[Congressional Record Volume 144, Number 66 (Thursday, May 21, 1998)]
[House]
[Page H3740]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




               NOTICE OF DECISION TO TERMINATE RULEMAKING

                                                    U.S. Congress,


                                         Office of Compliance,

                                     Washington, DC, May 12, 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 (``CAA''), 2 U.S.C. 
     Sec. 1383, I am issuing the enclosed Notice of Decision to 
     Terminate Rulemaking. This Notice announces the termination 
     of a proceeding commenced by a Notice of Proposed Rulemaking 
     and a Supplementary Notice of Proposed Rulemaking published 
     in the Congressional Record on October 1, 1997 and January 
     28, 1998, respectively.
       I would appreciate it if you would have this enclosed 
     Notice of Decision to Terminate Rulemaking published in the 
     Congressional Record.
           Sincerely yours,
                                                   Ricky Silberman
                                                Executive Director
       Enclosure.


                          office of compliance

       The Congressional Accountability Act of 1995: Amendments to 
     Procedural Rules


               notice of decision to terminate rulemaking

       Summary: On October 1, 1997, the Executive Director of the 
     Office of Compliance published a notice in the Congressional 
     Record proposing, among other things, to extend the 
     Procedural Rules of the Office to cover the General 
     Accounting Office and the Library of Congress and their 
     employees with respect to alleged violations of sections 204-
     207 of the Congressional Accountability Act of 1995 
     (``CAA''). These sections apply the rights and protections of 
     the Employee Polygraph Protection Act, the Worker Adjustment 
     and Retraining Notification Act, and the Uniformed Services 
     Employment and Reemployment Act, and prohibit retaliation and 
     reprisal for exercising rights under the CAA. The notice 
     invited public comment, and, on January 28, 1998, a 
     supplementary notice was published inviting further comment. 
     Having considered the comments received, the Executive 
     Director has decided to terminate the rulemaking and, 
     instead, to recommend that the Office's Board of Directors 
     prepare and submit to Congress legislative proposals to 
     resolve questions raised by the comments.
       Availability of comments for public review: Copies of 
     comments received by the Office with respect to the proposed 
     amendments 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, 
     Officer of Compliance, Room LA 200, John Adams Building, 110 
     Second Street, S.E., Washington, D.C. 20540-1999; telephone 
     (202) 724-9250 (voice), (202) 426-1912 (TTY). This Notice 
     will 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''), 2 
     U.S.C. Sec. 1301 et seq., applies the rights and protections 
     of eleven labor, employment, and public access laws to the 
     Legislative Branch. Sections 204-206 of the CAA explicitly 
     cover the General Accounting Office (``GAO'') and the Library 
     of Congress (``Library''). These sections apply the rights 
     and protections of the Employee Polygraph Protection Act of 
     1988 (``EPPA''), the Worker Adjustment and Retraining 
     Notification Act (``WARN Act''), and section 2 of the 
     Uniformed Services Employment and Reemployment Rights Act of 
     1994 (``USERRA'').
       On October 1, 1997, the Executive Director of the Office of 
     Compliance (``Office'') published a Notice of Proposed 
     Rulemaking (``NPRM'') proposing to extend the Procedural 
     Rules of the Office to cover GAO and the Library and their 
     employees for purposes of proceedings involving alleged 
     violations of sections 204-206, as well as proceeding 
     involving alleged violations of section 207, which prohibits 
     intimidation and retaliation for exercising rights 
     under violations of section 207, which prohibits 
     intimidation and retaliation for exercising rights under 
     the CAA. 143 Cong. Rec. S10291 (daily ed. Oct. 1, 1997). 
     The Library submitted comments in opposition to adoption 
     of the proposed amendments and raising questions of 
     statutory construction. On January 28, 1998, the Executive 
     Director published a Supplementary Notice of Proposed 
     Rulemaking (``Supplementary NPRM'') requesting further 
     comment on the issues raised by the Library. 144 Cong. 
     Rec. S86 (daily ed. Jan. 28, 1998). Comments in response 
     to the Supplementary NPRM were submitted by GAO, the 
     Library, a union of Library employees, and a committee of 
     the House of Representatives.
       The comments expressed divergent views as to the meaning of 
     the relevant statutory provisions. The CAA extends rights, 
     protections, and procedures only to certain defined 
     ``employing offices'' and ``covered employees.'' The 
     definitions of these terms in section 101 of the CAA, which 
     apply throughout the CAA generally, omit GAO and the Library 
     and their employees from coverage, but sections 204-206 of 
     the CAA expressly include GAO and the Library and their 
     employees within the definitions of ``employing office'' and 
     ``covered employee'' for purposes of those sections. Two 
     commenters argued that the provisions of sections 401-408, 
     which establish the administrative and judicial procedures 
     for remedying violations of sections 204-206, refer back to 
     the definitions in section 101 ``without linking to the very 
     limited coverage'' of the instrumentalities in sections 204-
     206, and therefore do not cover GAO and the Library and their 
     employees. However, two other commenters argued to the 
     contrary. One stated that, because employees of the 
     instrumentalities were given the protections of sections 204-
     206, ``the concomitant procedural rights'' of sections 401-
     408 were also conferred on them; and the other commenter 
     argued that construing the CAA to grant rights but not 
     remedies would defeat the stated legislative purpose, ``since 
     a right without a remedy is often no right at all.'' The four 
     commenters also expressed divergent views about whether GAO 
     and the Library and their employees, who were not expressly 
     referenced by section 207, are nevertheless covered by the 
     prohibition in that section against retaliation and reprisal 
     for exercising applicable CAA rights.
       Having considered that the comments received express such 
     opposing views of the statute, the Executive Director has 
     decided to terminate the rulemaking without adopting the 
     proposed amendments and, instead, to recommend that the 
     Office's Board of Directors prepare and submit to Congress 
     legislative proposals to resolve questions raised by the 
     comments.
       In light of the statutory questions raised, it remains 
     uncertain whether employees of GAO and the Library have the 
     statutory right to use the administrative and judicial 
     procedures under the CAA, and whether GAO and the Library may 
     be charged as respondent or defendant under those procedures, 
     where violations of sections 204-207 of the CAA are alleged. 
     The Office will continue to accept any request for counseling 
     or mediation and any complaint filed by a GAO or Library 
     employee and/or alleging a violation by GAO or the Library. 
     Any objection 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 of the CAA. 
     Furthermore, the Office will counsel any employee who 
     initiates such proceedings that a question has been raised as 
     to the Office's and the courts' jurisdiction under the CAA 
     and that the employee may wish to preserve rights under any 
     other available procedural avenues.
       The Executive Director's decision announced here does not 
     affect the coverage of GAO and the Library and their 
     employees with respect to proceedings under section 215 of 
     the CAA (which applies the rights and protections of the 
     OSHAct) or ex parte communications. On February 12, 1998, the 
     Executive Director, with the approval of the Board, published 
     a Notice of Adoption of Amendments amending the Procedural 
     Rules to include such coverage. 144 Cong. Rec. S720 (daily 
     ed. Feb. 12, 1998).
       Signed at Washington, DC., on this 12th day of May, 1998.

                                              Ricky Silberman,

                                               Executive Director,
     Office of Compliance.

                          ____________________