Rules & Regulations

Dear Ms. Sapin:

The Office of the Senate ChiefCounsel for Employment (“SCCE”) submits the following comments to the Executive Director of the Office of Compliance (“OOC”) in response to the Notice of Proposed Rulemaking (“NPRM”) to implement the proposed amendments to the Rules of Procedure, published in the Congressional Record on September 9, 2014, 160 Cong, Rec, S5447 (daily ed. Sept. 9, 2014).

Many of the proposed amendments to the OOC Rules of procedure (“Procedural Rules”) are either inconsistent with or otherwise unsupported by the Congressional Accountability Act of 1995, as amended, 2 U.S.C, §§ 1301-1438 (2012) (the “CAA”), and are invalid for that reason. See Bowen v. Georgetown Univ. Hosp„ 488 U.S. 204, 208 (1988) (“An administrative agency’s power to promulgate legislative regulations is limited to the authority delegated by Congress,”). In enacting the CAA, Congress waived its sovereign immunity – but only to the extent specified in the statute – and it is well established that the scope of the waiver must be strictly construed in favor of the sovereign. See United States v. Sherwood, 312 U.S. 584, 586 (1941) (“The United States, as sovereign, is immune from suit save as it consents to be sued.”); Lane v. Pena, 518 U.S. 187, 192 (1996) (“[A] waiver of the Governments sovereign immunity will be strictly construed, in terms of its scope, in favor of the sovereign.”) To the extent that the proposed amendments attempt to expand that waiver of sovereign immunity, they should not be adopted.

In addition, many of the proposed amendments would affect the substantive rights of covered employees and employing offices, and to that extent they are substantive regulations and should be promulgated under section 304 of the CAA, 2 U.S.C. § 1384 (Substantive regulations), not section 303 of the CAA, 2 U.S.C. § 1383 (Procedural rules). See Chamber of Commerce of the U.S. v. U.S. Dep’t of Labor, 174 F.3d 206, 211 (D.C. Cir. 1999).