(1980), the court finds that neither the language of the statute (quoted above) nor its legislative history support plaintiff's position.
First, the language of the statute distinguishes between the director's obligations under § 1103(b)(1), concerning the publication of proposed rules, and his obligations under § 1103(b)(2)(A), concerning posting. The first subsection provides that "the Director shall publish" (emphasis added) -- indicating that it is his sole responsibility -- while the next subsection provides that "the Director shall take steps to ensure that -- (A) any proposed rule or regulation . . . is posted in the offices of Federal agencies" -- indicating that a joint effort is required. Further, the statute does not contain any express timing provisions. Finally, its language is susceptible to OPM's interpretation that posting less than the full text, "in a prominent place . . . which best fits their physical layout" is a satisfactory method of implementation. 5 C.F.R. § 110.102(b).
The legislative history also lends support to defendant's case. An amendment offered on the floor to the House version placed all responsibility on the agencies to post material. House Committee on Post Office & Civil Service, Legislative History of the Civil Service Reform Act of 1978, Comm. Print No. 96-2, 96th Cong., 1st Sess. 7, 882-83 (" Legislative History "); 124 Cong. Rec. H. 9379 (daily ed. September 11, 1978). In contrast, the Senate version placed the burden solely on the director of OPM, stating that "the Director shall insure that . . . the proposed rule or regulation is posted. . . ." Legislative History at 1657; 124 Cong. Rec. S. 14292 (daily ed. August 24, 1978) (emphasis added). The final, compromise version reflects a switch to joint OPM and agency responsibility by changing the Senate language -- "shall insure" -- to "shall take steps to ensure . . ."
Given the practical difficulties of effecting posting at over 1,000 different agency locations, this shared burden is eminently sensible. So too is the decision to permit the posting of bulletins rather than full text, which could easily overwhelm employees with excessive detail and, in fact, hamper the dissemination of useful information. Absent an express timing provision concerning posting in the statute, the court declines to read one in, see Vermont Yankee Nuclear Power Corp. v. National Resources Defense Council, 435 U.S. 519, 524, 55 L. Ed. 2d 460, 98 S. Ct. 1197 (1978), and agrees with OPM's position that the section's thrust is to facilitate notice, rather then to solicit comments. Publication in the Federal Register remains the primary mechanism for providing notice and eliciting comments.
5 U.S.C. § 1103(b)(1).
For the reasons stated above, the court grants defendant's motion for summary judgment and will enter an order accordingly, of even date herewith.
For the reasons stated in the accompanying opinion of even date herewith, it is by the Court this 22nd day of December, 1983,
ORDERED that summary judgment is hereby granted in favor of defendant, and it is
FURTHER ORDERED that this case shall stand dismissed.