[Congressional Record Volume 146, Number 19 (Monday, February 28, 2000)]
[Senate]
[Pages S862-S865]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                 ADVANCE NOTICE OF PROPOSED RULEMAKING

  Mr. Thurmond. Mr. President, pursuant to Section 304(b) of the 
Congressional Accountability Act of 1995 (2 U.S.C. sec. 1384(b)), an 
advance notice of proposed rulemaking was submitted by the Office of 
Compliance, U.S. Congress. The notice relates to regulations under the 
Veterans Employment Opportunities Act of 1998, which affords to covered 
employees of the legislative branch the rights and protections of 
selected provisions of veterans' preference law.
  Section 304(b) requires this notice to be printed in the 
Congressional

[[Page S863]]

Record; therefore, I ask unanimous consent that the notice be printed 
in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

The Veterans Employment Opportunities Act of 1998: Extension of Rights 
and Protections Relating to Veterans' Preference Under Title 5, United 
 States Code, to Covered Employees of the Legislative Branch--Advance 
                     Notice of Proposed Rulemaking


                                Summary

       The Board of Directors of the Office of Compliance 
     (``Board'') invites comments from employing offices, covered 
     employees, and other interested persons on matters arising 
     from the issuance of regulations under section 4(c)(4) of the 
     Veterans Employment Opportunities Act of 1998 (``VEO''), 
     Pub.L. 105-339, 112 Stat. 3186, codified at 2 USC Sec. 1316a.
       The provisions of section 4(c) will become effective on the 
     effective date of the Board regulations authorized under 
     section 4(c)(4). VEO Sec. 4(c)(6). Section 4(c)(4) of the VEO 
     directs the Board to issue regulations to implement section 
     4. Section 304 of the Congressional Accountability Act of 
     1995 (``CAA''), Pub. L. 104-1, 109 Stat. 3, prescribes the 
     procedure applicable to the issuance of substantive 
     regulations by the Board. Upon initial review, the Board has 
     concerns that a plain reading of VEO may yield regulations 
     that are the same as the regulations of the executive branch 
     yet provide veterans' preference rights and protections to no 
     currently ``covered employee'' of the legislative branch. If 
     that is the case, questions arise over the nature and scope 
     of the Board's authority to modify the regulations in order 
     to achieve a more effective implementation of veterans' 
     preference rights and protections to ``covered employees.''
       The Board issues this Advance Notice of Proposed Rulemaking 
     (``ANPR'') to solicit comments from interested individuals 
     and groups in order to encourage and obtain participation and 
     information in the development of regulations.
       Dates: Interested parties may submit comments within 30 
     days after the date of publication of this Advance Notice in 
     the Congressional Record.
       Addresses: Submit written comments (an original and 10 
     copies) to the Chair of the Board of Directors, Office of 
     Compliance, Room LA 200, John Adams Building, 110 Second 
     Street, S.E., Washington, DC 20540-1999. Those wishing to 
     receive notification of receipt of comments are requested to 
     include a self-addressed, stamped post card. Comments may 
     also be transmitted by facsimile machine to (202) 426-1913. 
     This is not a toll-free call. Copies of comments submitted by 
     the public will be available for review at the Law Library 
     Reading Room, Room LM-201, Law Library of Congress, James 
     Madison Memorial Building, Washington, DC, Monday through 
     Friday, between the hours of 9:30 a.m. and 4:00 p.m. For 
     further information contact: Executive Director, Office of 
     Compliance at (202) 724-9250. This notice is also available 
     in the following formats: large print, Braille, audiotape, 
     and electronic file on computer disk. Requests for this 
     notice in an alternative format should be made to Mr. Rick 
     Edwards, Director, Central Operations Department, Office of 
     the Senate Sergeant at Arms, (202) 224-2705.


                               Background

       The Veterans Employment Opportunity Act of 1998 \1\ 
     ``strengthen[s] and broadens'' \2\ the rights and remedies 
     available to military veterans who are entitled, under the 
     Veterans' Preference Act of 1944 \3\(and its amendments), to 
     preferred consideration in appointment to the federal civil 
     service of the executive branch and in retention during 
     reductions in force (``RIFs''). In addition, and most 
     relevant to this ANPR, VEO affords to ``covered employees'' 
     of the legislative branch (as defined by section 101 of the 
     CAA (2 USC Sec. 1301)) the rights and protections of selected 
     provisions of veterans' preference law. VEO Sec. 4(c)(2). The 
     selected statutory sections made applicable to such 
     legislative branch employees by VEO may be summarized as 
     follows.
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     Footnotes at end of article.
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       A definitional section prescribes the categories of 
     military veterans who are entitled to preference 
     (``preference eligible''). 5 USC Sec. 2108. Generally, a 
     veteran must be disabled or have served on active duty in the 
     Armed Forces during certain specified time periods or in 
     specified military campaigns to be entitled to preference. In 
     addition, certain family members (mainly spouses, widow[er]s, 
     and mothers) of preference eligible veterans are entitled to 
     the same rights and protections.
       In the appointment process, a preference eligible 
     individual who is tested or otherwise numerically evaluated 
     for a position in the competitive service is entitled to have 
     either 5 or 10 points added to his/her score, depending on 
     his or her military service, or disabling condition. 5 USC 
     Sec. 3309. Where experience is a qualifying element for the 
     job, a preference eligible individual is entitled to credit 
     for having relevant experience in the military or in various 
     civic activities. 5 USC Sec. 3311. Where physical 
     requirements (age, height, weight) are a qualifying element, 
     preference eligible individuals (including those who are 
     disabled) may obtain a waiver of such requirements in certain 
     circumstances. 5 USC Sec. 3312. For certain positions in the 
     competitive service (guards, elevator operators, 
     messengers, custodians), only preference eligible 
     individuals can be considered for hiring, unless no one 
     else is available. 5 USC Sec. 3310.
       Finally, in prescribing retention rights during RIFs, the 
     sections in subchapter I of chapter 35 of Title 5, USC, with 
     a slightly modified definition of ``preference eligible,'' 
     require that employing agencies give ``due effect'' to the 
     following factors: (a) employment tenure (i.e., type of 
     appointment); (b) veterans' preference; (c) length of 
     service; and, (d) performance ratings. 5 USC Sec. Sec. 3501, 
     3502. Such considerations also apply where RIFs occur in 
     connection with a transfer of agency functions from one 
     agency to another. 5 USC Sec. 3503. In addition, where 
     physical requirements (age, height, weight) are a qualifying 
     element for retention, preference eligible individuals 
     (including those who are disabled) may obtain a waiver of 
     such requirements in certain circumstances. 5 USC Sec. 3504.
       Section 4(c)(4)(A) of the VEO authorizes the Board of 
     Directors of the Office of Compliance established under the 
     CAA to issue regulations to implement section 4(c) of the VEO 
     pursuant to the rulemaking procedures of section 304 of the 
     CAA, 2 USC Sec. 1384. Pursuant to that authority, the Board 
     invites comments before promulgating proposed rules under 
     section 4 of the VEO.
       Section 4(c)(4)(B) of the VEO specifies that these 
     regulations ``shall be the same as substantive regulations 
     (applicable with respect to the executive branch) promulgated 
     to implement . . . [the referenced statutory provisions] . . 
     . except to the extent that the Board may 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 this 
     section.'' Section 4(c)(4)(C) further states that the 
     ``regulations issued under subparagraph (A) shall be 
     consistent with section 225 of the Congressional 
     Accountability Act of 1995 (2 USC Sec. 1361).''


                         Interpretative Issues

       The Board has identified and reviewed the regulations 
     issued by the Office of Personnel Management (OPM) to 
     implement the relevant provisions of the veterans' preference 
     laws. These regulations are integrated into the body of 
     personnel regulations in Title 5 of the Code of Federal 
     Regulations (CFR) issued by OPM under its authority to 
     oversee and regulate civilian employment in the executive 
     branch. See 5 USC Sec. Sec. 1103, 1104, 1301, 1302. The 
     Board's review has raised a number of interpretative issues 
     concerning the identity of legislative branch employees 
     affected by the statute and regulations; potential legal and 
     factual bases, if any, for modification of the regulations; 
     and the scope of the Board's statutory authority to 
     promulgate certain of the regulations in place in the 
     executive branch. Before discussing those issues, the Board 
     summarizes below the pertinent executive branch regulations 
     which implement the statutory sections of veterans' 
     preference law made applicable to covered legislative branch 
     employees by VEO.
       5 CFR Part 211 implements the definitional section, 5 USC 
     Sec. 2108, declaring the requirements that a military veteran 
     or his family member must meet to be considered ``preference 
     eligible.''
       5 CFR Sec. 332.401 and Sec. 337.101 implement 5 USC 
     Sec. 3309 which, in the appointment process, requires that a 
     preference eligible individual who is tested or otherwise 
     numerically evaluated for a position in the competitive 
     service is entitled to have either 5 or 10 points added to 
     his/her score.
       5 CFR Sec. 337.101 also implements 5 USC Sec. 3311, which 
     provides that, where experience is a qualifying element for 
     the job, a preference eligible individual is entitled to 
     credit for having relevant experience in the military or in 
     various civic activities.
       Subpart D of Part 330, 5 CFR, implements 5 USC Sec. 3310, 
     which restricts to preference eligible individuals the 
     positions of guards, elevator operators, messengers, and 
     custodians in the competitive service.
       5 CFR Sec. 339.204 and Sec. 339.306 implement 5 USC 
     Sec. 3312, which provides that, where physical requirements 
     (age, height, weight) are a qualifying element for an 
     examination or appointment in the competitive service, 
     preference eligible individuals (including those who are 
     disabled) may obtain a waiver of such requirements in certain 
     circumstances.
       Finally, Part 351 of 5 CFR implements those provisions of 
     subchapter I of chapter 35 of 5 USC, which prescribe 
     retention rights during RIFs, including those instances where 
     an agency function is transferred to another agency.
       First. The statutory rights and protections that are 
     applicable under VEO envision that veterans' preference is to 
     be accorded in appointments to the ``competitive service.'' 
     This presents an interpretative issue for the Board in 
     proposing regulations that ``are the same'' as those in the 
     executive branch because there is a substantial question 
     whether any covered employee, as defined by VEO Sec. 4(c)(1), 
     encumbers a position in the ``competitive service.'' The 
     ``competitive service,'' as the term is used in the relevant 
     statutes, is not a generic term descriptive of any personnel 
     system in which applicants vie for appointment. Rather, the 
     competitive service is an integral, specifically defined 
     component of the federal civil service system, in which, for 
     over a century, appointment to employment (mainly in the 
     executive

[[Page S864]]

     branch) has been determined through competitive examinations.
       In the competitive service, Congress has prescribed that 
     the ``selection and advancement shall be determined solely on 
     the basis of relative ability, knowledge, and skills, after 
     fair and open competition.'' 5 USC Sec. 2301(b)(1). Toward 
     this end, Congress gave the President the authority to 
     prescribe rules ``which shall provide, as nearly as 
     conditions of good administration warrant, for . . . open, 
     competitive examinations for testing applicants for 
     appointment in the competitive service . . . .'' 5 USC 
     Sec. 3304(a)(1) (emphasis supplied). In addition, OPM has 
     been granted authority, ``subject to rules prescribed by the 
     President under this title for the administration of the 
     competitive service, [to] prescribe rules for, control, 
     supervise, and preserve the records of, examinations for the 
     competitive service.'' 5 USC Sec. 1302(a).
       In this setting, the ``competitive service'' has a specific 
     meaning. Congress has enacted a three-fold definition: First, 
     the competitive service consists of ``all civil service 
     positions in the executive branch,'' with exceptions for (a) 
     positions specifically excepted from the competitive service 
     by statute (known as the excepted service \4\); (b) positions 
     requiring Senate confirmation, and (c) positions in the 
     Senior Executive Service.\5\ 5 USC Sec. 2102(a)(1) (A)-(C) 
     (emphasis added). Second, the competitive service includes 
     ``civil positions not in the executive branch which are 
     specifically included in the competitive service by 
     statute.'' 5 USC Sec. 2102(a)(2). Third, the competitive 
     service encompasses those ``positions in the government of 
     the District of Columbia which are specifically included 
     in the competitive service by statute.'' 5 USC 
     Sec. 2102(a)(3).
       Arguably, the Board should take these statutory definitions 
     into account in promulgating regulations. Under VEO, the 
     regulations issued by the Board must be consistent with 
     section 225 of the CAA (2 USC Sec. 1361), which in part 
     requires as a rule of construction that, except where 
     inconsistent with definitions and exemptions provided in the 
     CAA, the definitions and exemptions in the laws made 
     applicable by the CAA shall also apply. Applying this rule of 
     construction to the foregoing definitions arguably yields the 
     following conclusions. The first definition may not be 
     relevant because legislative branch employees are not part of 
     the executive branch. Similarly, the third definition may not 
     be relevant because it pertains to employees of the 
     government of the District of Columbia. In contrast, the 
     second definition is arguably relevant because it includes 
     ``civil positions not in the executive branch,'' within which 
     category falls the legislative branch (and the judicial 
     branch). However, upon an initial review of those legislative 
     offices in which ``covered employees'' as defined by VEO can 
     be employed,6 it may be that no ``covered 
     employee'' in the legislative branch satisfies the 
     qualification in the second definition that the job position 
     be ``specifically included in the competitive service by 
     statute.'' Accordingly, insofar as the statute authorizes the 
     Board to propose substantive regulations that are the same as 
     the regulations of the executive branch, the Board could end 
     up proposing regulations that apply to no one.
       On the other hand, VEO mirrors the rulemaking provisions of 
     the CAA in directing the Board upon good cause shown to 
     modify executive branch regulations if it would be more 
     ``effective for the implementation of rights and 
     protections'' made applicable to covered 
     employees.7 Under this approach, the statute may 
     authorize proposing modifications of the executive branch 
     regulations to take account of the void in competitive 
     service positions for covered employees. In other words, if 
     the regulations are essentially ineffective because in 
     practice they afford rights and protections to no one, should 
     the Board authorize modifications that make them effective by 
     applying the rights and protections of veterans' preference 
     laws to some arguably analogous employees? If so, as a 
     factual and legal matter, what modifications to the 
     regulations does the statute authorize?
       Second. While the applicable statutory appointment 
     provisions (5 USC Sec. Sec. 3309-3312) are directed with 
     particularity to the competitive service, the applicable 
     statutory retention provisions (5 USC chapter 35, subchapter 
     I) with one exception are not. Section 3501(b) states that 
     subchapter I ``applies to each employee in or under an 
     Executive agency,'' without singling out the competitive 
     service for specific coverage. Only Sec. 3504, which provides 
     for waiver of physical requirements (including age, height, 
     weight) for job retention purposes, is directed specifically 
     to competitive service positions. Nonetheless, OPM has 
     written major portions of the implementing regulations (found 
     principally in 5 CFR Part 351) in terms of the competitive 
     service and the excepted service. See, e.g., 5 CFR 
     Sec. 351.501 (order of retention for competitive service), 
     Sec. 351.502 (order of retention for excepted service). Were 
     the Board simply to propose regulations that are the same as 
     the executive branch's without modifications, there may not 
     be any covered employees in the legislative branch who are in 
     the competitive service or the excepted service, as defined 
     by statute and regulation. Therefore, once again the issue of 
     whether the statute authorizes a modification of these 
     regulations arises.
       Third. A survey of the regulations indicates that some of 
     the rules promulgated by OPM8 derive not from the 
     statutory sections concerning veteran's preference that have 
     been made applicable to the legislative branch through VEO 
     but from OPM's overarching statutory authority to regulate 
     and supervise civilian employment policies and practices in 
     the executive branch pursuant to 5 USC Sec. Sec. 1302-04. 
     This latter supervisory authority arguably has not been 
     bestowed upon the Board with respect to personnel management 
     in the legislative branch. Therefore, a question is presented 
     whether the Board's authority over veterans' preference is 
     coextensive with OPM's authority to regulate personnel 
     management in the executive branch. The Board must identify 
     what parts of the veterans' preference regulations are an 
     exercise of OPM's supervisory authority that arguably has not 
     been bestowed upon the Board with respect to personnel 
     management in the legislative branch, or determine that the 
     statute authorizes the Board to exercise authority co-
     extensive with OPM's authority to promulgate regulations 
     governing the statutory sections made applicable through VEO.
       Fourth. There is some indication that the Senate Committee 
     on Veterans' Affairs was aware of the problem of applying the 
     rights and protections of veterans' preference, including the 
     regulations, to the legislative branch. The Senate Committee 
     Report that accompanied the VEO bill included the following 
     comment: ``The Committee notes that the requirement that 
     veterans' preference principles be extended to the 
     legislative and judicial branches does not mandate the 
     creation of civil service-type evaluation or scoring systems 
     by these hiring entities. It does require, however, that they 
     create systems that are consistent with the underlying 
     principles of veterans' preference laws.'' 9 But 
     in enacting the legislation Congress took no further steps to 
     codify this precatory statement nor did it (or the Committee) 
     provide any explanation of the intent of this highly general 
     comment.10 Therefore, the question is presented 
     whether the statute requires the creation of ``systems that 
     are consistent with the underlying principles of veterans' 
     preference laws''? If so, how is this to be effectuated? If 
     not, what effect if any does this Committee comment have?
       Fifth. By virtue of the selectivity with which Congress 
     made veterans' preference laws applicable, there are 
     regulations relating to veterans' preferences in Title 5 CFR 
     that are not being considered because they are linked to 
     statutory provisions not made applicable by VEO. Examples 
     include regulations in Part 302 pertaining to the excepted 
     service,11 which were promulgated to implement 5 
     USC Sec. 3320; those regulations in Part 332 that implement 5 
     USC Sec. 3314 and Sec. 3315, which afford rights to 
     preference eligible individuals who either have resigned or 
     have been separated or furloughed without delinquency or 
     misconduct; and those regulations in Subpart D of Part 315 
     that implement 5 USC Sec. 3316, which addresses the 
     reinstatement rights of preference eligible individuals. The 
     task of promulgating regulations that are the ``same'' as 
     those of the executive branch will entail in part identifying 
     and excluding those whose statutory underpinning has not been 
     made applicable by VEO to the legislative branch.


                          request for comment

       In order to promulgate regulations that properly fulfill 
     the directions and intent of these statutory provisions, 
     especially in light of the foregoing analysis, the Board 
     needs comprehensive information and comment on a variety of 
     topics. The Board has determined that, before publishing 
     proposed regulations for notice and comment, it will provide 
     all interested parties and persons with this opportunity to 
     submit comments, with supporting data, authorities and 
     argument, as to the content of and bases for any proposed 
     regulations. The Board wishes to emphasize, as it did in the 
     development of the regulations issued to implement sections 
     202, 203, 204, 205, and 220 of the CAA, that commentors who 
     propose a modification of the regulations promulgated by OPM 
     for the executive branch, based upon an assertion of ``good 
     cause,'' should provide specific and detailed information and 
     the rationale necessary to meet the statutory requirements 
     for good cause to depart from the executive branch's 
     regulations. It is not enough for commentors simply to 
     propose a revision to the executive branch's regulations or 
     to request guidance on an issue; rather, if commentors desire 
     a change in the executive branch's regulations, they must 
     explain the legal and factual basis for the suggested change. 
     The Board must have these explanations and information if it 
     is to be able to evaluate proposed regulations and make 
     proposed regulatory changes. Failure to provide such 
     information and authorities will greatly impede, if not 
     prevent, adoption of proposals suggested by commentors.
       So that it may make more fully informed decisions regarding 
     the promulgation and issuance of regulations, in addition to 
     inviting and encouraging comments on all relevant matters, 
     the Board specifically requests comments on the following 
     issues:
       (1) What positions, if any, of the legislative branch 
     encumbered by ``covered employees'' (as defined by 
     Sec. 4(c)(1) of VEO) fall within the meaning of the 
     ``competitive service'' as the latter term is used in 5 USC 
     Sec. Sec. 3309-3312?
       (2) In the absence of any such ``competitive service'' 
     positions in the legislative branch, what, if any, positions 
     held by ``covered employees'' are subject to a merit-based 
     system of appointment (which may include examinations, 
     testing, evaluation, scoring and such

[[Page S865]]

     other elements that are common to the ``competitive service'' 
     of the executive branch)?
       (3) Does VEO authorize the Board to extend the rights and 
     protections of veterans' preference for purposes of 
     appointment to those positions identified in (2) above 
     notwithstanding they are not technically ``competitive 
     service'' positions?
       (4) In order to provide for effective implementation of 
     veterans' preference rights, could the Board, under the 
     ``good cause'' provision of Sec. 4(c)(4)(B) of VEO, modify 
     the most relevant substantive regulations of the executive 
     branch pertaining to veterans' preference in the appointment 
     of ``covered employees'' so as to make them applicable to the 
     legislative branch without reference to the ``competitive 
     service''?
       (5) How would the rights and protections of subchapter I of 
     chapter 35, Title 5 USC (pertaining to retention during 
     RIFs), be applied to ``covered employees'' (as defined by 
     Sec. 4(c)(1) of VEO)?
       (6) Does VEO authorize the Board to extend the rights and 
     protections of veterans' preference for purposes of retention 
     during reductions in force to ``covered employees'' holding 
     positions that are not technically within the ``competitive 
     service'' or the ``excepted service''?
       (7) In order to provide for effective implementation of 
     veterans' preference rights, could the Board, under the 
     ``good cause'' provision of Sec. 4(c)(4)(B) of VEO, modify 
     the most relevant substantive regulations of the executive 
     branch pertaining to veterans' preference in the retention of 
     ``covered employees'' during reductions in force so as to 
     make them applicable to the legislative branch without 
     reference to the ``competitive service'' or the ``excepted 
     service''?
       (8) In view of the fact that VEO does not explicitly grant 
     the Board the authority exercised by OPM under 5 USC 
     Sec. 1103, Sec. 1104, Sec. 1301 and Sec. 1302 to execute, 
     administer, and enforce the federal civil service system, 
     does the Board have the authority to propose regulations that 
     would vest the Board with responsibilities similar to OPM's 
     over employment practices involving covered employees in the 
     legislative branch?
       (9) Is the Board empowered by the statute to give effect to 
     the comment in the legislative history that employing offices 
     of the legislative branch should ``create systems that are 
     consistent with the underlying principles of veterans' 
     preference laws,'' as discussed by the Senate Report 
     accompanying the bill enacted as VEO (Sen. Rept. 105-340, 
     105th Cong., 2d Sess., at 17 (Sept. 21, 1998)? If so, how 
     should such effect be given?
       (10) Under VEO, what steps, if any, must employing offices 
     of the legislative branch take to ``create systems that are 
     consistent with the underlying principles of veterans' 
     preference laws,'' as discussed by the Senate Report 
     accompanying the bill enacted as VEO (Sen. Rept. 105-340 
     (105th Cong., 2d Sess. Sept. 21, 1998), at 17)?
       (11) With respect to positions restricted to preference 
     eligible individuals under 5 USC Sec. 3310, namely guards, 
     elevator operators, messengers, and custodians, the Board 
     seeks information and comment on the following issues and 
     questions:
       (a) The identity, in the legislative branch, of guard, 
     elevator operator, messenger, and custodian positions within 
     the meaning of these terms under 5 USC Sec. 3310.
       (b) The identity of covered employing offices responsible 
     for personnel decisions affecting employees who fill 
     positions of guard, elevator operator, messenger, and 
     custodian within the meaning of 5 USC Sec. 3310 and the 
     implementing regulations.
       (c) Would police officers and other employees of the United 
     State Capitol Police be considered ``guards'' under the 
     application of the rights and protections of this section to 
     covered employees under VEO?
       (d) Whether the current methods of hiring include an 
     entrance examination within the meaning of 5 CFR Sec. 330.401 
     and, if not, whether the affected employing offices believe 
     that the statute mandates the creation of such an examination 
     and/or allows such an examination to be required of the 
     employing offices?
       (e) What changes, if any, in the regulations are required 
     to effectuate the rights and protections of 5 USC Sec. 3310 
     as applied by VEO?
       (12) Which executive branch regulations, if any, should not 
     be adopted because they are promulgated to implement 
     inapplicable statutory provisions of veterans' preference law 
     or are otherwise inapplicable to the legislative branch?
       (13) What modification, if any, of the executive branch 
     regulations would make them more effective for the 
     implementation of the rights and protections made applicable 
     under VEO as provided by VEO Sec. 4(c)(4)(B)?
       Signed at Washington, D.C. on this 16th day of February, 
     2000.

                                                Glen D. Nager,

                                               Chair of the Board,
                                             Office of Compliance.


                               footnotes

     \1\ Pub. L. 105-339 (Oct. 31, 1998).
     \2\ Sen. Rept. 105-340, 105 Cong., 2d Sess. at 19 (Sept. 21, 
     1998).
     \3\ Act of June 27, 1944, ch. 287, 58 Stat. 387, amended and 
     codified in various provisions of Title 5, USC.
     \4\ Generally, these are positions that are excepted by law, 
     by executive order, or by the action of OPM placing a 
     position or group of positions in what are known as excepted 
     service Schedules A, B, or C. For example, certain entire 
     agencies such as the Postal Service, the Federal Bureau of 
     Investigation, and the Central Intelligence Agency are 
     excepted by law. In other cases, certain jobs or classes of 
     jobs in an agency are excepted by OPM. 5 CFR Part 213. This 
     includes attorneys, chaplains, student trainees, and others.
     \5\ These generally are high-level, managerial positions in 
     the executive department whose appointment does not require 
     Senate confirmation. See 5 USC Sec. 3123 (a)(2), which 
     defines the term ``Senior Executive Service position.''
     \6\ The definition of ``covered employee'' under section VEO 
     Sec. 4(c)(1) has the same meaning as the term under section 
     101 of the CAA, 2 USC Sec. 1302, which includes any employee 
     of the House of Representatives, the Senate, the Capitol 
     Guide Service, the Capitol Police, the Congressional Budget 
     Office, the Office of the Architect of the Capitol, the 
     Office of the Attending Physician, the Office of Compliance, 
     or the Office of Technology Assessment. Under VEO 
     Sec. 4(c)(5), the following employees are excluded from the 
     term ``covered employee'': (A) presidential appointees 
     confirmed by the Senate, (B) employees appointed by a Member 
     of Congress or by a committee or subcommittee of either House 
     of Congress, and (C) employees holding positions the duties 
     of which are equivalent to those in Senior Executive Service.
     \7\ Compare VEO Sec. 4(c)(3)(B) with CAA Sec. Sec. 202(d)(2), 
     203(c)(2), 204(c)(2), 205(c)(2), 206(c)(2), 210(e)(2), 
     215(d)(2), 220(d)(2)(A).
     \8\ See, e.g. 5 CFR Sec. 351.205 (``The Office of Personnel 
     Management may establish further guidance and instructions 
     for planning, preparation, conduct and review of reductions 
     in force through the Federal Personnel Manual System. OPM may 
     examine an agency's preparations for reduction in force at 
     any stage.'').
     \9\ Sen. Rept. 105-340, 105 Cong., 2d Sess. at 17 (Sept. 21, 
     1998).
     \10\ Compare Administrative Office of the United States 
     Courts Personnel Act of 1990, Pub. L. 101-474, 104 Stat. 
     1097, Sec. 3. Individuals in this office of the judicial 
     branch are afforded the right to veterans' preference ``in a 
     manner and to an extent consistent with preference accorded 
     to preference eligibles in the executive branch.'' 
     Sec. 3(a)((11). However, the Congress also empowered the 
     Director the Administrative Office to establish by regulation 
     a personnel management system that parallels many of the 
     features of the executive branch's personnel system regulated 
     by OPM. VEO contains no comparable provisions giving similar 
     powers to the Board or any other legislative branch entity.
     \11\ For a description of the ``excepted service,'' see note 
     4 infra.

                          ____________________