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United States Court of Appeals,
Fifth Circuit.
No. 914525.
UNITED STATES DEPARTMENT OF JUSTICE, IMMIGRATION AND
NATURALIZATION SERVICE, PetitionerCross-respondent,
v.
FEDERAL LABOR RELATIONS AUTHORITY, RespondentCross-petitioner.
Oct. 20, 1992.
Petition For Review And CrossApplication For Enforcement Of An Order Of The Federal Labor
Relations Authority.
Before GOLDBERG, JONES, and DeMOSS, Circuit Judges.
GOLDBERG, Circuit Judge:
This case concerns the duty of the Immigration and Naturalization Service ("agency" or
"INS") to negotiate with its employees' collective bargaining representative, the National Border
Patrol Council and the National Immigration and Naturalization Service Council of the American
Federation of Government Employees AFLCIO (hereinafter collectively referred to as "union"), over
a union proposal requesting that employees be given up to 48 hours to consult wi th a union
representative before the agency can question employees about shooting incidents.
FACTS AND THE FLRA's ORDER
The dispute between the INS and its employees' union arose when the INS revised its policy
regarding agency investigations of shooting incidents involving INS employees. The new INS policy
provides in relevant part:
Employees who discharge a firearm, or are involved in a shooting incident, shall be required
to provide a written report of the incident within sixteen (16) hours of the incident. Any other
employee who observes a shooting incident, but does not discharge a firearm or is not directly
involved in a shooting incident, shall be required to provide a written report of the incident
before the termination of the shift.1
1INS's firearms policy is sets forth in Chapter 4210 of its Administrative Manual.

In response to the agency's new policy, the union submitted six proposals for negotiation.
Relevant to this appeal is Proposal 5 which reads:
Employees directly or indirectly involved in a reportable shooting incident or firearms
discharge will be afforded the opportunity to consult with a union representative prior to
being required to provide a written report or oral statement, other than the initial verbal
notification. Absent unusual circumstances, such consultation shall not delay the report or
statement for more than forty eight (48) hours, consistent with the appropriate Collective
Bargaining Agreement Provisions.2
The INS refused to negotiate over the union's proposals, claiming that under the Management
rights pro vision of the Federal Service Labor Management Relations Act, 5 U.S.C. § 7106, the
union's proposals were nonnegotiable. The union petitioned the Federal Labor Relations Authority3
("FLRA" or "Authority") to review the INS's allegations of nonnegotiability pursuant to 5 U.S.C. §
7117(c).4 In accordance with its statutory mandate to resolve "issues relating to the duty to bargain
in good faith," § 7105(a)(2)(E), the FLRA reviewed the union's proposals and found that Proposals
1, 2, 3, 4 and 6 were nonnegotiable. However, the Authority determined that Proposal 5 was within
the agency's obligation to negotiate and ordered the INS to bargain with the union.
2Confusion arose during oral argument regarding whether the parties' collective bargaining
agreement contained a provision analogous to Proposal 5 prior to the institution of the INS's
revised policy. The parties' supplemental memoranda clarify that although prior contractual
provisions allowed an employee 48 hours to obtain a union representative to be present at INS
investigations, no prior agreement provided that an employee be given 48 hours to consult with a
union representative before an investigation.
As the old agreement merely provided for union representation at agency
interrogations of employees, it was largely overlapped by the statutorily provided
"Weingarten" provision, 5 U.S.C. §§ 7114(a)(2)(B)(i) and (ii), which provides that "[a]n
exclusive representative of an appropriate unit in an agency shall be given the opportunity
to be represented at--any examination of an employee in the unit by a representative of
the agency in connection with an investigation if--the employee reasonably believes that
the examination may result in disciplinary action against the employee and the employee
requests representation."
3The FLRA, a three-member bi-partisan body created by the Act, § 7104, is charged with
providing "leadership in establishing policies and guidance relating to matters under this chapter."
§ 7105(a)(1).
4Section 7117(c) provides in relevant part that "if an agency involved in collective bargaining
with an exclusive representative alleges that the duty to bargain in good faith does not extend to
any matter, the exclusive representative may appeal the allegation to the Authority."

On appeal, the INS seeks review of the FLRA's order. The INS contends that Proposal 5 is
not negotiable under § 7106 because the proposal interferes with the reserved management rights to
determine internal security practices and to assign work, §§ 7106(a)(1) and (a)(2)(B). The FLRA
requests enforcement of its order, maintaining that Proposal 5 is negotiable both as a "procedure,"
§ 7106(b)(2), and an "appropriate arrangement," § 7106(b)(3). We have jurisdiction under to §§
7123(a) and (b).5
STATUTORY BACKGROUND
The Federal Service Labor Management Relations Act, 5 U.S.C. §§ 71017135 (the "Act"),
governs labor relations between federal agencies and their employees. The Act reflects Congress'
attempt to strike a balance between the needs of government agencies and the legitimate demands of
public employees. While recognizing that "statutory protection of the right of employees to organize,
bargain collectively, and participate through labor organizations ... safeguards the public interest,"
§ 7101(a)(1)(A), the Act also insists that its provisions be "interpreted in a manner consistent with
the requirement of an effective and efficient Government." § 7101(b).6
The Act grants federal employees the right to "engage in collective bargaining with respect
to conditions of employment," § 7102(2), and obliges federal agencies and labor organizations to
negotiate in good faith, §§ 7116(a)(5) and (b)(5). However, the duty to negotiate is limited by "a
number o f provisions designed to reconcile collective bargaining with the distinctive needs of
5The agency appeals pursuant to § 7123(a) which provides that "any person aggrieved by any
final order of the Authority ... [may] institute an action for judicial review of the Authority's order
in the United States court of appeals ..." The FLRA seeks enforcement under § 7123(b) which
provides that "[t]he Authority may petition any appropriate United States court of appeals for the
enforcement of any order of the Authority ..."
6By instructing courts to interpret the provisions of the Act in a "manner consistent with the
requirement of an effective and efficient government," Congress sought to remind courts that the
provisions of the Act should not be interpreted in the same manner as the provisions of the Act's
private sector analogue, the National Labor Relations Act. When applying the Act to public
sector labor disputes, courts must be mindful of the unique responsibilities of government
agencies and their important role in promoting the public interest.

government employment." AFGE, AFLCIO, Local 2782 v. FLRA, 702 F.2d 1183, 1185
(D.C.Cir.1983). Relevant to this case is the "Management rights" provision, § 7106, which removes
certain managerial decisions from the bargaining table. Section 7106 provides:
(a) Subject to subsection (b) of this section, nothing in this chapter shall affect the authority
of any management official of any agency--
(1) to determine the mission, budget, organization, number of employees, and internal
security practices of the agency; and
(2) in accordance with applicable laws--
(A) to hire, assign, direct, layoff, and retain employees in the agency, or to suspend,
remove, reduce in grade or pay, or take other disciplinary action against such
employees;
(B) to assign work, to make determinations with respect to contracting out, and to
determine the personnel by which agency operations shall be conducted;
(C) with respect to filling positions, to make selections for appointments from--
(i) among properly ranked and certified candidates for promotion; or
(ii) any other appropriate source; and
(D) to take whatever actions may be necessary to carry out the agency mission during
emergencies.
(b) Nothing in this section shall preclude any agency and any labor organization from
negotiating--
(1) at the election of the agency, on the numbers, types, and grades of employees or
positions assigned to any organizational subdivision, work project, or tour of duty,
or on the technology, methods, and means of performing work;
(2) procedures which management officials of the agency will observe in exercising
any authority under this section; or
(3) appropriate arrangements for employees adversely affected by the exercise of any
authority under this section by such management officials.
While subsection (a) of § 7106 exempts from the duty to bargain certain management rights
which Congress deemed essential to the effective conduct of agency business, the exemption is
"subject to some expressly limited exceptions carved out of these broad rights in subsection (b)."
United States Dept. of Justice v. FLRA, 727 F.2d 481, 487 (5th Cir.1984). Whether the provisions
of § 7106(b)(2) and (b)(3) apply to Proposal 5 is the central question before us.

ANALYSIS
The FLRA ordered the INS to negotiate with the union over Proposal 5. The Authority found
that Proposal 5 is negotiable as a "procedure" under § 7106(b)(2) and as an "appropriate
arrangement" under § 7106(b)(3). Because the FLRA's application of §§ 7106(b)(2) and (b)(3) to
Proposal 5 is inconsistent with statutory mandate, congressional policy and prior FLRA decisions,
we reverse the FLRA's order.
STANDARD OF REVIEW
Courts reviewing FLRA orders are instructed to "hold unlawful and set aside agency action,
findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law." 5 U.S.C. §§ 7123(c) and 706(2)(A). See United States Dept. of Justice,
INS v. FLRA, 955 F.2d 998, 1001 (5th Cir.1992) ("The FLRA's legal construction of the statute is
entitled to deference if it is reasoned and supportable"). The Supreme Court has emphasized that
reviewing courts must ordinarily defer to FLRA decisions:
The FLRA was intended to develop specialized expertise in its field of labor relations and to
use that expertise to give content to the principles and goals set forth in the Act. (citation
omitted) Consequently, the Authority is entitled to considerable deference when it exercises
its special function of applying the general provision of the Act to the complexities of federal
labor relations. Bureau of Alcohol, Tobacco & Firearms v. FLRA 464 U.S. 89, 97, 104 S.Ct.
439, 444, 78 L.Ed.2d 195 (1983).
Though the deference owed to FLRA decisions is substantial, the Court has emphatically
warned that this deference "cannot be allowed to slip into a judicial inertia which results in the
unauthorized assumption by an agency of major policy decisions properly made by Congress." Id.
The Court elaborated:
while reviewing courts should uphold reasonable and defensible constructions of an agency's
enabling Act, (citation omitted) they must not rubber stamp ... administrative decisions that
they deem inconsistent with a statutory mandate or that frustrate the congressional policy
underlying a statute. Id.
Keeping this standard in mind, we now review the FLRA's application of §§ 7106(b)(2) and

(b)(3) to Proposal 5.
THE § 7106(b)(2) EXCEPTION
Section 7106(b)(2) provides that the reserved Management rights set forth in subsection (a)
of § 7106 shall not preclude negotiation over "procedures which management officials of the agency
will observe in exercising any authority under this section." In determining whether a given proposal
is negotiable as a "procedure" under § 7106(b)(2), the FLRA applies the "direct interference" test.
"[T]he decision maker must ask whether "implementation [of a proposal] would "directly interfere
with the agency's basic rights" ' listed in § 7106(a). (citation omitted) If implementation of the
proposal would not interfere directly with managerial prerogatives, it is procedural and therefore
negotiable." AFGE AFLCIO, Local 1923 v. FLRA, 819 F.2d 306, 308 (D.C.Cir.1987).
Applying the "direct interference" test to Proposal 5, the FLRA had to determine whether
the union's demand for up to 48 hours to consult with a union representative directly interferes with
the INS's protected right to determine its internal security practices and to assign work. The FLRA
found that the proposal "does not directly interfere with the Agency's rights under section 7106 of
the statute." AFGE National Border Patrol Council and National INS Service Council and United
States Dept. of Justice, INS 40 FLRA No. 51, 29 (1991). The FLRA explained the basis of its
decision:
the Agency has not demonstrated, and it is not otherwise apparent to us, that the proposal
would preclude the Agency from disciplining employees (for the underlying conduct or for
failure to cooperate in the investigation), or for requiring employees to cooperate in such an
investigation, including the requirement that employees respond to Agency inquiries.
Moreover, the agency has not asserted or demonstrated that, in view of the Union's
interpretation of the proposal, the proposal would directly interfere with the rights to
determine its internal security practices or to take action in an emergency. Id. at 32.
Although we must defer to the Authority's reasonable conclusions, we cannot rubber stamp
decisions which frustrate the "congressional policy underlying the statute." Bureau of Alcohol,
Tobacco & Firearms v. FLRA 464 U.S. at 97, 104 S.Ct. at 444. The Management rights provision,

§ 7106(a)(1), reflects Congress' determination that the internal security practices of federal agencies
are not negotiable. Because Proposal 5 clearly interferes with the INS's internal security practices,
upholding the FLRA's order would frustrate congressional policy.
The INS has determined that its internal security requires obtaining a written report from
employees involved in shooting incidents within 16 hours of the shooting. As INS personnel carry
firearms along our national borders and at ports of entry, shooting incidents, which often involve
foreign nationals, generate an urgent need for complete information. These incidents are politically
and diplomatically sensitive. Furthermore, because the INS engages in undercover operations,
shooting incidents could compromise the safety of other INS employees.
Proposal 5 requires the INS to halt its investigation for up to 48 hours to allow an employee
to consult with a union representative. The length of the delay is completely within the control of the
employee and the union. The delay of the INS's investigation, until after a union representative
arrives for consultation with employees, obstructs the INS's internal investigation in several ways.
The longer the investigators must wait to question suspects and witnesses, the more likely it is that
memories will fade and physical evidence that could be found on the basis of the information from
the witnesses would disappear.
Moreover, the INS understandably fears that the 48 hour consultation period will facilitate
collusion between suspect s and witnesses, coordination of alibis and tailored answers. A similar
concern motivated the D.C. Circuit Court in Dept. of the Treasury, IRS v. FLRA 707 F.2d 574
(D.C.Cir.1983) to remand an FLRA order. In Dept. of the Treasury, a union proposal demanded that
during agency interrogations an employee be permitted to "avoid immediate response to a question
upon det ermining for himself or herself that the question lacks relevance or materiality," and the
"employee [be] allowed to furnish a written response at an unspecified later date." Id. at 580. The
court expressed its concern that as a result of the union's proposal, "[t]he spontaneous, concentrated,

face-to-face interview contemplated by the IRS could be displaced in part by a written exchange, with
delayed, tailored answers which could not be followed up by on-the-spot probing." Id. Proposal 5
raises similar concerns over "tailored answers" which would be facilitated by the proposed 48 hour
consultation period.
The normal deference owed to the FLRA's decision is further undercut in the instant case by
the FLRA order's inconsistency with prior FLRA "direct interference" determinations. See Federal
Employees Metal Trades Council, AFLCIO, v. FLRA, 778 F.2d 1429, 1431 (9th Cir.1985)
("Arbitrary differences in the treatment of similar cases undercut the agency's claim to deference").
In AFGE, Local 1808 and United States Dept. of Army, Sierra Army Depot, 37 FLRA 1439 (1990),
a union proposal required that employees be notified two hours before the agency conducts employee
drug tests. The FLRA held that the union proposal "directly interferes with management rights," and
is thus nonnegotiable, because unannounced tests "make it difficult for drug users to take action to
cover up their use or otherwise evade the test." Id. Proposal 5, like the proposal the FLRA found
nonnegotiable in Local 1808, would make it easier for employees to cover up their actions or
otherwise evade the investigation. See also National Federation of Federal Employees, Local 1300
and General Services Administration, 18 FLRA 789 (1985) (FLRA held that a union proposal,
requiring an agency to notify employees before the agency contacted their friends or family in the
course of internal investigation, directly interfered with the agency's rights under § 7106(a) because
the proposal "mandated a particular internal security practice").
Proposal 5 also directly interferes with the INS's ability to assign work, a nonnegotiable
management right under § 7106(a)(2). "[I]mposing and enforcing a duty to account, whether
generally or in disciplinary investigations, lies within the scope of the powers to assign work." Navy
Public Works Center v. FLRA, 678 F.2d 97, 101 (9th Cir.1982). This Circuit has held that the
management's decision of when a work assignment is to be done is one of the protected management
rights under § 7106(a). See United States, INS, v. FLRA, 834 F.2d 515, 517 (5th Cir.1987) ("There

is neither an obligation nor a duty to negotiate with the union as to WHEN an employee is assigned
to do a particular task"); United States Dept. of Justice, INS, v. FLRA, 727 F.2d 481, 488 (5th
Cir.1984) ("[t]he right to assign work necessarily encompasses the right to determine when it will be
performed"). See also United States Customs Service v. FLRA, 854 F.2d 1414, 1419 (D.C.Cir.1988)
("[w]ithout a doubt, the right to determine what work will be done, and by whom and when it is to
be done, is at the very core of successful management of the employer's business"). Because Proposal
5 directly interferes with the agency's decision regarding when its employees must answer questions,
the proposal directly interferes with the agency's reserved right to assign work.
In sum, Proposal 5 would delay and obstruct the agency's conduct of internal investigations
and thus directly interfere with the agency's reserved rights to determine its internal security practices
and to assign work. We therefore hold that Proposal 5 is not a negotiable procedure under §
7106(b)(2).
THE § 7106(b)(3) EXCEPTION
Section 7106(b)(3) provides that the reserved Management rights set forth in subsection (a)
of § 7106 shall not preclude negotiation over "appropriate arrangements for employees adversely
affected by the exercise of any authority under this section by such management officials."
To determine whether a union proposal is an "appropriate arrangement" under § 7106(b)(3),
the FLRA applies the "excessive interference" test. Under this test, the FLRA first determines
whether "the proposal constitutes an arrangement" for adversely affected employees. AFGE National
Border Patrol Council and National INS Service Council and United States Dept. of Justice, INS
40 FLRA No. 51, at 6. If the proposal is an arrangement for adversely affected employees, the FLRA
next determines its appropriateness by whether "it excessively interferes with a management right
under § 7106 of the statute." Id. This determination involves weighing the competing practical needs
of employees on the one hand and managers on the other hand, so as to determine whether the impact

of the pro posal on management's rights is excessive when compared to the benefits afforded
employees.
The FLRA's excessive interference test has been adopted by several circuits. See e.g., AFGE
Local 1923 v. FLRA, 819 F.2d 306, 308 (D.C.Cir.1987) ("the decision maker must ask whether
implementation of the proposed arrangement would impinge upon management prerogatives to an
excessive degree"); OEA, Inc. v. FLRA, 961 F.2d 36, 38 (2nd Cir.1992) ("[t]he FLRA's excessive
interference standard properly adds flesh to the term "appropriate' by employing a test that balances
the competing needs of employees and managers"); Horner v. Bell 825 F.2d 382, 389 (Fed.Cir.1987)
("the critical inquiry is whether the provision interferes with management prerogative to "an excessive
degree' ").
Before reviewing the FLRA's application of the excessive interference test to Proposal 5, we
pause to consider the INS's broad challenge to the legitimacy of the "excessive interference" test. The
INS argues that if a proposal interferes at all, never mind excessively, with the exercise of a reserved
management right, it cannot be an appropriate arrangement under § 7106(b)(3). According to the
INS, a proposal is an "arrangement" only if it "mitigates" or "ameliorates" the adverse effects of
management's action after that action has been taken. The INS argues:
[T]he "appropriate arrangements' clause cannot be used to interfere with or limit the exercise
of a management right in the first instance. A proposal which calls for management to refrain
from exercising a right seeks to address more than the adverse effect(s) of such exercise;
instead, it seeks to address the substance of the management right in the first instance. That
is plainly not what the "appropriate arrangements' permits because employees cannot be
viewed as "adversely affected by the exercise of [management rights]' if the very exercise of
the right would be prevented by the proposal in the first instance.7
Although the INS's interpretation of § 7106(b)(3) is plausible, its argument has been
repeatedly rejected by the FLRA and the several Circuits who have adopted the "excessive
interference" test. The INS's interpretation of § 7106(b)(3) was first confronted and rejected in
7Petitioner's Brief at 29.

AFGE, AFLCIO Local 2782 v. FLRA 702 F.2d 1183 (D.C.Cir.1983). The D.C.Circuit held that
an arrangement proposed under subsection (b)(3) of § 7106 is not invalid simply because it conflicts
with one of the reserved rights in subsection (a) of § 7106. The court concluded that this
construction "is evident from the prologue of subsection (b), which states that "[n]othing in this
section shall preclude any agency and any labor organization from negotiating" over the specified
items. The prologue of subsection (a) makes the same point, declaring that all the management
prerogatives it contains ... are "subject to subsection (b) of this section."8 Id. at 1185. See also
United States Dept. of Interior Minerals Management Service v. FLRA, AFGE, AFLCIO Local
3457, 969 F.2d 1158, 1163 (D.C.Cir.1992) (affirming the rejection of the same argument). Following
the D.C.Circuit, and keeping in mind the deference due the Authority when it interprets the statute
which it administers, we find the FLRA's interpretation of § 7106(b)(3) to be reasonable and thus we
adopt the "excessive interference" test.
Applying the "excessive interference" test to Proposal 5, the FLRA concluded that the
proposal is negotiable because it does not excessively interfere with reserved management rights. The
Authority explained: "[T]he benefits to employees, which in our view includes the facilitation of
consultation with the employees' recognized bargaining representative as well as the ability to use a
minimal amount of time to do so, strongly and clearly outweigh such minimal effects on the Agency's
rights." AFGE National Border Patrol Council and National INS Service Council and United States
Dept. of Justice, INS 40 FLRA No. 51, at 32.
The FLRA's finding of negotiability under § 7106(b)(3) must be reversed because the
Authority's analysis does not give proper effect to Congress' explicit intent that § 7106(b)(3)
8The INS attempts to discredit the D.C. Circuit's opinion by claiming that the court mistakenly
relied on post-enactment legislative history which according to the INS is not legislative history at
all. Without addressing the value of post-enactment legislative statements, we reject the INS's
argument because the D.C. court did not base its holding on legislative history but rather on its
own interpretation of the statute. AFGE, AFLCIO Local 2782 v. FLRA 702 F.2d 1183, 1185
(D.C.Cir.1983).

arrangements be negotiable only if such arrangements are aimed at employees who are "adversely
affected." The deference normally owed to the analysis of the FLRA is not warranted if the FLRA's
decision is one that is inconsistent with Congress' statutory mandate. See Chevron U.S.A., Inc. v.
Natural Res. Def. Council 467 U.S. 837, 842843, 104 S.Ct. 2778, 27812782, 81 L.Ed.2d 694
(1984) ("The judiciary is the final authority on issues of statutory construction and must reject
administrative constructions which are contrary to clear congressional intent").
Proposal 5 is not tailored to benefit only those employees who would be adversely affected
by the INS's questioning. The language of Proposal 5 unambiguously covers employees who are not
directly involved in shooting incidents.9 Furthermore, the Authority recognized that the "right to
Union representation encompassed by the proposal would not depend on an affected employee's belief
that he or she was subject to discipline." AFGE National Border Patrol Council and National INS
Service Council and United States Dept. of Justice, INS 40 FLRA No. 51, at 29. The FLRA argues
that since the results of the agency's investigations "may provide a basis upon which an employee is
disciplined[,] it is reasonably foreseeable that some bargaining unit employee can expect to be
disciplined or otherwise adversely affected by the results of the management's decision to
investigate."10 While we do not deny that some employees might expect to be disciplined or be
otherwise adversely affected by the results of the management's investigation, Proposal 5 makes no
attempt to specifically protect those employees. The proposal simply covers all employees who are
subject to the agency's investigation.11
The recent decision in United States Dept. of Interior Minerals Management Service v.
9Proposal 5 states: "Employees directly or indirectly involved in a reportable shooting incident
or firearms discharge will be afforded the opportunity to consult with a union representative ..."
10Respondent's brief at 42.
11The "Weingarten" provision, § 7114(a)(2)(B)(i) provides a good illustration of how an
appropriate arrangement may be tailored. The section gives an employee the right to union
representation if "the employee reasonably believes that the examination may result in disciplinary
action against the employee."

FLRA, AFGE, AFLCIO Local 3457, 969 F.2d 1158 (D.C.Cir.1992), is on point. In response to an
agency drug testing program, a unio n proposed "allowing employee challenges to any action
stemming from implementation of an agency drug program, or any agency personnel action regardless
of whether any challenging employee was adversely affected by such action." Id. at 1162. The Local
3457 court reversed the FLRA's negotiability ruling as contrary to law. The court explained: "Unlike
the Authority, we read § 7106(b)(3) as unambiguously applying only where the FLRA has identified
the reasonably foreseeable adverse effects that will flow from some management action; and only
when the proposed arrangement is tailored to benefit or compensate those employees suffering those
adverse effects." Id. The court reversed the Authority's order because the Authority did not
"consider whether the balm provided by the proposal would be administered only to hurts arising
from the program, and to employees suffering such harm." Id. Proposal 5 suffers from the same fatal
disease that killed the union proposal in Local 3457.
Because Proposal 5 is not negotiable as an arrangement for adversely affected employees, we
need not address the second prong of the excessive interference test regarding whether the proposal
excessively interferes with the management's reserved rights.12
CONCLUSION
For the reasons set forth above, we hold that Proposal 5 is not negotiable and reverse the
FLRA's order. REVERSED.

12The INS also argues that Proposal 5 is nonnegotiable because it covers investigations
conducted by the FBI, U.S. Attorney's Office, and the Criminal Section of the Civil Rights
Division. We reject this argument as we find nothing in Proposal 5, nor elsewhere in the record,
indicating that Proposal 5 is intended to apply to any agency beside the INS.