Rules & Regulations

Dear Mr. Thompson:

The Office of Compliance Second Notice of Proposed Rulemaking (“NPR”) regarding amendments to the Procedural Rules of the Office of Compliance was published in the Congressional Record on February 26, 2004 (H693 and S1671). Pursuant to section 303(b) of the Congressional Accountability Act (“CAA”), the following comments and observations have been prepared and submitted by the Capitol Police Office of Employment Counsel and the Office of the General Counsel for the United States Capitol Police Board. We also incorporate by reference our previous comments and recommendations not otherwise adopted by the Office of Compliance pursuant to our submission dated October 20, 2003.

Procedural Regulations vs. Substantive Regulations

You did not address the distinction between procedural and substantive regulations when we first addressed the problems in the first notice of proposed rulemaking. Because several provisions are again incorporated into your second NPR, which we again point out are essentially substantive regulations, we again address the restriction placed on the Office of Compliance to move forward with such proposed rules.

Section 303 does not allow the Office of Compliance to accomplish through procedural rules what it could not do through substantive rulemaking provisions. Several of the proposed rules of the second NPR meet the definition of substantive regulations as they directly impact the ability of the employing offices to function in accordance with the statutes incorporated under the CAA. See Proposed Rules §§ 4.16, 7.02, and 8.01(3).

There is no authority provided in the CAA that permits the Office of Compliance to accomplish through procedural regulations what it should be pursuing through substantive regulations as is required under section 304(a)(2) of the CAA. “An administrative agency’s power to promulgate legislative regulations is limited to the authority delegated by Congress.” Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988). Section 304(a)(2) of the CAA requires that substantive regulations can only be adopted once those regulations have received Congressional review and, if appropriate, approval.