[Congressional Record Volume 147, Number 168 (Thursday, December 6, 2001)]
[Senate]
[Pages S12539-S12551]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


[[Page S12539]]
                          OFFICE OF COMPLIANCE

     Hon Robert C. Byrd,
     President pro tempore, United States Senate, Washington, DC, 
         November 13, 2001.
       Dear Senator Byrd: Pursuant to section 4(c)(4) of the 
     Veterans Employment Opportunities Act of 1998 (``VEOA'') (2 
     U.S.C. Sec. 1316a(4)) and section 304(b) of the Congressional 
     Accountability Act of 1995 (2 U.S.C. Sec. 1384(b)), I am 
     submitting on behalf of the Office of Compliance, U.S. 
     Congress, this notice of proposed rulemaking for publication 
     in the Congressional Record. This notice seeks comment on 
     substantive regulations being proposed to implement section 
     4(c) of VEOA, which affords to covered employees of the 
     legislative branch the rights and protections of selected 
     provisions of veterans' preference law.
           Very truly yours,
                                                Susan S. Robfogel,
                                               Chair of the Board.


                          office of compliance

       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


                     NOTICE OF PROPOSED RULEMAKING

       Summary: The Board of Directors of the Office of Compliance 
     (``Board'') is publishing proposed regulations to implement 
     section 4(c)(4) of the Veterans Employment Opportunities Act 
     of 1998 (``VEOA''), Pub. L. 105-339, 112 Stat. 3186, codified 
     at 2 USC Sec. 1316a, as applied to covered employees of the 
     House of Representatives, the Senate, and certain 
     Congressional instrumentalities.
       The VEOA applies to the legislative branch the rights and 
     protections pertaining to veterans' preference established 
     under section 2108, sections 3309 through 3312, and 
     subchapter I of chapter 35, of title 5, United States Code 
     (``USC'').
       This Notice proposes that identical regulations be adopted 
     for the Senate, the House of Representatives, and the six 
     Congressional instrumentalities and for their covered 
     employees. Accordingly:
       (1) Senate. It is proposed that regulations as described in 
     this Notice be included in the body of regulations that shall 
     apply to the Senate and employees of the Senate, and this 
     proposal regarding the Senate and its employees is 
     recommended by the Office of Compliance's Deputy Executive 
     Director for the Senate.
       (2) House of Representatives. It is further proposed that 
     regulations as described in this Notice be included in the 
     body of regulations that shall apply to the House of 
     Representatives and employees of the House of 
     Representatives, and this proposal regarding the House of 
     Representatives and its employees is recommneded by the 
     Office of Compliance's Deputy Executive Director for the 
     House of Representatives.
       (3) Certain Congressional instrumentalities. It is further 
     proposed that regulations as described in this Notice be 
     included in the body of regulations that shall apply to 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, and the Office of 
     Compliance, and their employees; and this proposal regarding 
     these six Congressional instrumentalities is recommended by 
     the Office of Compliance's Executive Director.
       Dates: Interested parties may submit comments within 30 
     days after the date of publication of this Notice of Proposed 
     Rulemaking 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 the 
     Director, Central Operations Department, Office of the Senate 
     Sergeant at Arms, (202) 224-2705.
       Supplementary Information:
     Background
       The Veterans Employment Opportunities 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 NPR, VEOA affords to ``covered employees'' 
     of the legislative branch (as defined by section 101 of the 
     Congressional Accountability Act (``CAA'') (2 USC Sec. 1301)) 
     the rights and protections of selected provisions of 
     veterans' preference law. VEOA Sec. 4(c)(2). The selected 
     statutory sections made applicable to such legislative branch 
     employees by VEOA may be summarized as follows.
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     \1\ Pub. L. 105-339, 112 Stat. 3186 (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.
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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 a job 
     in the competitive service, 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 for a position in the competitive service, 
     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 so long as such individuals are 
     available. 5 USC Sec. 3310.
       Finally, in prescribing retention rights during RIFs for 
     positions in both the competitive and in the excepted 
     service, 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.
       On February 28, 2000, and March 9, 2000, an Advanced Notice 
     of Proposed Rulemaking (``ANPR'') was published in the 
     Congressional Record (144 Cong. Rec. S862 (daily ed., Feb. 
     28, 2000), H916 (daily ed., Mar. 9, 2000)). The ANPR 
     identified a number of interpretative issues on which the 
     Board sought public comment in order to assist it in 
     proposing the substantive regulations mandated under section 
     4(c)(4) of VEOA. The Board had sought to obtain an array of 
     information regarding the employment policies and practices 
     in the various employing offices affected by VEOA. In 
     addition, the Board sought to gain any relevant information 
     that might aid the Board in interpreting VEOA. In response to 
     the ANPR, the Board received two written comments, one of 
     which was from a local unit of a labor organization and the 
     other of which was from the national office of the same labor 
     organization. Both comments focused on the issue of whether 
     the term guard in section 3310 of 5 USC, applied by VEOA, 
     should be interpreted to included officers and other 
     employees of the U.S. Capitol Police. The Board received no 
     further public input to assist it in resolving the other 
     issues outlined in the ANPR. Therefore, the Board upon its 
     own further research and study has decided to propose 
     substantive regulations implementing the relevant portions of 
     VEOA. What follows is a discussion of how the Board, 
     tentatively at least, proposes to address the thirteen 
     interpretative issues identified in the ANPR.
     Discussion of interpretative issues
       Interpretation of term ``competitive service'' and 
     ``excepted service'' as applied to the legislative branch 
     [Issues (1)-(7)].
       The ANPR observed that VEOA confers upon covered employees 
     the statutory rights and protections of veterans' preference 
     in appointments to the ``competitive service.'' The ANPR also 
     explained that veterans'' preference rights in the context of 
     a reduction in force, as provided in the application of 
     subchapter I of chapter 35 of title 5, USC and under VEO, 
     are, with one exception, applicable to both the competitive 
     service and to the excepted service. Moreover, OPM's 
     implementing regulations regarding reductions in force, set 
     forth in 5 CFR part 351, are couched in terms that assume 
     application to the ``competitive service'' and the ``excepted 
     service.'' Thus the definitions of these two terms, as 
     applied to the legislative branch by virtue of VEOA, are 
     central to a determination of the substantive veterans' 
     preference rights which now apply to covered employees.
       The Board received no written comments in response to a 
     series of questions exploring how to interpret these 
     statutory categories of Federal service. In the absence of 
     illuminating comment or contrary definitions in VEOA, the 
     Board believes that it must define these terms in accordance 
     with their meaning under derivative sections of title 5, USC, 
     made applicable by VEOA. This conclusion is

[[Page S12540]]

     supported by a directive in VEOA to issue regulations that 
     are consistent with section 225 of the CAA (2 USC Sec. 1361), 
     one of whose subsections embraces a rule of construction that 
     ``definitions and exemptions in the laws made applicable by 
     this [Congressional Accountability] Act shall apply under 
     this [Congressional Accountability] Act.'' This section 
     enables the Board to flesh out the meaning and scope of the 
     various federal employment laws made applicable under the CAA 
     by referring to their respective definitions and exemptions 
     even though they are not expressly cited in the CAA.\4\
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     \4\ Compare Notice of Proposed Rulemaking [Fair Labor 
     Standards Act regulations under Congressional Accountability 
     Act], 141 CONG. REC. S17603, S17604 (Daily Ed. Nov. 28, 
     1995)(in proposing the substantive regulations of the FLSA, 
     29 USC Sec. 201 et seq., the Board cited section 225(f)(1) of 
     the CAA as requiring the application of the FLSA definition 
     of ``wages'' in 29 USC Sec. 203(m).
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       Section 2102 of Title 5 USC, as applied under VEOA, 
     presents a three-fold definition of the term ``competitive 
     service'': 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 , (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).
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     \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.''
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       Section 2103 of Title 5 further defines the ``excepted 
     service'' to include all ``civil service positions which are 
     not in the competitive or the Senior Executive Service.'' 5 
     U.S.C. Sec. 2103. And section 2101 of that Title defines the 
     ``civil service'' to include ``all appointive positions in 
     the executive, judicial, and legislative branches of the 
     Government of the United States, except positions in the 
     uniformed services.'' 5 U.S.C. Sec. 2101(1).
       As applied under VEOA, it would seem that section 225 
     requires the Board to issue regulations that take into 
     account the definitions (and exemptions) accompanying the 
     civil service laws from which the rights and protections of 
     veterans' preference are derived. Accordingly, the Notice 
     proposes a section, in the form of a proviso, requiring that 
     the terms ``competitive service'' and ``excepted service'' in 
     the proposed regulations be defined in reference to their 
     statutory meaning in Title 5, USC. Where an applied 
     regulation refers to the ``competitive service,'' such term 
     shall have the meaning as provided in 5 USC Sec. 2102(a)(2). 
     Where an applied regulation refers to the ``exempted 
     service,'' such term shall have the meaning as provided in 5 
     USC Sec. 2103. Consistent with the definition under section 
     2103, it is the position of the Board that all ``covered 
     employees'' \6\ holding civil service positions in the 
     legislative branch are within the definition of excepted 
     service, unless otherwise designated by statute as being 
     competitive service or Senior Executive Service positions.\7\
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     \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\ In the ANPR the Board had initially suggested that no 
     ``covered employees'', as defined by VEOA, fall within the 
     meaning of ``excepted service.'' Upon further review of the 
     governing statutes, the Board herein submits that many 
     ``covered employees'' within the legislative branch are 
     encompassed by the term ``excepted service'' as discussed 
     above. 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. 
     Consistent with the definition at section 2103 of title 5, 
     USC, any covered employee within the legislative branch who 
     holds a civil service position which is not in the Senior 
     Executive Service and which is not in the competitive service 
     is encompassed within the definition of ``excepted service.'' 
     The regulations which the Board here proposes reflect this 
     interpretation of the governing statutes.
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       The Board recognizes that the adoption of these 
     definitions, consistent with the mandate of section 225, 
     yields an unusual result in that no ``covered employee'' in 
     the legislative branch currently satisfies the definition of 
     ``competitive service.'' Moreover, as the substantive 
     protections of veterans' preference in legislative branch 
     appointment apply only to ``competitive service'' positions, 
     the regulations which the Board proposes regarding preference 
     in appointment would with one noted exception, currently 
     apply to no one.\8\ However, should Congress, by statute, 
     hereinafter designate any civil service positions in the 
     legislative branch as ``competitive service'' positions, then 
     consistent with the second definition of section 2102(a)(2) 
     and the parallel regulation proposed herein, the substantive 
     regulations regarding veterans' preference in appointment 
     would apply.
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     \8\ The Board proposes the potential application of the 
     substantive regulations regarding veterans' preference in the 
     appointment process insofar as the Office of the Architect of 
     the Capital, pursuant to the Architect of the Capital Human 
     Resources Act, has established a personnel management system 
     with features analogous to the ``competitive service'' as 
     defined in Sec. 2102(a)(2) of Title 5, USC. See Section 1.106 
     infra.
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       Authority of Board to exercise powers and responsibilities 
     similar to that of OPM in executing, administering, and 
     enforcing the federal service system [Issues (8)-(10)].
       The ANPR contrasted the regulatory authority vested in OPM 
     and in the Board of Directors of the Office of Compliance 
     with respect to personnel management matters. Congress has 
     established OPM as an independent agency in the executive 
     branch and authorized it to exercise broad powers 
     administering the civil service laws. See 5 U.S.C. 
     Sec. Sec. 1101, 1103-04, 1301-04.\9\ It has a number of 
     significant responsibilities, including the promulgating of 
     rules and regulations that implement the various civil 
     service laws and the classifying of positions in the 
     executive branch for purposes of appointment, pay, and 
     promotion. In addition, OPM exercises broad administrative 
     powers over the competitive service, including the authority 
     to develop and conduct examinations for the appointment of 
     applicants into the competitive service and the authority to 
     administer rules exempting positions from the competitive 
     service.\10\
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     \9\ See also 5 CFR Sec. 5.1, issued by the President, which 
     states that the ``Director, Office of Personnel Management, 
     shall promulgate and enforce regulations necessary to carry 
     out the provisions of the Civil Service Act and the Veterans' 
     Preference Act, as reenacted in Title 5, United States Code, 
     the Civil Services Rules, and all other statutes and 
     Executive orders imposing responsibilities on the Office.''
     \10\ The following summary explains in part the role of the 
     OPM in the appointment of employees to competitive service 
     positions in executive branch agencies:
     ``An employee typically becomes a member of the ``competitive 
     service'' by taking an examination administered by the Office 
     of Personnel Management (``OPM''). See 5 U.S.C. Sec. 3304 
     (1976 & Supp. V 1981). An applicant who meets the minimum 
     requirements for entrance to an examination, and who receives 
     a rating of 70 or more on the examination, is known as an 
     ``eligible.'' 5 C.F.R. Sec. Sec. 210.102(b)(5), 337.101(a) 
     (1983). OPM is required to enter on a civil service 
     ``register'' the names of all eligibles in accordance with 
     their numerical rankings. 5 C.F.R. Sec. 332.401 (1983).
     ``An agency seeking to hire an employee must submit a request 
     to OPM for a ``certificate'' of eligibles. When OPM receives 
     a request for certification of eligibles, it prepares a 
     certificate by selecting names from the head of the 
     appropriate register. This certificate consists of a 
     sufficient number of names to permit the agency to consider 
     three eligibles for each vacancy, 5 C.F.R. Sec. 332.402 
     (1983), the so-called ``rule-of-three.'' A hiring official 
     from the agency, known as the ``appointing officer,'' 5 
     C.F.R. Sec. 210.102(b)(1) (1983), is obliged to fill each 
     vacancy ``with sole regard to merit and fitness'' from the 
     three eligibles ranking highest on the certificate who are 
     available for appointment. 5 C.F.R. Sec. 332.404 (1983).'' 
     Hondros v. Unites States Civil Service Commission, 720 F.2d 
     278, 280-82 (3d Cir. 1983) (footnotes omitted).
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       The ANPR concluded that VEOA does not vest the Board of 
     Directors with authority comparable to that of OPM to 
     execute, administer, and enforce a civil service system 
     within the legislative branch. This is most clearly 
     evident from the fact that VEOA did not make applicable to 
     the Board the powers and responsibilities exercised by OPM 
     under 5 U.S.C. Sec. Sec. 1103-04, 1301-04, among other 
     sections.
       Insofar as the Board's authority under VEOA is not 
     coextensive with that of OPM, the ANPR identified two legal 
     implications. First, the Board's power to promulgate 
     veterans' preference regulations that are the ``same as'' 
     those of OPM may be circumscribed to some degree. To 
     illustrate, if OPM has promulgated a regulation under the 
     combined authority of two statutory sections, A and B, but 
     the Board is given authority only under section A, any 
     corresponding regulation proposed by the Board must be 
     tailored to reflect only the standard, directive, or power of 
     section A. Thus, some regulations of OPM may have to be 
     adopted with modifications to reflect their narrower 
     statutory basis. Other OPM regulations may not be adopted at 
     all simply because the Board does not have the underlying 
     statutory authority.
       The second implication identified by the ANPR was that 
     where the veterans' preference regulations contemplate a role 
     by OPM,\11\ the Board of Directors might not be empowered to 
     exercise a comparable administrative role with respect to 
     personnel matters in the legislative branch.
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     \11\ See, e.g., 5 CFR Sec. Sec. 330.401 (OPM's role in 
     competitive examination in restricted positions), 330.403 
     (OPM's role in filling restricted positions by noncompetitive 
     action of a nonpreference eligible), 332.401 (OPM's 
     responsibility to maintain registers of eligibles), 337.101 
     (OPM's role in rating applicants).
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       The Board received no written comments addressing these 
     issues. Upon further study and reflection, the Board has 
     concluded that the if the provisions of VEOA are to be given

[[Page S12541]]

     their plain meaning, the Board must propose only those OPM 
     regulations, modified as necessary, that can be linked to 
     those statutory sections whose rights and protections have 
     been made applicable to covered employees in the legislative 
     branch. The Board further concludes that VEOA does not vest 
     the Board of Directors of the Office of Compliance with the 
     broad-ranging authority to execute, administer, and enforce a 
     civil service system in the legislative branch.\12\ 
     Accordingly, in certain of the proposed regulations the 
     references to OPM have been deleted. To the extent that the 
     executive branch regulations directed OPM to exercise certain 
     responsibilities, including setting of standards, exercising 
     review of agency determinations, and engaging in oversight, 
     those duties have been eliminated in the proposed 
     regulations.
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     \12\ Compare Notice of Proposed Rulemaking [Fair Labor 
     Standards Act regulations under Congressional Accountability 
     Act], 141 Cong. Rec. S17603, S17604 (Daily Ed. Nov. 28, 
     1995)(explaining that because the CAA did not incorporate the 
     notice posting and recordkeeping requirements of section 11 
     of the FLSA, 29 USC Sec. 211, the Board determined that it 
     may not impose by substantive regulations such requirements 
     on employing offices).
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       Interpretation of provision restricting certain positions, 
     including guards, to preference eligibles [Issue (11)].
       With respect to ``competitive service'' positions 
     restricted to preference eligible individuals under 5 USC 
     Sec. 3310, as applied by VEOA, namely guards, elevator 
     operators, messengers, and custodians, the Board sought 
     information and comment on a series of issues, including the 
     identity, in the legislative branch, of guard, elevator 
     operator, messenger, and custodian positions within the 
     meaning of these statutory terms. A specific question was 
     posed whether police officers and other employees of the 
     United State Capitol Police should be considered ``guards.'' 
     As noted previously, the only two written comments received 
     in response to the ANPR addressed this latter issue.
       Both comments argued that the term ``guard'' should not be 
     interpreted to include officers of the U.S. Capitol Police. 
     One comment contrasted the use of key terms within chapter 33 
     of Title 5, USC, which governs the examination, selection, 
     and placement of personnel in the competitive service and 
     from which selected provisions made applicable under VEOA to 
     the legislative branch are drawn. Section 3310, which is made 
     applicable by VEOA, uses the term ``guard.'' In contrast, 
     section 3307, which addresses maximum-age requirements in the 
     competitive service and which is not made applicable under 
     VEOA, refers to ``law enforcement officer.'' Because of this 
     differentiation within the same chapter of the U.S. Code, the 
     commenter suggests that Congress could not have intended to 
     treat a ``guard'' under section 3310 as analogous to a ``law 
     enforcement officer.'' Since U.S. Capitol police officers 
     have the authority of law enforcement officers (see 40 USC 
     Sec. Sec. 212-212a), they are not ``guards'' for purposes of 
     section 3310 as applied.
       The other comment makes a similar distinction between 
     guards and law enforcement officers, relying upon the 
     interpretations of OPM, which is responsible for 
     administering the Federal government's occupation 
     classification system. The commenter cites to two OPM 
     publications, Grade Evaluation Guide for Police and Security 
     Guard Positions, GS-0083/GS-0085 and Digest of Significant 
     Classification Decisions and Opinions, No. 8, April 1986. 
     Together, these publications establish a distinction between 
     police officers and guards in the executive branch.
       The Board finds that the comments make a persuasive case 
     for not equating officers of the U.S. Capitol Police with 
     ``guards'' under section 3310 as applied by VEOA. The 
     proposed rule includes a provision that explicitly excludes 
     law enforcement officer positions of the U.S. Capitol Police 
     from the substantive regulations implementing section 3310 
     as applied by VEOA.
       Executive branch regulations that either should not be 
     adopted or should be adopted with modification [Issues (12)-
     (13)].
       The Board received no written comments addressing the 
     questions posed in the ANPR as to which substantive 
     regulations should not be adopted because they are based on 
     statutory provisions that have not been made applicable under 
     VEOA. Similarly, no comments were received on what 
     modifications should be adopted to make the regulations more 
     effective for the implementation of the rights and 
     protections made applicable under VEOA.
       Nevertheless, as explained above in the discussion 
     concerning its authority to exercise powers comparable to 
     OPM's, the Board has concluded that it may not propose 
     regulations that are not based on statutory rights and 
     protections made applicable under VEOA. Conversely, the Board 
     believes that the regulations proposed in this Notice most 
     appropriately fulfill the statutory mandate to adopt 
     regulations that are the ``same as the most relevant 
     substantive regulations (applicable with respect to the 
     executive branch) promulgated to implement the statutory 
     provisions'' of VEOA. To the extent that modifications are 
     being proposed, the Board believes that they are warranted to 
     reflect the more limited statutory authority which VEOA vests 
     in the Board.
     Special provision for coverage of Architect of the Capitol
       While drafting the proposed regulations following the 
     receipt of written comments to the ANPR, it came to the 
     attention of the Board that the Office of the Architect of 
     the Capitol has been under a special statutory mandate with 
     respect to managing and supervising its human resources. 
     Because AOC is part of the legislative branch, it has not 
     generally been subject to many of the statutes that regulate 
     personnel policy for Federal agencies. As a consequence, the 
     General Accounting Office reported in 1994 that AOC's 
     personnel system was deficient in many respects. GAO, 
     ``Federal Personnel: Architect of the Capitol's System Needs 
     Improvement,'' B-256160 (April 29, 1994). Congress responded 
     by enacting the Architect of the Capitol Human Resources Act 
     (AOCHRA). P.L. 103-283, 108 Stat. 1444 (July 22, 1994), 
     codified at 40 U.S.C. Sec. 166b-7. This law did not directly 
     bring the AOC within the purview of the various Federal 
     personnel laws. Rather, the AOC was directed to establish its 
     own personnel management system. As stated in AOCHRA, 
     Congress found that the Architect should ``develop human 
     resources management programs that are consistent with the 
     practices common among other Federal and private sector 
     organizations,'' and to that end, the Architect was directed 
     ``to establish and maintain a personnel management system 
     that incorporates fundamental principles that exist in other 
     modern personnel systems.'' 40 U.S.C. Sec. 166b-7(b)(1),(2). 
     The law then sets out in broad terms eight subject areas that 
     a model personnel management system must address, leaving it 
     to the Architect to develop a detailed plan for implementing 
     these model policy goals no later than fifteen months after 
     enactment. 40 U.S.C. Sec. 166b-7(c)(2)(A)-(H), (d)(1)(B),(C). 
     Among these objectives is the requirement that the personnel 
     management system ``ensure[] that applicants for employment 
     and employees of the Architect of the Capitol are appointed, 
     promoted, and assigned on the basis of merit and fitness 
     after fair and equitable consideration of all applicants and 
     employees through open competition.'' 40 U.S.C. Sec. 166b-
     7(c)(2)(A) (emphasis added).
       The notion of merit selection based on open competition, of 
     course, is a bedrock principle of the federal civil service 
     system, particularly its competitive service component, as 
     described in the ANPR, 146 Cong. Rec. S864 (Daily ed. 
     February 29, 2000)(ANPR). Thus, instead of formally placing 
     the job positions of the Architect's Office within the 
     federal competitive service, which is contemplated under 5 
     U.S.C. Sec. 2101(a)(2),\13\ Congress authorized the 
     Architect's Office to devise its own personnel system 
     independent of the competitive service (and of the oversight 
     responsibilities of the Office of Personnel Management) but 
     consistent with its animating principles.
---------------------------------------------------------------------------
     \13\ ``The `competitive service' consists of--. . .``(2) 
     civil service positions not in the executive branch which are 
     specifically included in the competitive service by 
     statute;''
---------------------------------------------------------------------------
       AOCHRA did not specifically mandate that the Architect's 
     Office incorporate veterans' preference principles into its 
     merit selection system. And there is nothing in the public 
     record to indicate that the AOC in practice affords qualified 
     veterans some form of preference in the selection process. 
     However, it seems equally true that there is nothing in 
     AOCHRA to preclude the Architect from taking veterans' 
     preference into account in making appointments, promotions, 
     and assignments, the same way that an executive branch agency 
     must afford veterans' preference to appointments to positions 
     in the competitive service. Thus, the issue arises whether 
     VEOA may be read in pari materia with AOCHRA, so as to make 
     the substantive VEOA regulations concerning appointments 
     applicable to AOC's merit selection system notwithstanding 
     the fact that job positions subject to that system are not 
     technically part of the ``competitive service.''
       As noted above, the Board has tentatively concluded that it 
     must limit the application of the substantive, veterans' 
     preference appointment regulations to those legislative 
     branch positions that are within the ``competitive service,'' 
     as the latter term is defined in 5 U.S.C. Sec. 2102. As a 
     practical matter, this may significantly limit the group of 
     ``covered employees'' who will benefit from VEOA, since it 
     appears that the vast majority of ``covered employees'' hold 
     civil service positions in the legislative branch, including 
     those in the Office of AOC, that are within the definition of 
     excepted service.
       However, the congressional policy declared in the enactment 
     of AOCHRA may warrant the promulgation of a special 
     regulation tailoring the application of the VEOA appointment 
     regulations to positions in Office of the AOC, for it is a 
     general rule of statutory construction that statutes on the 
     same subject matter are to be construed together.\14\ In this 
     case, the specific obligations under VEOA to afford veterans' 
     preference in connection with merit appointments would be 
     interpreted in conjunction with the preexisting, general 
     obligations under AOCHRA to establish a merit selection 
     personnel system. If read together, the two statutes would 
     seem to authorize the application of substantive VEOA 
     regulations, at least those governing appointments, insofar 
     as AOCHRA imposes obligations on the Office of the Architect 
     of the Capitol to establish a personnel management system 
     which at a minimum provides

[[Page S12542]]

     for appointment, promotion and assignment on the basis of 
     merit and fitness after fair and equitable consideration of 
     all applicants and employees through open competition.\15\
---------------------------------------------------------------------------
     \14\ N. Singer, Statutes and Statutory Construction 
     Sec. 51.02, at 176-178 (6th ed. 2000). See, e.g., United 
     States v. Stewart, 311 U.S. 60 (1940) (``It is clear that 
     `all acts in pari materia are to be taken together, as if 
     they were one law.' '').
     \15\ CF. United States v. Jefferson Electric Mfg. Co., 291 
     U.S. 386, 396 (1934) (``As a general rule, where the 
     legislation dealing with a particular subject consists of a 
     system of related general provisions indicative of a settled 
     policy, new enactments of a fragmentary nature on that 
     subject are to be taken as intended to fit into the existing 
     system and the carried into effect comformably to it, 
     excepting as a different purpose is plainly shown.'').
---------------------------------------------------------------------------
       The Board has made no final determination on the soundness 
     of this interpretation, in part due the fact that this has 
     insufficient information on the elements of the merit 
     selection system which the AOC has established under AOCHRA. 
     The Board therefore believes that it is appropriate to 
     solicit comments on what are the elements of the AOC's 
     current merit selection system established under 40 U.S.C. 
     Sec. 166b-7(c)(2)(A), and on whether in particular the AOC 
     has a policy of giving preference to qualified veterans. 
     Aside from the factual issue, the Board believes that 
     comments should be solicited on the legal issue whether VEOA 
     may be interpreted in pari materia with AOCHRA. In addition, 
     the Board invites comments on the related question of how 
     substantive regulations promulgated under VEOA may be applied 
     to AOC's personnel management system, even assuming that it 
     currently does not include a veterans' preference component, 
     being mindful that the Board is authorized under VEOA to 
     propose modifications for the more effective implementation 
     of the rights and protections under VEOA. 2 U.S.C. 
     Sec. 1316a(c)(4)(B).
       In order to frame the issues for comment, the Board has 
     decided to include in this NPR a proposed new section 
     Sec. 1.106, which would apply the appointment regulations 
     governing veterans' preference to appointments made pursuant 
     to the merit selection system under AOCHRA. This section 
     would apply the proposed regulations notwithstanding the fact 
     that the job positions within the AOCHRA merit selection 
     system are not technically within the ``competitive 
     service.'' Insofar as AOCHRA imposes obligations on the 
     Office of the Architect of the Capitol to establish a 
     personnel management system which at a minimum provides for 
     appointment, promotion and assignment on the basis of merit 
     and fitness after fair and equitable consideration of all 
     applicants and employees through open competition, the 
     Architect of the Capitol would be required to afford to a 
     covered employee, including an applicant veterans' 
     preference, in a manner and to the extent consistent with 
     these proposed regulations.
     Recommended Method of Approval
       The Board recommends that (1) the version of the proposed 
     regulations that shall apply to the Senate and employees of 
     the Senate be approved by the Senate by resolution; (2) the 
     version of the proposed regulations that shall apply to the 
     House of Representatives and employees of the House of 
     Representatives be approved by the House of Representatives 
     by resolution; and (3) the version of the proposed 
     regulations that shall apply to other covered employees and 
     employing offices be approved by the Congress by concurrent 
     resolution.
       Signed at Washington, D.C., on this 13th day of November, 
     2001.

                                            Susan S. Robfogel,

                                               Chair of the Board,
                                             Office of Compliance.

 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)

PART 1--MATTERS OF GENERAL APPLICABILITY TO ALL REGULATIONS PROMULGATED 
  UNDER SECTION 4 OF THE VETERANS EMPLOYMENT OPPORTUNITIES ACT OF 1998

Sec.
1.101 Purpose and scope
1.102 Definitions
1.103 Exclusion
1.104 Adoption of regulations
1.105 Coordination with Section 225 of Congressional Accountability Act
1.106 Application of regulations to certain positions of the Office of 
              the Architect of the Capitol

     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 USC, to covered employees within the 
     legislative branch.
       (b) Purpose and scope 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 VEOA, in accordance with the 
     rulemaking procedure set forth in section 304 of the CAA.

     Sec. 1.102. Definitions

       Except as otherwise provided in these regulations, as used 
     in these regulations:
       (a) Act or CAA means the Congressional Accountability Act 
     of 1995 (Pub. L. 104-1, 109 Stat. 3, 2 U.S.C. Sec. Sec. 1301-
     1438).
       (b) VEOA means the Veterans Employment Opportunities Act of 
     1998 (Pub. L. 105-339, 112 Stat. 3182).
       (c) Except as provided by Sec. 1.103, the term covered 
     employee means any employee of (1) the House of 
     Representatives; (2) the Senate; (3) the Capitol Guide 
     Service; (4) the Capitol Police; (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.
       (d) The term employee includes an applicant for employment 
     and a former employee.
       (e) The term 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.
       (f) The term employee of the Capitol Police includes any 
     member or officer of the Capitol Police.
       (g) The term employee of the House of Representatives 
     includes an individual occupying a position the pay for 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 
     (c) above.
       (h) The term 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 (c) above.
       (i) The term employing office means: (1) the personal 
     office of a Member of the House of Representatives or the 
     Senate or a joint committee; (2) a committee of the House of 
     Representatives or the Senate or a joint committee; (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; or (4) the Capitol Guide 
     Board, the Congressional Budget Office, the Office of the 
     Architect of the Capitol, the Office of the Attending 
     Physician, and the Office of Compliance.
       (j) Board means the Board of Directors of the Office of 
     Compliance.
       (k) Office means the Office of Compliance.
       (l) General Counsel means the General Counsel of the Office 
     of Compliance.
       (m) The term agency means employing office as defined by 
     subsection (i).

     Sec. 1.103. Exclusions from definition of covered employee

       The term covered employee does not include an employee
       (a) whose appointment is made by the President with the 
     advice and consent of the Senate;
       (b) whose appointment is made by a Member of Congress or by 
     a committee or subcommittee of either House of Congress; or,
       (c) 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).

     Sec. 1.104. Authority of the Board

       (a) Adoption of regulations. Section 4(c)(4)(A) of VEOA 
     generally authorizes the Board to issue regulations to 
     implement section 4(c). In addition, 4(c)(4)(B) of 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 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 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 
     VEOA that need be adopted.
       (b) Technical and nomenclature changes. In promulgating 
     these regulations, the Board has made certain technical and 
     nomenclature changes to the regulations as promulgated by the 
     executive branch. Such changes are intended to make the 
     provisions adopted accord more naturally to situations in the 
     Legislative Branch. However, by making these changes, the 
     Board does not intend a substantive difference between these 
     regulations and those of the executive branch from which they 
     are derived except to the extent that a modification is 
     necessary to more effectively implement the rights and 
     protections made applicable under VEOA.
       (c) Modification of substantive regulations. As a 
     qualification of 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 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 VEOA. In examining the 
     relevant regulations of the executive branch, which were

[[Page S12543]]

     promulgated by the Office of Personnel Management, the Board 
     has concluded that a number of sections were issued under a 
     combination of statutory authorities, some of which were made 
     applicable under section 4(c)(2) of VEOA and some of which 
     were not made applicable under that section. The Board has 
     accordingly determined that given the selective application 
     of statutory provisions, some regulations of the executive 
     branch are not applicable to the legislative branch and some 
     regulations must be modified in order to be made applicable.
       (d) Retention of section numbering. Except for the sections 
     in Part 1, the regulations adopted herein are numbered to 
     correspond with the section numbering of the substantive 
     regulations of the executive branch as they appear in title 5 
     of the Code of Federal Regulations (CFR) on which they are 
     based.

     Sec. 1.105. Coordination with Section 225 of Congressional 
       Accountability Act

       (a) Statutory directive. Section 4(c)(4)(D) of the VEOA 
     requires that regulations promulgated 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 
     construed to authorize enforcement of the CAA by the 
     executive branch.
       (b) Provisos necessary to satisfy statutory directive. The 
     Board determines that in order for certain regulations 
     applied under VEOA to be consistent with subsections (f)(1) 
     and (f)(3) of section 225 of the CAA, the such regulations 
     shall be subject to the following provisos:
       (1) Where an applied regulation refers to the ``competitive 
     service,'' such term shall have the meaning as provided in 5 
     USC Sec. 2102(a)(2). Where an applied regulation refers to 
     the ``exempted service,'' such term shall have the meaning as 
     provided in 5 USC Sec. 2103.
       (2) Where an applied regulation refers to the ``excepted 
     service,'' such term shall have the meaning as provided in 5 
     USC Sec. 2103. Consistent with the definition provided by 
     section 2103, the Board determines that ``excepted service'' 
     encompasses all civil service positions within the 
     legislative branch which are neither in the ``competitive 
     service'' nor have duties that are equivalent to the Senior 
     Executive Service as those terms are defined in Title 5, USC.

     Sec. 1.106. Application of regulations to certain positions 
       of the Office of the Architect of the Capitol

       (a) The Office of the Architect of the Capitol, pursuant to 
     the provisions of the Architect of the Capitol Human 
     Resources Act (AOCHRA), P.L. 103-283, 108 Stat. 1444 (July 
     22, 1994), as codified and amended in 40 USC Sec. 166b-7, 
     is required to establish a personnel management system 
     that in part ``ensures that applicants for employment and 
     employees of the Architect of the Capitol are appointed, 
     promoted, and assigned on the basis of merit and fitness 
     after fair and equitable consideration of all applicants 
     and employees through open competition.'' 40 USC 
     Sec. 166b-7(c)(2)(A).
       (b) Insofar as AOCHRA imposes obligations on the Office of 
     the Architect of the Capitol to establish a personnel 
     management system which at a minimum provides for 
     appointment, promotion and assignment on the basis of merit 
     and fitness after fair and equitable consideration of all 
     applicants and employees through open competition, the 
     Architect of the Capitol shall provide veterans' preference 
     to a covered employee, including an applicant, in a manner 
     and to the extent consistent with these regulations.

                      PART 211--VETERAN PREFERENCE

Sec.
211.101 Purpose
211.102 Definitions
211.103 Administration of preference

     Sec. 211.101. Purpose

       The purpose of this part is to define veterans' preference 
     and the administration of preference in Federal employment in 
     the legislative branch. (5 U.S.C. 2108, as applied by VEOA)

     Sec. 211.102. Definitions

       For purposes of preference in Federal employment the 
     following definitions apply:
       (a) Veteran means a person who was separated with an 
     honorable discharge or under honorable conditions from active 
     duty in the armed forces performed--
       (1) In a war; or,
       (2) In a campaign or expedition for which a campaign badge 
     has been authorized; or
       (3) During the period beginning April 28, 1952, and ending 
     July 1, 1955; or,
       (4) For more than 180 consecutive days, other than for 
     training, any part of which occurred during the period 
     beginning February 1, 1955, and ending October 14, 1976.
       (b) 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.
       (c) Preference eligible means veterans, spouses, widows, or 
     mothers who meet the definition of ``preference eligible'' in 
     5 U.S.C. 2108. Preference eligibles in the competitive 
     service are entitled to have 5 or 10 points added to their 
     earned score on a civil service examination (see 5 U.S.C. 
     3309). They are also accorded a higher retention standing in 
     the event of a reduction in force in positions in either the 
     competitive service or in the excepted service (see 5 U.S.C. 
     3502). Preference does not apply, however, to inservice 
     placement actions such as promotions.
       (d) Armed forces means the United States Army, Navy, Air 
     Force, Marine Corps, and Coast Guard.
       (e) 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.
       (f) Active duty or active military duty means full-time 
     duty with military pay and allowances in the armed forces, 
     except for training or for determining physical fitness and 
     except for service in the Reserves or National Guard.
       (g) 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.

     Sec. 211.103. Administration of preference

       Agencies are responsible for making all preference 
     determinations.

   PART 330--RECRUITMENT, SELECTION, AND PLACEMENT (GENERAL) IN THE 
                          COMPETITIVE SERVICE

Sec.
330.401 Competitive examination
330.402 Direct recruitment

        Subpart D--Positions Restricted to Preference Eligibles

     Sec. 330.401. Competitive examination

       In each entrance examination for the positions of 
     custodian, elevator operator, guard, and messenger in the 
     competitive service (referred to hereinafter in this subpart 
     as restricted positions), competition shall be restricted to 
     preference eligibles as long as preference eligibles are 
     available. For purposes of this part, the term guard does not 
     include law enforcement officer positions of the U.S. Capitol 
     Police Board.

     Sec. 330.402. Direct recruitment

       In direct recruitment by an agency under delegated 
     authority, the agency shall fill each restricted position by 
     the appointment of a preference eligible as long as 
     preference eligibles are available.

PART 332--RECRUITMENT AND SELECTION IN THE COMPETITIVE SERVICE THROUGH 
                        COMPETITIVE EXAMINATION

Sec.
332.401 Order on registers

                Subpart D--Consideration for Appointment

     Sec. 332.401. Order on registers

       Subject to apportionment, residence, and other requirements 
     of law, the names of eligibles shall be entered on the 
     appropriate register in accordance with their numerical 
     ratings, except that the names of:
       (a) Preference eligibles shall be entered in accordance 
     with their augmented ratings and ahead of others having the 
     same rating; and
       (b) Preference eligibles who have a compensable service-
     connected disability of 10 percent or more shall be entered 
     at the top of the register in the order of their ratings 
     unless the register is for professional or scientific 
     positions in pay positions comparable to GS-9 and above and 
     in comparable pay levels under other pay-fixing authorities.

         PART 337--EXAMINING SYSTEM FOR THE COMPETITIVE SERVICE

Sec.
Sec. 337.101 Rating applicants

                     Subpart A--General Provisions

     Sec. 337.101. Rating applicants

       (a) The relative weights shall be given subjects in an 
     examination, and shall assign numerical ratings on a scale of 
     100. Each applicant who meets the minimum requirements for 
     entrance to an examination and is rated 70 or more in the 
     examination is eligible for appointment.
       (b) There shall be added to the earned numerical ratings of 
     applicants who make a passing grade:
       (1) Five points for applicants who are preference eligibles 
     under section 2108(3)(A) and (B) of title 5, United States 
     Code; as applied by VEOA and
       (2) Ten points for applicants who are preference eligibles 
     under section 2108(3)(C)-(G) of that title, as applied by 
     VEOA.
       (c) When experience is a factor in determining eligibility, 
     a preference eligible shall be credited with:
       (1) Time spent in the military service (i) as an extension 
     of time spent in the position in which he was employed 
     immediately before his entrance into the military service, or 
     (ii) on the basis of actual duties performed in the military 
     service, or (iii) as a combination of both methods. Time 
     spent in the military service shall be credited according to 
     the method that will be of most benefit to the preference 
     eligible.
       (2) All valuable experience, including experience gained in 
     religious, civic, welfare, service, and organizational 
     activities, regardless of whether pay was received therefor.

   PART 339--MEDICAL QUALIFICATION DETERMINATIONS IN THE COMPETITIVE 
                                SERVICE

Sec.
Sec. 339.204 Waiver of standards and requirements

[[Page S12544]]

             Subpart B--Physical and Medical Qualifications

     Sec. 339.204. Waiver of standards and requirements

       Agencies must waive a medical standard or physical 
     requirement when there is sufficient evidence that an 
     applicant or employee, with or without reasonable 
     accommodation, can perform the essential duties of the 
     position without endangering the health and safety of the 
     individual or others.

    PART 351--REDUCTION IN FORCE IN THE COMPETITIVE SERVICE AND THE 
                            EXCEPTED SERVICE

Sec.
351.201 Use of regulations
351.202 Coverage
351.203 Definitions
351.204 Responsibility of agency
351.301 Applicability
351.302 Transfer of employees
351.303 Identification of positions with a transferring function
351.401 Determining retention standing
351.402 Competitive area
351.403 Competitive level
351.404 Retention register
351.405 Demoted employees
351.501 Order of retention--competitive service
351.502 Order of retention--excepted service
351.503 Length of service
351.504 Credit for performance
351.505 Records
351.506 Effective date of retention standing
351.601 Order of release from competitive level
351.602 Prohibitions
351.603 Actions subsequent to release from competitive level
351.604 Use of furlough
351.605 Liquidation provisions
351.606 Mandatory exceptions
351.607 Permissive continuing exceptions
351.608 Permissive temporary exceptions
351.701 Assignment involving displacement
351.702 Qualifications for assignment
351.703 Exception to qualifications
351.704 Rights and prohibitions
351.705 Administrative assignment
351.801 Notice period
351.802 Content of notice
351.803 Notice of eligibility for reemployment and other placement 
              assistance
351.804 Expiration of notice
351.805 New notice required
351.806 Status during notice period
351.807 Certification of Expected Separation
351.902 Correction by agency

                     Subpart B--General Provisions

     Sec. 351.201. Use of regulations

       (a)(1) Each agency is responsible for determining the 
     categories within which positions are required, where they 
     are to be located, and when they are to be filled, abolished, 
     or vacated. This includes determining when there is a surplus 
     of employees at a particular location in a particular line of 
     work.
       (2) Each agency shall follow this part when it releases a 
     competing employee from his or her competitive level by 
     furlough for more than 30 days, separation, demotion, or 
     reassignment requiring displacement, when the release is 
     required because of lack of work; shortage of funds; 
     insufficient personnel ceiling; reorganization; the exercise 
     of reemployment rights or restoration rights; or 
     reclassification of an employee's position due to erosion of 
     duties when such action will take effect after an agency has 
     formally announced a reduction in force in the employee's 
     competitive area and when the reduction in force will take 
     effect within 180 days.
       (b) This part does not require an agency to fill a vacant 
     position. However, when an agency, at its discretion, chooses 
     to fill a vacancy by an employee who has been reached for 
     release from a competitive level for one of the reasons in 
     paragraph (a)(2) of this section, this part shall be 
     followed.
       (c) Each agency is responsible for assuring that the 
     provisions in this part are uniformly and consistently 
     applied in any one reduction in force.

     Sec. 351.202. Coverage

       (a) Employees covered. Except as provided in paragraph (b) 
     of this section, this part applies to covered employees as 
     defined by section 1.102(c) of these Regulations.
       (b) Employees excluded. This part does not apply to an 
     employee who is within the exclusion set forth in section 
     1.103 of these Regulations.
       (c) Actions excluded. This part does not apply to:
       (1) The termination of a temporary or term promotion or the 
     return of an employee to the position held before the 
     temporary or term promotion or to one of equivalent grade and 
     pay.
       (2) A change to lower grade based on the reclassification 
     of an employee's position due to the application of new 
     classification standards or the correction of a 
     classification error.
       (3) A change to lower grade based on reclassification of an 
     employee's position due to erosion of duties, except that 
     this exclusion does not apply to such reclassification 
     actions that will take effect after an agency has formally 
     announced a reduction in force in the employee's competitive 
     area and when the reduction in force will take effect within 
     180 days. This exception ends at the completion of the 
     reduction in force.
       (4) Placement of an employee serving on an intermittent, 
     part-time, on-call, or seasonal basis in a nonpay and nonduty 
     status in accordance with conditions established at time of 
     appointment.
       (5) A change in an employee's work schedule from other-
     than-full-time to full-time. (A change from full-time to 
     other than full-time for a reason covered in Sec. 
     351.201(a)(2) is covered by this part.)

     Sec. 351.203. Definitions

       In this part:
       Competing employee means an employee in tenure group I, II, 
     or III.
       Current rating of record is the rating of record for the 
     most recently completed appraisal period as provided in Sec. 
     351.504(b)(3).
       Days means calendar days.
       Function means all or a clearly identifiable segment of an 
     agency's mission (including all integral parts of that 
     mission), regardless of how it is performed.
       Furlough under this part means the placement of an employee 
     in a temporary nonduty and nonpay status for more than 30 
     consecutive calendar days, or more than 22 workdays if done 
     on a discontinuous basis, but not more than 1 year.
       Local commuting area means the geographic area that usually 
     constitutes one area for employment purposes. It includes any 
     population center (or two or more neighboring ones) and the 
     surrounding localities in which people live and can 
     reasonably be expected to travel back and forth daily to 
     their usual employment.
       Modal rating is the summary rating level assigned most 
     frequently among the actual ratings of record that are:
       (1) Assigned under the summary level pattern that applies 
     to the employee's position of record on the date of the 
     reduction in force;
       (2) Given within the same competitive area, or at the 
     agency's option within a larger subdivision of the agency or 
     agencywide; and
       (3) On record for the most recently completed appraisal 
     period prior to the date of issuance of reduction in force 
     notices or the cutoff date the agency specifies prior to the 
     issuance of reduction in force notices after which no new 
     ratings will be put on record.
       Rating of record means the officially designated 
     performance rating, as provided for in the agency's appraisal 
     system.
       Reorganization means the planned elimination, addition, or 
     redistribution of functions or duties in an organization.
       Representative rate means the fourth step of the grade for 
     a position subject to the General Schedule, the prevailing 
     rate for a position under a wage-board or similar wage-
     determining procedure, and for other positions, the rate 
     designated by the agency as representative of the position.
       Transfer of function means the transfer of the performance 
     of a continuing function from one competitive area and its 
     addition to one or more other competitive areas, except when 
     the function involved is virtually identical to functions 
     already being performed in the other competitive area(s) 
     affected; or the movement of the competitive area in which 
     the function is performed to another commuting area.
       Undue interruption means a degree of interruption that 
     would prevent the completion of required work by the 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, a work program would generally 
     not be unduly interrupted even if an employee needed 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 low 
     priority program or to a vacant position.

     Sec. 351.204. Responsibility of agency

       Each agency covered by this part is responsible for 
     following and applying the regulations in this part when the 
     agency determines that a reduction force is necessary.

                    Subpart C--Transfer of Function

     Sec. 351.301. Applicability

       (a) This subpart is applicable when the work of one or more 
     employees is moved from one competitive area to another as a 
     transfer of function regardless of whether or not the 
     movement is made under authority of a statute, reorganization 
     plan, or other authority.
       (b) In a transfer of function, the function must cease in 
     the losing competitive area and continue in an identical form 
     in the gaining competitive area (i.e., in the gaining 
     competitive area, the function continues to be carried out by 
     competing employees rather than by noncompeting employees).

     Sec. 351.302. Transfer of employees

       (a) Before a reduction in force is made in connection with 
     the transfer of any or all of the functions of a competitive 
     area to another continuing competitive area, each competing 
     employee in a position identified with the transferring 
     function or functions shall be transferred to the continuing 
     competitive area without any change in the tenure of his or 
     her employment.
       (b) An employee whose position is transferred under this 
     subpart solely for liquidation, and who is not identified 
     with an operating function specifically authorized at the 
     time of transfer to continue in operation more than 60 days, 
     is not a competing employee for other positions in the 
     competitive area gaining the function.
       (c) Regardless of an employee's personal preference, an 
     employee has no right to

[[Page S12545]]

     transfer with his or her function, unless the alternative in 
     the competitive area losing the function is separation or 
     demotion.
       (d) Except as permitted in paragraph (e) of this section, 
     the losing competitive area must use the adverse action 
     procedures found in 5 CFR part 752 if it chooses to separate 
     an employee who declines to transfer from his or her 
     function.
       (e) The losing competitive area may, at its discretion, 
     include employees who decline to transfer with their function 
     as part of a concurrent reduction in force.
       (f) An agency may not separate an employee who declines to 
     transfer with the function any sooner than it transfers 
     employees who chose to transfer with the function to the 
     gaining competitive area.
       (g) Agencies may ask employees in a canvass letter whether 
     the employee wishes to transfer with the function when the 
     function transfers to a different local commuting area. The 
     canvass letter must give the employee information concerning 
     entitlements available to the employee if the employee 
     accepts the offer to transfer, and if the employee declines 
     the offer to transfer. An employee may later change and 
     initial acceptance offer without penalty. However, an 
     employee may not later change an initial declination of the 
     offer to transfer.

     Sec. 351.303. Identification of positions with a transferring 
       function

       (a) The competitive area losing the function is responsible 
     for identifying the positions of competing employees with the 
     transferring function. A competing employee is identified 
     with the transferring function on the basis of the employee's 
     official position. Two methods are provided to identify 
     employees with the transferring function:
       (1) Identification Method One; and
       (2) Identification Method Two.
       (b) Identification Method One must be used to identify each 
     position to which it is applicable. Identification Method Two 
     is used only to identify positions to which Identification 
     Method One is not applicable.
       (c) Under Identification Method One, a competing employee 
     is identified with a transferring function if--
       (1) The employee performs the function during at least half 
     of his or her work time; or
       (2) Regardless of the amount of time the employee performs 
     the function during his or her work time, the function 
     performed by the employee includes the duties controlling his 
     or her grade or rate of pay.
       (3) In determining what percentage of time an employee 
     performs a function in the employee's official position, the 
     agency may supplement the employee's official position 
     description by the use of appropriate records (e.g., work 
     reports, organizational time logs, work schedules, etc.).
       (d) Identification Method Two is applicable to employees 
     who perform the function during less than half of their work 
     time and are not otherwise covered by Identification Method 
     One. Under Identification Method Two, the losing competitive 
     area must identify the number of positions it needed to 
     perform the transferring function. To determine which 
     employees are identified for transfer, the losing competitive 
     area must establish a retention register in accordance with 
     this part that includes the name of each competing employee 
     who performed the function. Competing employees listed on the 
     retention register are identified for transfer in the inverse 
     order of their retention standing. If for any retention 
     register this procedure would result in the separation or 
     demotion by reduction in force at the losing competitive area 
     of any employee with higher retention standing, the losing 
     competitive area must identify competing employees on that 
     register for transfer in the order of their retention 
     standing.
       (e)(1) The competitive area losing the function may permit 
     other employees to volunteer for transfer with the function 
     in place of employees identified under Identification Method 
     One or Identification Method Two. However, the competitive 
     area may permit these other employees to volunteer for 
     transfer only if no competing employee who is identified for 
     transfer under Identification Method One or Identification 
     Method Two is separated or demoted solely because a volunteer 
     transferred in place of him or her to the competitive area 
     that is gaining the function.
       (2) If the total number of employees who volunteer for 
     transfer exceeds the total number of employees required to 
     perform the function in the competitive area that is gaining 
     the function, the losing competitive area may give preference 
     to the volunteers with the highest retention standing, or 
     make selections based on other appropriate criteria.

                    Subpart D--Scope of Competition

     Sec. 351.401. Determining retention standing

       Each agency shall determine the retention standing of each 
     competing employee on the basis of the factors in this 
     subpart and in subpart E of this part.

     Sec. 351.402. Competitive area

       (a) Each agency shall establish competitive areas in which 
     employees compete for retention under this part.
       (b) A competitive area must be defined solely in terms of 
     the agency'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 agency. The minimum competitive area is 
     a subdivision of the agency under separate administration 
     within the local commuting area.

     Sec. 351.403. Competitive level

       (a)(1) Each agency shall establish competitive levels 
     consisting of all positions in a competitive area which are 
     in the same grade (or occupational level) and classification 
     series, and which are similar enough in duties, qualification 
     requirements, pay schedules, and working conditions so that 
     an agency may reassign the incumbent of one position to any 
     of the other positions in the level without undue 
     interruption.
       (2) Competitive level determinations are based on each 
     employee's official position, not the employee's personal 
     qualifications.
       (b) Each agency shall establish separate competitive levels 
     according to the following categories:
       (1) By service. Separate levels shall be established for 
     positions in the competitive service and in the excepted 
     service.
       (2) By appointment authority. Separate levels shall be 
     established for excepted service positions filled under 
     different appointment authorities.
       (3) By pay schedule. Separate levels shall be established 
     for positions under different pay schedules.
       (4) By work schedule. Separate levels shall be established 
     for positions filled on a full-time, part-time, intermittent, 
     seasonal, or on-call basis. No distinction may be made among 
     employees in the competitive level on the basis of the number 
     of hours or weeks scheduled to be worked.
       (5) By trainee status. Separate levels shall be established 
     for positions filled by an employee in a formally designated 
     trainee or developmental program having all of the 
     characteristics covered in Sec. 351.702(e)(1) through (e)(4) 
     of this part.
       (c) An agency may not establish a competitive level based 
     solely upon:
       (1) A difference in the number of hours or weeks scheduled 
     to be worked by other-than-full-time employees who would 
     otherwise be in the same competitive level;
       (2) A requirement to work changing shifts;
       (3) The grade promotion potential of the position; or
       (4) A difference in the local wage areas in which wage 
     grade positions are located.

     Sec. 351.404. Retention register

       (a) When a competing employee is to be released from a 
     competitive level under this part, the agency shall establish 
     a separate retention register for that competitive level. The 
     retention register is prepared from the current retention 
     records of employees. Upon displacing another employee under 
     this part, an employee retains the same status and tenure in 
     the new position. Except for an employee on military duty 
     with a restoration right, the agency shall enter on the 
     retention register, in the order of retention standing, the 
     name of each competing employee who is:
       (1) In the competitive level;
       (2) Temporarily promoted from the competitive level by 
     temporary or term promotion.
       (b)(1) The name of each employee serving under a time 
     limited appointment or promotion to a position in a 
     competitive level shall be entered on a list apart from the 
     retention register for that competitive level, along with the 
     expiration date of the action.
       (2) The agency shall list, at the bottom of the list 
     prepared under paragraph b(1) of this section, the name of 
     each employee in the competitive level with a written 
     decision of removal under part 432 or 752 in this chapter.

     Sec. 351.405. Demoted employees

       An employee who has received a written decision under part 
     432 or 752 of this chapter to demote him or her competes 
     under this part from the position to which he or she will be 
     or has been demoted.

                     Subpart E--Retention Standing

     Sec. 351.501. Order of retention--competitive service

       (a) Competing employees shall be classified on a retention 
     register on the basis of their tenure of employment, veteran 
     preference, length of service, and performance in descending 
     order as follows:
       (1) By tenure group I, group II, group III; and
       (2) Within each group by veteran preference subgroup AD, 
     subgroup A, subgroup B; and
       (3) Within each subgroup by years of service as augmented 
     by credit for performance under Sec. 351.504, beginning with 
     the earliest service date.
       (b) Groups are defined as follows:
       (1) Group I includes each career employee who is not 
     serving a probationary period. An employee who acquires 
     competitive status and satisfies the service requirement for 
     career tenure when the employee's position is brought into 
     the competitive service is in group I as soon as the employee 
     completes any required probationary period for initial 
     appointment.
       (2) Group II includes each career-conditional employee, and 
     each employee serving a probationary period.
       (3) Group III includes all employees serving under 
     indefinite appointments, temporary appointments pending 
     establishment of a register, status quo appointments, term 
     appointments, and any other nonstatus nontemporary 
     appointments which meet the definition of provisional 
     appointments.
       (c) Subgroups are defined as follows:
       (1) Subgroup AD includes each preference eligible employee 
     who has a compensable service-connected disability of 30 
     percent or more.

[[Page S12546]]

       (2) Subgroup A includes each preference eligible employee 
     not included in subgroup AD.
       (3) Subgroup B includes each nonpreference eligible 
     employee.
       (d) A retired member of a uniformed service is considered a 
     preference eligible under this part only if the member meets 
     at least one of the conditions of the following paragraphs 
     (d)(1), (2), or (3) of this section, except as limited by 
     paragraph (d)(4) or (d)(5):
       (1) The employee's military retirement is based on 
     disability that either:
       (i) Resulted from injury or disease received in the line of 
     duty as a direct result of armed conflict; or
       (ii) Was caused by an instrumentality of war incurred in 
     the line of duty during a period of war as defined by 
     sections 101 and 301 of title 38, United States Code.
       (2) The employee's retired pay from a uniformed service is 
     not based upon 20 or more years of full-time active service, 
     regardless of when performed but not including periods of 
     active duty for training.
       (3) The employee has been continuously employed in a 
     position covered by this part since November 30, 1964, 
     without a break in service of more than 30 days.
       (4) An employee retired at the rank of major or above (or 
     equivalent) is considered a preference eligible under this 
     part if such employee is a disabled veteran as defined in 
     section 2108(2) of title 5, United States Code, as applied by 
     VEOA, and meets one of the conditions covered in paragraph 
     (d)(1), (2), or (3) of this section.
       (5) An employee who is eligible for retired pay under 
     chapter 67 of title 10, United States Code, and who retired 
     at the rank of major or above (or equivalent) is considered a 
     preference eligible under this part at age 60, only if such 
     employee is a disabled veteran as defined in section 2108(2) 
     of title 5, United States Code, as applied by VEOA.

     Sec. 351.502. Order of retention--excepted service

       (a) Competing employees shall be classified on a retention 
     register in tenure groups on the basis of their tenure of 
     employment, veteran preference, length of service, and 
     performance in descending order as set forth under Sec. 
     351.501(a) for competing employees in the competitive 
     service.
       (b) Groups are defined as follows:
       (1) Group I includes each permanent employee whose 
     appointment carries no restriction or condition such as 
     conditional, indefinite, specific time limit, or trial 
     period.
       (2) Group II includes each employee:
       (i) Serving a trial period; or
       (ii) Whose tenure is equivalent to a career-conditional 
     appointment in the competitive service in agencies having 
     such excepted appointments.
       (3) Group III includes each employee:
       (i) Whose tenure is indefinite (i.e., without specific time 
     limit), but not actually or potentially permanent;
       (ii) Whose appointment has a specific time limitation of 
     more than 1 year; or
       (iii) Who is currently employed under a temporary 
     appointment limited to 1 year or less, but who has completed 
     1 year of current continuous service under a temporary 
     appointment with no break in service of 1 workday or more.

     Sec. 351.503. Length of service

       (a) Each agency shall establish a service date for each 
     competing employee.
       (b) An employee's service date is whichever of the 
     following dates reflects the employee's creditable service:
       (1) The date the employee entered on duty, when he or she 
     has no previous creditable service;
       (2) The date obtained by subtracting the employee's total 
     creditable previous service from the date he or she last 
     entered on duty; or
       (3) The date obtained by subtracting from the date in 
     paragraph (b)(1) or (b)(2) of this section, the service 
     equivalent allowed for performance ratings under Sec. 
     351.504.
       (c) An employee who is a retired member of a uniformed 
     service is entitled to credit under this part 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 the employee is considered a preference eligible 
     under Sec. 351.501(d) of this part.
       (d) Each agency shall adjust the service date for each 
     employee to withhold credit for noncreditable time.

     Sec. 351.504. Credit for performance

       (a) Ratings used. Only ratings of record as defined in Sec. 
     351.203 shall be used as the basis for granting additional 
     retention service credit in a reduction in force.
       (b)(1) An employee's entitlement to additional retention 
     service credit for performance under this subpart shall be 
     based on the employee's three most recent ratings of record 
     received during the 4-year period prior to the date of 
     issuance of reduction in force notices, except as otherwise 
     provided in paragraphs (b)(2) and (c) of this section.
       (2) To provide adequate time to determine employee 
     retention standing, an agency may provide for a cutoff date, 
     a specified number of days prior to the issuance of reduction 
     in force notices after which no new ratings of record will be 
     put on record and used for purposes of this subpart. When a 
     cutoff date is used, an employee will receive performance 
     credit for the three most recent ratings of record received 
     during the 4-year period prior to the cutoff date.
       (3) To be creditable for purposes of this subpart, a rating 
     of record must have been issued to the employee, with all 
     appropriate reviews and signatures, and must also be on 
     record (i.e., the rating of record is available for use by 
     the office responsible for establishing retention registers).
       (4) The awarding of additional retention service credit 
     based on performance for purposes of this subpart must be 
     uniformly and consistently applied within a competitive area, 
     and must be consistent with the agency's appropriate 
     issuance(s) that implement these policies. Each agency must 
     specify in its appropriate issuance(s):
       (i) The conditions under which a rating of record is 
     considered to have been received for purposes of determining 
     whether it is within the 4-year period prior to either the 
     date the agency issues reduction in force notices or the 
     agency-established cutoff date for ratings of record, as 
     appropriate; and
       (ii) If the agency elects to use a cutoff date, the number 
     of days prior to the issuance of reduction in force notices 
     after which no new ratings of record will be put on record 
     and used for purposes of this subpart.
       (c) Missing ratings. Additional retention service credit 
     for employees who do not have three actual ratings of record 
     during the 4-year period prior to the date of issuance of 
     reduction in force notices or the 4-year period prior to the 
     agency-established cutoff date for ratings of record 
     permitted in paragraph (b)(2) of this section shall be 
     determined as appropriate, and as follows:
       (1) An employee who has not received any rating of record 
     during the 4-year period shall receive credit for performance 
     based on the modal rating for the summary level pattern that 
     applies to the employee's official position of record at the 
     time of the reduction in force.
       (2) An employee who has received at least one but fewer 
     than three previous ratings of record during the 4-year 
     period shall receive credit for performance on the basis of 
     the value of the actual rating(s) of record divided by the 
     number of actual ratings received. If an employee has 
     received only two actual ratings of record during the period, 
     the value of the ratings is added together and divided by two 
     (and rounded in the case of a fraction to the next higher 
     whole number) to determine the amount of additional retention 
     service credit. If an employee has received only one actual 
     rating of record during the period, its value is the amount 
     of additional retention service credit provided.

     Sec. 351.505. Records

       Each agency shall maintain the current correct records 
     needed to determine the retention standing of its competing 
     employees. The agency shall allow the inspection of its 
     retention registers and related records by an employee of the 
     agency to the extent that the registers and records have a 
     bearing on a specific action taken, or to be taken, against 
     the employee. The agency shall preserve intact all registers 
     and records relating to an employee for at least 1 year from 
     the date the employee is issued a specific notice.

     Sec. 351.506. Effective date of retention standing

       Except for applying the performance factor as provided in 
     Sec. 351.504:
       (a) The retention standing of each employee released from a 
     competitive level in the order prescribed in Sec. 351.601 is 
     determined as of the date the employee is so released.
       (b) The retention standing of each employee retained in a 
     competitive level as an exception under Sec. 351.606(b), Sec. 
     351.607, or Sec. 351.608, is determined as of the date the 
     employee would have been released had the exception not been 
     used. The retention standing of each employee retained under 
     any of these provisions remains fixed until completion of the 
     reduction in force action which resulted in the temporary 
     retention.
       (c) When an agency discovers an error in the determination 
     of an employee's retention standing, it shall correct the 
     error and adjust any erroneous reduction-in-force action to 
     accord with the employee's proper retention standing as of 
     the effective date established by this section.

               Subpart F--Release From Competitive Level

     Sec. 351.601. Order of release from competitive level

       (a) Each agency shall select competing employees for 
     release from a competitive level under this part in the 
     inverse order of retention standing, beginning with the 
     employee with the lowest retention standing on the retention 
     register. An agency may not release a competing employee from 
     a competitive level while retaining in that level an employee 
     with lower retention standing except:
       (1) As required under Sec. 351.606 when an employee is 
     retained under a mandatory exception or under Sec. 351.806 
     when an employee is entitled to a new written notice of 
     reduction in force; or
       (2) As permitted under Sec. 351.607 when an employee is 
     retained under a permissive continuing exception or under 
     Sec. 351.608 when an employee is retained under a permissive 
     temporary exception.
       (b) When employees in the same retention subgroup have 
     identical service dates and are tied for release from a 
     competitive level, the agency may select any tied employee 
     for release.

     Sec. 351.602. Prohibitions

       An agency may not release a competing employee from a 
     competitive level while retaining in that level an employee 
     with:

[[Page S12547]]

       (a) A specifically limited temporary appointment;
       (b) A specifically limited temporary or term promotion.

     Sec. 351.603. Actions subsequent to release from competitive 
       level

       An employee reached for release from a competitive level 
     shall be offered assignment to another position in accordance 
     with subpart G of this part. If the employee accepts, the 
     employee shall be assigned to the position offered. If the 
     employee has no assignment right or does not accept an offer 
     under subpart G, the employee shall be furloughed or 
     separated.

     Sec. 351.604. Use of furlough

       (a) An agency may furlough a competing employee only when 
     it intends within 1 year to recall the employee to duty in 
     the position from which furloughed.
       (b) An agency may not separate a competing employee under 
     this part while an employee with lower retention standing in 
     the same competitive level is on furlough.
       (c) An agency may not furlough a competing employee for 
     more than 1 year.
       (d) When an agency recalls employees to duty in the 
     competitive level from which furloughed, it shall recall them 
     in the order of their retention standing, beginning with 
     highest standing employee.

     Sec. 351.605. Liquidation provisions

       When an agency will abolish all positions in a competitive 
     area within 180 days, it must release employees in group and 
     subgroup order consistent with Sec. 351.601(a). At its 
     discretion, the agency may release the employees in group 
     order without regard to retention standing within a subgroup, 
     except as provided in Sec. 351.606. When an agency releases 
     an employee under this section, the notice to the employee 
     must cite this authority and give the date the liquidation 
     will be completed. An agency may also apply Secs. 351.607 and 
     351.608 in a liquidation.

     Sec. 351.606. Mandatory exceptions

       (a) Armed Forces restoration rights. When an agency applies 
     Sec. 351.601 or Sec. 351.605, it shall give retention 
     priorities over other employees in the same subgroup to each 
     group I or II employee entitled under 38 U.S.C. 2021 or 2024 
     to retention for, as applicable, 6 months or 1 year after 
     restoration, as provided in part 353 of this chapter.
       (b) Use of annual leave to reach initial eligibility for 
     retirement or continuance of health benefits. (1) An agency 
     shall make a temporary exception under this section to retain 
     an employee who is being involuntarily separated under this 
     part, and who elects to use annual leave to remain on the 
     agency's rolls after the effective date the employee would 
     otherwise have been separated by reduction in force, in order 
     to establish initial eligibility for immediate retirement 
     under 5 U.S.C. 8336, 8412, or 8414, and/or to establish 
     initial eligibility under 5 U.S.C. 8905 to continue health 
     benefits coverage into retirement.
       (2) An agency shall make a temporary exception under this 
     section to retain an employee who is being involuntarily 
     separated under authority of part 752 of this chapter because 
     of the employee's decision to decline relocation (including 
     transfer of function), and who elects to use annual leave to 
     remain on the agency's rolls after the effective date the 
     employee would otherwise have been separated by adverse 
     action, in order to establish initial eligibility for 
     immediate retirement under 5 U.S.C. 8336, 8412, or 8414, and/
     or to establish initial eligibility under 5 U.S.C. 8905 to 
     continue health benefits coverage into retirement.
       (3) An employee retained under paragraph (b) this section 
     must be covered by chapter 63 of title 5, United States Code.
       (4) An agency may not retain an employee under this section 
     past the date that the employee first becomes eligible for 
     immediate retirement, or for continuation of health benefits 
     into retirement, except that an employee may be retained long 
     enough to satisfy both retirement and health benefits 
     requirements.
       (5) Except as permitted by 5 CFR 351.608(d), an agency may 
     not approve an employee's use of any other type of leave 
     after the employee has been retained under a temporary 
     exception authorized by paragraph (b) of this section.
       (6) Annual leave for purposes of paragraph (b) of this 
     section is described in Sec. 630.212 of Title 5, CFR.
       (c) Documentation. Each agency shall record on the 
     retention register, for inspection by each employee, the 
     reasons for any deviation from the order of release required 
     by Sec. 351.601 or Sec. 351.605.

     Sec. 351.607. Permissive continuing exceptions

       An agency may make exception to the order of release in 
     Sec. 351.601 and to the action provisions of Sec. 351.603 
     when needed to retain an employee on duties that cannot be 
     taken over within 90 days and without undue interruption to 
     the activity by an employee with higher retention standing. 
     The agency shall notify in writing each higher-standing 
     employee reached for release from the same competitive level 
     of the reasons for the exception.

     Sec. 351.608. Permissive temporary exceptions

       (a) General. (1) In accordance with this section, an agency 
     may make a temporary exception to the order of release in 
     Sec. 351.601, and to the action provisions of Sec. 351.603, 
     when needed to retain an employee after the effective date of 
     a reduction in force. Except as otherwise provided in 
     paragraphs (c) and (e) of this section, an agency may not 
     make a temporary exception for more than 90 days.
       (2) After the effective date of a reduction in force 
     action, an agency may not amend or cancel the reduction in 
     force notice of an employee retained under a temporary 
     exception so as to avoid completion of the reduction in force 
     action.
       (b) Undue interruption. An agency may make a temporary 
     exception for not more than 90 days when needed to continue 
     an activity without undue interruption.
       (c) Government obligation. An agency may make a temporary 
     exception to satisfy a Government obligation to the retained 
     employee without regard to the 90-day limit set forth under 
     paragraph (a)(1) of this section.
       (d) Sick leave. An agency may make a temporary exception to 
     retain on sick leave a lower standing employee covered by an 
     applicable leave system for Federal employees, who is on 
     approved sick leave on the effective date of the reduction in 
     force, for a period not to exceed the date the employee's 
     sick leave is exhausted. Use of sick leave for this purpose 
     must be in accordance with the requirements in part 630, 
     subpart D of this chapter (or other applicable leave system 
     for Federal employees). An agency may not approve an 
     employee's use of any other type of leave after the employee 
     has been retained under this paragraph (d).
       (e)(1) An agency may make a temporary exception to retain 
     on accrued annual leave a lower standing employee who:
       (i) Is being involuntarily separated under this part;
       (ii) Is covered by a Federal leave system under authority 
     other than chapter 63 of title 5, United States Code; and,
       (iii) Will attain first eligibility for an immediate 
     retirement benefit under 5 U.S.C. 8336, 8412, or 8414 (or 
     other authority), and/or establish eligibility under 5 U.S.C. 
     8905 (or other authority) to carry health benefits coverage 
     into retirement during the period represented by the amount 
     of the employee's accrued annual leave.
       (2) An agency may not approve an employee's use of any 
     other type of leave after the employee has been retained 
     under this paragraph (e).
       (3) This exception may not exceed the date the employee 
     first becomes eligible for immediate retirement or for 
     continuation of health benefits into retirement, except that 
     an employee may be retained long enough to satisfy both 
     retirement and health benefits requirements.
       (4) Accrued annual leave includes all accumulated, accrued, 
     and restored annual leave, as applicable, in addition to 
     annual leave earned and available to the employee after the 
     effective date of the reduction in force. When approving a 
     temporary exception under this provision, an agency may not 
     advance annual leave or consider any annual leave that might 
     be credited to an employee's account after the effective date 
     of the reduction in force other than annual leave earned 
     while in an annual leave status.
       (f) Other exceptions. An agency may make a temporary 
     exception under this section to extend an employee's 
     separation date beyond the effective date of the reduction in 
     force when the temporary retention of a lower standing 
     employee does not adversely affect the right of any higher 
     standing employee who is released ahead of the lower standing 
     employee. The agency may establish a maximum number of days, 
     up to 90 days, for which an exception may be approved.
       (g) Notice to employees. When an agency approves an 
     exception for more than 30 days, it must:
       (1) Notify in writing each higher standing employee in the 
     same competitive level reached for release of the reasons for 
     the exception and the date the lower standing employee's 
     retention will end; and
       (2) List opposite the employee's name on the retention 
     register the reasons for the exception and the date the 
     employee's retention will end.

            Subpart G--Assignment Rights (Bump and Retreat)

      351.701 Assignment involving displacement

       (a) General. When a group I or II competitive service 
     employee with a current annual performance rating of record 
     of minimally successful (Level 2) or equivalent, or higher, 
     is released from a competitive level, an agency shall offer 
     assignment, rather than furlough or separate, in accordance 
     with paragraphs (b), (c), and (d) of this section to another 
     competitive position which requires no reduction, or the 
     least possible reduction, in representative rate. The 
     employee must be qualified for the offered position. The 
     offered position shall be in the same competitive area, last 
     at least 3 months, and have the same type of work schedule 
     (e.g., full-time, part-time, intermittent, or seasonal) as 
     the position from which the employee is released. Upon 
     accepting an offer of assignment, or displacing another 
     employee under this part, an employee retains the same status 
     and tenure in the new position. The promotion potential of 
     the offered position is not a consideration in determining 
     an employee's right of assignment.
       (b) Lower subgroup--bumping. A released employee shall be 
     assigned in accordance with paragraph (a) of this section and 
     bump to a position that:
       (1) Is held by another employee in a lower tenure group or 
     in a lower subgroup within the same tenure group; and
       (2) Is no more than three grades (or appropriate grade 
     intervals or equivalent) below the position from which the 
     employee was released.

[[Page S12548]]

       (c) Same subgroup--retreating. A released employee shall be 
     assigned in accordance with paragraphs (a) and (d) of this 
     section and retreat to a position that:
       (1) Is held by another employee with lower retention 
     standing in the same tenure group and subgroup;
       (2) Is not more than three grades (or appropriate grade 
     intervals or equivalent) below the position from which the 
     employee was released, except that for a preference eligible 
     employee with a compensable service-connected disability of 
     30 percent or more the limit is five grades (or appropriate 
     grade intervals or equivalent); and
       (3) Is the same position, or an essentially identical 
     position, formerly held by the released employee as a 
     competing employee in a Federal agency (i.e., when held by 
     the released employee in an executive, legislative, or 
     judicial branch agency, the position would have been placed 
     in tenure groups I, II, or III, or equivalent). In 
     determining whether a position is essentially identical, the 
     determination is based on the competitive level criteria 
     found in Sec. 351.403, but not necessarily in regard to the 
     respective grade, classification series, type of work 
     schedule, or type of service, of the two positions.
       (d) Limitation. An employee with a current annual 
     performance rating of record of minimally successful (Level 
     2) or equivalent may be assigned under paragraph (c) of this 
     section only to a position held by another employee with a 
     current annual performance rating of record no higher than 
     minimally successful (Level 2) or equivalent.
       (e) Pay rates. (1) The determination of equivalent grade 
     intervals shall be based on a comparison of representative 
     rates.
       (2) Each employee's assignment rights shall be determined 
     on the basis of the pay rates in effect on the date of 
     issuance of specific reduction-in-force notices, except that 
     when it is officially known on the date of issuance of 
     notices that new pay rates have been approved and will become 
     effective by the effective date of the reduction in force, 
     assignment rights shall be determined on the basis of the new 
     pay rates.
       (f)(1) In determining applicable grades (or grade 
     intervals) under Secs. 351. 701(b)(2) and 351.701(c)(2), the 
     agency uses the grade progression of the released employee's 
     position of record to determine the grade (or interval) 
     limits of the employee's assignment rights.
       (2) For positions covered by the General Schedule, the 
     agency must determine whether a one-grade, two-grade, or 
     mixed grade interval progression is applicable to the 
     position of the released employee.
       (3) For positions not covered by the General Schedule, the 
     agency must determine the normal line of progression for each 
     occupational series and grade level to determine the grade 
     (or interval) limits of the released employee's assignment 
     rights. If the agency determines that there is no normal line 
     of progression for an occupational series and grade level, 
     the agency provides the released employee with assignment 
     rights to positions within three actual grades lower on a 
     one-grade basis. The normal line of progression may include 
     positions in different pay systems.
       (4) For positions where no grade structure exists, the 
     agency determines a line of progression for each occupation 
     and pay rate, and provides assignment rights to positions 
     within three grades (or intervals) lower on that basis.
       (5) If the released employee holds a position that is less 
     than three grades above the lowest grade in the applicable 
     classification system (e.g., the employee holds a GS-2 
     position), the agency provides the released employee with 
     assignment rights up to three actual grades lower on a one-
     grade basis in other pay systems.

     Sec. 351.702. Qualifications for assignment

       (a) Except as provided in Sec. 351.703, an employee is 
     qualified for assignment under Sec. 351.701 if the employee:
       (1) Meets the standards and requirements for the position, 
     including any minimum educational requirement, and any 
     selective placement factors established by the agency;
       (2) Is physically qualified, with reasonable accommodation 
     where appropriate, to perform the duties of the position;
       (3) Has the capacity, adaptability, and special skills 
     needed to satisfactorily perform the duties of the position 
     without undue interruption. This determination includes 
     recency of experience, when appropriate.
       (b) An employee who is released from a competitive level 
     during a leave of absence because of a corpensable injury may 
     not be denied an assignment right solely because the employee 
     is not physically qualified for the duties of the position if 
     the physical disqualification resulted from the compensable 
     injury.
       (c) If an agency determines, on the basis of evidence 
     before it, that a preference eligible employee who has a 
     compensable service-connected disability of 30 percent or 
     more is not able to fulfill the physical requirements of a 
     position to which the employee would otherwise have been 
     assigned under this part, the agency must notify the employee 
     of the reasons for the determination.
       (e) An agency may formally designate as a trainee or 
     developmental position a position in a program with all of 
     the following characteristics:
       (1) The program must have been designed to meet the 
     agency's needs and requirements for the development of 
     skilled personnel;
       (2) The program must have been formally designated, with 
     its provisions made known to employees and supervisors;
       (3) The program must be developmental by design, offering 
     planned growth in duties and responsibilities, and providing 
     advancement in recognized lines of career progression; and
       (4) The program must be fully implemented, with the 
     participants chosen through standard selection procedures. To 
     be considered qualified for assignment under Sec. 351.701 to 
     a formally designated trainee or developmental position in a 
     program having all of the characteristics covered in 
     paragraphs (e)(1), (2), (3), and (4) of this section, an 
     employee must meet all of the conditions required for 
     selection and entry into the program.

     Sec. 351.703. Exception to qualifications

       An agency may assign an employee to a vacant position under 
     Sec. 351.201(b) or Sec. 351.701 of this part if:
       (a) The employee meets any minimum education requirement 
     for the position; and
       (b) The agency determines that the employee has the 
     capacity, adaptability, and special skills needed to 
     satisfactorily perform the duties and responsibilities of the 
     position.

     Sec. 351.704. Rights and prohibitions

       (a)(1) An agency may satisfy an employee's right to 
     assignment under Sec. 351.701 by assignment to a vacant 
     position under Sec. 351.201(b), or by assignment under any 
     applicable administrative assignment provisions of Sec. 
     351.705, to a position having a representative rate equal to 
     that the employee would be entitled under Sec. 351.701. An 
     agency may also offer an employee assignment under Sec. 
     351.201(b) to a vacant position in lieu of separation by 
     reduction in force under 5 CFR part 351. Any offer of 
     assignment under Sec. 351.201(b) to a vacant position must 
     meet the requirements set forth under Sec. 351.701.
       (2) An agency may, at its discretion, choose to offer a 
     vacant other-than-full-time position to a full-time employee 
     or to offer a vacant full-time position to an other-than-
     full-time employee in lieu of separation by reduction in 
     force.
       (b) Section 351.701 does not:
       (1) Authorize or permit an agency to assign an employee to 
     a position having a higher representative rate;
       (2) Authorize or permit an agency to displace a full-time 
     employee by an other-than-full-time employee, or to satisfy 
     an other-than-full-time employee's right to assignment by 
     assigning the employee to a vacant full-time position.
       (3) Authorize or permit an agency to displace an other-
     than-full-time employee by a full-time employee, or to 
     satisfy a full-time employee's right to assignment by 
     assigning the employee to a vacant other-than-full-time 
     position.
       (4) Authorize or permit an agency to assign a competing 
     employee to a temporary position (i.e., a position under an 
     appointment not to exceed 1 year), except as an offer of 
     assignment in lieu of separation by reduction in force under 
     this part when the employee has no right to a position under 
     Sec. 351.701 or Sec. 351.704(a)(1) of this part. This option 
     does not preclude an agency from, as an alternative, also 
     using a temporary position to reemploy a competing employee 
     following separation by reduction in force under this part.
       (5) Authorize or permit an agency to displace an employee 
     or to satisfy a competing employee's right to assignment by 
     assigning the employee to a position with a different type of 
     work schedule (e.g., full-time, part-time, intermittent, or 
     seasonal) than the position from which the employee is 
     released.

     Sec. 351.705. Administrative assignment

       (a) An agency may, at its discretion, adopt provisions 
     which:
       (1) Permit a competing employee to displace an employee 
     with lower retention standing in the same subgroup consistent 
     with Sec. 351.701 when the agency cannot make an equally 
     reasonable assignment by displacing an employee in a lower 
     subgroup;
       (2) Permit an employee in subgroup III-AD to displace an 
     employee in subgroup III-A or III-B, or permit an employee in 
     subgroup III-A to displace an employee is subgroup III-B 
     consistent with Sec. 351.701; or
       (3) Provide competing employees in the excepted service 
     with assignment rights to other positions under the same 
     appointing authority on the same basis as assignment rights 
     provided to competitive service employees under Sec. 351.701 
     and in paragraphs (a) (1) and (2) of this section.
       (b) Provisions adopted by an agency under paragraph (a) of 
     this section:
       (1) Shall be consistent with this part;
       (2) Shall be uniformly and consistently applied in any one 
     reduction in force;
       (3) May not provide for the assignment of an other-than-
     full-time employee to a full-time position;
       (4) May not provide for the assignment of a full-time 
     employee to an other-than-full-time position;
       (5) May not provide for the assignment of an employee in a 
     competitive service position to a position in the excepted 
     service; and
       (6) May not provide for the assignment of an employee in an 
     excepted position to a position in the competitive service.

                     Subpart H--Notice to Employee

     Sec. 351.801. Notice period

       (a)(1) Except as provided in paragraph (b) of this section, 
     each competing employee selected for release from a 
     competitive level under this part is entitled to a specific 
     written notice at least 60 full days before the effective 
     date of release.

[[Page S12549]]

       (2) At the same time an agency issues a notice to an 
     employee, it must give a written notice to the exclusive 
     representative(s), as defined in 5 U.S.C. 7103(a)(16), as 
     applied by the CAA, of each affected employee at the time of 
     the notice. When a significant number of employees will be 
     separated, an agency must also satisfy the notice 
     requirements of Secs. 351.803 (b) and (c).
       (b) When a reduction in force is caused by circumstances 
     not reasonably foreseeable, an agency may provide a notice 
     period of less than 60 days, but the shortened notice period 
     must cover at least 30 full days before the effective date of 
     release.
       (c) The notice period begins the day after the employee 
     receives the notice.
       (d) When an agency retains an employee under Sec. 351.607 
     or Sec. 351.608, the notice to the employee shall cite the 
     date on which the retention period ends as the effective date 
     of the employee's release from the competitive level.

     Sec. 351.802. Content of notice

       (a)(1) The action to be taken, the reasons for the action, 
     and its effective date;
       (2) The employee's competitive area, competitive level, 
     subgroup, service date, and three most recent ratings of 
     record received during the last 4 years;
       (3) The place where the employee may inspect the 
     regulations and record pertinent to this case;
       (4) The reasons for retaining a lower-standing employee in 
     the same competitive level under Sec. 351.607 or Sec. 
     351.608;
       (5) Information on reemployment rights, except as permitted 
     by Sec. 351.803(a); and
       (6) The employee's right, as applicable, to grieve under a 
     negotiated grievance procedure.
       (b) When an agency issues an employee a notice, the agency 
     must, upon the employee's request, provide the employee with 
     a copy of retention regulations found in part 351 of this 
     chapter.

     Sec. 351.803. Notice of eligibility for reemployment and 
       other placement assistance

       (a) The employee must be given a release to authorize, at 
     his or her option, the release of his or her resume and other 
     relevant employment information for employment referral to 
     State dislocated worker unit(s) and potential public or 
     private sector employers. The employee must also be given 
     information concerning how to apply both for unemployment 
     insurance through the appropriate State program and benefits 
     available under the State dislocated worker unit(s), as 
     designated or created under title III of the Job Training 
     Partnership Act, and an estimate of severance pay (if 
     eligible).
       (b) When 50 or more employees in a competitive area receive 
     separation notices under this part, the agency must provide 
     written notification of the action, at the same time it 
     issues specific notices of separation to employees, to:
       (1) The State dislocated worker unit(s), as designated or 
     created under title III of the Job Training Partnership Act;
       (2) The chief elected official of local government(s) 
     within which these separations will occur; and
       (c) The notice required by paragraph (b) of this section 
     must include:
       (1) The number of employees to be separated from the agency 
     by reduction in force (broken down by geographic area);
       (2) The effective date of the separations.

     Sec. 351.804. Expiration of notice

       (a) A notice expires when followed by the action specified, 
     or by an action less severe than specified, in the notice or 
     in an amendment made to the notice before the agency takes 
     the action.
       (b) An agency may not take the action before the effective 
     date in the notice; instead, the agency may cancel the 
     reduction in force notice and issue a new notice subject to 
     this subpart.

     Sec. 351.805. New notice required

       (a) An employee is entitled to a written notice of, as 
     appropriate, at least 60 or 120 full days if the agency 
     decides to take an action more severe than first specified.
       (b) An agency must give an employee an amended written 
     notice if the reduction in force is changed to a later date. 
     A reduction in force action taken after the date specified in 
     the notice given to the employee is not invalid for that 
     reason, except when it is challenged by a higher-standing 
     employee in the competitive level who is reached out of order 
     for a reduction in force action as a result of the change in 
     dates.
       (c) An agency must give an employee an amended written 
     notice and allow the employee to decide whether to accept a 
     better offer of assignment under subpart G of this part that 
     becomes available before or on the effective date of the 
     reduction in force. The agency must give the employee the 
     amended notice regardless of whether the employee has 
     accepted or rejected a previous offer of assignment, provided 
     that the employee has not voluntarily separated from his or 
     her official position.

     Sec. 351.806. Status during notice period

       When possible, the agency shall retain the employee on 
     active duty status during the notice period. When in an 
     emergency the agency lacks work or funds for all or part of 
     the notice period, it may place the employee on annual leave 
     with or without his or her consent, or leave without pay with 
     his or her consent, or in a nonpay status without his or her 
     consent.

     Sec. 351.807. Certification of Expected Separation

       (a) For the purpose of enabling otherwise eligible 
     employees to be considered for eligibility to participate in 
     dislocated worker programs under the Job Training Partnership 
     Act administered by the U.S. Department of Labor, an agency 
     may issue a Certificate of Expected Separation to a competing 
     employee who the agency believes, with a reasonable degree of 
     certainty, will be separated from Federal employment by 
     reduction in force procedures under this part. A 
     certification may be issued up to 6 months prior to the 
     effective date of the reduction in force.
       (b) This certification may be issued to a competing 
     employee only when the agency determines:
       (1) There is a good likelihood the employee will be 
     separated under this part;
       (2) Employment opportunities in the same or similar 
     position in the local commuting area are limited or 
     nonexistent;
       (3) Placement opportunities within the employee's own or 
     other Federal agencies in the local commuting area are 
     limited or nonexistent; and
       (4) If eligible for optional retirement, the employee has 
     not filed a retirement application or otherwise indicated in 
     writing an intent to retire.
       (c) A certification is to be addressed to each individual 
     eligible employee and must be signed by an appropriate agency 
     official. A certification must contain the expected date of 
     reduction in force, a statement that each factor in paragraph 
     (b) of this section has been satisfied, and a description of 
     Job Training Partnership Act programs, the Interagency 
     Placement Program, and the Reemployment Priority List.
       (d) A certification may not be used to satisfy any of the 
     notice requirements elsewhere in this subpart.

                Subpart I--Appeals and Corrective Action

     Sec. 351.902. Correction by agency

       When an agency decides that an action under this part was 
     unjustified or unwarranted and restores an individual to the 
     former grade or rate of pay held or to an intermediate grade 
     or rate of pay, it shall make the restoration retroactively 
     effective to the date of the improper action. 
                                  ____


     Interim Section 102(b) Report: Electronic Information Systems

 [Review and Report on the Applicability to the Legislative Branch of 
Section 508 of the Rehabilitation Act of 1973, as Amended; submitted by 
the Board of Directors of the Office of Compliance Pursuant to Section 
   102(b) of the Congressional Accountability Act of 1995, 2 U.S.C. 
                      1302(b), November 13, 2001]


                            I. Introduction

       The Board of Directors (``the Board'') is charged with 
     monitoring Federal law relating to terms and conditions of 
     employment and access to public services and accommodations. 
     The Congressional Accountability Act instructs the Board to 
     report to Congress biannually: (1) whether or not those 
     provisions are applicable to the Legislative Branch; and (2) 
     whether inapplicable provisions should be made applicable to 
     the Legislative Branch. Section 102(b)(1)&(2) of the 
     Congressional Accountability Act (CAA), (2 U.S.C. 
     1302(b)(1)&(2)). However, the CAA does not prohibit the Board 
     from reporting to Congress on an interim basis, in 
     appropriate circumstances, when such a report would best 
     effectuate the purposes of the statute.


         II. Section 508, Rehabilitation Act Amendments of 1998

       The Board's December 31, 2000 Report did not address 
     certain 1998 amendments \1\ to Section 508 of the 
     Rehabilitation Act of 1973 (29 U.S.C. 794d), which 
     subsequently were implemented by Executive Branch regulation 
     in June 2001.\2\ The essence of these amendments requires 
     that Executive Branch agencies provide their disabled 
     employees and disabled members of the public with access to 
     an agency's electronic data and information. For example, 
     visually impaired persons must be able to utilize agency web 
     sites through software that converts visual information to an 
     effective audio format. In those rare instances where such 
     compliance would impose an undue burden on an agency or 
     department, Section 508 permits delivery of those services in 
     alternate manner. Section 508 does not apply to the employing 
     offices covered by the CAA, or to the Congressional 
     instrumentalities GAO, GPO, or Library of Congress.\3\
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     \1\ P.L. 105-220, 112 Stat. 1202, Sec. 408(a) (Aug. 7, 1998).
     \2\ 65 FR 80500 (Dec. 21, 2000), codified at, 36 CFR part 
     1194 (2001).
     \3\ The CAA applies the Americans with Disabilities Act 
     (``ADA'') directly to these instrumentalities. Some of the 
     other statutes referenced in the CAA, such as Occupational 
     Safety & Health Act (``OSHA'') and the Family Medical Leave 
     Act (`` FMLA''), are applied to GAO and the Library of 
     Congress through the CAA, as regulated by the Office of 
     Compliance. The Office has no regulatory authority of any 
     kind with respect to GPO.
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       The section 508 amendments originated in Senate Bill S. 
     1579. The Labor and Human Resources Committee's Report 
     articulated that this legislation stemmed primarily from the 
     need to ``reestablish[] and realign[] the national workforce 
     development and training system to make it more user-friendly 
     and accessible.'' Sen. Rept. 105-166 at 2 (Mar. 2, 1998). 
     Thus, the legislation was primarily perceived as a vocational 
     rehabilitation and training matter. However, there is no 
     doubt that the particular purpose of the

[[Page S12550]]

     proposed amendments to section 508 was to: require[] each 
     Federal agency to procure, maintain, and use electronic 
     and information technology that allows individuals with 
     disabilities the same access to information technology as 
     individuals without disabilities. Id. at 58.
       The section 508 amendments require that employees and the 
     general public, irrespective of disability, have comparable 
     access to electronic information systems. The Senate proposal 
     was incorporated as part of the Senate amendments to H.R. 
     1385, the Workforce Investment Act of 1998 and largely 
     adopted in the Conference Report.\4\


 III. The Office's Existing Efforts to Enhance Electronic Information 
        Access under the Americans with Disabilities Act of 1990

       The Office of Compliance already maintains an active role 
     regarding employee accessibility to electronic information 
     systems through the requirements of the Americans With 
     Disabilities Act of 1990 (ADA), which is applied to employing 
     offices of the Congress in the Congressional Accountability 
     Act (''Act''). Section 201(a) of the Act (2 U.S.C. 
     Sec. 1311(a)) states, in relevant part, that ``[a]ll 
     personnel actions affecting covered employees shall be made 
     free from any discrimination based on .  .  . (3) disability 
     within the meaning of .  .  . sections 102 through 104 of the 
     .  .  . [ADA]''.\5\
       Section 210 of the Act (2 U.S.C. Sec. 1331) applies the 
     ADA's public access requirements to employing offices, and 
     authorizes ADA court proceedings regarding alleged violations 
     by GAO, GPO, and the Library of Congress. The executive 
     branch regulations implementing the public access provisions 
     of the ADA have included the requirements at 28 CFR 
     Sec. 35.160 that:
       (a) A public entity shall take appropriate steps to ensure 
     that communications with applicants, participants, and 
     members of the public with disabilities are as effective as 
     communications with others.
       (b)(1) A public entity shall furnish appropriate auxiliary 
     aids and services where necessary to afford an individual 
     with a disability an equal opportunity to participate in, and 
     enjoy the benefits of, a service, program, or activity 
     conducted by a public entity.
       28 CFR Sec. 36.302 also requires in relevant part:
       (a) General. A public accommodation shall make reasonable 
     modifications in policies, practices, or procedures, when the 
     modifications are necessary to afford goods, services, 
     facilities, privileges, advantages, or accommodations to 
     individuals with disabilities, unless the public 
     accommodation can demonstrate that making the modifications 
     would fundamentally alter the nature of the goods, services, 
     facilities, privileges, advantages, or accommodations. .  .  
     .
       In 28 CFR Sec. 36.303, the concept of ``auxiliary aids and 
     services'' is set forth as one form of ``reasonable 
     accommodation'':
       (a) General. A public accommodation shall take those steps 
     that may be necessary to ensure that no individual with a 
     disability is excluded, denied services, segregated or 
     otherwise treated differently than other individuals because 
     of the absence of auxiliary aids and services, unless the 
     public accommodation can demonstrate that taking those steps 
     would fundamentally alter the nature of the .  .  . services 
     .  .  . being offered or would result in an undue burden. .  
     .  .
       (b) Examples. The term ``auxiliary aids and services'' 
     includes:
       (1) Qualified interpreters, note takers, computer-aided 
     transcription services, written materials, telephone handset 
     amplifiers, assistive listening devices, assistive listening 
     systems, telephones compatible with hearing aids, closed 
     caption decoders, open and closed captioning, 
     telecommunications devices for deaf persons (TDD's), 
     videotext displays, or other effective methods of making 
     aurally delivered materials available to individuals with 
     hearing impairments;
       (2) Qualified readers, taped texts, audio recordings,
       Brailled materials, large printed materials, or other 
     effective methods of making visually delivered materials 
     available to individuals with visual impairments;  .  .  .  .
       (c) Effective Communication. A public accommodation shall 
     furnish appropriate auxiliary aids and services where 
     necessary to ensure effective communication with individuals 
     with disabilities.
       These ADA regulations, already promulgated by the Attorney 
     General pursuant to Title II and Title III of the ADA, and in 
     use in the executive branch, were among those which the Board 
     of Directors of the Office of Compliance submitted to the 
     Senate on January 7, 1997 for final adoption as regulations 
     under the Congressional Accountability Act. The same proposed 
     regulations were submitted to the House two days later. 
     Congress did not approve these proposed regulations. 
     Consequently, pursuant to section 411 of the CAA (2 U.S.C. 
     Sec. 1411), the Executive Branch regulations became 
     applicable ``by default'' to all employing offices under the 
     CAA.
       In December, 1998, the General Counsel of the Office of 
     Compliance submitted a Report on Inspections for Compliance 
     with the Americans with Disabilities Act, as required by 
     section 210(f)(2) of the CAA. (2 U.S.C. Sec. 1331(f)(2)). The 
     Report outlined the requirements of the ADA, including the 
     fact that ``[t]he ADA requires that aids to communication, 
     called auxiliary aids, be furnished to persons with 
     disabilities when necessary for effective communication.'' 
     Id. at 8. The Report (at 16) also highlighted the role of 
     electronic communication in this effort:
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     \4\ H. Conf. Rept. 105-659, 105th Cong., 2d Sess. (July 29, 
     1998).
     \5\ Section 201 of the CAA also applies, for purposes of 
     proscribing employment discrimination, the meaning of 
     ``disability'' as set forth in section 501 of the 
     Rehabilitation Act. However, section 508 of the 
     Rehabilitation Act is a separate and free standing provision 
     and is not incorporated into the CAA simply by reason of the 
     application of section 501.
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       Legislative Information on the Internet.--A large amount of 
     legislative information is now available on the Internet. The 
     Library of Congress's Thomas site (http://www.loc.gov), for 
     example, has the text of bills and information about their 
     status; copies of the Congressional Record; committee 
     schedules, reports, and selected hearing transcripts; House 
     and Senate Roll Call Votes; and links to other sites with 
     legislative information. Most Senators and Members of the 
     House of Representatives also maintain web sites as a means 
     of communicating with their constituents.
       Persons with disabilities are often avid users of the 
     Internet and other electronic information services. In 
     addition to making legislative information readily available 
     to individuals with hearing or mobility impairments, the 
     Internet also serves people who are blind. Text on the 
     Internet can be read aloud by a computer equipped with a 
     speech synthesizer and text-to-speech software or can be 
     converted to a Braille format.
       The usability of the web site for a person who is blind 
     depends on its design. For example, if image maps are used on 
     a Member's web site, there should be an alternate method of 
     selecting options so the text-to-speech software can process 
     the information. Unless this is done, it will be difficult or 
     impossible for a blind user to get access to information on 
     the site. . . .
       In the past several years, the Office staff has also 
     responded to a number of inquiries from employing offices 
     about the 1998 section 508 amendments to the Rehabilitation 
     Act. The Office has informed offices regarding the section 
     508 required amendments in the Federal Acquisition Regulation 
     (FAR), and has further explained that ``the public access 
     provisions of the CAA do not apply section 508 of the 
     Rehabilitation Act to the entities of the Legislative Branch. 
     . . .''
       Because the CAA does not give the Office or its General 
     Counsel authority to require that electronic information 
     systems meet applicable accessibility standards absent a 
     specific complaint from an individual with a particular 
     disability, our ADA enforcement activities--as distinct from 
     our educational activities--have been necessarily restricted 
     and reactive rather than pro-active.


        IV. The Impact of Section 508's Implementing Regulations

       On December 21, 2000, the Architectural and Transportation 
     Barriers Compliance Safety Board published its final 
     regulations including ``standards setting forth a definition 
     of electronic and information technology and the technical 
     and functional performance criteria necessary for such 
     technology to comply with section 508.'' See note 2 supra. 
     The effective date of those regulations was February 20, 
     2001. The final amendments to the Federal Acquisition 
     Regulation implementing section 508 were published on April 
     25, 2001, and went into effect as of June 25, 2001.\6\ There 
     now exists a web site concerning section 508 standards, 
     issues, and developments in the executive branch: 
     www.section508.gov. Individuals with specific questions are 
     encouraged to visit that site.
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     \6\ 66 FR 20893 (Apr. 25, 2001), codified at, 48 CFR part 39 
     (2001).
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       There are substantial differences between the standards 
     mandated by Title II of the ADA and by Section 508 of the 
     Rehabilitation Act. Although the two regulatory schemes 
     overlap, there is little question that Section 508 applies 
     significantly more stringent technical requirements for 
     electronic information technology accessibility. While the 
     ADA requires that public entities--including employing 
     offices under the CAA--provide reasonably equivalent access 
     to information, the methodology for delivering that access 
     remains flexible. Thus, for example, if a sight impaired 
     employee or member of the public cannot access material on an 
     employing office's web site, under ADA that office can 
     satisfy its responsibility to either individual by having the 
     relevant material read to that person. Under Section 508, 
     however, an agency of the executive branch must offer 
     technology through its web site that allows all individuals, 
     with or without disabilities, directly to obtain the 
     information through the site itself. For instance, an agency 
     must upgrade its site with a capacity to reformat the 
     information for sight impaired individuals by means of a 
     ``screen reader,'' which translates the visual material on a 
     computer screen into automated audible output.\7\ Thus, 
     section 508 requires that the means to access information 
     exist within the electronic medium itself.
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     \7\ This document is not the appropriate venue for any 
     extensive technical description of the differences between 
     section 508 and ADA requirements.
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       Consequently, this Office's existing authority, confined to 
     enforcement case-by-case of the ADA requirements and the 
     provision of general information about section 508, does not 
     fully effectuate the public policy goal of the Section 508 
     Amendments.
       The Office, therefore, wishes to amplify its December 31, 
     2000 Report to Congress by reporting that the legislative 
     branch is not mandated to meet the higher level of electronic 
     information accessibility which Congress requires of the 
     executive branch pursuant to section 508.

[[Page S12551]]

            V. The Recommendation of the Board of Directors

       When the section 508 amendments were enacted as part of the 
     Workforce Investment Act of 1998, much if not most of the 
     technology necessary to carry out its substantive mandates 
     did not exist. Indeed, even at this stage, some in the 
     electronic information community consider fully compliant 
     technology to be non-existent. In any event, the Executive 
     Branch is fully engaged in reaching Section 508 compliance. 
     Furthermore, both the Library of Congress and the Government 
     Printing Office, each of which maintains extensive and 
     heavily visited web sites (GPO operates approximately 30 web 
     sites for other executive and legislative branch agencies), 
     have announced that they are proceeding voluntarily to 
     achieve section 508 compliance. However, absent Congressional 
     action, universal legislative branch electronic information 
     accessibility will remain optional, and not a legal 
     requirement.
       The Congress commissioned this Board to monitor and comment 
     on all laws which concern ``access to public services and 
     accommodations.'' This responsibility of the Board helps 
     ensure that the Legislative Branch is kept apprised regarding 
     advances in access to electronic information technology, and 
     is advised ``whether such provisions should be made 
     applicable to the legislative branch.''
       Pursuant to that mandate, the Board of Directors of the 
     Office of Compliance recommends that the Congress enact 
     amendments to sections 201 and 210 of the CAA to incorporate 
     the substantive employee access and public access 
     requirements of section 508 of the Rehabilitation Act of 1973 
     for all CAA-covered employing offices. We further suggest 
     that the Office's existing section 401 and section 210 
     regulatory and enforcement authorities covering both employee 
     and public access to electronic information systems be 
     extended to include section 508 substantive requirements. 
     Finally, we suggest that section 508 requirements regarding 
     employee and public access also be applied to the Government 
     Printing Office, Government Accounting Office, and Library of 
     Congress.
       The Office of Compliance stands ready to participate in the 
     coordination of section 508 training and education for those 
     in Congress and in the instrumentalities who are responsible 
     for the maintenance and development of electronic information 
     systems.
       This Supplemental Section 102(b) Report is also available 
     on the web site of the Office of Compliance, at 
     www.compliance.gov.

 ____________________