[Congressional Record (Bound Edition), Volume 151 (2005), Part 2]
[House]
[Pages 2452-2464]
[From the U.S. Government Publishing Office, www.gpo.gov]




                     NOTICE OF PROPOSED RULEMAKING

                                                    U.S. Congress,


                                         Office of Compliance,

                                Washington, DC, February 15, 2005.
     Hon. J. Dennis Hastert,
     Speaker, House of Representatives,
     The Capitol, Washington, DC.
       Dear Mr. Speaker: Section 304(b)(1) of the Congressional 
     Accountability Act of 1995 (CAA), 2 U.S.C. 1384(b)(1), 
     requires that, with regard to the initial proposal of 
     substantive regulations under the CAA, the Board ``shall 
     publish a general notice of proposed rulemaking'' and ``shall 
     transmit such notice to the Speaker of the House of 
     Representatives and the President pro tempore of the Senate 
     for publication in the Congressional Record on the first day 
     on which both Houses are in session following such 
     transmittal.''
       The Board of Directors of the Office of Compliance is 
     transmitting herewith the enclosed Notice of Proposed 
     Rulemaking which accompanies this transmittal letter. The 
     Board requests that the accompanying Notice be published in 
     both the House and Senate versions of the Congressional 
     Record on the first day on which both Houses are in session 
     following receipt of this transmittal.
       Any inquiries regarding the accompanying Notice should be 
     addressed to William W. Thompson II, Executive Director of 
     the Office of Compliance, 110 2nd Street, SE., Room LA-200, 
     Washington, DC 20540; 202-724-9250, TDD 202-426-1912.
           Sincerely,
                                                Susan S. Robfogel,
                                  Chair of the Board of Directors.

        FROM THE BOARD OF DIRECTORS OF THE OFFICE OF COMPLIANCE

     Notice of Proposed Rulemaking, and Request for Comments From 
       Interested Parties

       NEW PROPOSED REGULATIONS IMPLEMENTING CERTAIN SUBSTANTIVE 
     EMPLOYMENT RIGHTS AND PROTECTIONS FOR VETERANS, AS REQUIRED 
     BY 2 U.S.C. 1316a, THE CONGRESSIONAL ACCOUNTABILITY ACT OF 
     1995, AS AMENDED (CAA).

                               Background

       The purpose of this Notice is to issue proposed substantive 
     regulations which will implement the 1998 amendment to the 
     CAA which applies certain veterans' employment rights and 
     protections to employing offices and employees covered by the 
     CAA.

     What is the authority under the CAA for these proposed 
     substantive regulations? In 1998, the CAA was amended through 
     addition of 2 U.S.C. 1316a, a provision of the Veterans' 
     Employment Opportunities Act of 1998 (VEOA), which states in 
     relevant part: ``The rights and protections established under 
     section 2108, sections 3309 through 3312, and subchapter I of 
     chapter 35 of Title 5, shall apply to covered employees.'' As 
     will be described in greater detail below, these sections of 
     Title 5 accord certain hiring and retention rights to 
     veterans of the uniformed services. Section 1316a(4)(B) 
     states that ``The regulations issued . . . shall be the same 
     as the most relevant substantive regulations (applicable with 
     respect to the Executive Branch) promulgated to implement the 
     statutory provisions . . . except insofar as the Board may 
     determine for good cause shown and stated together with the 
     regulation, that a modification of such regulations would be 
     more effective for the implementation of the rights and 
     protections under this section.''

     Will these regulations, if approved, apply to all employees 
     otherwise covered by the CAA? No. Subsection (5) of 2 U.S.C. 
     1316a, states that, for the purpose of application of these 
     veterans' employment rights, the term ``covered employee'' 
     shall not apply to any employee of an employing office: (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. . . .'' These regulations 
     would apply to all other covered employees.

     Do other veterans' employment rights apply via the CAA to 
     Legislative Branch employing offices and covered employees? 
     Yes. Another statutory scheme regarding veterans' and armed 
     forces members' employment rights is incorporated in part 
     through section 206 of the Congressional Accountability Act 
     of 1995 (CAA). Section 206 of the CAA, 2 U.S.C. 1316, applies 
     certain provisions of Title 38 of the U.S. Code regarding 
     ``Employment and Reemployment Rights of Members of the 
     Uniformed Services.'' Section 206 of the CAA also requires 
     the Board of Directors to issue substantive regulations 
     patterned upon the regulations promulgated by the Secretary 
     of Labor to implement the Title 38 rights of members of the 
     uniformed services. As of this date, the Secretary of Labor 
     has not finally promulgated any such regulations. Therefore, 
     regulations implementing CAA section 206 rights will not be 
     proposed by the Board until the Labor Department regulations 
     have been promulgated. The proposed regulations in this 
     Notice are not based on section 206 of the CAA, but solely on 
     the other veterans' rights referenced in 2 U.S.C. 1316a.

     What are the veterans' employment rights applied to covered 
     employees and employing offices in 2 U.S.C. 1316a? In 
     recognition of their duty to country, sacrifice, and 
     exceptional capabilities and skills, the United States 
     government has accorded veterans a preference in federal 
     employment through a series of statutes and Executive Orders, 
     beginning as the Civil War drew to a close. While 
     interpreting regulations have been modified over time, many 
     of the current core statutory protections have remained 
     largely unchanged since they were first codified in the 
     historic Veterans' Preference Act of 1944, Act of June 27, 
     1944, ch. 287, 58 Stat. 387, amended and codified in various 
     provisions of Title 5, U.S.C. In 1998, Congress passed the 
     Veterans Employment Opportunities Act (``VEOA''), Pub. L. 
     105-339, 112 Stat. 3186 (October 31, 1998), which 
     ``strengthen[s] and broadens''(Sen. Rept. 105-340, 105 Cong., 
     2d Sess. at 19 (Sept. 21, 1998)) the rights and remedies 
     available to military veterans who are entitled to preferred 
     consideration in hiring and in retention during reductions in 
     force (``RIFs''). Among other provisions of the VEOA, 
     Congress clearly stated, in the law itself, that henceforth 
     the ``rights and protections'' of certain veterans' 
     preference law provisions, originally drafted to cover 
     certain Executive Branch employees, ``shall apply'' to 
     certain ``covered employees'' in the Legislative Branch. VEOA 
     Sec. Sec. 4(c)(1) and (5) (emphasis added).

       The selected statutory sections which Congress determined 
     ``shall apply'' to covered

[[Page 2453]]

     employees in the Legislative Branch include, first, a 
     definitional section describing the categories of military 
     veterans who are entitled to preference (``preference 
     eligibles''). 5 U.S.C. 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.
       The VEOA also makes applicable to the Legislative Branch 
     certain statutory preferences in hiring. In the hiring 
     process, a preference eligible individual who is tested or 
     otherwise numerically evaluated for a position is entitled to 
     have either 5 or 10 points added to his/her score, depending 
     on his/her military service, or disabling condition. 5 U.S.C. 
     Sec. 3309. Where experience is a qualifying element for a 
     job, a preference eligible individual is entitled to credit 
     for having relevant experience in the military or in various 
     civil activities. 5 U.S.C. Sec. 3311. Where physical 
     requirements (age, height, weight) are a qualifying element 
     for a position, preference eligible individuals (including 
     those who are disabled) may obtain a waiver of such 
     requirements in certain circumstances. 5 U.S.C. Sec. 3512.
       For certain positions (guards, elevator operators, 
     messengers, custodians), only preference eligible individuals 
     may be considered for hiring so long as such individuals are 
     available. 5 U.S.C. Sec. 3310. (These statutory provisions on 
     hiring in the Executive Branch apply specifically to the 
     competitive service; this point will be discussed further 
     below.)

     Finally, in prescribing retention rights during Reductions In 
     Force for Executive Branch positions (in both the competitive 
     and in the excepted service), the sections in subchapter I of 
     chapter 35 of Title 5, U.S.C., with a slightly modified 
     definition of ``preference eligible,'' require that employing 
     agencies retain an employee with retention preference in 
     preference to other competing employees, provided that the 
     employee's performance has not been rated unacceptable. 5 
     U.S.C. Sec. 3502(c) (emphasis added).

       Along with this explicit command to retain qualifying 
     employees with retention preference, agencies are to follow 
     regulations governing the release of competing employees, 
     giving ``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 U.S.C. Sec. 3502(a). 5 U.S.C. Sec. 3502 also 
     requires certain notification procedures, providing, inter 
     alia, that an employing agency must provide an employee with 
     60 days written notice (the period may be reduced in certain 
     circumstances) prior to being released during a RIF. 5 U.S.C. 
     Sec. 3502(d)(1). Certain protections also apply in connection 
     with a transfer of agency functions from one agency to 
     another. 5 U.S.C. Sec. 3503. In addition, where physical 
     requirements (age, height, weight) are a qualifying element 
     for retention, preference eligible individuals (including 
     those with disabilities) may obtain a waiver of such 
     requirements in certain circumstances. 5 U.S.C. Sec. 3504.

     Are there veterans' employment regulations already in force 
     under the CAA? No.

                          Procedurals Summary

     How are substantive regulations proposed and approved under 
     the CAA? Pursuant to section 304 of the CAA, 2 U.S.C. 1384, 
     the procedure for promulgating such substantive regulations 
     requires that: (1) the Board of Directors adopt proposed 
     substantive regulations and publish a general notice of 
     proposed rulemaking in the Congressional Record; (2) there be 
     a comment period of at least 30 days after the date of 
     publication of the general notice of proposed rulemaking; (3) 
     after consideration of comments by the Board of Directors, 
     that the Board adopt regulations and transmit notice of such 
     action together with the regulations and a recommendation 
     regarding the method for Congressional approval of the 
     regulations to the Speaker of the House and President pro 
     tempore of the Senate for publication in the Congressional 
     Record; (4) committee referral and action on the proposed 
     regulations by resolution in each House, concurrent 
     resolution, or by joint resolution; and (5) final publication 
     of the approved regulations in the Congressional Record, with 
     an effective date prescribed in the final publication. For 
     more detail, please reference the text of 2 U.S.C. 1384. This 
     Notice of Proposed Rulemaking is step (1) of the outline set 
     forth above.

     Are these proposed regulations also recommended by the Office 
     of Compliance's Executive Director, the Deputy Executive 
     Director for the House of Representatives, and the Deputy 
     Executive Director for the Senate? As required by section 
     304(b)(1) of the CAA, 2 U.S.C. 1384(b)(1), the substance of 
     these regulations is also recommended by the Executive 
     Director, the Deputy Executive Director for the House of 
     Representatives and the Acting Deputy Executive Director for 
     the Senate.

     Has the Board of Directors previously proposed substantive 
     regulations implementing these veterans' employment rights 
     and benefits pursuant to 2 U.S.C. 1316a? Yes. On February 28, 
     2000, and March 9, 2000, the Office published an Advanced 
     Notice of Proposed Rulemaking (``ANPR'') in the Congressional 
     Record (144 Cong. Rec. S862 (daily ed., Feb. 28, 2000), H916 
     (daily ed., March 9, 2000)). On December 6, 2001, upon 
     consideration of the comments to the ANPR, the Office 
     published a Notice of Proposed Rulemaking (``NPR'') in the 
     Congressional Record ( 147 Cong. Rec. S12539 (daily ed. Dec. 
     6, 2001), H9065 (daily ed. Dec. 6, 2001)). The Board has not 
     acted further on those earlier Notices, and has decided to 
     issue this Notice as the first step in a new effort to 
     promulgate implementing regulations.
       As noted above, 2 U.S.C. 1316a mandates application to the 
     Legislative Branch of certain statutory provisions originally 
     drafted for the Executive Branch. In its initial proposed 
     rules, the Board noted that this statutory command raised the 
     quandary of determining which Legislative Branch employees 
     should be covered by which statutory provisions. There are 
     longstanding and significant differences between the 
     personnel policies and practices within these two branches. 
     For instance, the Executive Branch distinguishes between 
     employees in the ``competitive service'' and the ``excepted 
     service,'' often with differing personnel rules applying to 
     these two services. The Legislative Branch has no such 
     dichotomy.
       When Congress directed in the VEOA that certain veterans' 
     employment rights and protections currently applicable to 
     Executive Branch employees shall be made applicable to 
     Legislative Branch employees, the Board took note of a 
     central distinction made in the underlying statute: certain 
     veterans' preference protections (regarding hiring) applied 
     only to Executive Branch employees in the ``competitive'' 
     service, while others (governing reductions in force and 
     transfers) applied both to the ``competitive'' and 
     ``excepted'' service.
       The Board's initial approach in 2000 was to maintain this 
     distinction by attempting to discern which Legislative Branch 
     employees should be considered as working in positions 
     equivalent to the ``competitive'' service, and which should 
     be considered equivalent to the ``excepted'' service. At that 
     point, the Board concluded that all Legislative Branch 
     employees, with certain possible exceptions (such as those of 
     the Office of the Architect of the Capitol) should be 
     considered excepted service employees. The Board therefore 
     issued regulations, closely following Office of Personnel 
     Management (``OPM'') regulations for the various statutory 
     provisions, with the caveat that the regulations governing 
     hiring would apply only to those employees whom the Board 
     currently deemed working at jobs equivalent to the 
     competitive service (e.g. the Office of the Architect of the 
     Capitol). The NPR acknowledged: ``The Board recognizes that 
     the adoption of these definitions (e.g., competitive and 
     excepted services], consistent with the mandate of section 
     225 [of the CAA], 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 [employees appointed under the Architect 
     of the Capitol Human Resources Act], currently apply to no 
     one. . . .'' This left the Board in the position of drafting 
     intricate regulations that may have applied to only a 
     minority of ``covered employees,'' or perhaps even to no 
     ``covered employees'' at all--a result in obvious tension 
     with the VEOA's statutory mandate that these veterans' 
     protections ``shall apply'' to ``covered employees'' in the 
     Legislative Branch.
       The Board received Comments to its initial proposed 
     regulations from the Office of the Architect of the Capitol, 
     the Office of House Employment Counsel, and the Office of the 
     Senate Chief Counsel for Employment, all finding fault with 
     the initial approach. The Comments generally included the 
     following observations. First, commenting offices noted that 
     the Board's approach of drafting intricate regulations that 
     may not apply to any covered employees creates more problems 
     than it solves. This approach was seen as ``impracticable,'' 
     ``obfuscating'' the true sense of the VEOA and what 
     requirements in fact must apply to employing offices; it was 
     seen, in effect, as an attempt to ``place a square peg in a 
     round hole.'' Others charged that the adoption of such 
     regulations went beyond the Board's statutory authorization, 
     and would require, without basis in law, the employing 
     offices to adopt complicated procedures, some governing 
     employment decisions that affected only non-veteran 
     applicants or employees. A commenting office also complained 
     about the application of terms ``foreign and inapplicable'' 
     to its personnel system. Employing offices also submitted 
     that statutes drafted for the Executive Branch competitive 
     service should not apply at all to any Legislative Branch 
     employee.
       Furthermore, one employing office commented that such 
     modification of OPM regulations does not constitute an 
     adoption of the ``most relevant regulations,'' as regulations 
     that apply to no covered employees can

[[Page 2454]]

     not possibly be the most relevant regulations applicable. As 
     another commenting office aptly put it, ``Unfortunately, the 
     unintended result could very well be that the underlying 
     principles of the veterans' preference laws would lie fallow 
     while the affected legislative branch entities struggle with 
     the task of adopting civil-service type personnel management 
     systems.'' Comments of the Office of House Employment 
     Counsel, Feb. 6, 2002 at 9. Additionally, all three employing 
     offices argued that the Board should issue three individual 
     sets of regulations (to pertain to the Senate, House, and 
     covered Congressional instrumentalities), rather than one 
     set. Finally, the Office of the Architect of the Capitol also 
     argued that the Architect of the Capitol Human Resources Act 
     did not create a competitive service in the sense of the 
     veterans' preference laws.

     How are the regulations being proposed in this Notice 
     different from those regulations which the Board previously 
     proposed? In the period since the initial proposed 
     regulations were issued by the Board of Directors and 
     commented upon by various stakeholders, the Office of 
     Compliance has engaged in extensive informal discussions with 
     various stakeholders across Congress and the Legislative 
     Branch, in an effort to ascertain how best to effect the 
     basic purposes of veterans' employment rights in the 
     Legislative Branch.
       After careful consultation and deliberation, the Board is 
     issuing new proposed regulations which differ in many 
     respects from the initial proposed regulations. The new 
     approach is responsive to the clear statutory mandate 
     contained in the VEOA, and to various Comments regarding the 
     initial proposed regulations. This approach also applies 
     insights gained from the informal discussions with 
     stakeholders.
       The Board has decided to apply the plain language of the 
     statutory provisions to all covered employees in the 
     Legislative Branch. By doing so, the Board avoids what 
     commenting employing offices styled as the ``anomaly'' of 
     complicated regulations which would practically apply to no 
     employees, an anomaly which not only poorly served the clear 
     Congressional intent that protections ``shall apply to 
     covered employees,'' but which also created confusion for the 
     employing offices.
       Not only is application of these rights to all covered 
     employees compelled by the plain language of the statute, the 
     legislative history of the VEOA also clearly indicates that 
     the principles of veterans' preference protections must be 
     applied in the Legislative Branch. The authoritative report 
     of the Senate Committee on Veterans' Affairs (Senate Report 
     105-340, pages 15 & 17), recognized that the competitive 
     service did not exist in the Legislative Branch, and that 2 
     U.S.C. 1316a did not require the establishment of such a 
     competitive service. Nonetheless, the Committee noted that 
     veterans' preference principles should be incorporated into 
     the Legislative Branch personnel systems.
       For these reasons, the Board is persuaded that Congress, in 
     enacting the VEOA's extension of veterans' employment rights 
     to the Legislative Branch, intended a broad application to 
     all CAA covered employees, except for the staff of those 
     employing offices in the House of Representatives and the 
     Senate which Congress specifically excluded from coverage in 
     section 206a(5) of the CAA (2 U.S.C. Sec. 1316a(5)).This 
     result is faithful to the statutory language. Furthermore, 
     the Board has concluded, for the reasons stated above, that 
     the most relevant substantive Executive Branch OPM 
     regulations are at times inapposite to a meaningful 
     implementation of the VEOA in the Legislative Branch, such 
     that a modification of the regulations is necessary for the 
     effective implementation of the rights and protections under 
     the VEOA. As a result, the Office is proposing regulations 
     that reflect the principles of the veterans' preference laws, 
     as discussed by the Senate Committee on Veterans Affairs, 
     without linking such coverage to employees or positions with 
     competitive service status.
       Furthermore, the Board has also taken note of the 
     legislative history suggesting that employing offices with 
     employees covered by the VEOA should create systems 
     incorporating these veterans' preference principles: ``The 
     Committee notes that the requirement that veterans' 
     preference principles be extended to the legislative and 
     judicial branches does not mandate the creation of civil 
     service-type evaluation or scoring systems by these hiring 
     entities. It does require, however, that they create systems 
     that are consistent with the underlying principles of 
     veterans' preference laws.'' Sen. Comm. Report at 17. The 
     implementation of that provision in the Senate Report can 
     only be accomplished by the employing offices.
       In their Comments, employing offices strongly expressed 
     their need to preserve their autonomy in determining and 
     administering their respective personnel systems. For 
     example, the Office of the Architect of the Capitol commented 
     that it was incumbent upon the employing offices to create 
     ``systems that are consistent with the underlying principles 
     of veterans'' preference laws,'' pursuant to the Senate 
     Committee Report. The Board agrees, and the newly proposed 
     regulations allow employing offices to do so. What the 
     regulations also do is clearly define the ``underlying 
     principles of veterans'' preference laws'' made applicable to 
     these employing offices, so as to provide a benchmark for the 
     employing offices, applicants, and covered employees, as to 
     whether the systems developed are consistent with these 
     principles.

     What is the approach taken by these revamped proposed 
     substantive regulations? The Board has taken great heed to 
     avoid the intricate, OPM-like regulations that formed the 
     basis for its first proposed regulations. Under the current 
     proposed regulations, employing offices will retain their 
     wide latitude, not similarly enjoyed by many employing 
     agencies in the Executive Branch, to devise and administer 
     their own unique and often flexible personnel systems. 
     However, employing offices with covered employees must 
     incorporate into these individual personnel systems the basic 
     veterans' preference protections under the specific statutory 
     mandate that Congress issued in the VEOA, and they must carry 
     out the administration of these veterans' preference 
     provisions in a manner consistent with the Board's commitment 
     to promoting administrative transparency and accountability.
       Under this approach, employing offices with the specified 
     covered employees must meet the requirements contained in the 
     statutory mandate of the VEOA, but need not necessarily adopt 
     any of the trappings of an OPM-like personnel system. Thus, 
     should such an employing office choose to administer numeric 
     evaluations of applicants for a position, it must add to a 
     preference eligible's evaluation the points called for in the 
     veterans' preference statutes. If it does not numerically 
     evaluate applicants, it must determine how it will factor 
     veterans' preference status into its employee evaluations and 
     hiring decisions at a level commensurate with the statutory 
     directive. Similarly, should an employing office currently 
     have a policy of placing covered employees who may be 
     potentially subject to a reduction in force on a retention 
     register, it must rank said employees taking into account the 
     directives of the veterans' preference statute. Should an 
     employing office elect not to keep formal retention 
     registers, nothing in these regulations requires it to start 
     doing so. It still must, however, follow the statutory 
     mandate to provide certain veterans' preferences in the 
     course of a reduction in force that affects employees covered 
     by the VEOA.
       The goal of preserving employing office autonomy in 
     fashioning personnel systems has further compelled the Board 
     to minimize the impact of these proposed regulations on 
     employment decisions not directly involving preference 
     eligibles. Thus, unlike the initial proposed regulations, 
     should an employing office properly determine that no 
     preference eligibles are qualified applicants, or that no 
     preference eligibles are subject to a RIF, these proposed 
     regulations are designed so as not to govern the employment 
     decisions taken by the employing office. By allowing for such 
     employing office autonomy, the Board hopes to allay the 
     concerns of some of the employing offices, expressed in the 
     initial Comments, that a ``morass'' of intricate regulations 
     would apply to decisions that did not affect preference 
     eligibles. (One isolated, but necessary exception to this 
     approach limiting the effect of the regulations to personnel 
     actions involving preference eligibles is proposed 
     Sec. 1.115, governing the transfer of functions between one 
     employing office and another, and the replacement of one 
     employing office by another. This section provides 
     protections for all covered employees, as the term is defined 
     and limited in the VEOA, including non-preference eligibles. 
     The clear statutory language of 5 U.S.C. Sec. 3503 (applying 
     to both the competitive and excepted services) commands this 
     result. Congress chose to include this broad statutory 
     provision in the set of provisions made applicable to the 
     Legislative Branch in the VEOA.)
       The overall discretion and autonomy reserved to employing 
     offices to administer veterans' preference protections within 
     the context of their personnel systems comes with a 
     responsibility on the part of the employing offices to 
     provide all applicants for covered positions and all covered 
     employees with certain notice and informational rights, as 
     discussed below. This is to ensure that employing offices are 
     equipped with all information necessary to determine and 
     administer veterans' preference eligibility and that such 
     applicants and employees are properly informed of how their 
     employing office has chosen to give life to the veterans' 
     preference protections.
       In sum, should an employing offices already use personnel 
     policies and procedures similar to those in the competitive 
     service, it must factor in the various veterans' preference 
     protections with respect to applicants for covered positions 
     and covered employees. If an employing office chooses to 
     follow more flexible, or merely different, personnel policies 
     from those referenced in the competitive service, it may do 
     so--but may not refuse to apply the veterans' preferences 
     called for in the statute. This would contravene the clear 
     statutory directive to affirmatively apply the veterans' 
     preference protections to the specified covered employees in 
     the Legislative Branch.
       In proposing these regulations, the Board has sought to 
     remain faithful to the explicit

[[Page 2455]]

     statutory language of the VEOA. In some cases, we have been 
     guided by OPM veterans' preference implementing regulations. 
     In many cases, ``for good cause shown,'' we have not adopted 
     the OPM regulations so as to tailor simpler and more 
     streamlined regulations. We have issued proposed regulations 
     based on the direct statutory language whenever possible, 
     reserving implementation to the individual employing offices, 
     who then are charged with crafting their own processes and 
     procedures for integrating veterans' preference protections 
     within their personnel systems.
       Therefore, in accord with 2 U.S.C. 1316a(4)(B), which 
     mandates that ``the Board may determine, for good cause shown 
     and stated . . . a modification of such regulations would be 
     more effective for the implementation of the rights and 
     protections under this section,'' these proposed regulations 
     may not track the most relevant substantive regulations 
     applicable with respect to the Executive Branch. However, the 
     proposed regulations endeavor, to the maximum practical 
     extent, to effect the veterans' preference principles that 
     Congress made applicable to the Legislative Branch through 
     section 206a(2) of the CAA, 2 U.S.C. Sec. 1316a(2).

     What responsibilities would employing offices have in 
     effectively implementing these regulations? The Board is 
     charging the employing offices with the responsibility of 
     duly factoring the veterans' preference principles into their 
     individualized hiring and retention processes. We will 
     require that such measures be substantive and verifiable. 
     Otherwise, VEOA implementation would be illusory and the 
     Office's remedial responsibility under 2 U.S.C. 1316a(3) 
     might be compromised.
       Therefore, the proposed regulations would require that all 
     employing offices with covered employees or seeking 
     applicants for covered positions develop a written program, 
     within 120 days of the Congressional approval of the 
     regulations, setting forth each employing office's modality 
     for effecting the veterans' preference principles in its 
     hiring and retention systems. These programs would 
     demonstrate each employing office's efforts to comply with 
     the VEOA. However, technical promulgation of such procedures 
     does not per se relieve an employing office of substantive 
     compliance with the VEOA.
       Similarly, Subpart E of the proposed regulations contains 
     various important provisions governing recordkeeping, 
     dissemination of VEOA policies, written notice prior to a 
     RIF, and informational requirements regarding veterans' 
     preference determinations. Certain of these provisions 
     (notably that requiring written notice prior to a RIF) derive 
     directly from statutory provisions made applicable to covered 
     employees by the VEOA. The Board has adopted others so as to 
     ensure that the employing offices, which have significant 
     autonomy and discretion in integrating the veterans' 
     preference requirements into their personnel systems, 
     administer the preferences in a way that promotes 
     accountability and transparency. In response to the earlier 
     Comments of the employing offices, however, the Board has 
     refrained from adopting more burdensome procedural 
     requirements, such as keeping formal retention registers (see 
     5 CFR Sec. 351.505).

     Are there substantive differences in the proposed regulations 
     for the House of Representatives, the Senate, and the other 
     employing offices? No. The Board of Directors has identified 
     no ``good cause'' for varying the text of these regulations. 
     Therefore, if these proposed regulations are approved as 
     proposed, there will be one text applicable to all employing 
     offices and covered employees.

     Are these proposed substantive regulations available to 
     persons with disabilities in an alternate format? This Notice 
     of Proposed Regulations is available on the Office of 
     Compliance web site, www.compliance.gov, which is compliant 
     with section 508 of the Rehabilitation Act of 1973 as 
     amended, 29 U.S.C. 794d. This Notice can also be made 
     available in large print or Braille. Requests for this Notice 
     in an alternative format should be made to: Alma Candelaria, 
     Deputy Executive Director, Office of Compliance, 110 2nd 
     Street, S.E., Room LA-200, Washington, D.C. 20540; 202-724-
     9226; TDD: 202-426-1912; FAX: 202-426-1913.

        30 Day Comment Period Regarding the Proposed Regulations

     How can I submit comments regarding the proposed regulations? 
     Comments regarding the proposed new regulations of the Office 
     of Compliance set forth in this NOTICE are invited for a 
     period of thirty (30) days following the date of the 
     appearance of this NOTICE in the Congressional Record. In 
     addition to being posted on the Office of Compliance's 
     section 508 compliant web site (www.compliance.gov) this 
     NOTICE is also available in the following alternative 
     formats: Large Print, Braille. Requests for this NOTICE in an 
     alternative format should be made to: Bill Thompson, 
     Executive Director, or Alma Candelaria, Deputy Executive 
     Director, Office of Compliance, at 202-724-9250 (voice) or 
     202-426-1912 (TDD).

     Submission of comments must be made in writing to the 
     Executive Director, Office of Compliance, 110 Second Street, 
     S.E., Room LA-200, Washington, D.C. 20540-1999. It is 
     requested, but not required, that an electronic version of 
     any comments be provided on an accompanying computer disk. 
     Comments may also be submitted by facsimile to the Executive 
     Director at 202-426-1913 (a non-toll-free number.) Those 
     wishing to receive confirmation of the receipt of their 
     comments must provide a self-addressed, stamped post card 
     with their submission.

     Copies of submitted comments will be available for review on 
     the Office's web site at www.compliance.gov, and at the 
     Office of Compliance, 110 Second Street, S.E., Washington, 
     D.C. 20540-1999, on Monday through Friday (non-Federal 
     holidays) between the hours of 9:30 a.m. and 4:30 p.m.

     Supplementary Information: The Congressional Accountability 
     Act of 1995 (CAA), PL 104-1, was enacted into law on January 
     23, 1995. The CAA applies the rights and protections of 11 
     federal labor and employment statutes to covered employees 
     and employing offices within the Legislative Branch of 
     Government. The CAA was amended by adding 2 U.S.C. 1316a as 
     part of the enactment of the Veterans' Employment 
     Opportunities Act of 1998 (VEOA), PL 105-339, section 4(c), 
     to provide additional substantive employment rights for 
     veterans. Those additional rights are the subject of these 
     regulations. Section 301 of the CAA (2 U.S.C. 1381) 
     establishes the Office of Compliance as an independent office 
     within the Legislative Branch.

    More Detailed Discussion of the Text of the Proposed Regulations


    subpart a--matters of general applicability to all regulations 
                promulgated under section 4 of the veoa

       1.101  Purpose and scope. This section clarifies that the 
     purpose of these regulations is to ensure that the principles 
     of the veterans' preference laws are integrated into the 
     employing offices' existing employment and retention policies 
     and processes, as per the explicit statutory mandate 
     contained in the VEOA. Additionally, through these 
     regulations, the Board seeks to fulfill its goal of achieving 
     transparency in the application of veterans' preference in 
     covered appointment and retention decisions.
       Finally, it is noted that nothing in these regulations 
     shall be construed to require an employing office to reduce 
     any existing veterans' preference rights and protections that 
     it may currently afford to preference eligible individuals. 
     Any employing agencies that currently provide greater 
     veterans' preferences than required by these regulations may 
     retain them. Note also that, while the VEOA does not directly 
     cover the GAO, GPO, or Library of Congress, should Congress 
     extend Board jurisdiction over any of these entities in the 
     future, it should take their existing veterans' preference 
     policies into account, which may be based on independent 
     statutory mandates. Note, for example, that 31 U.S.C. 
     Sec. 732(h)(1) already mandates that the GAO must afford 
     veterans' preferences (largely similar to those in subchapter 
     I of chapter 35 of title 5 U.S.C.).
       1.102  General definitions. This section provides 
     straightforward definitions of key terms referred to in the 
     regulations. Several of the definitions are derived from the 
     statutory provisions made applicable via the VEOA, including 
     ``veteran,'' from 5 U.S.C. Sec. 2108(1), ``disabled veteran'' 
     from 5 U.S.C. Sec. 2108(2), and ``preference eligible'' from 
     5 U.S.C. Sec. 2108(3). It also contains several other 
     definitions included for explanatory purposes.
       The term ``appointment'' is defined as an individual's 
     appointment to employment in a covered position. Consistent 
     with the OPM regulations in 5 C.F.R. Sec. 211.102(c), the 
     term excludes inservice placement actions such as promotions. 
     The term ``covered employee'' follows the language of section 
     101(3) of the CAA, as limited by section 4(c)(5) of the VEOA. 
     Section 4(c)(5) of the VEOA excludes employees whose 
     appointment is made by a committee or subcommittee of either 
     House of Congress. The Board believes this statutory 
     exclusion extends to joint committees and has expressly 
     excluded such employees from the definition of ``covered 
     employee''.
       The term ``qualified applicant,'' while not directly 
     originating in the text of U.S.C. Title V, is used to capture 
     the principle in 5 U.S.C. Sec. 3309 that only a preference 
     eligible applicant who has received a passing grade in an 
     examination or evaluation for entrance into the competitive 
     service need receive additional points accorded to his or her 
     application (except for certain ``restricted'' positions, 
     discussed below). ``Qualified applicant'' is borrowed from 
     the Americans with Disabilities Act (``ADA,'' 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). The ADA's reference to 
     ``requisite skill, experience, education and other minimum 
     job-related requirements'' has been shortened to ``requisite 
     minimum job-related requirements,'' as not every job may 
     require a particular level of acquired skill, experience, or 
     education.
       As will be discussed further, we are not requiring an 
     employing office to establish any particular prerequisites or 
     type of evaluation or examination system for applicants. 
     Instead, the term ``qualified applicant'' serves as a means 
     of implementing the statutory mandate that only preference 
     eligible applicants with ``passing scores'' receive 
     preference in the hiring process in the context of

[[Page 2456]]

     appointment processes that do not involve ``scoring'' or 
     similar numeric evaluation.
       Where the employing office does not use a numerically 
     scored entrance examination or evaluation, we have authorized 
     the employing office to make the determination of whether the 
     applicant is minimally ``qualified'' for a covered position. 
     In doing so, the employing office may rely on any job-related 
     requirements or on any evaluation system, formal or 
     otherwise, which it chooses to employ in assessing and rating 
     applicants for covered positions, provided that the employing 
     office in no way seeks to create or manipulate a standard as 
     to whether an applicant is ``qualified'' so as to avoid 
     obligations imposed upon it by the VEOA.
       If, however, the employing office uses an entrance 
     examination or evaluation that is numerically scored, the 
     term ``qualified applicant'' shall mean that the applicant 
     has obtained a passing score on the examination or 
     evaluation. The Board notes that it expects the level of 
     ``passing scores'' to be roughly comparable to that in the 
     OPM regulations (70 points on a 100 point scale; 5 CFR 
     Sec. 337.101). We are not requiring employing offices to 
     administer entrance exams at all, or to model an exam or the 
     grading thereof after OPM's models. However, employing 
     offices may not set the bar on a scored entrance examination 
     or evaluation for a covered position so high that minimally 
     qualified preference eligible applicants cannot pass. 
     Moreover, the determination of what will constitute a 
     ``passing score'' should be made and communicated to 
     applicants before they are evaluated or sit for the entrance 
     examination.
       1.103  Adoption of regulations. This section details the 
     process by which the regulations shall be adopted. It also 
     clarifies that, as discussed extensively in the prefatory 
     comments, supra, the Board has at times deviated from the 
     regulations which otherwise were most applicable, i.e. the 
     regulations issued by OPM implementing these selected 
     provisions of U.S.C. Title V. When the Board has so deviated 
     from the OPM regulations, it has done so in an effort to 
     implement the statutory language of the VEOA in a way that 
     respects the autonomy of employing offices' personnel systems 
     and avoids placing undue administrative burdens upon these 
     offices, and that otherwise respects the legislative intent 
     of the VEOA.
       1.104  Coordination with section 225 of the Congressional 
     Accountability Act. This section notes that the VEOA requires 
     that regulations promulgated are consistent with section 225 
     of the CAA. These proposed regulations are consistent with 
     section 225; the regulations follow CAA principles contained 
     therein, including applying CAA definitions and exemptions, 
     and reserving enforcement through CAA procedures, rather than 
     through recourse to the Executive Branch.


          subpart b--veterans' preference--general provisions

       1.105  Responsibility for administration of veterans' 
     preference. This section clarifies that employing offices 
     have responsibility for administering veterans' preference, 
     within the parameters of the VEOA and these regulations.
       1.106  Procedures for bringing claims under the VEOA. This 
     section establishes the procedures for contesting an adverse 
     determination.


            subpart c--veterans' preference in appointments

       1.107  Veterans' preference in appointments to restricted 
     covered positions. The VEOA makes 5 U.S.C. Sec. 3310 
     applicable to the Legislative Branch, thereby extending an 
     absolute preference to veterans who apply for the positions 
     of guard, elevator operator, messenger and custodian. Despite 
     concerns raised by certain employing offices regarding the 
     singling out of these particular positions, the Board may not 
     ignore the statutory requirement that veterans who apply for 
     them be afforded an absolute preference over non-veteran 
     applicants.
       We have based our definitions of the restricted position 
     terms ``guards,'' ``elevator operators,'' ``custodians,'' and 
     ``messengers,'' upon the definitions employed in the 
     veterans'' preference context by the U.S. Office of Personnel 
     Management in its ``Delegated Examining Operations 
     Handbook.'' See http://www.opm.gov/deu/Handbook_2003. The 
     definitions of custodian and messenger have been modified to 
     include a ``primary duty'' requirement, to allow the 
     performance of some custodial or messenger duties in 
     positions having other primary duties without transforming 
     those positions into restricted positions.
       1.108  Veterans' preference in appointments to non-
     restricted covered positions. This section clarifies that 
     preference eligible status is an affirmative factor in the 
     hiring process for covered positions. The requirement that 
     preference eligible status be applied as an ``affirmative 
     factor'' is derived from the directive of the VEOA that the 
     underlying principles of the veterans' preference laws be 
     applied within the Legislative Branch.
       Where an employing office assigns points to applicants 
     competing for appointment to a covered position, it should 
     add commensurate points for veterans' preference eligible 
     applicants consistent with 5 U.S.C. Sec. 3309, one of the 
     sections made applicable to the Legislative Branch by the 
     VEOA. Should the office choose not to conduct formal 
     evaluations on a point scale, it must apply veterans' 
     preference as an affirmative factor, to a degree consistent 
     with the level of preference applied in 5 U.S.C. Sec. 3309.
       In no way does this require the creation of any particular 
     type of system of examining or evaluating applicants, and an 
     employing office may properly choose to not assign points at 
     all to applications for covered positions. Rather, this 
     regulation merely states that, whatever system the employing 
     office uses to choose among qualified applicants for a 
     covered position, it must accord a level of preference to 
     preference eligible qualified applicants consistent with the 
     point system indicated in the statute. Thus, the preference 
     must be comparable to affording an additional 5 or 10 points 
     (depending on the status of the preference eligible) on a 100 
     point scale to qualified applicants, while understanding that 
     under such a point system the applicant must have attained at 
     least 70 points to be considered qualified. (OPM provides a 
     scale for converting other point scales (5 point, 10 point, 
     25 point, etc.) to a 100-point scale.)
       Section  1.108 applies to both restricted and non-
     restricted positions. While restricted positions are limited 
     to preference eligibles (should there be preference eligible 
     applicants), in the event that more than one preference 
     eligible applies, the employing office should apply the 
     requirement in this section to provide a higher preference to 
     a disabled preference eligible. Thus, 5 U.S.C. Sec. 3310, 
     while restricting certain positions to preference eligibles 
     (so long as preference eligibles are available), does not 
     except these positions from this requirement in 5 U.S.C. 
     Sec. 3309 to provide higher preference to a disabled 
     preference eligible applicant.
       1.109  Crediting experience in appointments to covered 
     positions. This language is taken from 5 CFR Sec. 337.101(c), 
     which interprets 5 U.S.C. Sec. 3311, one of the sections made 
     applicable to the Legislative Branch by the VEOA. We have 
     elected to use the regulatory language as it is more clearly 
     written, and serves to better guide employing offices than 
     does the direct statutory text. The statutory and regulatory 
     provisions are laid out below for an easy comparison:


  sec. 3311. preference eligibles; examinations; crediting experience

       In examinations for the competitive service in which 
     experience is an element of qualification, a preference 
     eligible is entitled to credit--
       (1) for service in the armed forces when his employment in 
     a similar vocation to that for which examined was interrupted 
     by the service; and
       (2) for all experience material to the position for which 
     examined, including experience gained in religious, civic, 
     welfare, service, and organizational activities, regardless 
     of whether he received pay therefor.


                           5 u.s.c. Sec. 3311

       (c) When experience is a factor in determining eligibility, 
     OPM shall credit a preference eligible 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. OPM shall 
     credit time spent in the military service 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.
       5 CFR Sec. 337.101(c). Section 1.109 does not require an 
     employing office to consider experience as an element of 
     qualification, but only requires that preference eligibles be 
     afforded credit for certain experience if the employing 
     office chooses to do so. Also, section 1.109 does not 
     preclude an employing office from granting credit for 
     experience to non-preference eligibles, so long as the credit 
     afforded preference eligibles complies with the VEOA. Note 
     also that section 1.109 of these proposed regulations applies 
     equally to restricted and non-restricted positions.
       Section 1.110  Waiver of physical requirements in 
     appointments to covered positions. This section contains 
     language derived directly from 5 U.S.C. Sec. 3312, one of the 
     sections made applicable to the Legislative Branch by the 
     VEOA. It requires an employing office to waive physical 
     requirements for a position if it determines, after 
     considering any recommendations of an accredited physician 
     that may be submitted by such an applicant, that he or she is 
     physically able to perform efficiently the duties of the 
     position. Note that OPM has chosen to promulgate regulations 
     interpreting 5 U.S.C. Sec. 3312 which make clear that: 
     ``[A]gencies must waive a medical standard or physical 
     requirement established under this part 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.''
       5 CFR 339.204. The Board does not believe that these 
     proposed regulations are the proper vehicle for issuing 
     regulations concerning

[[Page 2457]]

     the Americans with Disabilities Act (``ADA,'' 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). Therefore, section 1.110(a)(2) 
     tracks the statutory language rather than the OPM regulation. 
     It also clarifies that the employing office need consider a 
     recommendation of an accredited physician only if such a 
     recommendation is submitted by the preference eligible.
       The Board does note, however, that Congress passed the ADA 
     subsequent to the veterans' preference protections contained 
     in 5 U.S.C. Sec. 3312, and that, under the ADA as applied by 
     the CAA, employing offices may have obligations towards 
     applicants that may in some circumstances be greater than the 
     protections accorded preference eligible applicants in 5 
     U.S.C. Sec. 3312. For example, these regulations do not 
     relieve employing offices from complying with the 
     restrictions imposed on disability-based inquiries under the 
     ADA but, as is discussed in the comments to section 1.118, 
     recognize that an employing office may use information 
     obtained through voluntary self-identification of one's 
     disabled status. Accordingly, the Board has made clear in 
     section 1.110 that nothing in this section shall relieve an 
     employing office of any greater obligation it may have 
     pursuant to the ADA.


         subpart d--veteran's preference in reductions in force

       1.111  Definitions applicable in reductions in force. This 
     section provides definitions of several terms used in the 
     regulations applying veterans' preference principles in the 
     context of reductions in force. Unless clearly stated 
     otherwise, the general definitions in proposed regulation 
     1.102 continue to apply in the context of reductions in 
     force. For example, as used in the proposed reduction in 
     force regulations, the term ``covered employee'' excludes 
     employees 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 and other employees excluded under the proposed 
     regulation 1.202(f). The term ``reduction in force'' has been 
     defined to encompass actions that result in termination of 
     employment, reductions in grade or demotions expected to 
     continue for more than 30 days. This definition derives from 
     OPM regulations, which clearly interpret 5 U.S.C. Sec. 3502 
     to include demotions and include the requirement that the 
     personnel action be for more than 30 days [5 CFR Sec. 351.201 
     (a)(2)], and from the statutory provisions of the VEOA that 
     charge the Board to follow OPM's regulations except where the 
     Board may determine that a modification of those regulations 
     would be more effective for the implementation of the rights 
     and protections under the VEOA. Caselaw interpreting the 
     veterans' preference laws also indicates that the inclusion 
     of demotions in what constitutes a reduction in force stems 
     from statutory, not just regulatory, language. (See, e.g., 
     AFGE Local 1904 v. Resor, 442 F. 2d 993, 994 (3rd Cir. 1971); 
     Alder v. U.S., 129 Ct. Cl. 150 (1954).)
       5 U.S.C. Sec. 3501, which has been included in the CAA 
     through Section (c)(2) of the VEOA, contains special 
     definitions for determining whether an employee is a 
     ``preference eligible'' for purposes of applying veterans' 
     preference in reductions in force. The definitions that 
     appear in section 1.111(b) of the regulations are taken 
     directly from the statutory language in 5 U.S.C. Sec. 3501. 
     Note, however, that these definitions do not apply to the 
     application of the provisions of 5 U.S.C. Sec. 3504 (and 
     section 1.114 of these regulations) regarding the waiver of 
     physical requirements in determining qualifications for 
     retention. In that context, the definition of ``preference 
     eligible'' set forth in 5 U.S.C. Sec. 2108 (and section 
     1.102(o) of the Board's regulations) shall apply.
       As discussed below, 5 U.S.C. Sec. 3502(c) provides that 
     preference eligibles are entitled to retention over other 
     ``competing employees''. In the Executive Branch, the 
     question of who are ``competing employees'' is answered by 
     reference to detailed and rather complex retention registers 
     that Executive Branch agencies are required to maintain. 
     (See, e.g., 5 CFR Sec. 351.203, 5 CFR Sec. 351.404 and 5 CFR 
     Sec. 351.501.) The Comments to our initial proposed 
     regulations noted that few if any employing offices in the 
     Legislative Branch maintain retention registers, and that 
     many of the OPM regulations regarding retention registers 
     rely on personnel practices and systems that do not exist in 
     the Legislative Branch.
       In keeping with our new approach to the implementation of 
     the VEOA, these regulations do not impose a requirement that 
     an employing office create or maintain OPM-like retention 
     registers but instead provide a framework for determining 
     groups of ``competing employees'' for purposes of applying 
     retention preferences as mandated by 5 U.S.C. Sec. 3502(c). 
     In this respect, the Board has determined that several of the 
     terms in the OPM regulations may be used to implement the 
     concept of ``competing employees'' in the Legislative Branch 
     without imposing Executive Branch personnel practices or 
     systems: generally, ``competing covered employees'' are the 
     covered employees within a particular ``position 
     classification or job classification,'' at or within a 
     particular ``competitive area''.
       The definition of ``position classification or job 
     classification'' is derived from OPM's basic definition of 
     ``competitive level'' in 5 CFR Sec. 351.403(a)(1). The 
     remaining regulations in 5 CFR Sec. 351.403(a)(2)-(4), 
     (b)(1)-(5) and (c)(1)-(4) prescribe the manner in which an 
     Executive Branch agency may determine a covered employee's 
     competitive level. While some of these rules could be adopted 
     in the Legislative Branch, others are clearly inapplicable. 
     The Board has decided not to adopt these portions of the OPM 
     regulations in order to provide employing offices with a 
     great amount of flexibility in determining an employee's 
     ``position classification or job classification''. This is in 
     keeping with our understanding that the personnel systems 
     used by employing offices within the Legislative Branch vary 
     significantly from those used in the Executive Branch. This 
     flexibility is, of course, subject to the understanding that 
     such determinations may not be manipulated in order to avoid 
     the employing office's obligations under the VEOA.
       The definition of ``competitive area'' more closely tracks 
     OPM's definition of the same term in 5 CFR Sec. 351.402. We 
     note that the OPM regulations define ``competitive area'' in 
     terms of an agency's ``organizational units'' and 
     ``geographical locations''. The Board is not adopting OPM 
     definitions or descriptions of these terms, but will allow 
     employing offices flexibility in applying these concepts to 
     their own organizational structure. The Board has retained 
     the OPM requirement that the minimum competitive area be a 
     department or subdivision ``under separate administration''. 
     In this respect, ``separate administration'' is not 
     considered to require that the administration of a proposed 
     competitive area has final authority to hire and fire but 
     that it has the authority to administer the day to day 
     operations of the department or subdivision in question.
       The OPM regulations incorporate the term ``tenure'' in 
     their definition of ``competitive group.'' We have used the 
     term in our definition of ``position classification or job 
     classification'' because the statutory language in 5 U.S.C. 
     Sec. 3502 identifies ``tenure'' as a factor that will 
     override veterans' preference in determining employee 
     retention in a reduction in force. However, we have not 
     adopted OPM's definition of tenure, as it is tied to 
     Executive Branch service classifications that do not exist in 
     the Legislative Branch. See 5 CFR 351.501. Instead, the use 
     of the term ``tenure'' in these definitions refers only to 
     the type of appointment. For example, an employing office may 
     choose to make ``tenure'' distinctions between permanent and 
     temporary employees, probationary and non-probationary 
     employees, etc. By referring to ``permanent'' positions, we 
     are referring to jobs that are not limited in advance to a 
     specific temporal duration. Nothing in these Comments and 
     Regulations is intended to address the ``at-will'' status of 
     any covered position.
       The Chief Counsel for the Senate noted, in her Comments to 
     the prior proposed regulations, that the Senate does not 
     employ the concept of ``tenure''. If an employing office 
     chooses not to make such distinctions, nothing in these 
     regulations requires it to do so. If the office does, that is 
     one of the factors in the constitution of the ``position 
     classifications or job classifications''. Again, the Board 
     notes that an employing office should not manipulate the 
     creation of tenure so as to avoid its obligations under the 
     VEOA.
       We have also included a definition of ``undue 
     interruption'' that is taken directly from the definition of 
     the same term in the OPM regulations, 5 CFR Sec. 351.203. The 
     term is used in determining whether various jobs should be 
     included within the same ``position classification'' or ``job 
     classification,'' and is meant to strike a balance between 
     the interests of employing offices in retaining employees who 
     will be able to perform the jobs remaining after a reduction 
     in force, and the interests of preference eligibles whose 
     jobs are being eliminated in remaining employed. OPM struck 
     this balance by generally suggesting that an employee should 
     be able to perform or ``complete'' required work within 90 
     days of being placed in the position, and the Board considers 
     this time period to be appropriate in the Legislative Branch 
     as well. For example, this protection against ``undue 
     interruption'' would apply if a preference eligible would 
     have to complete a training program of more than 90 days in 
     order to safely and efficiently perform the covered position 
     to which he or she would otherwise be transferred as a result 
     of a RIF. Finally, we note that, since ``undue interruption'' 
     is an affirmative defense, an employing office has the burden 
     of raising it and proving that an employee may not perform 
     work without ``undue interruption'' by objectively 
     quantifiable evidence.
       1.112 Application of reductions in force to veterans' 
     preference eligibles. The crux of this regulation derives 
     from 5 U.S.C. Sec. 3502(c), which provides:

     An employee who is entitled to retention preference and whose 
     performance has not been rated unacceptable under a 
     performance appraisal system implemented under chapter 43 of 
     this title is entitled to be retained in preference to other 
     competing employees. (Emphasis added.)

       This provision is the statutory lynchpin underlying 
     veterans' preferences in RIF's.

[[Page 2458]]

     The statutory language in section 3502(c) above in effect 
     requires the employing office to terminate covered employees 
     subject to a RIF in inverse order of their veterans' 
     preference status, within the appropriate group of covered 
     employees with similar jobs, so long as the employees' 
     performance has not been rated unacceptable. Under section 
     3502(c), a preference eligible covered employee (without an 
     unacceptable performance appraisal) must be retained in 
     preference to non-preference eligibles--even if the other 
     covered employees in the group in fact have greater length of 
     service or more favorable performance evaluations.
       A separate provision in 5 U.S.C. Sec. 3502(a) requires 
     Executive Branch agencies to give ``due effect'' to four 
     factors: tenure, veterans'' preference, length of service, 
     and performance or efficiency evaluations. OPM has 
     promulgated regulations addressing these four factors, but 
     which also incorporate the concept that, within the group of 
     employees competing for retention, appropriate veteran's 
     preference status is a factor that may override other factors 
     such as length of service and performance or efficiency 
     evaluations. (``Tenure,'' as discussed below, is factored in 
     to the group of employees within which employees compete for 
     retention during a RIF.)
       Case law has also made abundantly clear that section 
     3502(c) requires that this preference eligible status 
     ``trumps'' the ``due effect'' given to length of service and 
     performance. Courts have interpreted the separate requirement 
     under section 3502(a) to give ``due effect'' to these four 
     enumerated factors as being relevant to retention 
     determinations between two preference eligibles, or between 
     two non-preference eligibles--and not relevant to retention 
     determinations between a preference eligible and a non-
     preference eligible. Hilton v. Sullivan, 334 U.S. 323, 335, 
     336 (1948). The Board has chosen not to explicitly require 
     that length of service or performance or efficiency 
     evaluations be taken into account during RIF's--only that, if 
     they are, veterans' preference remains the controlling factor 
     in making retention decisions within ``position or job 
     classifications'' in a competitive area (assuming other 
     appropriate requirements are also met).
       Federal courts have interpreted the present statutory 
     language of section 3502(c) as providing preference eligible 
     employees with an ``absolute preference,'' although only 
     within the confines of their competing group. Dodd v. TWA, 
     770 F. 2d 1038, 1041 (Fed. Cir. 1985); see also McKee v. TWA, 
     1999 LEXIS 25663 at *5 (Fed. Cir. 1999) (unpublished). 
     Additionally, the source of this key language in 
     Sec. 3502(c), the Veterans' Preference Act of 1944 (in turn 
     deriving from a series of historical statutes and executive 
     orders, commencing in 1865), and the legislative history of 
     this Act indicate that the section 3502(c) predecessor 
     language was considered the ``heart of the section''. Hilton 
     v. Sullivan, 334 U.S. 323, 338 (1948). To this effect, courts 
     have interpreted Sec. 3502(c) (or its predecessor under the 
     Veterans' Preference Act of 1944) as overriding such factors 
     as length of service when considering retention standing. 
     Hilton v. Sullivan, 334 U.S. at 335, 336, 339 (noting that 
     ``Congress passed the bill with full knowledge that the long 
     standing absolute retention preference of veterans would be 
     embodied in the Act;'' Elder v. Brannan, 341 U.S. 277, 285 
     (1951). Thus, courts have interpreted section 3502(c) as 
     requiring preference to be given to a minimally qualified 
     preference eligible, within his or her competing group, 
     regardless of the preference eligible's length of service or 
     performance in comparison to non-preference eligibles.
       To follow this clear statutory directive, the Board has 
     decided that veterans' preference shall be the 
     ``controlling'' factor (provided that the covered employee's 
     performance was not rated unacceptable), in an employment 
     decision taken within ``position or job classifications'' in 
     ``competitive areas,'' as discussed in the Comments to 
     section 1.111 of these proposed regulations, regardless of 
     such factors as length of service or performance or 
     efficiency ratings. Restricting the veterans' preference to 
     RIF's taken within ``position or job classifications'' in 
     ``competitive areas'' provides important limitations on the 
     scope of the preference accorded. As noted above, the 
     preference eligible does not normally compete for retention 
     against all covered employees of an employing office; the 
     definitional terms in section 1.111 restrict the scope of 
     competition only to covered employees in similar occupational 
     groupings (with the further qualification that the preference 
     eligible must perform the position in question without 
     ``undue interruption''(see discussion regarding section 1.111 
     of these proposed regulations)); in certain facilities 
     involved; and with similar ``tenure,'' or employment status 
     (such as, for example, whether the employee is a permanent or 
     probationary employee). Note that OPM regulations incorporate 
     the concept of ``tenure'' into the definition of ``competing 
     group''; covered employees only compete for retention against 
     co-workers of the same tenure type. As noted in the Comments 
     to section 1.111 of these proposed regulations, employing 
     offices may or may not incorporate the concept of ``tenure,'' 
     and may choose not to make such distinctions as permanent, 
     temporary, or probationary employees. Nothing in these 
     proposed regulations requires employing offices to adopt such 
     distinctions.
       Another qualification on the veterans' preference as a 
     ``controlling factor'' is that the preference eligible 
     employee's performance must not have been rated 
     ``unacceptable.'' While 5 U.S.C. Sec. 3502(c) contains a 
     reference to performance appraisal systems implemented under 
     5 U.S.C. Sec. 4301 et seq., we are not requiring employing 
     offices to implement a performance appraisal system following 
     5 U.S.C. Sec. 4301 et seq. An employing office may continue 
     to use its own methods for evaluating covered employees and 
     appraising performance, and need not adopt any formal policy 
     regarding performance appraisal. However, the Board notes 
     that employing offices should not manipulate performance 
     appraisals or evaluations so as to avoid obligations under 
     the VEOA.
       Another significant qualification on this regulation is 
     that it only governs retention decisions in so far as they 
     affect preference eligible covered employees. In no way does 
     it govern decisions that do not affect preference eligible 
     covered employees; in such cases, an employing office is free 
     to make whatever determinations it so chooses, provided that 
     these determinations are consistent with any other applicable 
     law, and are not used to avoid responsibilities imposed by 
     the VEOA. (Of course, an employing office with covered 
     employees must disseminate information regarding its VEOA 
     policy to covered employees, so as to allow for self-
     identification of preference eligibles. Furthermore, the 
     notice required by section 1.120 of these regulations will 
     allow covered employees who have not been identified as 
     preference eligibles to assert that status before the RIF 
     becomes effective.) Nor does the regulation require the 
     keeping of formal retention registers, as OPM (and these 
     regulations, as initially proposed) generally requires. 
     However, an employing office must preserve any records kept 
     or made regarding these retention decisions, as detailed in 
     Subpart E of these proposed regulations.
       Note also that the Board has included the provision that a 
     preference eligible covered 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 rated unacceptable by an employing 
     office is entitled to be retained in preference to other 
     preference eligibles. This provision derives from 5 U.S.C. 
     Sec. 3502(b), which provides a higher level of preference to 
     certain disabled preference eligibles with regard to other 
     preference eligibles.
       Finally, the Board notes that 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), which 
     would of course apply to all employees covered by the CAA, 
     not only to preference eligible employees covered by the 
     VEOA.
       1.113  Crediting experience in reductions in force. This 
     section closely follows 5 U.S.C. Sec. 3502(a), one of the 
     sections made applicable to the Legislative Branch by the 
     VEOA, requiring the employing office to provide preference 
     eligible covered employees with credit for certain specified 
     forms of prior service as the office calculates ``length of 
     service'' in the context of a RIF. This provision in no way 
     requires an employing office to utilize ``length of service'' 
     as a factor in its retention decisions regarding employees in 
     the event that the RIF decision does not impact any 
     preference eligible covered employees.
       1.114  Waiver of physical requirements--retention. This 
     provision closely follows 5 U.S.C. Sec. 3504, one of the 
     sections made applicable to the Legislative Branch by the 
     VEOA, requiring that, when making decisions regarding 
     employee retention during a RIF, an employing office must 
     waive physical requirements for a job for preference 
     eligibles in certain specified circumstances. As discussed in 
     the Comments to section 1.110, nothing in this regulation 
     relieves an employing office of any greater 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).
       1.116  Transfer of functions. The language in this section 
     derives from 5 U.S.C. Sec. 3503, one of the sections made 
     applicable to the Legislative Branch by the VEOA, requiring 
     covered employees to be transferred to another employing 
     office in the event of a transfer of functions from one 
     employing office to the other, or in the event of the 
     replacement of one employing office by another employing 
     office. The Board expects that employing offices shall 
     coordinate any such transfers in a way that respects both the 
     requirements of this regulation and, to the greatest extent 
     possible, the employing offices' own personnel systems and 
     policies. This section is one of the rare instances where an 
     employing office must follow the regulation even in the event 
     that the personnel action taken does not involve any 
     preference eligible covered employees; however, the clear 
     statutory language of 5 U.S.C. Sec. 3503 requires such a 
     result.
       Employees and employing offices are reminded that the 
     definition of ``covered employee'' in these proposed 
     regulations does

[[Page 2459]]

     not include employees appointed by a Member of Congress, a 
     committee or subcommittee of either House of Congress, or a 
     joint committee of the House of Representatives and the 
     Senate. See proposed regulation 1.102(f)(bb). Therefore, 
     proposed regulation 1.116 will not apply to any such 
     employees affected by the election of new Members of Congress 
     or the transfer of jurisdiction from one committee to 
     another.


 subpart e: adoption of veterans' preference policies, recordkeeping & 
                       informational requirements

       We note that, of the six sections in this Subpart, only 
     section 1.120 derives directly from statutory language. The 
     other sections are borrowed from various other employment 
     statutes, and are promulgated pursuant to the authority 
     granted the Board by section 4(c)(4)(A) of the VEOA because 
     they are considered necessary to the implementation of the 
     VEOA. For example, the informational regulations in sections 
     1.120 and 1.121 are derived from informational regulations 
     promulgated under the Family and Medical Leave Act, which 
     provides employers with some flexibility in determining how 
     the FMLA will be implemented within their own workforce. The 
     Board is strongly committed to transparency as a policy 
     matter. Moreover, for the VEOA rights to become meaningful, 
     applicants for covered positions and covered employees will 
     have to participate in ensuring that this system works 
     properly, since employing offices are permitted to have 
     flexibility in determining their policies, and the Board will 
     not be taking the same active role in policing the veterans' 
     preference requirements that OPM takes in the Executive 
     Branch.
       We also note that while this approach differs from OPM's, 
     it reflects the far greater flexibility that employing 
     offices have to tailor substantive requirements to their 
     existing personnel systems and imposes less burdensome 
     obligations on employing offices than that which is imposed 
     on executive agencies: under our regulatory approach, 
     employing offices will have reduced procedural burdens in 
     that they will not be subject to the more detailed 
     requirements of keeping formal retention registers, to the 
     more highly regulated requirements regarding employee access 
     to files (see e.g., 5 CFR Sec. 293.101 et seq., 5 CFR 
     Sec. 297.101 et seq., and 5 CFR Sec. 351.505(b)), or to 
     examining or evaluating applicants on a 100-point scale, 
     seeking prior OPM approval of RIF's, etc.
       Section 1.116 Adoption of veterans' preference policy. As 
     noted at the outset of these Comments, the regulations will 
     require each employing office that employs one or more 
     covered employees or seeks applicants for covered positions 
     to develop, within 120 days of the Congressional approval of 
     the regulations, a written program or policy setting forth 
     that employing office's methods for implementing the VEOA's 
     veterans' preference principles in the employing office's 
     hiring and retention systems. Employing offices that have no 
     employees covered by the VEOA are not required to adopt such 
     a policy or program.
       Because these regulations afford the employing offices a 
     great amount of flexibility in determining how to implement 
     veterans' preference within their own personnel systems, it 
     is imperative that the methods chosen by the employing 
     offices be reduced to writing and disseminated to covered 
     applicants and employees. This will further the goals of 
     accountability and transparency, as well as consistency in 
     the application of the employing office's veterans' 
     preference procedures. An existing policy may be amended or 
     replaced by the employing office from time to time, as it 
     deems necessary or appropriate to meet changing personnel 
     practices and needs. We note, however, that the employing 
     office's policy or program will at all times remain subject 
     to the requirements of the VEOA and these regulations. 
     Accordingly, while the adoption of a policy or program will 
     demonstrate the employing office's efforts to comply with the 
     VEOA, it will not relieve an employing office of substantive 
     compliance with the VEOA.
       Sections 1.117 Preservation of records kept or made. The 
     requirements set forth in this section are derived from OPM 
     regulations regarding retention of RIF records, 5 CFR 
     Sec. 351.505, and EEOC regulations regarding the preservation 
     of personnel and employment records kept or made by 
     employers, 29 CFR Sec. 1602.14. This section requires that 
     relevant records be retained for 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 employee is notified of the personnel action. In 
     addition, where a claim has been brought under section 401 of 
     the CAA against an employing office under the VEOA, the 
     respondent employing office must preserve all personnel 
     records relevant to the claim until final disposition of the 
     claim.
       Section 1.118 Dissemination of veterans' preference 
     policies to applicants for covered positions. Section 1.118 
     requires that employing offices must furnish information to 
     applicants for covered positions before appointment decisions 
     are made. Before these decisions are made, it is important 
     that applicants be given the opportunity to self-identify 
     themselves as preference eligibles, and that they receive 
     information regarding the employing office's policies and 
     procedures for implementing the VEOA, in order to ensure that 
     they are aware of the VEOA obligations that may apply to 
     their situation. Accordingly, the regulations require that 
     information regarding the employing office's policies and 
     procedures for implementing the VEOA in appointments be 
     furnished to applicants at various stages when the employing 
     office is hiring into covered positions. We note that 
     inviting applicants to voluntarily self-identify as a 
     disabled veteran for purposes of the application of an 
     employing office's veterans' preference policies, as outlined 
     in the proposed regulation, is consistent with the EEOC's ADA 
     Enforcement Guidance: Preemployment Disability-Related 
     Questions and Medical Examinations (EEOC Oct. 10, 1995).
       This requirement does not prevent an employing office from 
     appropriately modifying its veterans' preference policies 
     when it sees fit to do so, but is intended to ensure that 
     applicants will be made aware of the employing office's then-
     current policies and procedures. The requirement that an 
     employing office allow applicants a ``reasonable time'' to 
     provide information regarding their veterans' preference 
     status is intentionally flexible. If an employing office must 
     fill a covered position within a matter of days, one working 
     day may be a ``reasonable time'' for submission of the 
     information. However, if the employing office's appointment 
     process is more prolonged, more time should be allowed.
       Sections 1.119 and 1.120 Dissemination of information of 
     veterans' preference policies to covered employees, and 
     notice requirements applicable in RIFs. It is also important 
     that covered employees receive information regarding the 
     employing office's policies and procedures for implementing 
     the VEOA in connection with RIFs, in order to ensure that 
     they are aware of the VEOA obligations that may apply to that 
     situation. Accordingly, section 1.119 requires that 
     information regarding the employing office's policies and 
     procedures for implementing the VEOA in appointments be 
     disseminated through employee handbooks, if the employing 
     office has covered employees and ordinarily distributes such 
     handbooks to those employees, or through any other written 
     policy or manual that the employing office may distribute to 
     covered employees concerning their employee rights or 
     reductions in force.
       The notice requirements attendant to a RIF are set out 
     separately in section 1.120 of the regulations. These 
     regulations derive from the express statutory language in 5 
     USC Sec. 3502(d) and (e), which have been applied to the 
     Legislative Branch by the VEOA. The language of section 
     3502(d) and (e) has been modified in section 1.120 to be 
     consistent with the terms and approach used in the rest of 
     these regulations. Among other changes, section 1.120 refers 
     to ``covered employees'' and the provision in 5 U.S.C. 
     Sec. 3502(e) that the ``President'' may shorten the 60 day 
     advance notice period to 30 days has been changed to the 
     ``director of the employing agency.'' Additionally, the 
     provision regarding Job Training Partnership Act notice has 
     been omitted. The requirement to inform the employee of the 
     place where he or she may inspect regulations and records 
     pertaining to this case derives from 5 CFR 
     Sec. 351.802(a)(3).
       The statutory language requiring notice of ``the employee's 
     ranking relative to other competing employees, and how that 
     ranking was determined'' has been modified to require that 
     the notice state whether the covered employee is preference 
     eligible and that the notice separately state the ``retention 
     status'' (i.e., whether the employee will be retained or not) 
     and preference eligibility of the other covered employees in 
     the same job or position classification within the covered 
     employee's competitive area. The Board is not requiring the 
     keeping of retention registers or the ranking of employees 
     within a job or position classification affected by a RIF. 
     However, the statutory language clearly compels employing 
     offices to provide employees who will be adversely affected 
     by a reduction in force with advance notice of how and why 
     the agency decided to subject that particular employee to the 
     reduction in force. At a minimum, this includes whether the 
     affected employee has preference eligible status, and an 
     objective indication why the employee was not retained in 
     relation to other employees in the affected position 
     classifications or job classifications.
       Section 1.121 Informational requirements regarding 
     veterans' preference determinations. Once an appointment or 
     reduction in force decision has been made, it is important 
     that applicants for covered positions and covered employees 
     receive information regarding the employing office's 
     decision, in order to ensure that the rights and obligations 
     created by the VEOA may be effectively enforced under the CAA 
     as contemplated by section 4(c)(3)(B) of the VEOA. 
     Accordingly, section 1.121 of the regulations requires that 
     certain limited information regarding the employing office's 
     decision be made available to applicants for covered 
     positions and to covered employees, upon request.

                    Proposed Substantive Regulations

       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

[[Page 2460]]

     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.
     1.105  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 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 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.


                         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, as amended (Pub. L. 104-1, 109 Stat. 3, 2 U.S.C. 
     Sec. Sec. 1301-1438).
       (b) 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.
       (c) Appointment means an individual's appointment to 
     employment in a covered position, but does not include 
     inservice placement actions such as promotions.
       (d) Armed forces means the United States Army, Navy, Air 
     Force, Marine Corps, and Coast Guard.
       (e) Board means the Board of Directors of the Office of 
     Compliance.
       (f) Covered employee means any employee of (1) the House of 
     Representatives; (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 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.
       (g) Covered position means any position that is or will be 
     held by a covered employee.
       (h) 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.
       (i) 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.
       (j) Employee of the Capitol Police Board includes any 
     member or officer of the Capitol police.
       (k) 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 
     (f) above nor any individual described in subparagraphs (aa) 
     through (cc) of paragraph (f) above.
       (l) 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 (f) above nor any individual 
     described in subparagraphs (aa) through (cc) of paragraph (f) 
     above.
       (m) Employing office means: (1) the personal office of a 
     Member of the House of Representatives or of a Senator; (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.
       (n) Office means the Office of Compliance.
       (o) 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).
       (p) 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.
       (q) 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.
       (r) 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.
       (s) VEOA means the Veterans Employment Opportunities Act of 
     1998 (Pub. L. 105-339, 112 Stat. 3182).
       (t) Veteran means persons as defined in 5 U.S.C. Sec. 2108, 
     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 (3)'' 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 (3)'' 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)(D) 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,

[[Page 2461]]

     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 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 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 eligibles as long as preference 
     eligibles are available. The provisions of sections 1.109 and 
     1.110 below shall apply to the appointment of a preference 
     eligible to a restricted covered position. The provisions of 
     section 1.108 shall apply to the appointment of a preference 
     eligible 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 who is assigned 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 U.S. Capitol Police 
     Board.
       Messenger--One whose primary duty is the supervision or 
     performance of general messenger work (such as running 
     errands, delivering messages, and answering call bells).


   sec. 1.108 veterans' preference in appointments to non-restricted 
                           covered positions

       (a) Where employing offices opt to examine and rate 
     applicants for covered positions on a numerical basis they 
     shall add points to the earned ratings of those preference 
     eligibles 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.
       (b) In all other situations involving appointment to a 
     covered position, employing offices shall consider veterans' 
     preference eligibility as an affirmative factor that is given 
     weight in a manner that is proportionately comparable to the 
     points prescribed in 5 U.S.C. Sec. 3309 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 eligibles 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.
       (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, if an employing office 
     determines, on the basis of evidence before it, that an 
     applicant for a covered position is preference eligible, the 
     employing office shall waive in determining whether the 
     preference eligible applicant is qualified for appointment to 
     the position:
       (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 preference eligible, the preference eligible 
     is physically able to perform efficiently the duties of the 
     position;
       (b) Subject to (c) below, if an employing office determines 
     that, on the basis of evidence before it, an otherwise 
     qualified applicant who is a preference eligible described in 
     5 U.S.C. Sec. 2108(3)(c) 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 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 make a timely response the employing 
     office, at the highest level within the employing office, 
     shall render a final determination of the physical ability of 
     the preference eligible to perform the duties of the 
     position, taking into account 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.
       (c) Nothing in this section shall relieve an employing 
     office of any greater 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).


         subpart d--veteran's 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 under separate administration 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--

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       (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.
       (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. This 
     does not encompass terminations or other personnel actions 
     predicated upon performance, conduct or other grounds 
     attributable to an employee.
       (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, a work program would 
     generally not be unduly interrupted even if a covered 
     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 program accorded low priority by the employing 
     office, or to a vacant position. An employing office has the 
     burden of proving ``undue interruption'' by objectively 
     quantifiable evidence.


      sec. 1.112 application of preference in reductions in force

       Prior to carrying out a reduction in force that will affect 
     covered employees, employing offices shall determine which, 
     if any, covered employees within a particular group of 
     competing covered employees are entitled to veterans' 
     preference eligibility status in accordance with these 
     regulations. In determining which covered employees will be 
     retained, employing offices will treat veterans' preference 
     as the controlling factor in retention decisions among such 
     competing covered employees, regardless of length of service 
     or performance, provided that the preference eligible 
     employee's performance has not been rated unacceptable. 
     Provided, a preference eligible 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 rated unacceptable by an employing 
     office is entitled to be retained in preference to other 
     preference eligibles. 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:
       (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 preference eligible, the preference eligible 
     is physically able to perform efficiently the duties of the 
     position.
       (b) If an employing office determines that, on the basis of 
     evidence before it, a preference eligible described in 5 
     U.S.C. Sec. 2108(3)(c) 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 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 make a timely response the employing 
     office, at the highest level within the employing office, 
     shall render a final determination of the physical ability of 
     the preference eligible 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.
       (c) Nothing in this section shall relieve an employing 
     office of any greater 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  Dissemination of veterans' preference policies to 
         covered employees.
     1.120  Written notice prior to a reduction in force.
     1.121  Informational requirements regarding veterans' 
         preference determinations.


           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 and to the public upon 
     request. 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

[[Page 2463]]

     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.


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 eligibles, 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 
     eligibles 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 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).
       (c) An employing office shall provide the following 
     information in writing to all qualified applicants for a 
     covered position:
       (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, but is not required to do so by these 
     regulations.
       (d) Except as provided in this subparagraph, the written 
     information required by paragraph (c) must be provided to all 
     qualified applicants for a covered position so as to allow 
     those applicants a reasonable time to respond regarding their 
     veterans' preference status.
       (e) Employing offices are also expected to answer applicant 
     questions concerning the employing office's veterans' 
     preference policies and practices.


 sec. 1.119 dissemination of veterans' preference policies to covered 
                               employees

       (a) If an employing office that employs one or more covered 
     employees or that seeks applicants for a covered position 
     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 entitlements under the VEOA and employee 
     obligations under the employing office's veterans' preference 
     policy, as set forth in subsection (b) of this regulation.
       (b) Written guidances and notices to covered employees 
     required by 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 workforce adjustments; and 
     the procedures the employing office shall take to identify 
     preference eligible employees.
       (3) The employing office may include other information in 
     the notice or in its guidances, but is not required to do so 
     by these regulations.
       (c) Employing offices are also expected to answer covered 
     employee questions concerning the employing office's 
     veterans' preference policies and practices.


           1.120 written notice prior to a reduction in force

       (a) Except as provided under subsection (b), 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;
       (7) the place where the covered employee may inspect the 
     regulations and records pertinent to him/her, as detailed in 
     section 1.121(b) below; and
       (8) a description of any appeal or other rights which may 
     be available.
       (c) (1) 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.
       (2) No notice period may be shortened to less than 30 days 
     under this subsection.


 Sec. 1.121 informational requirements regarding veterans' preference 
                             determinations

       (a) 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 
     state at a minimum:
       (1) 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. If the applicant is not considered preference 
     eligible, the explanation need not address the remaining 
     matters described in subparagraphs (2) and (3).
       (2) If the applicant is preference eligible, whether he/she 
     is a qualified applicant and, if not, a brief statement of 
     the reasons for the employing office's determination that the 
     applicant is not a qualified applicant. If the applicant is 
     not considered a qualified applicant, the explanation need 
     not address the remaining matters described in subparagraph 
     (3).
       (3) If the applicant is preference eligible and a qualified 
     applicant, the employing office's explanation shall advise 
     whether the person appointed to the covered position for 
     which the applicant was applying is preference eligible.
       (b) Upon written request by a covered employee who has 
     received a notice of reduction in force under section 1.120 
     above (or his/her representative), the employing office shall 
     promptly provide a written explanation of the manner in which 
     veterans' preference was applied in the employing office's 
     retention decision regarding that covered employee. Such 
     explanation shall state:
       (1) Whether the covered employee is preference eligible 
     and, if not, the reasons for the employing office's 
     determination that the covered employee is not preference 
     eligible.
       (2) If the covered employee is preference eligible, the 
     employing office's explanation shall include:
       (A) a list of all covered employee(s) in the requesting 
     employee's position classification or job classification and 
     competitive area who were retained by the employing office, 
     identifying those employees by job title only and stating 
     whether each such employee is preference eligible,
       (B) a list of all covered employee(s) in the requesting 
     employee's position classification or job classification and 
     competitive area who were not retained by the employing 
     office, identifying those employees by job title only and 
     stating whether each such employee is preference eligible, 
     and
       (C) a brief statement of the reason(s) for the employing 
     office's decision not to retain the covered employee.

     END OF PROPOSED REGULATIONS

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