[Congressional Record Volume 156, Number 163 (Friday, December 10, 2010)]
[Senate]
[Pages S8793-S8798]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 SENATE CONCURRENT RESOLUTION 77--TO PROVIDE FOR THE APPROVAL OF FINAL 
    REGULATIONS ISSUED BY THE OFFICE OF COMPLIANCE TO IMPLEMENT THE 
  VETERANS EMPLOYMENT OPPORTUNITIES ACT OF 1998 THAT APPLY TO CERTAIN 
    LEGISLATIVE BRANCH EMPLOYING OFFICES AND THEIR COVERED EMPLOYEES

  Mr. SCHUMER (for himself and Mr. Bennett) submitted the following 
concurrent resolution; which was considered and agreed to:

                            S. Con. Res. 77

       Resolved by the Senate (the House of Representatives 
     concurring), That the following regulations issued by the 
     Office of Compliance on March 21, 2008, and stated in section 
     4, with the technical corrections described in section 3 and 
     to the extent applied by section 2, are hereby approved:

     SEC. 2. APPLICATION OF REGULATIONS.

       (a) In General.--For purposes of applying the issued 
     regulations as a body of regulations required by section 
     304(a)(2)(B)(iii) of the Congressional Accountability Act of 
     1995 (2 U.S.C. 1384(a)(2)(B)(iii)), the portions of the 
     issued regulations that are unclassified or classified with a 
     ``C'' designation shall apply to all covered employees that 
     are not employees of the House of Representatives or 
     employees of the Senate, and employing offices that are not 
     offices of the House of Representatives or the Senate.
       (b) Definitions.--In this section, the terms ``employee of 
     the House of Representatives'', ``employee of the Senate'', 
     ``covered employee'', and ``employing office'' have the 
     meanings given the terms in section 101 of the Congressional 
     Accountability Act of 1995 (2 U.S.C. 1301), except as limited 
     by the regulations (as corrected under section 3).

     SEC. 3. TECHNICAL CORRECTIONS.

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

[[Page S8794]]

     Agricultural Adjustment Act, reenacted with amendments by the 
     Agricultural Marketing Agreement Act of 1937.
       (d) Other Corrections.--In the issued regulations--
       (1) section 1.109 shall be considered to have an ``and'' 
     after paragraph (a);
       (2) the second sentence of section 1.116 shall be 
     disregarded;
       (3) section 1.118(b) shall be considered to have an ``and'' 
     after paragraph (2) rather than paragraph (1);
       (4) a reference in sections 1.118(c)(1) and 1.120(b)(1) to 
     veterans' ``preference eligible'' shall be considered to be a 
     reference to ``preference eligible'';
       (5) sections 1.118(c) and 1.120(b) shall be considered to 
     have an ``and'' after paragraph (1); and
       (6) section 1.121(b)(6)(B) shall be considered to have an 
     ``and'' at the end.

     SEC. 4. REGULATIONS.

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

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

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

     SEC. 1.101. PURPOSE AND SCOPE.

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

     SEC. 1.102. DEFINITIONS.

       Except as otherwise provided in these regulations, as used 
     in these regulations:
       (a) Accredited physician means a doctor of medicine or 
     osteopathy who is authorized to practice medicine or surgery 
     (as appropriate) by the State in which the doctor practices. 
     The phrase ``authorized to practice by the State'' as used in 
     this section means that the provider must be authorized to 
     diagnose and treat physical or mental health conditions 
     without supervision by a doctor or other health care 
     provider.
       (b) Act or CAA means the Congressional Accountability Act 
     of 1995, as amended (Pub. L. 104-1, 109 Stat. 3, 2 U.S.C. 
     Sec. Sec. 1301-1438).
       (c) Active duty or active military duty means full-time 
     duty with military pay and allowances in the armed forces, 
     except (1) for training or for determining physical fitness 
     and (2) for service in the Reserves or National Guard.
       (d) Appointment means an individual's appointment to 
     employment in a covered position, but does not include any 
     personnel action that an employing office takes with regard 
     to an existing employee of the employing office.
       (e) Armed forces means the United States Army, Navy, Air 
     Force, Marine Corps, and Coast Guard.
       (f) Board means the Board of Directors of the Office of 
     Compliance.
       H Regs:  (g) Covered employee means any employee of (1) the 
     House of Representatives; and (2) the Senate; (3) the Capitol 
     Guide Board; (4) the Capitol Police Board; (5) the 
     Congressional Budget Office; (6) the Office of the Architect 
     of the Capitol; (7) the Office of the Attending Physician; 
     and (8) the Office of Compliance, but does not include an 
     employee (aa) whose appointment is made by the President with 
     the advice and consent of the Senate; (bb) whose appointment 
     is made by a Member of Congress; (cc) whose appointment is 
     made by a committee or subcommittee of either House of 
     Congress or a joint committee of the House of Representatives 
     and the Senate; or (dd) who is appointed to a position, the 
     duties of which are equivalent to those of a Senior Executive 
     Service position (within the meaning of section 3132(a)(2) of 
     title 5, United States Code). The term covered employee 
     includes an applicant for employment in a covered position 
     and a former covered employee.
       S. Regs:  (g) Covered employee means any employees of (1) 
     the House of Representatives; and (2) the Senate; (3) the 
     Capitol Guide Board; (4) the Capitol Police Board; (5) the 
     Congressional Budget Office; (6) the Office of the Architect 
     of the Capitol; (7) the Office of the Attending Physician; 
     and (8) the Office of Compliance, but does not include an 
     employee (aa) whose appointment is made by the President with 
     the advice and consent of the Senate; (bb) whose appointment 
     is made or directed by a Member of Congress; (cc) whose 
     appointment is made by a committee or subcommittee of either 
     House of Congress or a joint committee of the House of 
     Representatives and the Senate; (dd) who is appointed 
     pursuant to 2 U.S.C. Sec. 43d(a); or (ee) who is appointed to 
     a position, the duties of which are equivalent to those of a 
     Senior Executive Service position (within the meaning of 
     section 3132(a)(2) of title 5, United States Code). The term 
     covered employee includes an applicant for employment in a 
     covered position and a former covered employee.
       C Reg: (g) Covered employee means any employee of (1) the 
     Capitol Guide Service; (2) the Capitol Police; (3) the 
     Congressional Budget Office; (4) the Office of the Architect 
     of the Capitol; (5) the Office of the Attending Physician; or 
     (6) the Office of Compliance, but does not include an 
     employee: (aa) whose appointment is made by the President 
     with the advice and consent of the Senate; or (bb) whose 
     appointment is made by a Member of Congress or by a committee 
     or subcommittee of either House of Congress or a joint 
     committee of the House of Representatives and the Senate; or 
     (cc) who is appointed to a position, the duties of which are 
     equivalent to those of a Senior Executive Service position 
     (within the meaning of section 3132(a)(2) of title 5, United 
     States Code). The term covered employee includes an applicant 
     for employment in a covered position and a former covered 
     employee.
       (h) Covered position means any position that is or will be 
     held by a covered employee.
       (i) Disabled veteran means a person who was separated under 
     honorable conditions from active duty in the armed forces 
     performed at any time and who has established the present 
     existence of a service-connected

[[Page S8795]]

     disability or is receiving compensation, disability 
     retirement benefits, or pensions because of a public statute 
     administered by the Department of Veterans Affairs or a 
     military department.
       (j) Employee of the Office of the Architect of the Capitol 
     includes any employee of the Office of the Architect of the 
     Capitol, the Botanic Gardens, or the Senate Restaurants.
       (k) Employee of the Capitol Police Board includes any 
     member or officer of the Capitol Police.
       (l) Employee of the House of Representatives includes an 
     individual occupying a position the pay of which is disbursed 
     by the Clerk of the House of Representatives, or another 
     official designated by the House of Representatives, or any 
     employment position in an entity that is paid with funds 
     derived from the clerk-hire allowance of the House of 
     Representatives but not any such individual employed by any 
     entity listed in subparagraphs (3) through (8) of paragraph 
     (g) above nor any individual described in subparagraphs (aa) 
     through (dd) of paragraph (g) above.
       (m) Employee of the Senate includes any employee whose pay 
     is disbursed by the Secretary of the Senate, but not any such 
     individual employed by any entity listed in subparagraphs (3) 
     through (8) of paragraph (g) above nor any individual 
     described in subparagraphs (aa) through (ee) of paragraph (g) 
     above.
       H Regs:  (n) Employing office means: (1) the personal 
     office of a Member of the House of Representatives; (2) a 
     committee of the House of Representatives or a joint 
     committee of the House of Representatives and the Senate; or 
     (3) any other office headed by a person with the final 
     authority to appoint, hire, discharge, and set the terms, 
     conditions, or privileges of the employment of an employee of 
     the House of Representatives or the Senate.
       S Regs:  (n) Employing office means: (1) the personal 
     office of a Senator; (2) a committee of the Senate or a joint 
     committee of the House of Representatives and the Senate; or 
     (3) any other office headed by a person with the final 
     authority to appoint, or be directed by a Member of Congress 
     to appoint, hire, discharge, and set the terms, conditions, 
     or privileges of the employment of an employee of the House 
     of Representatives or the Senate.
       C Reg:  (n) Employing office means: the Capitol Guide 
     Board, the Capitol Police Board, the Congressional Budget 
     Office, the Office of the Architect of the Capitol, the 
     Office of the Attending Physician, and the Office of 
     Compliance.
       (o) Office means the Office of Compliance.
       (p) Preference eligible means veterans, spouses, widows, 
     widowers or mothers who meet the definition of ``preference 
     eligible'' in 5 U.S.C. Sec. 2108(3)(A)-(G).
       (q) Qualified applicant means an applicant for a covered 
     position whom an employing office deems to satisfy the 
     requisite minimum job-related requirements of the position. 
     Where the employing office uses an entrance examination or 
     evaluation for a covered position that is numerically scored, 
     the term ``qualified applicant'' shall mean that the 
     applicant has received a passing score on the examination or 
     evaluation.
       (r) Separated under honorable conditions means either an 
     honorable or a general discharge from the armed forces. The 
     Department of Defense is responsible for administering and 
     defining military discharges.
       (s) Uniformed services means the armed forces, the 
     commissioned corps of the Public Health Service, and the 
     commissioned corps of the National Oceanic and Atmospheric 
     Administration.
       (t) VEOA means the Veterans Employment Opportunities Act of 
     1998 (Pub. L. 105-339, 112 Stat. 3182).
       (u) Veterans means persons as defined in 5 U.S.C. 
     Sec. 2108(1), or any superseding legislation.

     SEC. 1.103. ADOPTION OF REGULATIONS.

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

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

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

          Subpart B--Veterans' Preference--General Provisions

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

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

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

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

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

            Subpart C--Veterans' Preference in Appointments

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

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

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

[[Page S8796]]

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

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

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

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

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

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

         Subpart D--Veterans' preference in reductions in force

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

     SEC. 1.111. DEFINITIONS APPLICABLE IN REDUCTIONS IN FORCE.

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

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

       Prior to carrying out a reduction in force that will affect 
     covered employees, employing offices shall determine which, 
     if any, covered employees within a particular group of 
     competing covered employees are entitled to veterans' 
     preference eligibility status in accordance with these 
     regulations. In determining which covered employees will be 
     retained, employing offices will treat veterans' preference 
     as the controlling factor in retention decisions among such 
     competing covered employees, regardless of length of service 
     or performance, provided that the preference eligible 
     employee's performance has

[[Page S8797]]

     not been determined to be unacceptable. Provided, a 
     preference eligible employee who is a ``disabled veteran'' 
     under section 1.102(h) above who has a compensable service-
     connected disability of 30 percent or more and whose 
     performance has not been determined to be unacceptable by an 
     employing office is entitled to be retained in preference to 
     other preference eligible employees. Provided, this section 
     does not relieve an employing office of any greater 
     obligation it may be subject to pursuant to the Worker 
     Adjustment and Retraining Notification Act (29 U.S.C. 
     Sec. 2101 et seq.) as applied by section 102(a)(9) of the 
     CAA, 2 U.S.C. Sec. 1302(a)(9).

     SEC. 1.113. CREDITING EXPERIENCE IN REDUCTIONS IN FORCE.

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

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

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

     SEC. 1.115. TRANSFER OF FUNCTIONS.

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

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

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

     SEC. 1.116. ADOPTION OF VETERANS' PREFERENCE POLICY.

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

     SEC. 1.117. PRESERVATION OF RECORDS MADE OR KEPT.

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

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

       (a) An employing office shall state in any announcements 
     and advertisements it makes concerning vacancies in covered 
     positions that the staffing action is governed by the VEOA.
       (b) An employing office shall invite applicants for a 
     covered position to identify themselves as veterans' 
     preference eligible applicants, provided that in doing so:
       (1) the employing office shall state clearly on any written 
     application or questionnaire used for this purpose or make 
     clear orally, if a written application or questionnaire is 
     not used, that the requested information is intended for use 
     solely in connection with the employing office's obligations 
     and efforts to provide veterans' preference to preference 
     eligible applicants in accordance with the VEOA; and
       (2) the employing office shall state clearly that disabled 
     veteran status is requested on a voluntary basis, that it 
     will be kept confidential in accordance with the Americans 
     with Disabilities Act (42 U.S.C. Sec. 12101 et seq.) as 
     applied by section 102(a)(3) of the CAA, 2 U.S.C. 
     Sec. 1302(a)(3), that refusal to provide it will not subject 
     the individual to any adverse treatment except the 
     possibility of an adverse determination regarding the 
     individual's status as a preference eligible applicant as a 
     disabled veteran under the VEOA, and that any information 
     obtained in accordance with this section concerning the 
     medical condition or history of an individual will be 
     collected, maintained and used only in accordance with the 
     Americans with Disabilities Act (42 U.S.C. Sec. 12101 et 
     seq.) as applied by section 102(a)(3) of the CAA, 2 U.S.C. 
     Sec. 1302(a)(3).
       (3) the employing office shall state clearly that 
     applicants may request information

[[Page S8798]]

     about the employing office's veterans' preference policies as 
     they relate to appointments to covered positions, and shall 
     describe the employing office's procedures for making such 
     requests.
       (c) Upon written request by an applicant for a covered 
     position, an employing office shall provide the following 
     information in writing:
       (1) the VEOA definition of veterans' ``preference 
     eligible'' as set forth in 5 U.S.C. Sec. 2108 or any 
     superseding legislation, providing the actual, current 
     definition in a manner designed to be understood by 
     applicants, along with the statutory citation;
       (2) the employing office's veterans' preference policy or a 
     summary description of the employing office's veterans' 
     preference policy as it relates to appointments to covered 
     positions, including any procedures the employing office 
     shall use to identify preference eligible employees;
       (3) the employing office may provide other information to 
     applicants regarding its veterans' preference policies and 
     practices, but is not required to do so by these regulations.
       (d) Employing offices are also expected to answer questions 
     from applicants for covered positions that are relevant and 
     non-confidential concerning the employing office's veterans' 
     preference policies and practices.

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

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

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

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

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

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

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