisal against covered 
     employees for exercising rights under the CAA. However, by a 
     recently published Supplementary Notice of Proposed 
     Rulemaking, 143 Cong. Rec. S86 (daily ed. Jan. 28, 1998), the 
     Office is requesting further comment on whether the 
     Procedural Rules should be extended to cover GAO and the 
     Library with respect to alleged violations of sections 204-
     207, and no final action will be taken on this question until 
     the comments have been received and considered.
       Availability of comments for public review: Copies of 
     comments received by the Office in response to the NPRM are 
     available for public review at the Law Library Reading Room, 
     Room LM-201, Law Library of Congress, James Madison Memorial 
     Building, Washington, D.C., 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 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 includes GAO and the 
     Library and their employees within the definitions of 
     ``covered employees'' and ``employing offices'' for 
     purposes of four sections of the Act: (a) section 204, 
     making applicable the rights and protections of the 
     Employee Polygraph Protection Act of 1988 (``EPPA''); (b) 
     section 205, making applicable the rights and protections 
     of the Worker Adjustment and Retraining Notification Act 
     (``WARN Act''); (c) section 206, making applicable the 
     rights and protections of section 2 of the Uniformed 
     Services Employment and Reemployment Rights Act of 1994 
     (``USERRA''); and (d) section 215, making applicable the 
     rights and protections of the Occupational Safety and 
     Health Act of 1970 (``OSHAct''). These four sections 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 study was 
     transmitted 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 purpose of the NPRM was to extend the Procedural Rules 
     of the Office to cover GAO and the Library and their 
     employees for purposes of any proceedings in which GAO or the 
     Library or their employees may be involved. To accomplish 
     this, the NPRM proposed 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 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 sections 204-206. (2) Section 
     207 prohibits employing offices from intimidating or taking 
     reprisal against any covered employee for exercising rights 
     under the CAA, and 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 NPRM proposed to 
     extend the Procedural Rules to cover GAO and the Library and 
     their employees for purposes of proceedings involving section 
     215. (4) Section 9.04 of the Procedural Rules governs ex 
     parte communications, and the NPRM proposed to extend the 
     Procedural Rules to cover these instrumentalities and 
     employees for purposes of section 9.04.
       In the only comment received in response to the NPRM, the 
     library argued that ``Congress expressly excluded the Library 
     and other instrumentalities of Congress from the application 
     of Titles I, III, IV and V of the CAA,'' which include the 
     administrative and judicial procedures established in 
     sections 401-408. (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.) As to whether GAO and the Library and their 
     employees are covered by the procedures mandated by sections 
     401-408 when a violation of sections 204-207 is alleged, the 
     Library's comments raise issues of statutory construction 
     upon which the Office seeks further comment. To solicit such 
     comments, the Office recently published a Supplementary 
     Notice of Proposed Rulemaking, 143 Cong. Rec. S86 (daily ed. 
     Jan. 28, 1998), and will make no decision as to whether the 
     Procedural Rules will be amended to cover GAO and the Library 
     and their employees for purposes of resolving allegations of 
     violations of sections 204-207 until after the comments are 
     received and considered.
       The issues of statutory construction raised by the 
     Library's comments are not pertinent, however, to proceedings 
     under section 215 and to rules regarding ex parte 
     communications. The procedures under section 215 expressly 
     cover GAO and the Library and their employees because section 
     215(a)(2)(C)-(D) explicitly includes these instrumentalities 
     and employees within the definitions of ``employing office'' 
     and ``covered employee'' for purposes of applying the OSHAct 
     ``under this section [215].'' As to ex parte communications, 
     section 9.04 of the Procedural Rules 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.'' The CAA explicitly authorizes GAO and the 
     Library and their employees to be involved in proceedings 
     under section 215(c), as described above, and the Library 
     itself has exercised its right to be involved in the Office's 
     rulemaking proceedings.
       The Library further notes that the substantive regulations 
     adopted by the Board to implement section 215 have not yet 
     been approved by the House and Senate pursuant to section 304 
     of the CAA and argues: ``Since all OSHA regulations must 
     follow the procedures for adopting substantive rules under 
     section 304 of the Act, including approval by Congress, it 
     would seem more appropriate to delete the reference to the 
     coverage of the Library for purposes of section 215 of the 
     CAA, in order to avoid confusion over the effect of possible 
     Congressional approval of these proposed rules but not the 
     underlying provisions applying to OSHA procedures.'' However, 
     the Library's assumption that ``all OSHA regulations,'' 
     including provisions of the Procedural Rules describing the 
     Office's procedures under section 215, are subject to 
     Congressional approval is incorrect. Congressional approval 
     under section 304 is required only for the regulations 
     adopted by the Board under section 215(d) of the CAA, which 
     must generally be the same as the substantive regulations 
     promulgated by the Secretary of Labor to implement section 5 
     of the OSHAct. The Board adopted such regulations for 
     employing offices other than GAO and the Library and 
     submitted the regulations to Congress for approval under 
     section 304, see 143 Cong. Rec. S61 (daily ed. Jan. 7, 1997), 
     and recently amended those regulations to cover GAO and the 
     Library and submitted the amendments to Congress for 
     approval, see 143 Cong. Rec. S11663 (daily ed. Nov. 4, 1997). 
     However, the Procedural Rules, including provisions 
     describing the Office's procedures under section 215 of the 
     CAA, were adopted under section 303 of the CAA, which 
     authorizes the Executive Director, subject to the approval of 
     the Board, to adopt rules governing the procedures of the 
     Office. See 143 Cong. Rec. H1879, H1879-90 (daily ed. Apr. 
     24, 1997). The amendments in this Notice are likewise adopted 
     under section 303, so the Library's expressed concern is 
     unfounded.
       Finally, although no comments were received regarding the 
     specific language of the proposed amendments to the rules, 
     the final adopted rules differ slightly from the text of the 
     proposed amendments. The preamble to the NPRM explained that 
     the purpose of the rulemaking was to cover GAO and the 
     Library and their employees ``for purposes of any proceedings 
     in which GAO and the Library or their employees may be 
     involved as employing offices or covered employees,'' and, 
     with respect to section 215, the preamble stated that GAO and 
     the Library would be covered ``for the purposes of 
     proceedings involving section[] . . . 215 of the CAA . . . 
     .'' 143 Cong. Rec. S10291, S10292 col. 1 (daily ed. Oct. 1, 
     1997). However, the proposed rules in the NPRM described 
     specific kinds of proceedings under section 215, i.e., 
     enforcement of inspection and citation provisions of the 
     CAA and the granting of variances, and stated that GAO and 
     the Library would be covered for purposes of those 
     specific proceedings. Id. at S10292 col. 2. To avoid any 
     confusion, the final rules have been simplified and 
     revised to make clear that they cover GAO and the Library 
     for purposes of ``[a]ny proceeding under section 215.'' 
     Section 102(q)(1) of the Procedural Rules, as amended by 
     this Notice.
       Signed at Washington, D.C., on this 9th day of February, 
     1998.

                                              Ricky Silberman,

                                               Executive Director,
                                             Office of Compliance.
       The Executive Director of the Office of Compliance hereby 
     amends section 1.02 of the Procedural Rules of the Office of 
     Compliance by revising paragraphs (b) and (h) and by adding 
     at the end of the section a new paragraph (q) to read as 
     follows:
     Sec. 1.02 Definitions.
       ``Except as otherwise specifically provided in these rules, 
     for purposes of this Part:

                           *   *   *   *   *

       ``(b) Covered employee. The term `covered employee' means 
     any employee of
       ``(1) the House of Representatives;
       ``(2) the Senate;
       ``(3) the Capitol Guide Service;
       ``(4) the Capitol Police;
       ``(5) the Congressional Budget Office;
       ``(6) the Office of the Architect of the Capitol;
       ``(7) the Office of the Attending Physician;
       ``(8) the Office of Compliance; or
       ``(9) for the purposes stated in paragraph (q) of this 
     section, the General Accounting Office or the Library of 
     Congress.

                           *   *   *   *   *

       ``(h) Employing Office. The term `employing office' means:
       ``(1) the personal office of a Member of the House of 
     Representatives or a Senator;
       ``(2) a committee of the House of Representatives or the 
     Senate or a joint committee;

[[Page H570]]

       ``(3) any other office headed by a person with the final 
     authority to appoint, hire, discharge, and set the terms, 
     conditions, or privileges of the employment of an employee of 
     the House of Representatives or the Senate;
       ``(4) the Capitol Guide Board, the Capitol Police Board, 
     the Congressional Budget Office, the Office of the Architect 
     of the Capitol, the Office of the Attending Physician, and 
     the Office of Compliance; or
       ``(5) for the purposes stated in paragraph (q) of this 
     section, the General Accounting Office and the Library of 
     Congress.

                           *   *   *   *   *

       ``(q) Coverage of the General Accounting Office and the 
     Library of Congress and their Employees. The term `employing 
     office' shall include the General Accounting Office and the 
     Library of Congress, and the term `covered employee' shall 
     include employees of the General Accounting Office and the 
     Library of Congress, for purposes of the proceedings and 
     rulemakings described in subparagraphs (1) and (2):
       ``(1) Any proceeding under section 215 of the Act. Section 
     215 of the Act applies to covered employees and employing 
     offices certain rights and protections of the Williams-
     Steiger Occupational Safety and Health Act of 1970.
       ``(2) Any proceeding or rulemaking, for purposes of section 
     9.04 of these rules.''

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