[Congressional Record (Bound Edition), Volume 154 (2008), Part 4]
[House]
[Pages 4541-4550]
[From the U.S. Government Publishing Office, www.gpo.gov]


OFFICE OF COMPLIANCE NOTICE OF ADOPTION OF SUBSTANTIVE REGULATIONS AND 
                 SUBMISSION FOR CONGRESSIONAL APPROVAL

                                                    U.S. Congress,


                                         Office of Compliance,

                                   Washington, DC, March 21, 2008.
     Hon. Nancy J. Pelosi,
     Speaker, House of Representatives,
     Washington, DC.
       Dear Madam Speaker: On March 14, 2008, The Board of 
     Directors of the Office of Compliance sent to your office the 
     Text of Adopted Veterans' Employment Opportunities 
     Regulations and a Notice of Adoption of Substantive 
     Regulations and Submission for Congressional Approval. We 
     have been advised that there are a few typographical errors 
     in the Text of the Regulations and in the Notice and 
     Submission. Please accept the attached documents and disc as 
     the corrected versions of both the Text of the Regulations 
     and the Notice and Submission.
       The Notice and Submission has been corrected to show that 
     it is in Section 1.118(c), rather than Section 1.117(c) that 
     the Board has clarified that an applicant's request for 
     information must be made in writing. In addition, the Notice 
     and Submission has been corrected to show that it is Section 
     1.118(d), rather than Section 1.118(e) that has been revised 
     to provide that employing offices are expected to answer 
     applicant questions concerning the employing office's 
     veterans' preference policies and practices only if such 
     questions are ``relevant and non-confidential.''
       The Text of the Regulations has also been corrected to be 
     consistent with the Notice and Submission and modifies 
     Section 1.108(b) to require employing offices to consider 
     veterans' preference as ``an affirmative factor in the 
     employing office's determination of who will be appointed 
     from among qualified applicants.''
       The Board requests that the accompanying corrected 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. The 
     Board also requests that Congress approve the proposed 
     Regulations, as corrected and further specified in the 
     accompanying Notice.
       An inquiries regarding the accompanying Notice should be 
     addressed to Tamara E. Chrisler, 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.
                                  ____


 Adoption of the Office of Compliance 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)


                           procedural summary

     Issuance of the board's initial notice of proposed rulemaking
       On February 28, 2000, and March 9, 2000, the Office of 
     Compliance 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 took no action on those earlier 
     Notices and instead, after extensive consultation with 
     stakeholders, issued a subsequent Notice on December 1, 2001.
       Why did the Board propose these new Regulations? Section 
     4(c) of the CAA, 2 U.S.C. 1316a (4), requires that the Board 
     of Directors propose substantive regulations implementing the 
     rights and protections relating to veterans' employment which 
     are ``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.''
       What procedure followed the Board's December 1, 2001 Notice 
     of Proposed Rulemaking? The December 1, 2001 Notice of 
     Proposed Rulemaking included a thirty day comment period, 
     which began on December 2, 2001. A number of comments to the 
     proposed substantive regulations were received by the Office 
     of Compliance from interested parties. The Board of Directors 
     has reviewed the comments from interested parties, engaged in 
     extensive discussions with stakeholders to obtain input and 
     suggestions into the drafting of the regulations, made a 
     number of changes to the proposed substantive regulations in 
     response to comments, and has adopted the amended 
     regulations.
       What is the effect of the Board's ``adoption'' of these 
     proposed substantive regulations? Adoption of these 
     substantive regulations by the Board of Directors does not 
     complete the promulgation process. 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 issue proposed substantive 
     regulations and publish a general notice of proposed 
     rulemaking in the Congressional Record (the December 1 
     Notice);
       (2) there be a comment period of at least 30 days after the 
     date of publication of the general notice of proposed 
     rulemaking; and
       (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.
       This Notice of Adoption of Substantive Regulations and 
     Submission for Congressional Approval completes the third 
     step described above.
       What are the next steps in the process of promulgation of 
     these regulations? Pursuant to section 304(b)(4) of the CAA, 
     2 U.S.C. 1384(b)(4), the Board of Directors is required to 
     ``include a recommendation in the general notice of proposed 
     rulemaking and in the regulations as to whether the 
     regulations

[[Page 4542]]

     should be approved by resolution of the Senate, by resolution 
     of the House of Representatives, by concurrent resolution, or 
     by joint resolution.'' The Board of Directors recommends that 
     the House of Representatives adopt the ``H'' version of the 
     regulations by resolution; that the Senate adopt the ``S'' 
     version of the regulations by resolution; and that the House 
     and Senate adopt the ``C'' version of the regulations applied 
     to the other employing offices by a concurrent resolution.
       Are there regulations covering veterans' rights currently 
     in force under the CAA? No.


                     additional general information

       Why are there substantive differences in the proposed 
     regulations for the House of Representatives, the Senate, and 
     the other employing offices? Because the Board of Directors 
     has identified ``good cause'' to modify the executive branch 
     regulations to implement more effectively the rights and 
     protections for veterans, there are some differences in other 
     parts of the proposed regulations applicable to the Senate, 
     the House of Representatives, and the other employing 
     offices.
       Are these proposed regulations also recommended by the 
     Office of Compliance's Executive Director, the Deputy 
     Executive Director for the Senate, and the Deputy Executive 
     Director for the House of Representatives? Yes, as required 
     by section 304(b)(1) of the CAA, 2 U.S.C. 1384(b)(1), the 
     substance of these regulations have also been recommended by 
     the Executive Director and Deputy Executive Directors of the 
     Office of Compliance.
       Are these proposed CAA regulations available to persons 
     with disabilities in an alternate format? This Notice of 
     Adoption of Substantive Regulations, and Submission for 
     Congressional Approval 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: Annie Leftwood, 
     Executive Assistant, Office of Compliance, 110 2nd Street, 
     S.E., Room LA-200, Washington, DC 20540; 202-724-9250; TDD: 
     202-426-1912; FAX: 202-426-1913.
       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 12 
     federal labor and employment statutes to covered employees 
     and employing offices within the Legislative Branch of 
     Government. Section 301 of the CAA (2 U.S.C. 1381) 
     establishes the Office of Compliance as an independent office 
     within the Legislative Branch.


                   The Board's Responses to Comments

     Summary of major comments
       Covered employees
       Section 1.102 sets forth general definitions that apply 
     throughout the Board's veterans' preference regulations. The 
     Committee on House Administration expressed the concern that 
     readers might find the definitions that determine coverage of 
     the regulations confusing. The definition of ``covered 
     employee'' in Section 1.102(f) traces the definition of the 
     same term in the Congressional Accountability Act, and then 
     applies the differently worded and potentially more limited 
     exception to that term as provided in the VEOA. Because these 
     two aspects of the definition in Section 1.102(f) are based 
     on statutory language, we have not revised the definition 
     itself. However, the final regulations include a new Section 
     1.101(c) entitled ``Scope of Regulations'' that contains a 
     clear statement that the regulations shall not apply to an 
     employing office that only employs individuals excluded from 
     the definition of ``covered employee'' under the VEOA, 
     including 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.
       In view of the selection process for certain Senate 
     employees, the words ``or directed'' have been added to the 
     definition of ``covered employee'' to include any employee 
     who is hired at the direction of a Senator, but whose 
     appointment form is signed by an officer of either House of 
     Congress. Including the words ``or directed'' in the 
     definition has the effect of excluding such employees from 
     the definition of ``covered employee'' for purposes of the 
     veterans' preference provisions in the regulations to be made 
     applicable to the Senate. A reference to 2 U.S.C. Sec. 43d(a) 
     also has been added to the definition of ``covered 
     employee''. Including the reference to 2 U.S.C. Sec. 43d(a) 
     has the effect of excluding employees whose appointment is 
     allowed under that statutory provision from the definition of 
     ``covered employee'' in the regulations to be made applicable 
     to the Senate. These changes will give full effect to the 
     exclusion in 2 U.S.C. Sec. 1316(5)(B).
       Similar additions were not made in the definition of 
     ``covered employee'' that appears in the regulations to be 
     made applicable to the House of Representatives. It appears 
     that this language would be overreaching for the House. As 
     the House has different methods of making appointments and 
     selections, this language appears to be unnecessary and may 
     create confusion given the practices of the House. Employees 
     of members' offices are excluded from coverage, and section 
     1.101(c) of the draft regulations provides a number of 
     additional exceptions to coverage that otherwise are 
     applicable to the House:
       (1) whose appointment is made by the President with the 
     advice and consent of the Senate;
       (2) whose appointment is made by a committee or 
     subcommittee of either House of Congress or a joint committee 
     of the House of Representatives and the Senate; or
       (3) who is appointed to a position, the duties of which are 
     equivalent to those of a Senior Executive Service position 
     (within the meaning of Section 3132(a)(2) of title 5, United 
     States Code).
       We believe the exceptions to coverage listed above will 
     exclude from coverage all employees of the House who by 
     statute were not meant to be covered under the VEOA 
     provisions, without creating unintended exceptions due to the 
     selection procedures under HEPCA.
       The ``or directed'' language has not been made to the 
     definition of ``covered employee'' in the regulations to be 
     made applicable to the other employing offices. Employees of 
     those other employing offices are included in the definition 
     of ``covered employee'' even if their appointment form is 
     signed or subject to final approval by a Member or Members of 
     Congress.
       Definition of ``appointment''
       Section 1.102(d) defines the term ``appointment''. As 
     initially proposed the term excluded ``inservice placement 
     actions such as promotions''. This exclusion was derived from 
     OMB regulations applicable in the executive branch. See 5 CFR 
     211.102(c). Senate stakeholders noted that the term 
     ``inservice placement actions'' is not commonly used in the 
     legislative branch and questioned whether the veterans' 
     preference would apply in any post-employment decisions other 
     than reductions in force as that term is defined in these 
     regulations. In the executive branch, the preference afforded 
     to preference eligibles in the appointment process only 
     applies to original appointments in the competitive service. 
     See 5 U.S.C. Sec. 3309. It is possible, therefore, for an 
     executive branch employee who has initially been employed in 
     a position that is not within the competitive service to 
     later seek appointment to a position in the competitive 
     service. The employing offices within the legislative branch 
     do not have a ``competitive service'' and therefore do not 
     recognize the notion that an initial appointment to the 
     competitive service could be made by an employee holding a 
     position that is not in the competitive service. For these 
     reasons, the Board agreed that use of the phrase ``inservice 
     placement actions'' was confusing and possibly misleading. In 
     the final regulations, the definition of ``appointment'' has 
     been modified to exclude ``any personnel action that an 
     employing office takes with regard to an existing employee of 
     the employing office''.
       Definition of employing office
       In addition to the changes discussed above, technical 
     corrections were made to the definition of ``employing 
     office'', to clarify that the term includes the Capitol 
     Police Board.
       Veterans' preference in appointments to restricted 
           positions
       Section 1.107 addresses the application of veterans' 
     preference in appointments to the restricted positions of 
     custodian, elevator operator, guard and messenger. As 
     proposed, Section 1.107 provided that, for these positions, 
     the employing office ``shall restrict competition to 
     preference eligibles as long as preference eligibles are 
     available.'' The Committee on House Administration suggested 
     that the requirement of an absolute preference for veterans 
     (and other preference eligibles) to fill guard positions 
     without regard to experience, quality of work or employment 
     references would undermine the efforts of various 
     congressional entities to provide the most secure environment 
     possible for the employees of and visitors to the 
     Congressional office buildings. For this reason, the 
     Committee requested that the Board find ``good cause'' for 
     deviating from the executive branch regulations and exclude 
     the position of guard from Section 1.107.
       Section 1.107 derives from statutory language made 
     applicable to the legislative branch by the VEOA. Removing 
     one of the four restricted positions from the regulations 
     would represent a significant deviation from the VEOA's goal 
     of applying the veterans' preference principles currently 
     applicable in the executive branch in the legislative branch. 
     However, the Board agrees that employing offices should not 
     be required to appoint individuals who are not qualified to 
     perform the role of a guard, particularly where unique 
     security concerns are present, simply because the individual 
     is preference eligible. Accordingly, the final regulation 
     clarifies that with respect to the four statutory restricted 
     positions, the employing office ``shall restrict competition 
     to preference eligible applicants as long as qualified 
     preference eligible applicants are available.'' This 
     reference to ``qualified . . . applicants'' is intended to 
     refer to the definition of ``qualified applicant'' in Section 
     1.102(q).

[[Page 4543]]

     Section 1.102(q) defines the term as an applicant for a 
     covered position whom an employing office deems to satisfy 
     the requisite minimum job-related requirements of the 
     position. Employing offices are provided flexibility in 
     devising the minimum job-related requirements for a 
     particular covered position. The unique security concerns on 
     Capitol Hill may result in additional or more stringent 
     requirements for the position of guard. Accordingly, we have 
     revised Section 1.107 to clarify that preference eligibles 
     must be qualified to be considered for any restricted 
     position, be it that of custodian, elevator operator, guard, 
     or messenger.
       Senate Employment Counsel noted that the definitions of 
     three of the four listed restricted positions include the 
     limiting words ``primary duty,'' and suggested that the 
     definition of ``guard'' also include the primary duty 
     limitation. We agree that this is important given that the 
     definition of guard includes those who ``make observations 
     for detection of fire, trespass, unauthorized removal of 
     public property or hazards to federal personnel or property'' 
     and any manager responsible for insuring a safe work 
     environment may engage in these activities. Accordingly, we 
     have included the limiting words ``primary duty'' in the 
     definition of guard.
       Veterans' preference in appointments to non-restricted 
           covered positions
       Section 1.108(a) requires employing offices who use 
     numerical examination or rating systems to add points to the 
     ratings of preference eligibles in a manner that is 
     comparable to the points added in accordance with the 
     provisions of 5 U.S.C. Sec. 3309. Comments submitted by the 
     Committee on House Administration express the concern that a 
     ``numerical examination or rating system'' may be interpreted 
     to apply whenever one interviewer ``rates'' or gives 
     numerical ``grades'' to interviewees even though other 
     interviewers and decision makers are not using a similar 
     system. To address this concern, Section 1.108(a) has been 
     revised to provide that the addition of veterans' preference 
     points is required only when the employing office has ``duly 
     adopted a policy requiring the numerical scoring or rating of 
     applicants for covered positions. . . .''
       As proposed, Section 1.108(b) would have required employing 
     offices to consider veterans' preference eligibility as an 
     affirmative factor that would be ``given weight in a manner 
     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.'' 
     Several commenters expressed concern with respect to the 
     manner in which Section 1.108(b)'s requirements would be 
     administered. For example, some expressed the concern that 
     application of a factor ``proportionately comparable'' to a 
     point system would, in itself, require the adoption of a 
     point system to ensure compliance. Others expressed concern 
     with respect to when the preference should be afforded to 
     qualified applicants, and suggested that Section 1.108(b) 
     simply require that the preference be the deciding factor if 
     all other factors among the applicants considered most 
     qualified were equal. After careful consideration, the Board 
     has modified Section 1.108(b) to require employing offices to 
     consider veterans' preference eligibility as ``an affirmative 
     factor in the employing office's determination of who will be 
     appointed''. This change has been adopted to confirm that 
     these regulations are not intended to require employing 
     offices that do not use point-based rating systems to adopt 
     them simply to be able to comply with their VEOA obligations. 
     The Board reiterates that, because Section 1.108(b) is 
     derived from the statutory provisions in 5 U.S.C. Sec. 3309, 
     veterans' preference will not be the only factor, and, 
     depending upon the relative merits of the candidates, may not 
     be the most important factor in the employing office's 
     appointment decision. Section 3309 affords preference 
     eligibles 5 or 10 points when a 100-point rating scale is 
     used, and employing offices are not required to afford any 
     greater weight to veterans' preference in their appointment 
     decisions. The Board notes that all preference eligibles who 
     are found by the employing office to be ``qualified 
     applicants'' must be afforded the preference. The Board 
     expects that in cases where all other factors are relatively 
     equal, consideration of the preference as an affirmative 
     factor may result in the preference eligible being appointed. 
     In other cases, consideration of the preference as an 
     affirmative factor may boost the applicant further along in 
     the appointment process but ultimately not be sufficient to 
     overcome the other favorable attributes of the final 
     candidate or even of the others within a final pool of 
     candidates.
       Waiver of physical requirements in appointments to covered 
           positions
       As proposed, Section 1.110(b) required an employing office 
     to notify an otherwise qualified preference eligible 
     applicant who has a compensable service-connected disability 
     of 30% or more if the employing office determines that the 
     applicant is not able to fulfill the physical requirements of 
     the position. The employing office must inform the applicant 
     of the reasons for the employing office's determination and 
     allow the applicant 15 days to respond and submit additional 
     information to the employing office. Thereafter, the 
     ``highest level'' of the employing office must consider any 
     response and additional information supplied by the applicant 
     and notify the applicant of its findings regarding the 
     applicant's ability to perform the duties of the position.
       The Committee on House Administration inquired whether an 
     employing office must engage in the prescribed dialogue if 
     the applicant is clearly not the most qualified applicant for 
     the position. A concern regarding the timing of the required 
     dialogue was also raised in the comments received from the 
     Senate Employment Counsel. In those comments, Counsel raised 
     the concern that engaging in the required dialogue before a 
     conditional offer of employment is made would conflict with 
     the provisions of the Americans with Disabilities Act 
     regarding pre-employment disability-related inquiries. 
     Section 1.110 does not require or allow employing offices to 
     engage in any inquiries that would be unlawful under the 
     Americans with Disabilities Act. In accordance with 5 U.S.C 
     Sec. 3312, Section 1.110(a)(2) requires an employing office 
     to waive physical requirements on the basis of ``the evidence 
     before it'', including any recommendation of an accredited 
     physician submitted by the preference eligible applicant. It 
     is presumed that such evidence will come before the employing 
     office through means allowed under the Americans with 
     Disabilities Act, whether this occurs through an applicant's 
     request for accommodation or through lawful pre-employment 
     inquiries. Similarly, Section 1.110(b) does not require an 
     employing office to make a determination regarding preference 
     eligible applicants' physical ability to perform the duties 
     of the position, but only describes the procedures that must 
     be followed if and when such a determination is made.
       The Committee on House Administration also expressed the 
     concern that a 15-day response period would impair an 
     employing office's operations if there is a need to fill a 
     particular covered position quickly. To respond to this 
     concern, the final regulation includes the statement, ``The 
     director of the employing office may, by providing written 
     notice to the preference eligible applicant, shorten the 
     period for submitting a response with respect to an 
     appointment to a particular covered position, if necessary 
     because of a need to fill the covered position immediately.''
       The Committee on House Administration inquired about the 
     definition of the ``highest level'' within the employing 
     office. Consistent with the Committee's suggestions, the 
     final regulation refers to the ``highest ranking individual 
     or group of individuals with authority to make employment 
     decisions on behalf of the employing office.''
       Comments submitted by the Capitol Police inquired about the 
     definition of ``accredited physician'' as used in Section 
     1.110(a)(2). The final regulations contain a definition of 
     this term at Section 1.102(a).
       Definitions applicable in reductions in force
       Senate Employment Counsel raised a concern with respect to 
     the proposed Section 1.111(b) provision that the ``minimum 
     competitive area'' be a department or subdivision of the 
     employing office ``under separate administration.'' Counsel 
     raised the concern that this definition could be interpreted 
     in a manner inconsistent with the definition of ``competitive 
     area'' as ``that portion of the employing office's 
     organizational structure, as determined by the employing 
     office, in which covered employees compete for retention.'' 
     Counsel notes that certain employing offices, such as the 
     Sergeant-At-Arms and the Secretary of the Senate, have 
     multiple departments that are headed by different 
     individuals, but some personnel decisions may be centralized 
     with the executive office of the employing office. To address 
     this concern, the final regulation deletes the reference to 
     ``separate administration'' such that the minimum competitive 
     area is a ``department or subdivision of the employing office 
     within the local commuting area.''
       In addition, Senate Employment Counsel suggested that the 
     definition of ``reduction in force'' in Section 1.111(e) is 
     broader in scope than the regulations applicable to the 
     executive branch. In this respect, Counsel suggested that the 
     executive branch regulations in 5 C.F.R. Sec. 351.201(a)(2) 
     exclude any layoff or other personnel action that might 
     otherwise be considered a ``reduction in force'' if at least 
     180 days prior notice is given. However, the executive branch 
     regulations apply the 180-day exception only to ``the 
     reclassification of an employee's position due to erosion of 
     duties when such action will take effect after an agency has 
     formally announced a reduction in force in the employee's 
     competitive area and when the reduction in force will take 
     effect within 180 days.'' As a result, the Board does not 
     consider Section 1.111(e) to be broader in scope than the 
     executive branch regulations.
        The Board also considered the application of a veterans' 
     preference in connection with terminations and other 
     reductions attributable to a change in party leadership or 
     majority party status within the House of Congress in which a 
     covered employee is employed. The Board has determined that 
     positions affected by such changes are subject to the same 
     considerations applicable to positions in which appointment 
     is made or directed by a Member of Congress. The Board

[[Page 4544]]

     therefore has excluded terminations and reductions 
     attributable to such changes from the definition of reduction 
     in force in Section 1.111(e) in the regulations applicable to 
     the House and Senate, in order to give full effect to the 
     exclusion in 2 U.S.C. Sec. 1316(5)(B). These changes have not 
     been made to the definition of ``reduction in force'' 
     contained in the regulations applicable to the other 
     employing offices.
        The Committee on House Administration suggested that the 
     requirement of ``objectively quantifiable evidence'' be 
     stricken from the definition of ``undue interruption'' in 
     Section 1.111(f). The concept of ``undue interruption'' is 
     used in Section 1.111(c) in determining whether various 
     covered positions must be included within a particular 
     position classification or job classification. Section 
     1.111(c) states that position classifications or job 
     classifications ``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 employment) 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.'' The Committee noted that the 
     definition of ``undue interruption'' in Section 1.111(f) 
     allows an employing office to consider quality of work when 
     assessing whether an employee transferred into the position 
     would need more than 90 days to complete required work, and 
     expressed concern with the requirement in the proposed 
     regulation that an employing office prove ``undue 
     interruption'' by ``objectively quantifiable evidence.'' In 
     this respect, the Committee noted that quality of work is 
     often a subjective determination which, by its nature, cannot 
     always be proven by ``objectively quantifiable evidence.'' 
     The Board agrees that the proposed ``objectively quantifiable 
     evidence'' requirement could create unnecessary confusion 
     with respect to the burden of proof applicable in a claim 
     brought under the VEOA and has, therefore, deleted the 
     reference to ``objectively quantifiable evidence'' in the 
     final regulations.
        The Committee also questioned Section 1.111(f)'s reference 
     to ``work programs.'' Although the Committee requested that 
     the Board provide a definition of ``work program,'' the Board 
     considered it more prudent to make this provision consistent 
     with other references in Section 1.111(f) to ``work'' as 
     opposed to ``work programs.''
        The Committee on House Administration also inquired 
     whether the definition of reduction in force in Section 
     1.111(e) applies to temporary employees. The final regulation 
     clarifies that the term ``reduction in force'' does not 
     encompass a termination or other personnel action ``involving 
     an employee who is employed by the employing office on a 
     temporary basis.''
       Application of preference in reductions in force
        Section 1.112 makes veterans' preference the controlling 
     factor in retention decisions if the preference eligible's 
     performance has not been rated unacceptable. As noted by 
     Senate Employment Counsel, the Board's proposed regulation is 
     based upon 5 U.S.C. Sec. 3502(c), which provides that an 
     employee is entitled to such preference if the employee's 
     ``performance has not been rated unacceptable under a 
     performance appraisal system implemented under Chapter 43 of 
     this Title. . . .'' The Supreme Court has interpreted 
     analogous language in the predecessor legislation to mean 
     that preference eligible veterans have preference over all 
     non-preference eligible employees, without regard to tenure, 
     length of service, or efficiency of performance. Hilton v. 
     Sullivan, 334 U.S. 323, 335 (1948). Counsel notes that the 
     Senate is not subject to the performance appraisal system set 
     forth in Chapter 43 of Title 5 and asserts that it is 
     improper to use 5 U.S.C. Sec. 3502(c) as the basis for a 
     regulation requiring the retention of veterans over non-
     veterans in all cases. Counsel suggests that the regulation 
     should be based on 5 U.S.C. Sec. 3502(a), which requires that 
     any implementing regulation give ``due effect'' to tenure of 
     employment, military preference (subject to Sec. 3501(a)(3)), 
     length of service and efficiency or performance ratings. The 
     Board has carefully considered these comments and continues 
     to believe that because the VEOA makes 5 U.S.C. Sec. 3502(c) 
     applicable to the legislative branch, the absolute veterans' 
     preference embodied in that section also must be made 
     applicable to the legislative branch. The Board notes that 
     the Supreme Court's finding in Hilton was not based on the 
     unique elements and attributes of the performance appraisal 
     system implemented under Chapter 43 of Title 5, but on its 
     understanding that ``Congress passed the bill with full 
     knowledge that the long standing absolute retention 
     preference of veterans would be embodied in the Act.'' 
     Hilton, 334 U.S. at 339. The Board considers its task in 
     devising these regulations to implement veterans' preference 
     in the legislative branch in a manner that mirrors, as 
     closely as possible, the veterans' preference principles 
     applicable in the executive branch. Accordingly, the final 
     regulation retains Section 1.112 in substantially the form 
     proposed, because the primary purpose of 5 U.S.C. 
     Sec. 3502(c) is to make veteran's preference the controlling 
     factor in retention decisions. An additional concern was 
     expressed that use of the term ``rated'' in Section 1.112 
     suggests that employing offices must adopt formal rating 
     systems in order to comply with the regulation. The Board 
     agrees that the term may lead to confusion and has modified 
     the provisions in Section 1.112 so that the veterans' 
     preference will apply only if the preference eligible 
     employee's performance has not been ``determined to be'' 
     unacceptable.
        Good cause for requirements in subpart E
        The regulations in Subpart E contain various informational 
     requirements. Section 1.116 requires an employing office with 
     covered employees to adopt a written veterans' preference 
     policy. Section 1.117 requires employers to retain certain 
     information regarding their veterans' preference decisions 
     for specified periods of time. Sections 1.118 and 1.119 
     address the dissemination of information to applicants for 
     covered positions. Section 1.120 addresses the dissemination 
     of information to covered employees generally, and Section 
     1.121 describes the notice that must be given before a 
     reduction in force.
        Senate Employment Counsel and the Capitol Police note that 
     no corresponding executive branch regulation would require 
     either the adoption of a written policy or the other 
     informational and record keeping requirements in Subpart E. 
     These commenters express the concern that the regulations in 
     Subpart E are not consistent with the directive in Section 
     4(c)(4)(B) of the VEOA, which states in relevant part, ``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.''
        The Board has carefully considered these concerns and 
     reaffirms its previous determination that there is good cause 
     for adopting the requirements described in Subpart E of the 
     regulations. We note first that the very structure of the 
     statutory provisions made applicable to the legislative 
     branch by the VEOA presumes that uniformly applicable 
     policies and procedures will be used in applying veterans' 
     preference in hiring and retention decisions. We also 
     continue to believe that the requirements in Subpart E of the 
     regulations are a necessary counterpart to the approach 
     reflected in the veterans' preference regulations, which 
     affords employing offices with significant discretion and 
     flexibility in implementing their own veterans' preference 
     policies and procedures. For example, the regulations do not 
     mandate a particular policy or practice in implementing 
     veterans' preference, such that applicants cannot turn to 
     published regulations to fully determine their rights. 
     Further, since the regulations do not mandate the maintenance 
     of retention registers, covered employees will not be able to 
     inspect such registers to determine their retention status 
     vis-a-vis other employees. Because OPM-like regulations will 
     not be adopted, the Board has determined that the creation of 
     a policy, dissemination of information and record keeping are 
     necessary to insure the effective implementation of the 
     rights and protections provided under the VEOA. This approach 
     meets the requirements of Section 4(c)(4)(B) of the VEOA and 
     is also consistent with the purposes of the Congressional 
     Accountability Act (see Section 301(h) of the Act, 2 U.S.C. 
     Sec. 1381(h), which charges the Office of Compliance with 
     carrying out a program of education ``. . . to inform 
     individuals of their rights under laws made applicable to the 
     legislative branch of the Federal Government'').
        Adoption of Veterans' Preference Policy
        Senate Employment Counsel and other commenters suggest 
     that, as proposed, Section 1.116 was overbroad to the extent 
     that it would require employing offices to make their 
     veterans' preference policies available to the public upon 
     request. Senate Employment Counsel notes that ``unlike 
     executive branch agencies, Senate employing offices are not 
     subject to the Freedom of Information Act and therefore have 
     no duty to make available to the public any records regarding 
     their employment practices.'' (Citing 5 U.S.C. Sec. 551, 
     which defines ``agency'' as excluding the Congress.) The 
     Board agrees that effective implementation of the rights and 
     protections under the VEOA only requires dissemination of 
     information regarding an employing office's veterans' 
     preference policies to covered employees and applicants for 
     covered positions. Accordingly, the final Section 1.116 has 
     deleted the requirement that these policies be made available 
     to the public upon request.
       Record keeping
        Senate Employment Counsel suggests that the record 
     retention period described in Section 1.117 be shortened from 
     one year to nine months or perhaps 275 days, given the 
     deadlines by which an employee must request counseling and 
     mediation under Sections 402 and 403 of the Congressional 
     Accountability Act, 2 U.S.C. Sec. 1402 and Sec. 1403. In this 
     respect, Counsel suggests that an employing office

[[Page 4545]]

     will always be informed about a possible claim within 8 
     months or approximately 240 days after notice of hiring or a 
     reduction in force is provided to the employee. Counsel has 
     not suggested that the requirement that applicable records be 
     retained for one year, or 90 to 120 days longer than may be 
     required given the CAA deadlines, will work a significant 
     hardship on employing offices, and the Board finds it prudent 
     to allow additional time from the date on which the employing 
     office is formally notified of a claim for that notice to 
     reach the individual representatives of the employing office 
     who have maintained records relative to the claim.
        Dissemination of veterans' preference policies to 
           applicants for covered positions
        As proposed, Section 1.118 required that employing offices 
     disseminate their veterans' preference policies and 
     procedures to ``all qualified applicants'' for a covered 
     position. Several of the commenters expressed concern with 
     the burden and cost attendant to such a requirement. The 
     final regulation, in Section 1.118(c), requires that the 
     described information be provided ``upon request'' from an 
     applicant for a covered position, and does note require 
     dissemination to ``all qualified applicants.'' In Section 
     1.118(c) of the final regulations, the Board has also 
     clarified that an applicant's request for information must be 
     made in writing. To ensure that preference eligible 
     applicants will know that they may request information from 
     an employing office, we have added Section 1.118(b)(3), which 
     requires that invitations to self-identify oneself as 
     veterans' preference eligible applicants ``state clearly that 
     applicants may request information about the employing 
     office's veterans' preference policies as they relate to 
     appointments to covered positions and . . . describe the 
     employing office's procedures for making such requests.''
        The Committee on House Administration also suggested that 
     Section 1.118(d) be modified to provide that employing 
     offices are expected to answer applicant questions concerning 
     the employing office's veterans' preference policies and 
     practices only if such questions are ``relevant and non-
     confidential.'' The Board agrees and has revised Section 
     1.118(d) as suggested.
        Dissemination of veterans' preference policies to covered 
           employees
        Several comments were received regarding Sections 1.119 
     (dissemination of veterans' preference policies to covered 
     employees), 1.120 (written notice prior to a reduction in 
     force), and 1.121 (informational requirements regarding 
     veterans' preference determinations). In the final 
     regulations, these provisions have been modified in several 
     ways. Requirements regarding information that must be 
     provided to preference eligible applicants as a result of 
     appointment determinations have been moved from Section 
     1.121(a) and now appear in Section 1.119.
       Section 1.119 of the final regulations addresses requests 
     for information by applicants for a covered position. The 
     requirements of this Section have been limited to providing 
     the employing office's veterans' preference policy or a 
     summary of the policy as it relates to appointments to 
     covered positions, a statement of whether the applicant is 
     preference eligible and, if the applicant is not preference 
     eligible, the reasons for the employing office's 
     determination that the applicant is not preference eligible. 
     After further consideration, the Board removed from the final 
     regulations the requirements that the employing office 
     provide additional information about its appointment 
     decision. As noted previously, these regulations are intended 
     to implement veterans' preference in the legislative branch 
     in a manner that mirrors as closely as possible the veterans' 
     preference principles applicable in the executive branch. The 
     Board has removed the additional informational requirements 
     because they exceeded OPM requirements and were not deemed 
     critical to the implementation and enforcement of the 
     veterans' preference principles made applicable to the 
     legislative branch by the VEOA.
       Section 1.120 of the final regulations addresses the 
     dissemination of veterans' preference policies to covered 
     employees. For the reasons addressed above, Section 1.120(c) 
     limits an employing office's responsibility to answer 
     questions from covered employees to those questions that are 
     ``relevant and non-confidential'' concerning the employing 
     office's veterans' preference policies and practices.
       Section 1.121 of the final regulations addresses the 
     written notice required prior to a reduction in force. Under 
     Section 1.121(b)(6)(A) and (B) of the final regulations, the 
     written notice must include a list of all covered employees 
     in the covered employee's position classification or job 
     classification and competitive area who will be retained by 
     the employing office, identifying those employees by job 
     title only and stating whether each such employee is 
     preference eligible, and a list of all covered employees in 
     the covered employee's position classification or job 
     classification and competitive area who will not be retained 
     by the employing office, identifying those employees by job 
     title only and stating whether each such employee is 
     preference eligible. Along with the information required 
     under Section 1.121(b)(4) (the covered employee's competitive 
     area) and Section 1.121(b)(5) (the covered employee's 
     eligibility for the veterans' preference in retention and how 
     that status was determined) of the final regulations, these 
     lists are intended to replace the provisions in 5 U.S.C. 
     Sec. 3502(d)(2)(D), which require that the notice include 
     ``the employee's ranking relative to other competing 
     employees, and how that ranking was determined.'' Because 
     this information will be provided in the notice required 
     before a reduction in force, the Board has determined that it 
     is unnecessary to require that additional information be 
     provided to employees affected by a reduction in force, as 
     had been contemplated by Section 1.121(b) of the proposed 
     regulations.
       The changes in Sections 1.118, 1.119, 1.120 and 1.121 of 
     the final regulations are intended to reduce the burden and 
     cost to employing offices in providing information to 
     applicants for covered positions, and to reduce the burden 
     and cost to employing offices in providing information to 
     covered employees in the event of a reduction in force.
                                  ____


     Text of Adopted Veterans' Employment Opportunities Regulations

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

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

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

     SEC. 1.101. PURPOSE AND SCOPE.

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

[[Page 4546]]

     101(9)(A-C) of the CAA, 2 U.S.C. Sec. 1301 (9)(A-C) or; (3) 
     whose appointment is made by a committee or subcommittee of 
     either House of Congress or a joint committee of the House of 
     Representatives and the Senate; (4) who is appointed pursuant 
     to 2 U.S.C. Sec. 43d(a); or (5) who is appointed to a 
     position, the duties of which are equivalent to those of a 
     Senior Executive Service position (within the meaning of 
     section 3132(a)(2) of title 5, United States Code). 
     Accordingly, these regulations shall not apply to any 
     employing office that only employs individuals excluded from 
     the definition of covered employee.
       C Reg:  (c) Scope of Regulations. The definition of 
     ``covered employee'' in Section 4(c) of the VEOA limits the 
     scope of the statute's applicability within the Legislative 
     branch. The term ``covered employee'' excludes any employee: 
     (1) whose appointment is made by the President with the 
     advice and consent of the Senate; (2) whose appointment is 
     made by a Member of Congres or by a committee or subcommittee 
     of either House of Congress or a joint committee of the House 
     of Representatives and the Senate; or (3) who is appointed to 
     a position, the duties of which are equivalent to those of a 
     Senior Executive Service position (within the meaning of 
     section 3132(a)(2) of title 5, United States Code). 
     Accordingly, these regulations shall not apply to any 
     employing office that only employs individuals excluded from 
     the definition of covered employee.

     SEC. 1.102. DEFINITIONS.

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

     SEC. 1.103. ADOPTION OF REGULATIONS.

       (a) Adoption of regulations. Section 4(c)(4)(A) of the VEOA 
     generally authorizes the Board to issue regulations to 
     implement section 4(c). In addition, section 4(c)(4)(B) of 
     the VEOA directs the Board to promulgate regulations that are 
     ``the same as the most relevant substantive regulations 
     (applicable with respect to the Executive branch) promulgated 
     to implement the statutory provisions referred to in 
     paragraph (2)'' of section 4(c) of the VEOA. Those statutory 
     provisions are section 2108, sections 3309 through 3312, and 
     subchapter I of chapter 35, of title 5, United States Code. 
     The regulations issued by the Board herein are on all matters 
     for which section 4(c)(4)(B) of the VEOA requires

[[Page 4547]]

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

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

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

          Subpart B--Veterans' Preference--General Provisions

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

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

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

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

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

            Subpart C--Veterans' Preference in Appointments

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

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

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

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

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

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

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

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

       (a) Subject to (c) below, in determining qualifications of 
     a preference eligible for appointment, an employing office 
     shall waive:
       (1) with respect to a preference eligible applicant, 
     requirements as to age, height, and weight, unless the 
     requirement is essential to the performance of the duties of 
     the position; and
       (2) with respect to a preference eligible applicant to whom 
     it has made a conditional offer of employment, physical 
     requirements if, in the opinion of the employing office, on 
     the basis of evidence before it, including any recommendation 
     of an accredited physician submitted by the preference 
     eligible applicant, the preference eligible applicant is 
     physically able to perform efficiently the duties of the 
     position;
       (b) Subject to (c) below, if an employing office 
     determines, on the basis of evidence before it, including any 
     recommendation of an accredited physician submitted by the 
     preference eligible applicant, that an applicant to whom it 
     has made a conditional offer of employment is preference 
     eligible as a disabled veteran as described in 5 U.S.C. 
     Sec. 2108(3)(c) and who has a compensable service-connected 
     disability of 30 percent or more is not able to fulfill the 
     physical requirements of the covered position, the employing 
     office shall notify the preference eligible applicant of the 
     reasons for the determination and of the right to respond and 
     to submit additional information to the employing office, 
     within 15 days of the date of the notification. The director 
     of the employing office may, by providing written notice to 
     the preference eligible applicant, shorten the period for 
     submitting a response with respect to an appointment to a 
     particular covered position, if necessary because of a need 
     to fill the covered position immediately. Should the 
     preference eligible applicant make a timely response, the 
     highest ranking individual or group of individuals with 
     authority to make employment decisions on behalf of the 
     employing office shall render a

[[Page 4548]]

     final determination of the physical ability of the preference 
     eligible applicant to perform the duties of the position, 
     taking into account the response and any additional 
     information provided by the preference eligible applicant. 
     When the employing office has completed its review of the 
     proposed disqualification on the basis of physical 
     disability, it shall send its findings to the preference 
     eligible applicant.
       (c) Nothing in this section shall relieve an employing 
     office of any obligations it may have pursuant to the 
     Americans with Disabilities Act (42 U.S.C. Sec. 12101 et 
     seq.) as applied by section 102(a)(3) of the Act, 2 U.S.C. 
     Sec. 1302(a)(3).

         Subpart D--Veterans' preference in reductions in force

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

     SEC. 1.111. DEFINITIONS APPLICABLE IN REDUCTIONS IN FORCE.

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

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

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

     SEC. 1.113. CREDITING EXPERIENCE IN REDUCTIONS IN FORCE.

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

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

       (a) If an employing office determines, on the basis of 
     evidence before it, that a covered employee is preference 
     eligible, the employing office shall waive, in determining 
     the covered employee's retention status in a reduction in 
     force:
       (1) requirements as to age, height, and weight, unless the 
     requirement is essential to the performance of the duties of 
     the position; and
       (2) physical requirements if, in the opinion of the 
     employing office, on the basis of evidence before it, 
     including any recommendation of an accredited physician 
     submitted by the employee, the preference eligible covered 
     employee is physically able to perform efficiently the duties 
     of the position.
       (b) If an employing office determines that a covered 
     employee who is a preference eligible as a disabled veteran 
     as described in 5 U.S.C. Sec. 2108(3)(c) and has a 
     compensable service-connected disability of 30 percent or 
     more is not able to fulfill the physical requirements of the 
     covered position, the employing office shall notify the 
     preference eligible covered employee of the reasons for the 
     determination and of the right to respond and to submit 
     additional information to the employing office within 15 days 
     of the date of

[[Page 4549]]

     the notification. Should the preference eligible covered 
     employee make a timely response, the highest ranking 
     individual or group of individuals with authority to make 
     employment decisions on behalf of the employing office, shall 
     render a final determination of the physical ability of the 
     preference eligible covered employee to perform the duties of 
     the covered position, taking into account the evidence before 
     it, including the response and any additional information 
     provided by the preference eligible. When the employing 
     office has completed its review of the proposed 
     disqualification on the basis of physical disability, it 
     shall send its findings to the preference eligible covered 
     employee.
       (c) Nothing in this section shall relieve an employing 
     office of any obligation it may have pursuant to the 
     Americans with Disabilities Act (42 U.S.C. Sec. 12101 et 
     seq.) as applied by section 102(a)(3) of the CAA, 2 U.S.C. 
     Sec. 1302(a)(3).

     SEC. 1.115. TRANSFER OF FUNCTIONS.

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

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

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

     SEC. Sec. 1.116. ADOPTION OF VETERANS' PREFERENCE POLICY.

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

     SEC. 1.117. PRESERVATION OF RECORDS MADE OR KEPT.

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

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

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

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

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

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

       (a) If an employing office that employs one or more covered 
     employees provides any written guidance to such employees 
     concerning employee rights generally or reductions in force 
     more specifically, such as in a written employee policy, 
     manual or handbook, such guidance must include information 
     concerning veterans' preference under the VEOA, as set forth 
     in subsection (b) of this regulation.
       (b) Written guidances described in subsection (a) above 
     shall include, at a minimum:
       (1) the VEOA definition of veterans' ``preference 
     eligible'' as set forth in 5 U.S.C. 2108 or any superseding 
     legislation, providing the actual, current definition along 
     with the statutory citation;
       (2) the employing office's veterans' preference policy or a 
     summary description of the employing office's veterans' 
     preference policy as it relates to reductions in force, 
     including the procedures the employing office

[[Page 4550]]

     shall take to identify preference eligible employees.
       (3) the employing office may provide other information in 
     its guidances regarding its veterans' preference policies and 
     practices, but is not required to do so by these regulations.
       (c) Employing offices are also expected to answer questions 
     from covered employees that are relevant and non-confidential 
     concerning the employing office's veterans' preference 
     policies and practices.

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

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

                          ____________________