[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. Res. 700 Engrossed in Senate (ES)]

S. Res. 700

                  In the Senate of the United States,

                                                     December 10, 2010.
    Resolved, That the following regulations issued by the Office of Compliance 
on March 21, 2008, and stated in section 4, with the technical corrections 
described in section 3 and to the extent applied by section 2, are hereby 
approved:

SEC. 2. APPLICATION OF REGULATIONS.

    (a) In General.--For purposes of applying the issued regulations as a body 
of regulations required by section 304(a)(2)(B)(i) of the Congressional 
Accountability Act of 1995 (2 U.S.C. 1384(a)(2)(B)(i)), the portions of the 
issued regulations that are unclassified or classified with an ``S'' designation 
shall apply to the Senate and employees of the Senate.
    (b) Definition.--In this section, the term ``employee of the Senate'' has 
the meaning given the term in section 101 of the Congressional Accountability 
Act of 1995 (2 U.S.C. 1301), except as limited by the regulations (as corrected 
under section 3).

SEC. 3. TECHNICAL CORRECTIONS.

    (a) Current Names of Offices and Heads of Offices.--A reference in the 
issued regulations--
            (1) to the Capitol Guide Board or the Capitol Guide Service (which 
        no longer exist) shall be considered to be a reference to the Office of 
        Congressional Accessibility Services;
            (2) to the Capitol Police Board shall be considered to be a 
        reference to the Capitol Police;
            (3) to the Senate Restaurants (which are no longer public entities) 
        shall be disregarded; and
            (4) in sections 1.110(b) and 1.121(c), to the director of an 
        employing office shall be considered to be a reference to the head of an 
        employing office.
    (b) Cross References to Provisions of Regulations.--A reference in the 
issued regulations--
            (1) in paragraphs (l) and (m) of section 1.102, to subparagraphs (3) 
        through (8) of paragraph (g) of that section shall be considered to be a 
        reference to paragraph (g) of that section;
            (2) in section 1.102(l), to subparagraphs (aa) through (dd) of 
        section 1.102(g) shall be considered to be a reference to subparagraphs 
        (aa) through (dd) of that section (as specified in the regulations 
        classified with an ``H'' classification);
            (3) in section 1.102(m), to subparagraphs (aa) through (ee) of 
        section 1.102(g) shall be considered to be a reference to subparagraphs 
        (aa) through (ee) of that section (as specified in the regulations 
        classified with an ``S'' classification);
            (4) in section 1.111(d), to section 1.102(o) shall be considered to 
        be a reference to section 1.102(p); and
            (5) in section 1.112, to section 1.102(h) shall be considered to be 
        a reference to section 1.102(i).
    (c) Cross References to Other Provisions of Law.--A reference in the issued 
regulations--
            (1) to the Veterans Employment Opportunities Act shall be considered 
        to be a reference to the Veterans Employment Opportunities Act of 1998;
            (2) to 2 U.S.C. 43d(a) shall be considered to be a reference to 
        section 105(a) of the Second Supplemental Appropriations Act, 1978;
            (3) to 2 U.S.C. 1316a(3) shall be considered to be a reference to 
        section 4(c)(3) of the Veterans Employment Opportunities Act of 1998;
            (4) to 5 U.S.C. 2108(3)(c) shall be considered to be a reference to 
        section 2108(3)(C) of title 5, United States Code;
            (5) to the Americans with Disabilities Act shall be considered to be 
        a reference to the Americans with Disabilities Act of 1990;
            (6) to the Soil Conservation and Allotment Act shall be considered 
        to be a reference to the Soil Conservation and Domestic Allotment Act; 
        and
            (7) to the Agricultural Adjustment Act shall be considered to be a 
        reference to the Agricultural Adjustment Act, reenacted with amendments 
        by the Agricultural Marketing Agreement Act of 1937.
    (d) Other Corrections.--In the issued regulations--
            (1) in section 1.102(g)(1) (in the regulations classified with an 
        ``S'' classification), the ``and'' at the end shall be disregarded;
            (2) section 1.102(g)(7) (in the regulations classified with an ``S'' 
        classification) shall be considered to have an ``or'' at the end;
            (3) section 1.109 shall be considered to have an ``and'' after 
        paragraph (a);
            (4) the second sentence of section 1.116 shall be disregarded;
            (5) section 1.118(b) shall be considered to have an ``and'' after 
        paragraph (2) rather than paragraph (1);
            (6) a reference in sections 1.118(c)(1) and 1.120(b)(1) to veterans' 
        ``preference eligible'' shall be considered to be a reference to 
        ``preference eligible'';
            (7) sections 1.118(c) and 1.120(b) shall be considered to have an 
        ``and'' after paragraph (1); and
            (8) section 1.121(b)(6)(B) shall be considered to have an ``and'' at 
        the end.

SEC. 4. REGULATIONS.

        When approved by the House of Representatives for the House of 
Representatives, these regulations will have the prefix ``H.'' When approved by 
the Senate for the Senate, these regulations will have the prefix ``S.'' When 
approved by Congress for the other employing offices covered by the CAA, these 
regulations will have the prefix ``C.''
        In this draft, ``H&S Regs'' denotes the provisions that would be 
included in the regulations applicable to be made applicable to the House and 
Senate, and ``C Reg'' denotes the provisions that would be included in the 
regulations to be made applicable to other employing offices.
        PART 1--Extension of Rights and Protections Relating to Veterans' 
Preference Under Title 5, United States Code, to Covered Employees of the 
Legislative Branch (section 4(c) of the Veterans Employment Opportunities Act of 
1998)

    Subpart A--Matters of General Applicability to All Regulations 
                Promulgated under Section 4 of the VEOA

    Sec.
    1.101  Purpose and scope.
    1.102  Definitions.
    1.103  Adoption of regulations.
    1.104  Coordination with section 225 of the Congressional 
                                Accountability Act.

SEC. 1.101. PURPOSE AND SCOPE.

    (a) Section 4(c) of the VEOA. The Veterans Employment Opportunities Act 
(VEOA) applies the rights and protections of sections 2108, 3309 through 3312, 
and subchapter I of chapter 35 of title 5 U.S.C., to certain covered employees 
within the Legislative branch.
    (b) Purpose of regulations. The regulations set forth herein are the 
substantive regulations that the Board of Directors of the Office of Compliance 
has promulgated pursuant to section 4(c)(4) of the VEOA, in accordance with the 
rulemaking procedure set forth in section 304 of the CAA (2 U.S.C. Sec. 1384). 
The purpose of subparts B, C and D of these regulations is to define veterans' 
preference and the administration of veterans' preference as applicable to 
Federal employment in the Legislative branch. (5 U.S.C. Sec. 2108, as applied by 
the VEOA). The purpose of subpart E of these regulations is to ensure that the 
principles of the veterans' preference laws are integrated into the existing 
employment and retention policies and processes of those employing offices with 
employees covered by the VEOA, and to provide for transparency in the 
application of veterans' preference in covered appointment and retention 
decisions. Provided, nothing in these regulations shall be construed so as to 
require an employing office to reduce any existing veterans' preference rights 
and protections that it may afford to preference eligible individuals.
        H Regs:   (c) Scope of Regulations. The definition of ``covered 
employee'' in Section 4(c) of the VEOA limits the scope of the statute's 
applicability within the Legislative branch. The term ``covered employee'' 
excludes any employee: (1) whose appointment is made by the President with the 
advice and consent of the Senate; (2) whose appointment is made by a Member of 
Congress within an employing office, as defined by Sec. 101 (9)(A-C) of the CAA, 
2 U.S.C. Sec. 1301 (9)(A-C) or; (3) whose appointment is made by a committee or 
subcommittee of either House of Congress or a joint committee of the House of 
Representatives and the Senate; or (4) who is appointed to a position, the 
duties of which are equivalent to those of a Senior Executive Service position 
(within the meaning of section 3132(a)(2) of title 5, United States Code). 
Accordingly, these regulations shall not apply to any employing office that only 
employs individuals excluded from the definition of covered employee.
        S Regs:  (c) Scope of Regulations. The definition of ``covered 
employee'' in Section 4(c) of the VEOA limits the scope of the statute's 
applicability within the Legislative branch. The term ``covered employee'' 
excludes any employee: (1) whose appointment is made by the President with the 
advice and consent of the Senate; (2) whose appointment is made or directed by a 
Member of Congress within an employing office, as defined by Sec. 101(9)(A-C) of 
the CAA, 2 U.S.C. Sec. 1301 (9)(A-C) or; (3) whose appointment is made by a 
committee or subcommittee of either House of Congress or a joint committee of 
the House of Representatives and the Senate; (4) who is appointed pursuant to 2 
U.S.C. Sec. 43d(a); or (5) who is appointed to a position, the duties of which 
are equivalent to those of a Senior Executive Service position (within the 
meaning of section 3132(a)(2) of title 5, United States Code). Accordingly, 
these regulations shall not apply to any employing office that only employs 
individuals excluded from the definition of covered employee.
        C Reg:  (c) Scope of Regulations. The definition of ``covered employee'' 
in Section 4(c) of the VEOA limits the scope of the statute's applicability 
within the Legislative branch. The term ``covered employee'' excludes any 
employee: (1) whose appointment is made by the President with the advice and 
consent of the Senate; (2) whose appointment is made by a Member of Congress or 
by a committee or subcommittee of either House of Congress or a joint committee 
of the House of Representatives and the Senate; or (3) who is appointed to a 
position, the duties of which are equivalent to those of a Senior Executive 
Service position (within the meaning of section 3132(a)(2) of title 5, United 
States Code). Accordingly, these regulations shall not apply to any employing 
office that only employs individuals excluded from the definition of covered 
employee.

SEC. 1.102. DEFINITIONS.

        Except as otherwise provided in these regulations, as used in these 
regulations:
    (a) Accredited physician means a doctor of medicine or osteopathy who is 
authorized to practice medicine or surgery (as appropriate) by the State in 
which the doctor practices. The phrase ``authorized to practice by the State'' 
as used in this section means that the provider must be authorized to diagnose 
and treat physical or mental health conditions without supervision by a doctor 
or other health care provider.
    (b) Act or CAA means the Congressional Accountability Act of 1995, as 
amended (Pub. L. 104-1, 109 Stat. 3, 2 U.S.C. Sec. Sec. 1301-1438).
    (c) Active duty or active military duty means full-time duty with military 
pay and allowances in the armed forces, except (1) for training or for 
determining physical fitness and (2) for service in the Reserves or National 
Guard.
    (d) Appointment means an individual's appointment to employment in a covered 
position, but does not include any personnel action that an employing office 
takes with regard to an existing employee of the employing office.
    (e) Armed forces means the United States Army, Navy, Air Force, Marine 
Corps, and Coast Guard.
    (f) Board means the Board of Directors of the Office of Compliance.
        H Regs:  (g) Covered employee means any employee of (1) the House of 
Representatives; and (2) the Senate; (3) the Capitol Guide Board; (4) the 
Capitol Police Board; (5) the Congressional Budget Office; (6) the Office of the 
Architect of the Capitol; (7) the Office of the Attending Physician; and (8) the 
Office of Compliance, but does not include an employee (aa) whose appointment is 
made by the President with the advice and consent of the Senate; (bb) whose 
appointment is made by a Member of Congress; (cc) whose appointment is made by a 
committee or subcommittee of either House of Congress or a joint committee of 
the House of Representatives and the Senate; or (dd) who is appointed to a 
position, the duties of which are equivalent to those of a Senior Executive 
Service position (within the meaning of section 3132(a)(2) of title 5, United 
States Code). The term covered employee includes an applicant for employment in 
a covered position and a former covered employee.
        S. Regs:  (g) Covered employee means any employees of (1) the House of 
Representatives; and (2) the Senate; (3) the Capitol Guide Board; (4) the 
Capitol Police Board; (5) the Congressional Budget Office; (6) the Office of the 
Architect of the Capitol; (7) the Office of the Attending Physician; and (8) the 
Office of Compliance, but does not include an employee (aa) whose appointment is 
made by the President with the advice and consent of the Senate; (bb) whose 
appointment is made or directed by a Member of Congress; (cc) whose appointment 
is made by a committee or subcommittee of either House of Congress or a joint 
committee of the House of Representatives and the Senate; (dd) who is appointed 
pursuant to 2 U.S.C. Sec. 43d(a); or (ee) who is appointed to a position, the 
duties of which are equivalent to those of a Senior Executive Service position 
(within the meaning of section 3132(a)(2) of title 5, United States Code). 
The term covered employee includes an applicant for employment in a 
covered position and a former covered employee.
        C Reg: (g) Covered employee means any employee of (1) the Capitol Guide 
Service; (2) the Capitol Police; (3) the Congressional Budget Office; (4) the 
Office of the Architect of the Capitol; (5) the Office of the Attending 
Physician; or (6) the Office of Compliance, but does not include an employee: 
(aa) whose appointment is made by the President with the advice and consent of 
the Senate; or (bb) whose appointment is made by a Member of Congress or by a 
committee or subcommittee of either House of Congress or a joint committee of 
the House of Representatives and the Senate; or (cc) who is appointed to a 
position, the duties of which are equivalent to those of a Senior Executive 
Service position (within the meaning of section 3132(a)(2) of title 5, United 
States Code). The term covered employee includes an applicant for employment in 
a covered position and a former covered employee.
    (h) Covered position means any position that is or will be held by a covered 
employee.
    (i) Disabled veteran means a person who was separated under honorable 
conditions from active duty in the armed forces performed at any time and who 
has established the present existence of a service-connected disability or is 
receiving compensation, disability retirement benefits, or pensions because of a 
public statute administered by the Department of Veterans Affairs or a military 
department.
    (j) Employee of the Office of the Architect of the Capitol includes any 
employee of the Office of the Architect of the Capitol, the Botanic Gardens, or 
the Senate Restaurants.
    (k) Employee of the Capitol Police Board includes any member or officer of 
the Capitol Police.
    (l) Employee of the House of Representatives includes an individual 
occupying a position the pay of which is disbursed by the Clerk of the House of 
Representatives, or another official designated by the House of Representatives, 
or any employment position in an entity that is paid with funds derived from the 
clerk-hire allowance of the House of Representatives but not any such individual 
employed by any entity listed in subparagraphs (3) through (8) of paragraph (g) 
above nor any individual described in subparagraphs (aa) through (dd) of 
paragraph (g) above.
    (m) Employee of the Senate includes any employee whose pay is disbursed by 
the Secretary of the Senate, but not any such individual employed by any entity 
listed in subparagraphs (3) through (8) of paragraph (g) above nor any 
individual described in subparagraphs (aa) through (ee) of paragraph (g) above.
        H Regs:  (n) Employing office means: (1) the personal office of a Member 
of the House of Representatives; (2) a committee of the House of Representatives 
or a joint committee of the House of Representatives and the Senate; or (3) any 
other office headed by a person with the final authority to appoint, hire, 
discharge, and set the terms, conditions, or privileges of the employment of an 
employee of the House of Representatives or the Senate.
        S Regs:  (n) Employing office means: (1) the personal office of a 
Senator; (2) a committee of the Senate or a joint committee of the House of 
Representatives and the Senate; or (3) any other office headed by a person with 
the final authority to appoint, or be directed by a Member of Congress to 
appoint, hire, discharge, and set the terms, conditions, or privileges of the 
employment of an employee of the House of Representatives or the Senate.
        C Reg:  (n) Employing office means: the Capitol Guide Board, the Capitol 
Police Board, the Congressional Budget Office, the Office of the Architect of 
the Capitol, the Office of the Attending Physician, and the Office of 
Compliance.
    (o) Office means the Office of Compliance.
    (p) Preference eligible means veterans, spouses, widows, widowers or mothers 
who meet the definition of ``preference eligible'' in 5 U.S.C. Sec. 2108(3)(A)-
(G).
    (q) Qualified applicant means an applicant for a covered position whom an 
employing office deems to satisfy the requisite minimum job-related requirements 
of the position. Where the employing office uses an entrance examination or 
evaluation for a covered position that is numerically scored, the term 
``qualified applicant'' shall mean that the applicant has received a passing 
score on the examination or evaluation.
    (r) Separated under honorable conditions means either an honorable or a 
general discharge from the armed forces. The Department of Defense is 
responsible for administering and defining military discharges.
    (s) Uniformed services means the armed forces, the commissioned corps of the 
Public Health Service, and the commissioned corps of the National Oceanic and 
Atmospheric Administration.
    (t) VEOA means the Veterans Employment Opportunities Act of 1998 (Pub. L. 
105-339, 112 Stat. 3182).
    (u) Veterans means persons as defined in 5 U.S.C. Sec. 2108(1), or any 
superseding legislation.

SEC. 1.103. ADOPTION OF REGULATIONS.

    (a) Adoption of regulations. Section 4(c)(4)(A) of the VEOA generally 
authorizes the Board to issue regulations to implement section 4(c). In 
addition, section 4(c)(4)(B) of the VEOA directs the Board to promulgate 
regulations that are ``the same as the most relevant substantive regulations 
(applicable with respect to the Executive branch) promulgated to implement the 
statutory provisions referred to in paragraph (2)'' of section 4(c) of the VEOA. 
Those statutory provisions are section 2108, sections 3309 through 3312, and 
subchapter I of chapter 35, of title 5, United States Code. The regulations 
issued by the Board herein are on all matters for which section 4(c)(4)(B) of 
the VEOA requires a regulation to be issued. Specifically, it is the Board's 
considered judgment based on the information available to it at the time of 
promulgation of these regulations, that, with the exception of the regulations 
adopted and set forth herein, there are no other ``substantive regulations 
(applicable with respect to the Executive branch) promulgated to implement the 
statutory provisions referred to in paragraph (2)'' of section 4(c) of the VEOA 
that need be adopted.
    (b) Modification of substantive regulations. As a qualification to the 
statutory obligation to issue regulations that are ``the same as the most 
substantive regulations (applicable with respect to the Executive branch)'', 
section 4(c)(4)(B) of the VEOA authorizes the Board to ``determine, for good 
cause shown and stated together with the regulation, that a modification of such 
regulations would be more effective for the implementation of the rights and 
protections under'' section 4(c) of the VEOA.
    (c) Rationale for Departure from the Most Relevant Executive Branch 
Regulations. The Board concludes that it must promulgate regulations 
accommodating the human resource systems existing in the Legislative branch; and 
that such regulations must take into account the fact that the Board does not 
possess the statutory and Executive Order based government-wide policy making 
authority underlying OPM's counterpart VEOA regulations governing the Executive 
branch. OPM's regulations are designed for the competitive service (defined in 5 
U.S.C. Sec. 2102(a)(2)), which does not exist in the employing offices subject 
to this regulation. Therefore, to follow the OPM regulations would create 
detailed and complex rules and procedures for a workforce that does not exist in 
the Legislative branch, while providing no VEOA protections to the covered 
Legislative branch employees. We have chosen to propose specially tailored 
regulations, rather than simply to adopt those promulgated by OPM, so that we 
may effectuate Congress' intent in extending the principles of the veterans' 
preference laws to the Legislative branch through the VEOA.

SEC. 1.104. COORDINATION WITH SECTION 225 OF THE CONGRESSIONAL ACCOUNTABILITY 
              ACT.

        Statutory directive. Section 4(c)(4)(C) of the VEOA requires that 
promulgated regulations must be consistent with section 225 of the CAA. Among 
the relevant provisions of section 225 are subsection (f)(1), which prescribes 
as a rule of construction that definitions and exemptions in the laws made 
applicable by the CAA shall apply under the CAA, and subsection (f)(3), which 
states that the CAA shall not be considered to authorize enforcement of the CAA 
by the Executive branch.

          Subpart B--Veterans' Preference--General Provisions

    Sec.
    1.105 Responsibility for administration of veterans' 
                                preference.
    1.106 Procedures for bringing claims under the VEOA.

SEC. 1.105. RESPONSIBILITY FOR ADMINISTRATION OF VETERANS' PREFERENCE.

        Subject to section 1.106, employing offices with covered employees or 
covered positions are responsible for making all veterans' preference 
determinations, consistent with the VEOA.

SEC. 1.106. PROCEDURES FOR BRINGING CLAIMS UNDER THE VEOA.

        Applicants for appointment to a covered position and covered employees 
may contest adverse veterans' preference determinations, including any 
determination that a preference eligible applicant is not a qualified applicant, 
pursuant to sections 401-416 of the CAA, 2 U.S.C. Sec. Sec. 1401-1416, and 
provisions of law referred to therein; 206a(3) of the CAA, 2 U.S.C. 
Sec. Sec. 1401, 1316a(3); and the Office's Procedural Rules.

            Subpart C--Veterans' Preference in Appointments

    Sec.
    1.107 Veterans' preference in appointments to restricted 
                                covered positions.
    1.108 Veterans' preference in appointments to non-restricted 
                                covered positions.
    1.109 Crediting experience in appointments to covered 
                                positions.
    1.110 Waiver of physical requirements in appointments to 
                                covered positions.

SEC. 1.107. VETERANS' PREFERENCE IN APPOINTMENTS TO RESTRICTED POSITIONS.

        In each appointment action for the positions of custodian, elevator 
operator, guard, and messenger (as defined below and collectively referred to in 
these regulations as restricted covered positions) employing offices shall 
restrict competition to preference eligible applicants as long as qualified 
preference eligible applicants are available. The provisions of sections 1.109 
and 1.110 below shall apply to the appointment of a preference eligible 
applicant to a restricted covered position. The provisions of section 1.108 
shall apply to the appointment of a preference eligible applicant to a 
restricted covered position, in the event that there is more than one preference 
eligible applicant for the position.
        Custodian--One whose primary duty is the performance of cleaning or 
other ordinary routine maintenance duties in or about a government building or a 
building under Federal control, park, monument, or other Federal reservation.
        Elevator operator--One whose primary duty is the running of freight or 
passenger elevators. The work includes opening and closing elevator gates and 
doors, working elevator controls, loading and unloading the elevator, giving 
information and directions to passengers such as on the location of 
offices, and reporting problems in running the elevator.
        Guard--One whose primary duty is the assignment to a station, beat, or 
patrol area in a Federal building or a building under Federal control to prevent 
illegal entry of persons or property; or required to stand watch at or to patrol 
a Federal reservation, industrial area, or other area designated by Federal 
authority, in order to protect life and property; make observations for 
detection of fire, trespass, unauthorized removal of public property or hazards 
to Federal personnel or property. The term guard does not include law 
enforcement officer positions of the Capitol Police Board.
        Messenger--One whose primary duty is the supervision or performance of 
general messenger work (such as running errands, delivering messages, and 
answering call bells).

SEC. 1.108. VETERANS' PREFERENCE IN APPOINTMENTS TO NON-RESTRICTED COVERED 
              POSITIONS.

    (a) Where an employing office has duly adopted a policy requiring the 
numerical scoring or rating of applicants for covered positions, the employing 
office shall add points to the earned ratings of those preference eligible 
applicants who receive passing scores in an entrance examination, in a manner 
that is proportionately comparable to the points prescribed in 5 U.S.C. 
Sec. 3309. For example, five preference points shall be granted to preference 
eligible applicants in a 100-point system, one point shall be granted in a 20-
point system, and so on.
    (b) In all other situations involving appointment to a covered position, 
employing offices shall consider veterans' preference eligibility as an 
affirmative factor in the employing office's determination of who will be 
appointed from among qualified applicants.

SEC. 1.109. CREDITING EXPERIENCE IN APPOINTMENTS TO COVERED POSITIONS.

        When considering applicants for covered positions in which experience is 
an element of qualification, employing offices shall provide preference eligible 
applicants with credit:
    (a) for time spent in the military service (1) as an extension of time spent 
in the position in which the applicant was employed immediately before his/her 
entrance into the military service, or (2) on the basis of actual duties 
performed in the military service, or (3) as a combination of both methods. 
Employing offices shall credit time spent in the military service according to 
the method that will be of most benefit to the preference eligible applicant.
    (b) for all experience material to the position for which the applicant is 
being considered, including experience gained in religious, civic, welfare, 
service, and organizational activities, regardless of whether he/she received 
pay therefor.

SEC. 1.110. WAIVER OF PHYSICAL REQUIREMENTS IN APPOINTMENTS TO COVERED 
              POSITIONS.

    (a) Subject to (c) below, in determining qualifications of a preference 
eligible for appointment, an employing office shall waive:
            (1) with respect to a preference eligible applicant, requirements as 
        to age, height, and weight, unless the requirement is essential to the 
        performance of the duties of the position; and
            (2) with respect to a preference eligible applicant to whom it has 
        made a conditional offer of employment, physical requirements if, in the 
        opinion of the employing office, on the basis of evidence before it, 
        including any recommendation of an accredited physician submitted by the 
        preference eligible applicant, the preference eligible applicant is 
        physically able to perform efficiently the duties of the position;
    (b) Subject to (c) below, if an employing office determines, on the basis of 
evidence before it, including any recommendation of an accredited physician 
submitted by the preference eligible applicant, that an applicant to whom it has 
made a conditional offer of employment is preference eligible as a disabled 
veteran as described in 5 U.S.C. Sec. 2108(3)(c) and who has a compensable 
service-connected disability of 30 percent or more is not able to fulfill the 
physical requirements of the covered position, the employing office shall notify 
the preference eligible applicant of the reasons for the determination and of 
the right to respond and to submit additional information to the employing 
office, within 15 days of the date of the notification. The director of the 
employing office may, by providing written notice to the preference eligible 
applicant, shorten the period for submitting a response with respect to an 
appointment to a particular covered position, if necessary because of a need to 
fill the covered position immediately. Should the preference eligible applicant 
make a timely response, the highest ranking individual or group of individuals 
with authority to make employment decisions on behalf of the employing office 
shall render a final determination of the physical ability of the preference 
eligible applicant to perform the duties of the position, taking into account 
the response and any additional information provided by the preference eligible 
applicant. When the employing office has completed its review of the proposed 
disqualification on the basis of physical disability, it shall send its findings 
to the preference eligible applicant.
    (c) Nothing in this section shall relieve an employing office of any 
obligations it may have pursuant to the Americans with Disabilities Act (42 
U.S.C. Sec. 12101 et seq.) as applied by section 102(a)(3) of the Act, 2 U.S.C. 
Sec. 1302(a)(3).

         Subpart D--Veterans' preference in reductions in force

    Sec.
    1.111. Definitions applicable in reductions in force.
    1.112. Application of preference in reductions in force.
    1.113. Crediting experience in reductions in force.
    1.114. Waiver of physical requirements in reductions in force.
    1.115. Transfer of functions.

SEC. 1.111. DEFINITIONS APPLICABLE IN REDUCTIONS IN FORCE.

    (a) Competing covered employees are the covered employees within a 
particular position or job classification, at or within a particular competitive 
area, as those terms are defined below.
    (b) Competitive area is that portion of the employing office's 
organizational structure, as determined by the employing office, in which 
covered employees compete for retention. A competitive area must be defined 
solely in terms of the employing office's organizational unit(s) and 
geographical location, and it must include all employees within the competitive 
area so defined. A competitive area may consist of all or part of an employing 
office. The minimum competitive area is a department or subdivision of the 
employing office within the local commuting area.
    (c) Position classifications or job classifications are determined by the 
employing office, and shall refer to all covered positions within a competitive 
area that are in the same grade, occupational level or classification, and which 
are similar enough in duties, qualification requirements, pay schedules, tenure 
(type of appointment) and working conditions so that an employing office may 
reassign the incumbent of one position to any of the other positions in the 
position classification without undue interruption.
    (d) Preference Eligibles. For the purpose of applying veterans' preference 
in reductions in force, except with respect to the application of section 1.114 
of these regulations regarding the waiver of physical requirements, the 
following shall apply:
            (1) ``active service'' has the meaning given it by section 101 of 
        title 37;
            (2) ``a retired member of a uniformed service'' means a member or 
        former member of a uniformed service who is entitled, under statute, to 
        retired, retirement, or retainer pay on account of his/her service as 
        such a member; and
            (3) a preference eligible covered employee who is a retired member 
        of a uniformed service is considered a preference eligible only if
                    (A) his/her retirement was based on disability--
                            (i) resulting from injury or disease received in 
                        line of duty as a direct result of armed conflict; or
                            (ii) caused by an instrumentality of war and 
                        incurred in the line of duty during a period of war as 
                        defined by sections 101 and 1101 of title 38;
                    (B) his/her service does not include twenty or more years of 
                full-time active service, regardless of when performed but not 
                including periods of active duty for training; or
                    (C) on November 30, 1964, he/she was employed in a position 
                to which this subchapter applies and thereafter he/she continued 
                to be so employed without a break in service of more than 30 
                days.
        The definition of ``preference eligible'' as set forth in 5 U.S.C 
Sec. 2108 and section 1.102(o) of these regulations shall apply to waivers of 
physical requirements in determining an employee's qualifications for retention 
under section 1.114 of these regulations.
        H&S Regs:  (e) Reduction in force is any termination of a covered 
employee's employment or the reduction in pay and/or position grade of a covered 
employee for more than 30 days and that may be required for budgetary or 
workload reasons, changes resulting from reorganization, or the need to make 
room for an employee with reemployment or restoration rights. The term 
``reduction in force'' does not encompass a termination or other personnel 
action: (1) predicated upon performance, conduct or other grounds attributable 
to an employee, or (2) involving an employee who is employed by the employing 
office on a temporary basis, or (3) attributable to a change in party leadership 
or majority party status within the House of Congress where the employee is 
employed.
        C Reg:  (e) Reduction in force is any termination of a covered 
employee's employment or the reduction in pay and/or position grade of a covered 
employee for more than 30 days and that may be required for budgetary or 
workload reasons, changes resulting from reorganization, or the need to make 
room for an employee with reemployment or restoration rights. The term 
``reduction in force'' does not encompass a termination or other personnel 
action: (1) predicated upon performance, conduct or other grounds attributable 
to an employee, or (2) involving an employee who is employed by the employing 
office on a temporary basis.
    (f) Undue interruption is a degree of interruption that would prevent the 
completion of required work by a covered employee 90 days after the employee has 
been placed in a different position under this part. The 90-day standard should 
be considered within the allowable limits of time and quality, taking into 
account the pressures of priorities, deadlines, and other demands. However, work 
generally would not be considered to be unduly interrupted if a covered employee 
needs more than 90 days after the reduction in force to perform the optimum 
quality or quantity of work. The 90-day standard may be extended if placement is 
made under this part to a program accorded low priority by the 
employing office, or to a vacant position.

SEC. 1.112. APPLICATION OF PREFERENCE IN REDUCTIONS IN FORCE.

        Prior to carrying out a reduction in force that will affect covered 
employees, employing offices shall determine which, if any, covered employees 
within a particular group of competing covered employees are entitled to 
veterans' preference eligibility status in accordance with these regulations. In 
determining which covered employees will be retained, employing offices will 
treat veterans' preference as the controlling factor in retention decisions 
among such competing covered employees, regardless of length of service or 
performance, provided that the preference eligible employee's performance has 
not been determined to be unacceptable. Provided, a preference eligible employee 
who is a ``disabled veteran'' under section 1.102(h) above who has a compensable 
service-connected disability of 30 percent or more and whose performance has not 
been determined to be unacceptable by an employing office is entitled to be 
retained in preference to other preference eligible employees. Provided, this 
section does not relieve an employing office of any greater obligation it may be 
subject to pursuant to the Worker Adjustment and Retraining Notification Act (29 
U.S.C. Sec. 2101 et seq.) as applied by section 102(a)(9) of the CAA, 2 U.S.C. 
Sec. 1302(a)(9).

SEC. 1.113. CREDITING EXPERIENCE IN REDUCTIONS IN FORCE.

        In computing length of service in connection with a reduction in force, 
the employing office shall provide credit to preference eligible covered 
employees as follows:
    (a) a preference eligible covered employee who is not a retired member of a 
uniformed service is entitled to credit for the total length of time in active 
service in the armed forces;
    (b) a preference eligible covered employee who is a retired member of a 
uniformed service is entitled to credit for:
            (1) the length of time in active service in the armed forces during 
        a war, or in a campaign or expedition for which a campaign badge has 
        been authorized; or
            (2) the total length of time in active service in the armed forces 
        if he is included under 5 U.S.C. Sec. 3501(a)(3)(A), (B), or (C); and
    (c) a preference eligible covered employee is entitled to credit for:
            (1) service rendered as an employee of a county committee 
        established pursuant to section 8(b) of the Soil Conservation and 
        Allotment Act or of a committee or association of producers described in 
        section 10(b) of the Agricultural Adjustment Act; and
            (2) service rendered as an employee described in 5 U.S.C. 
        Sec. 2105(c) if such employee moves or has moved, on or after January 1, 
        1966, without a break in service of more than 3 days, from a position in 
        a nonappropriated fund instrumentality of the Department of Defense or 
        the Coast Guard to a position in the Department of Defense or the Coast 
        Guard, respectively, that is not described in 5 U.S.C. Sec. 2105(c).

SEC. 1.114. WAIVER OF PHYSICAL REQUIREMENTS IN REDUCTIONS IN FORCE.

    (a) If an employing office determines, on the basis of evidence before it, 
that a covered employee is preference eligible, the employing office shall 
waive, in determining the covered employee's retention status in a reduction in 
force:
            (1) requirements as to age, height, and weight, unless the 
        requirement is essential to the performance of the duties of the 
        position; and
            (2) physical requirements if, in the opinion of the employing 
        office, on the basis of evidence before it, including any recommendation 
        of an accredited physician submitted by the employee, the preference 
        eligible covered employee is physically able to perform efficiently the 
        duties of the position.
    (b) If an employing office determines that a covered employee who is a 
preference eligible as a disabled veteran as described in 5 U.S.C. 
Sec. 2108(3)(c) and has a compensable service-connected disability of 30 percent 
or more is not able to fulfill the physical requirements of the covered 
position, the employing office shall notify the preference eligible covered 
employee of the reasons for the determination and of the right to respond and to 
submit additional information to the employing office within 15 days of the date 
of the notification. Should the preference eligible covered employee make a 
timely response, the highest ranking individual or group of individuals with 
authority to make employment decisions on behalf of the employing office, shall 
render a final determination of the physical ability of the preference eligible 
covered employee to perform the duties of the covered position, taking into 
account the evidence before it, including the response and any additional 
information provided by the preference eligible. When the employing office has 
completed its review of the proposed disqualification on the basis of physical 
disability, it shall send its findings to the preference eligible covered 
employee.
    (c) Nothing in this section shall relieve an employing office of any 
obligation it may have pursuant to the Americans with Disabilities Act (42 
U.S.C. Sec. 12101 et seq.) as applied by section 102(a)(3) of the CAA, 2 U.S.C. 
Sec. 1302(a)(3).

SEC. 1.115. TRANSFER OF FUNCTIONS.

    (a) When a function is transferred from one employing office to another 
employing office, each covered employee in the affected position classifications 
or job classifications in the function that is to be transferred shall be 
transferred to the receiving employing office for employment in a covered 
position for which he/she is qualified before the receiving employing office may 
make an appointment from another source to that position.
    (b) When one employing office is replaced by another employing office, each 
covered employee in the affected position classifications or job classifications 
in the employing office to be replaced shall be transferred to the replacing 
employing office for employment in a covered position for which he/she is 
qualified before the replacing employing office may make an appointment from 
another source to that position.

         Subpart E--Adoption of Veterans' preference policies, 
              recordkeeping & informational requirements.

    Sec.
    1.116. Adoption of veterans' preference policy.
    1.117. Preservation of records made or kept.
    1.118. Dissemination of veterans' preference policies to 
                                applicants for covered positions.
    1.119. Information regarding veterans' preference 
                                determinations in appointments.
    1.120. Dissemination of veterans' preference policies to 
                                covered employees.
    1.121. Written notice prior to a reduction in force.

SEC. 1.116. ADOPTION OF VETERANS' PREFERENCE POLICY.

        No later than 120 calendar days following Congressional approval of this 
regulation, each employing office that employs one or more covered employees or 
that seeks applicants for a covered position shall adopt its written policy 
specifying how it has integrated the veterans' preference requirements of the 
Veterans Employment Opportunities Act of 1998 and these regulations into its 
employment and retention processes. Upon timely request and the demonstration of 
good cause, the Executive Director, in his/her discretion, may grant such an 
employing office additional time for preparing its policy. Each such employing 
office will make its policies available to applicants for appointment to a 
covered position and to covered employees in accordance with these regulations. 
The act of adopting a veterans' preference policy shall not relieve any 
employing office of any other responsibility or requirement of the Veterans 
Employment Opportunity Act of 1998 or these regulations. An employing office may 
amend or replace its veterans' preference policies as it deems necessary or 
appropriate, so long as the resulting policies are consistent with the VEOA and 
these regulations.

SEC. 1.117. PRESERVATION OF RECORDS MADE OR KEPT.

        An employing office that employs one or more covered employees or that 
seeks applicants for a covered position shall maintain any records relating to 
the application of its veterans' preference policy to applicants for covered 
positions and to workforce adjustment decisions affecting covered employees for 
a period of at least one year from the date of the making of the record or the 
date of the personnel action involved or, if later, one year from the date on 
which the applicant or covered employee is notified of the personnel action. 
Where a claim has been brought under section 401 of the CAA against an employing 
office under the VEOA, the respondent employing office shall preserve all 
personnel records relevant to the claim until final disposition of the claim. 
The term ``personnel records relevant to the claim'', for example, would include 
records relating to the veterans' preference determination regarding the person 
bringing the claim and records relating to any veterans' preference 
determinations regarding other applicants for the covered position the person 
sought, or records relating to the veterans' preference determinations regarding 
other covered employees in the person's position or job classification. The date 
of final disposition of the charge or the action means the latest of the date of 
expiration of the statutory period within which the aggrieved person may file a 
complaint with the Office or in a U.S. District Court or, where an action is 
brought against an employing office by the aggrieved person, the date on which 
such litigation is terminated.

SEC. 1.118. DISSEMINATION OF VETERANS' PREFERENCE POLICIES TO APPLICANTS FOR 
              COVERED POSITIONS.

    (a) An employing office shall state in any announcements and advertisements 
it makes concerning vacancies in covered positions that the staffing action is 
governed by the VEOA.
    (b) An employing office shall invite applicants for a covered position to 
identify themselves as veterans' preference eligible applicants, provided that 
in doing so:
            (1) the employing office shall state clearly on any written 
        application or questionnaire used for this purpose or make clear orally, 
        if a written application or questionnaire is not used, that the 
        requested information is intended for use solely in connection with the 
        employing office's obligations and efforts to provide veterans' 
        preference to preference eligible applicants in accordance with the 
        VEOA; and
            (2) the employing office shall state clearly that disabled veteran 
        status is requested on a voluntary basis, that it will be kept 
        confidential in accordance with the Americans with Disabilities Act (42 
        U.S.C. Sec. 12101 et seq.) as applied by section 102(a)(3) of the CAA, 2 
        U.S.C. Sec. 1302(a)(3), that refusal to provide it will not subject the 
        individual to any adverse treatment except the possibility of an adverse 
        determination regarding the individual's status as a preference eligible 
        applicant as a disabled veteran under the VEOA, and that any information 
        obtained in accordance with this section concerning the medical 
        condition or history of an individual will be collected, maintained and 
        used only in accordance with the Americans with Disabilities Act (42 
        U.S.C. Sec. 12101 et seq.) as applied by section 102(a)(3) of the CAA, 2 
        U.S.C. Sec. 1302(a)(3).
            (3) the employing office shall state clearly that applicants may 
        request information about the employing office's veterans' preference 
        policies as they relate to appointments to covered positions, and shall 
        describe the employing office's procedures for making such requests.
    (c) Upon written request by an applicant for a covered position, an 
employing office shall provide the following information in writing:
            (1) the VEOA definition of veterans' ``preference eligible'' as set 
        forth in 5 U.S.C. Sec. 2108 or any superseding legislation, providing 
        the actual, current definition in a manner designed to be understood by 
        applicants, along with the statutory citation;
            (2) the employing office's veterans' preference policy or a summary 
        description of the employing office's veterans' preference policy as it 
        relates to appointments to covered positions, including any procedures 
        the employing office shall use to identify preference eligible 
        employees;
            (3) the employing office may provide other information to applicants 
        regarding its veterans' preference policies and practices, but is not 
        required to do so by these regulations.
    (d) Employing offices are also expected to answer questions from applicants 
for covered positions that are relevant and non-confidential concerning the 
employing office's veterans' preference policies and practices.

SEC. 1.119. INFORMATION REGARDING VETERANS' PREFERENCE DETERMINATIONS IN 
              APPOINTMENTS.

        Upon written request by an applicant for a covered position, the 
employing office shall promptly provide a written explanation of the manner in 
which veterans' preference was applied in the employing office's appointment 
decision regarding that applicant. Such explanation shall include at a minimum:
    (a) the employing office's veterans' preference policy or a summary 
description of the employing office's veterans' preference policy as it relates 
to appointments to covered positions; and
    (b) a statement as to whether the applicant is preference eligible and, if 
not, a brief statement of the reasons for the employing office's determination 
that the applicant is not preference eligible.

SEC. 1.120. DISSEMINATION OF VETERANS' PREFERENCE POLICIES TO COVERED EMPLOYEES.

    (a) If an employing office that employs one or more covered employees 
provides any written guidance to such employees concerning employee rights 
generally or reductions in force more specifically, such as in a written 
employee policy, manual or handbook, such guidance must include information 
concerning veterans' preference under the VEOA, as set forth in subsection (b) 
of this regulation.
    (b) Written guidances described in subsection (a) above shall include, at a 
minimum:
            (1) the VEOA definition of veterans' ``preference eligible'' as set 
        forth in 5 U.S.C. Sec. 2108 or any superseding legislation, providing 
        the actual, current definition along with the statutory citation;
            (2) the employing office's veterans' preference policy or a summary 
        description of the employing office's veterans' preference policy as it 
        relates to reductions in force, including the procedures the employing 
        office shall take to identify preference eligible employees.
            (3) the employing office may provide other information in its 
        guidances regarding its veterans' preference policies and practices, but 
        is not required to do so by these regulations.
    (c) Employing offices are also expected to answer questions from covered 
employees that are relevant and non-confidential concerning the employing 
office's veterans' preference policies and practices.

SEC. 1.121. WRITTEN NOTICE PRIOR TO A REDUCTION IN FORCE.

    (a) Except as provided under subsection (c), a covered employee may not be 
released due to a reduction in force, unless the covered employee and the 
covered employee's exclusive representative for collective-bargaining purposes 
(if any) are given written notice, in conformance with the requirements of 
paragraph (b), at least 60 days before the covered employee is so released.
    (b) Any notice under paragraph (a) shall include--
            (1) the personnel action to be taken with respect to the covered 
        employee involved;
            (2) the effective date of the action;
            (3) a description of the procedures applicable in identifying 
        employees for release;
            (4) the covered employee's competitive area;
            (5) the covered employee's eligibility for veterans' preference in 
        retention and how that preference eligibility was determined;
            (6) the retention status and preference eligibility of the other 
        employees in the affected position classifications or job 
        classifications within the covered employee's competitive area, by 
        providing:
                    (A) a list of all covered employee(s) in the covered 
                employee's position classification or job classification and 
                competitive area who will be retained by the employing office, 
                identifying those employees by job title only and stating 
                whether each such employee is preference eligible, and
                    (B) a list of all covered employee(s) in the covered 
                employee's position classification or job classification and 
                competitive area who will not be retained by the employing 
                office, identifying those employees by job title only and 
                stating whether each such employee is preference eligible.
            (7) a description of any appeal or other rights which may be 
        available.
    (c) The director of the employing office may, in writing, shorten the period 
of advance notice required under subsection (a), with respect to a particular 
reduction in force, if necessary because of circumstances not reasonably 
foreseeable.
    (d) No notice period may be shortened to less than 30 days under this 
subsection.
            Attest:

                                                                      Secretary.