[Federal Register Volume 79, Number 248 (Monday, December 29, 2014)]
[Rules and Regulations]
[Pages 77833-77836]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-30295]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 79, No. 248 / Monday, December 29, 2014 /
Rules and Regulations
[[Page 77833]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 211
RIN 3206-AM79
Veterans' Preference
AGENCY: U.S. Office of Personnel Management.
ACTION: Interim rule with request for comments.
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SUMMARY: The U.S. Office of Personnel Management (OPM) is issuing an
interim rule to implement statutory changes pertaining to veterans'
preference. We are making this change in response to the Hubbard Act,
which broadened the category of individuals eligible for veterans'
preference; and to implement the VOW (Veterans Opportunity to Work) to
Hire Heroes Act of 2011, which requires Federal agencies to treat
certain active duty service members as preference eligibles for
purposes of an appointment to the competitive service, even though the
service members have not been discharged or released from active duty
and do not have a Department of Defense (DD) Form 214, Certificate of
Release or Discharge from Active Duty. In addition, OPM is updating its
regulations to reference existing requirements for the order of
consideration for traditional rating and ranking of candidates, as well
as the alternative ranking and selection procedure called ``category
rating;'' to more clearly state the existing requirements for order of
consideration in excepted service hiring; and to add a reference to the
end date of Operation Iraqi Freedom, which affected veteran status and
preference eligibility. This action will align OPM's regulations with
the existing statute.
DATES: Interim rule effective December 29, 2014; comments must be
received on or before February 27, 2015.
ADDRESSES: You may submit comments through the Federal eRulemaking
Portal at http://www.regulations.gov. All submissions received through
the Portal must include the agency name and docket number or Regulation
Identifier Number (RIN) for this proposed rulemaking.
You may also send, deliver, or fax comments to Kimberly A. Holden,
Deputy Associate Director for Recruitment and Hiring, Employee
Services, U.S. Office of Personnel Management, Room 6351D, 1900 E
Street NW., Washington, DC 20415-9700; email at [email protected] or fax
at (202) 606-2329.
FOR FURTHER INFORMATION CONTACT: Michael Gilmore by telephone on (202)
606-2429, by fax at (202) 606-4430, by TTY at (202) 418-3134, or by
email at [email protected].
SUPPLEMENTARY INFORMATION:
Implementation of the Hubbard Act
On August 29, 2008, the Hubbard Act (the ``Act'') was enacted as
Public Law 110-317. The Act provides an amendment to the eligibility
categories for veterans' preference purposes by adding subparagraph (H)
to title 5, United States Code (U.S.C.) section 2108(3). The amendment
provides a new preference eligible category that includes veterans
discharged or released from a period of active duty from the armed
forces by reason of sole survivorship. The Act applies with respect to
any sole survivorship discharge or release from the armed forces
granted after August 29, 2008.
Section 10(c) of the Act defines a ``sole survivorship discharge''
as the separation of a member from the armed forces, at the request of
the member, pursuant to Department of Defense policy permitting the
early separation of a member who is the only surviving child in a
family in which the father or mother or one or more siblings (1) served
in the armed forces; (2) was killed, died as a result of wounds,
accident, or disease, is in a captured or missing in action status, or
is permanently 100 percent disabled or hospitalized on a continuing
basis (and is not employed gainfully because of the disability or
hospitalization); and (3) death, status, or disability did not result
from the intentional misconduct or willful neglect of the parent or
sibling and was not incurred during a period of unauthorized absence.
The Act added 5 U.S.C. 2108(3)(H) to state that a subclass of
``veteran'' as defined in 5 U.S.C. 2108(1)--those with a sole
survivorship discharge or release--must be treated as preference
eligibles. Yet preexisting provisions, 5 U.S.C. 2108(3)(A) and (B),
already stated that a ``veteran,'' as defined in 5 U.S.C. 2108(1), must
be treated as a preference eligible. A plain-language reading of the
statute therefore renders section 2108(3)(H) superfluous. This is
contrary to the statute's clear purpose, however, which is to extend
additional benefits to service members whose active duty service has
been cut short by a sole survivorship discharge or release, as
documented in the Act's legislative history. See 154 Cong. Rec. H7276
(Feb. 29, 2008); 154 Cong. Rec. S8004 (Aug. 1, 2008). It is also
contrary to the principle that laws should not be interpreted to render
them superfluous, and that veterans' statutes should be construed to
the benefit of veterans. Pursuant to its interpretive authority in 5
U.S.C. 1302, OPM has therefore determined that 5 U.S.C. 2108(3)(H)
affords preference to a service member who would meet the definition of
a ``veteran'' in 5 U.S.C. 2108(1) if his or her qualifying periods of
military service had not been interrupted by the sole survivorship
discharge or release. OPM is adding a new paragraph (c) to section
211.102 of title 5, Code of Federal Regulations (CFR), to define a
``sole survivor veteran'' in accordance with this interpretation.
For example, 5 U.S.C. 2108(1)(D) requires 180 consecutive days of
qualifying service, followed by a discharge or release under honorable
conditions, for the individual to be a ``preference eligible'' under
this part. Under paragraph (c) of this interim rule, an individual
whose active duty is cut short at fewer than 180 days by a sole
survivorship discharge or release, and who meets the other requirements
for veterans' preference eligibility, would still be entitled to
preference eligibility.
As described in greater detail below, OPM is revising 5 CFR 211.102
to add a new paragraph (d)(4) to explain how veterans' preference
applies during examinations that use alternative ranking and selection
procedures (category rating). OPM is also revising this section to
renumber, as paragraph
[[Page 77834]]
(d)(1), a preexisting explanation of how veterans' preference applies
during examinations that use traditional ranking and selection
procedures, and to add, as paragraph (d)(2), a cross-reference to the
existing provision, 5 CFR 332.401, that describes the order on
registers in greater detail. OPM is adding paragraph (d)(3) to explain
how veterans' preference applies when filling positions in the excepted
service under 5 CFR part 302. This section also renumbers, as paragraph
(d)(5), a preexisting explanation of how veterans' preference applies
in reductions in force. Under these paragraphs, as prescribed by 5
U.S.C. 3309 and 3319, a person who acquires veterans' preference due to
a sole survivorship discharge or release does not receive veterans'
preference points, but is entitled to be listed ahead of non-preference
eligibles under either numerical or category rating; and is also
entitled to higher retention standing as a ``preference eligible'' in
the event of a reduction in force as described in 5 CFR part 351
subpart E.
Although outside the scope of this rulemaking, OPM notes that a
person who acquires veterans' preference due to a sole survivorship
discharge or release also receives other important benefits, including,
for example, the right to credit experience in the armed forces to meet
the qualification requirements for Federal jobs under 5 U.S.C. 3311,
and the right to ``pass over'' protections during the hiring process
under 5 U.S.C. 3318 and 5 CFR 332.406.
OPM notes that to qualify for veterans' preference, a discharge or
release from active duty must be under honorable conditions. OPM
expresses no opinion on the circumstances under which a sole
survivorship discharge or release could ever be under other than
honorable conditions and therefore disqualifying for veterans'
preference eligibility. The Department of Defense is responsible for
administering and characterizing discharges from the armed forces, as
we note in section 211.102(g) of our interim rule. OPM plans to provide
updated guidance in its Delegated Examining Operations Handbook,
VetGuide, and all related materials.
Implementation of the VOW (Veterans Opportunity To Work) To Hire Heroes
Act
On November 21, 2011, President Obama signed the VOW to Hire Heroes
Act of 2011 (title II of Pub. L. 112-56). This Act amends chapter 21 of
5 U.S.C. by adding section 2108a, ``Treatment of certain individuals as
veterans, disabled veterans, and preference eligibles.'' In this
section, Federal agencies are required to treat active duty service
members as veterans, disabled veterans, and preference eligibles
consistent with section 2108a when they submit, at the time they apply
for a Federal job, a certification that they are expected to be
honorably discharged or released from active duty within 120 days after
the date of submission. Section 2108a applies, by its terms, to
appointments in the competitive service, but the VOW to Hire Heroes Act
did not amend 5 U.S.C. 3320, under which the veterans' preference
requirements of 5 U.S.C. 3308 through 3318 also apply to the excepted
service when possible. See 5 CFR part 302.
A member of the armed forces may start his or her civilian job
search prior to discharge or release from active duty and thus will not
have a Department of Defense (DD) Form 214, Certificate of Release or
Discharge from Active Duty, when applying for Federal jobs. Section
2108a ensures that an individual does not lose the opportunity to be
considered for Federal jobs (and awarded their veterans' preference
entitlements) despite not having a DD Form 214 to submit along with a
r[eacute]sum[eacute].
Federal agencies must accept an application from, and consider for
appointment and apply veterans' preference to, any service member who
submits a ``certification'' in lieu of a DD Form 214, assuming he or
she is otherwise eligible. Under 5 U.S.C. 2108a(a)(2) and (b)(2), the
``certification'' is a ``certification that the individual is expected
to be separated from active duty service in the armed forces under
honorable conditions not later than 120 days after the date of the
submission of the certification.'' Also, under 5 U.S.C. 2108a(a)(1)(B)
and (b)(1)(B), the submission must be made ``to the Federal officer
making the appointment.'' To comply with 5 U.S.C. 2108a, OPM is
amending the existing definitions of a ``veteran'' and a ``disabled
veteran'' in 5 CFR 211.102(a) and 211.102(b) to include a service
member with a certification, as described in a new paragraph (h) of
this section, that he or she is expected to be discharged or released
from active duty in the armed forces under honorable conditions within
120 days.
However, OPM does not construe the statute to require the
submission to be made in the first instance to the officer who makes
the appointment. Veterans' preference for Federal employment is not
adjudicated and awarded by the appointing officer. Rather, by statute,
veterans' preference is awarded earlier in the hiring process, at the
time of examination. See 5 U.S.C. 3313(2) and 3319(b). The specific
requirements for documenting veterans' preference, including the
deadlines for submitting documentation, are prescribed by each agency
in its job opportunity announcements under 5 U.S.C. 3330(c)(2) and 5
CFR 330.104(a)(13). Further, agencies operate under established
application receipt procedures, pursuant to delegated examining
agreements under 5 CFR 250.102. To require one class of applicants--
those still in active duty service--to wait until the end of the
appointment process to submit their veterans' preference documentation,
after veterans' preference has already been awarded to the other
applicants, would have the effect of either depriving this class of
applicants of their preference, or of requiring disruptive retroactive
corrections in the selection process. OPM therefore, in paragraph (h)
of the regulations, construes the statute to require the submission of
the certification at that stage of the examination when, by statute and
regulation, it can actually be considered: during the hiring process,
at the time of application and in the manner prescribed by the job
opportunity announcement.
This rule supersedes OPM's previous guidance issued on June 15,
2012 in a Chief Human Capital Officer memorandum--VOW (Veterans
Opportunity to Work) to Hire Heroes Act of 2011), which defines
``certification as any written document from the armed forces that
certifies the service member is expected to be discharged or released
from active duty service in the armed forces under honorable conditions
not later than 120 days after the date the certification is signed.''
To clarify, under the interim rule, as well as the statute, the
certification is of an expected discharge or release within 120 days
after the certificate is submitted, not within 120 days after the
certificate is signed. Further, under paragraph (h) of the rule,
agencies are required to verify a qualifying separation from military
service prior to appointment, through the DD 214 or other appropriate
documentation.
OPM plans to clarify in implementing guidance that the
certification letter should be on letterhead of the appropriate
military branch of the service and contain (1) the military service
dates including the expected discharge or release date; and (2) the
character of service. The service member's military service dates are
necessary in order to determine whether
[[Page 77835]]
he or she meets the definition of ``veteran'' under 5 U.S.C. 2108(1).
In the definition of a ``disabled veteran,'' OPM is retaining the
reference to service members who have been ``discharged or released,''
even though the term used in 5 U.S.C. 2108a(b) is ``separated.'' This
conforms to OPM's longstanding interpretation that 5 U.S.C. 2108(2)
extends disabled veterans' preference eligibility to qualifying
individuals who have been ``discharged or released'' from active duty
under honorable conditions, even though that section, like section
2108a(b), refers only to those who have ``separated.'' See 72 FR 12031,
12032 (March 15, 2007); 71 FR 33375, 33376 (June 9, 2006). OPM does not
propose to amend the requirements for proof of disability in 5 CFR
211.102(b). The VOW to Hire Heroes Act did not change the requirements
related to proof of disability prescribed by 5 U.S.C. 2108(2).
OPM is amending section 211.102(d) to state that for reductions in
force (RIFs), veterans' preference does not apply to persons not yet
discharged or released from active duty. This is because the VOW Act,
in 5 U.S.C. 2108a(a)(1) and 2108a(b)(1), makes such persons eligible
for veterans' preference only for purposes of ``making an appointment
in the competitive service,'' not for retention standing during RIFs.
End of Operation Iraqi Freedom
Veterans' preference eligibility has also changed with President
Obama's announcement of the official end of combat missions in Iraq
(Operation Iraqi Freedom) as of August 31, 2010 (see Daily Comp. Pres.
Docs., DCPD No. 201000716, p. 1). Under 5 U.S.C. 2108(1)(D), any
individual serving on active duty for more than 180 days, any part of
which occurred between September 11, 2001, and the end date of
Operation Iraqi Freedom is entitled to veterans' preference, regardless
of whether he or she was deployed to Iraq. Because the specific end
date of August 31, 2010, has been set for Operation Iraqi Freedom,
individuals whose initial active duty military service begins on or
after September 1, 2010, will not be entitled to veterans' preference
under section 2108(1)(D). OPM is therefore updating the definition of
``Veteran'' in 5 CFR 211.102(a)(6) by replacing the reference to the
last day of Operation Iraqi Freedom with a specific reference to August
31, 2010. Veterans' preference is still available to service members
whose initial active duty military service begins on or after September
1, 2010, under a separate provision of statute, 5 U.S.C. 2108(1)(A), if
service is ``during a war, [or] in a campaign or expedition for which a
campaign badge has been authorized.'' This is reflected in paragraphs
(a)(1) and (a)(2) of section 211.102 of the interim rule.
Category Rating
OPM is amending 5 CFR 211.102 to reference, in new paragraph
(d)(4), the existing requirements for veterans' preference under the
alternative ranking and selection procedure called ``category rating.''
Under category rating, within each quality category established by the
agency, preference eligibles are listed ahead of individuals who are
not preference eligibles. For other than scientific and professional
positions at GS-9 (or equivalent) grade level or higher, qualified
preference eligibles who have a compensable service-connected
disability of 10 percent or more are listed in the highest quality
category. The regulations governing category rating are in 5 CFR part
337, subpart C.
Excepted Service Examinations
Under 5 U.S.C. 3313, ``[t]he names of preference eligibles shall be
entered ahead of others having the same rating.'' By operation of 5
U.S.C. 3320, OPM's examining procedures in 5 CFR 302.304 for
appointment in the excepted service must follow these requirements. Yet
section 302.304 does not explicitly say that preference eligibles are
to be listed ahead of persons with the same ratings who are not
preference eligibles. OPM is adding a new paragraph (d)(3) in section
211.102 to state this requirement. Moreover, OPM notes its June 15,
2012 memo to agencies, titled ``VOW (Veterans Opportunity to Work) to
Hire Heroes Act of 2011,'' stated that 5 U.S.C. 2108a does not apply to
excepted appointments. OPM has reconsidered this position and has
concluded that by operation of 5 U.S.C. 3320, section 2108a does apply
to appointments in the excepted service. OPM has also clarified that
preference eligibles are listed ahead of non-preference eligibles if
numerical scores are not assigned.
Technical Amendments
OPM is amending the authority citation to add a reference to 5
U.S.C. 2108a. OPM is also amending 5 CFR 211.102(d) to state that a
``preference eligible'' is ``a veteran, disabled veteran, sole survivor
veteran, spouse, widow, widower, or mother who meets the definition of
`preference eligible' in 5 U.S.C. 2108.'' This amendment expands the
regulatory definition to better conform to the statutory definition.
OPM is removing the definition of ``uniformed services.'' The
definition is unnecessary because the term is not used anywhere else in
the regulation. Finally OPM is internally renumbering section 211.102.
Waiver of Notice of Proposed Rulemaking
Pursuant to 5 U.S.C. 553(b)(B), I find that good cause exists for
waiving the general notice of proposed rulemaking. Waiver of advance
notice is necessary to ensure that the regulations become effective
immediately, and that agencies understand their obligations under 5
U.S.C. 2108(3) and 2108a and do not unwittingly deny veterans'
preference based upon the outdated existing regulations. If OPM's
regulations were permitted to remain as written while OPM solicited
comments upon its proposed revisions, service members who expect to be
honorably discharged within 120 days, or whose prior release or
discharge from active duty was on the basis of sole survivorship, may
be inadvertently denied veterans' preference in Federal hiring based
upon the current language in regulations. Accordingly, the notice
otherwise required is impracticable because it would impede due and
timely execution of agencies' functions. The revised language in this
interim rule will ensure service members receive their statutory
entitlement to veterans' preference.
E.O. 12866, Regulatory Review
This rule has been reviewed by the Office of Management and Budget
in accordance with Executive Order 12866.
Regulatory Flexibility Act
I certify that this regulation would not have a significant
economic impact on a substantial number of small entities because it
affects only Federal employees.
List of Subjects in 5 CFR Part 211
Government employees, Veterans.
U.S. Office of Personnel Management.
Katherine Archuleta,
Director.
Accordingly, OPM revises part 211 of title 5, Code of Federal
Regulations to read as follows:
PART 211--VETERAN PREFERENCE
Sec.
211.101 Purpose.
211.102 Definitions.
211.103 Administration of preference.
Authority: 5 U.S.C. 1302, 2108, 2108a.
Sec. 211.101 Purpose.
The purpose of this part is to define veterans' preference and the
[[Page 77836]]
administration of preference in Federal employment. (5 U.S.C. 2108,
2108a)
Sec. 211.102 Definitions.
For the purposes of preference in Federal employment, the following
definitions apply:
(a) Veteran means a person who has been discharged or released from
active duty in the armed forces under honorable conditions, or who has
a certification as defined in paragraph (h) of this section, if the
active duty service was performed:
(1) In a war;
(2) In a campaign or expedition for which a campaign badge has been
authorized;
(3) During the period beginning April 28, 1952, and ending July 1,
1955;
(4) For more than 180 consecutive days, other than for training,
any part of which occurred during the period beginning February 1,
1955, and ending October 14, 1976;
(5) During the period beginning August 2, 1990, and ending January
2, 1992; or
(6) For more than 180 consecutive days, other than for training,
any part of which occurred during the period beginning September 11,
2001, and ending on August 31, 2010, the last day of Operation Iraqi
Freedom.
(b) Disabled Veteran means a person who has been discharged or
released from active duty in the armed forces under honorable
conditions performed at any time, or who has a certification as defined
in paragraph (h) of this section, and who has established the present
existence of a service-connected disability or is receiving
compensation, disability retirement benefits, or a pension because of a
statute administered by the Department of Veterans Affairs or a
military department.
(c) Sole survivor veteran means a person who was discharged or
released from a period of active duty after August 29, 2008, by reason
of a sole survivorship discharge (as that term is defined in 10 U.S.C.
1174(i)), and who meets the definition of a ``veteran'' in paragraph
(a) of this section, with the exception that he or she is not required
to meet any of the length of service requirements prescribed by
paragraph (a).
(d) Preference eligible means a veteran, disabled veteran, sole
survivor veteran, spouse, widow, widower, or mother who meets the
definition of ``preference eligible'' in 5 U.S.C. 2108.
(1) Preference eligibles other than sole survivor veterans are
entitled to have 5 or 10 points added to their earned score on a civil
service examination in accordance with 5 U.S.C. 3309.
(2) Under numerical ranking and selection procedures for
competitive service hiring, preference eligibles are entered on
registers in in the order prescribed by section 332.401 of this
chapter.
(3) Under excepted service examining procedures in part 302 of this
chapter, preference eligibles are listed ahead of persons with the same
ratings who are not preference eligibles, or listed ahead of non-
preference eligibles if numerical scores have not been assigned.
(4) Under alternative raking and selection procedures, i.e.,
category rating, preference eligibles are listed ahead of individuals
who are not preference eligibles in accordance with 5 U.S.C. 3319.
(5) Preference eligibles, other than those who have not yet been
discharged or released from active duty, are accorded a higher
retention standing than non-preference eligibles in the event of a
reduction in force in accordance with 5 U.S.C. 3502.
(6) Veterans' preference does not apply, however, to inservice
placement actions such as promotions.
(e) Armed forces means the United States Army, Navy, Air Force,
Marine Corps, and Coast Guard.
(f) Active duty or active military duty:
(1) For veterans defined in paragraphs (a)(1) through (3) and
disabled veterans defined in paragraph (b) of this section, means
active duty with military pay and allowances in the armed forces, and
includes training, determining physical fitness, and service in the
Reserves or National Guard; and
(2) For veterans defined in paragraphs (a)(4) through (6) of this
section, means full-time duty with military pay and allowances in the
armed forces, and does not include training, determining physical
fitness, or service in the Reserves or National Guard.
(g) Discharged or released from active duty means with either an
honorable or general discharge from active duty in the armed forces.
The Departments of Defense is responsible for administering and
defining military discharges.
(h) Certification means any written document from the armed forces
that certifies the service member is expected to be discharged or
released from active duty service in the armed forces under honorable
conditions not later than 120 days after the date the certification is
submitted for consideration in the hiring process, at the time and in
the manner prescribed by the applicable job opportunity announcement.
Prior to appointment, the service member's character of service and
qualifying discharge or release must be verified through a DD form 214
or equivalent documentation.
Sec. 211.103 Administration of preference.
Agencies are responsible for making all preference determinations
except for preference based on a common law marriage. Such a claim must
be referred to OPM's General Counsel for decision.
[FR Doc. 2014-30295 Filed 12-24-14; 8:45 am]
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