Rules & Regulations

Dear Mr. Thompson:

We submit this letter to the Board of Directors of the Office of Compliance (“the Board”) in response to the Notice of Proposed Rulemaking (“NPR”), 151 Cong. Rec. S1486-02 (daily ed. Feb. 16, 2005). The NPR invites comments with respect to proposed regulations implementing section 4(c)(4) of the Veterans Employment Opportunities Act of 1998 (“VEOA”), 2 U.S.C. § 1316a, as applied to covered employees of, inter alia, the Senate.

Below we submit our section-by-section analysis. At the outset, however, we have two general comments. First, Section 303(b)(1) of the Congressional Accountability Act of 1995 (“CAA”), 2 U.S.C. § 1383(b)(1), requires that any proposed regulations applicable to the Senate must be recommended by the Deputy Executive Director for the Senate. The position of Deputy Executive Director for the Senate is currently vacant, although the Board states that the Acting Deputy Executive Director for the Senate has recommended the proposed regulations. (See the Board’s “Procedurals Summary,” 151 Cong. Rec. S1487.) The CAA, however, does not affirmatively allow delegation of the Deputy Executive Director’s statutory duties. See 2 U.S.C. § 1382(b). One of those statutory duties is to recommend regulations for Senate employing offices. 2 U.S.C. § 1382(b)(4).

We located no law that addressed delegations of this type of authority. With respect to Presidential delegations of authority, there is a statute that expressly provides that the President may delegate “any function vested in the President by law if such law does not affirmatively prohibit delegation of the performance of such function. . . .” 3 U.S.C. § 302.¹ There is no corresponding statute that applies to the Board’s appointments. Because the Board’s authority (as well as the Executive Director’s authority) is limited by the CAA, given the absence of express authority to delegate the Deputy Executive Director’s statutory duties to another person, it appears that the Acting Deputy Executive Director for the Senate is exceeding the scope of his authority in recommending regulations for the Senate. Therefore, the proposed regulations appear void as to the Senate.

Our second general comment relates to the Board’s issuance of one body of proposed regulations. (See the Board’s “Procedurals Summary,” 151 Cong. Rec. S1489, stating “if these proposed regulations are approved as proposed, there will be one text applicable to all employing offices and covered employees.”) Section 304(a)(2)(B) of the CAA, 2 U.S.C. § 1384(a)(2)(B), provides that the regulations of the Board “shall consist of 3 separate bodies of regulations, which shall apply, respectively, to– (i) the Senate and employees of the Senate; (ii) the House of Representatives and employees of the House of Representatives; and (iii) all other covered employees and employing offices.” Initially, it is unclear from the NPR whether the proposed regulations are intended to be included in each separate body of regulations that cover the Senate, House of Representatives, and other Congressional instrumentalities, or whether a single regulation is being proposed. At a minimum, section 304(a)(2)(B) requires that the regulations be separate.