[Federal Register Volume 70, Number 230 (Thursday, December 1, 2005)]
[Rules and Regulations]
[Pages 72065-72068]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-23497]



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  Federal Register / Vol. 70, No. 230 / Thursday, December 1, 2005 / 
Rules and Regulations  

[[Page 72065]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 300, 307, 315, 316, 330, 335, 550, 551, and 720

RIN 3206-AJ90


Veterans Recruitment Appointments

AGENCY: Office of Personnel Management.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Office of Personnel Management (OPM) is issuing final 
regulations to implement provisions of the Jobs for Veterans Act, 
signed into law on November 7, 2002. This Act makes a major change in 
the eligibility criteria for obtaining a Veterans Recruitment 
Appointment (VRA).

EFFECTIVE DATE: January 3, 2006.

FOR FURTHER INFORMATION CONTACT: Darlene Phelps at (202) 606-0960, by 
FAX on 202-606-2329, TDD at (202) 418-3134, or by e-mail at 
[email protected].

SUPPLEMENTARY INFORMATION: On November 5, 2004, OPM issued proposed 
regulations at 69 FR 64503 to implement Veterans Recruitment 
Appointments as authorized by the Jobs for Veterans Act (Pub. L. 107-
288), and requested comments by January 4, 2005. The Act amends section 
4214 of title 38, United States Code, to make a major change in the 
eligibility criteria for obtaining what previously was called a 
Veterans Readjustment Appointment and will now be called a Veterans 
Recruitment Appointment (VRA). Under the revised law, the following 
veterans are eligible for a VRA:

 Disabled veterans;
 Veterans who served on active duty in the Armed Forces during 
a war, or in a campaign or expedition for which a campaign badge has 
been authorized;
 Veterans who, while serving on active duty in the Armed 
Forces, participated in a United States military operation for which an 
Armed Forces Service Medal was awarded; and
 Recently separated veterans.

The law defines recently separated veteran as any veteran during the 
three-year period beginning on the date of such veteran's discharge or 
release from active duty.

Comments

    OPM received comments from three Federal agencies, one private 
organization, and seven individuals. The following comments are 
addressed according to the corresponding sections of the regulation.

Definitions

    One Federal agency recommended that the final regulation clarify 
what is meant by the term war, as used in the context of a covered 
veteran. An individual suggested OPM specify that the term war only 
refers to World Wars I and II. We agree that clarification is needed 
and have amended section 307.102 to include a definition of the term 
war as any armed conflict declared by Congress as such.
    One agency asked that we clarify whether the appointment date for 
recently separated veterans must occur before the end of the 3-year 
eligibility period for this category of covered veterans. OPM agrees 
that further clarification is needed and has added clarifying language 
to section 307.104(d) indicating that the Veterans Recruitment 
Appointment date must occur before the expiration of the 3-year 
eligibility period. The 3-year eligibility period may not be extended.
    An individual suggested we specify that a veteran is eligible for a 
VRA only if during his or her last active duty tour the veteran served 
the entire period for which he or she was called or ordered to active 
duty. OPM disagrees and is not adopting this suggestion because it may 
limit the eligibility of veterans beyond what is provided for in the 
Act, which does not define eligibility based on the veteran's 
fulfillment of his or her last active duty tour.
    A Federal agency recommended that we modify the definition of 
qualified to make clear that individuals must meet OPM qualifications 
for the position being filled under this authority. OPM agrees 
clarification is necessary in the final regulation. VRAs are excepted 
appointments to positions otherwise in the competitive service and as 
such, agencies must apply either the OPM or OPM-approved agency-
specific qualification standard for the position they are filling 
through this authority as they would when filling any position in the 
competitive service. Clarification has been added at section 307.103.
    One private organization suggested the final regulation 
specifically state that military service must have been performed under 
honorable conditions as part of the definition of covered veteran. OPM 
disagrees because the definition of covered veteran at 307.102 is as 
that term is defined in 38 U.S.C. 4212(a)(3). We note, however, this 
requirement is contained in section 307.103, Nature of VRAs.
    One individual asked that we clarify whether the definition of a 
covered veteran includes all veterans entitled to 5 point preference. 
The Act's definition of a covered veteran does not provide for 
inclusion of all individuals entitled to 5 point veterans' preference. 
OPM intends to update VetGuide to provide further guidance regarding 
covered veterans.
    A Federal agency suggested the final regulations clearly explain 
that individuals who did not serve during a war, who are not disabled, 
or who were not recently separated must have actually received a 
campaign badge, expeditionary medal, or Armed Forces Service Medal to 
be eligible for a VRA under section 307.102(2) and (3). We agree and 
have amended section 307.103 accordingly.
    An individual stated that OPM did not define eligible veterans 
under this part and asked whether reservists called to active duty 
under title 10 of the United States Code, for other than active duty 
training, would meet the definition of a recently separated veteran. 
OPM does not agree further clarification is needed because section 
307.102 clearly states that a recently separated veteran means any 
veteran (including reservists) during the three-year period beginning 
on the date of such veteran's discharge or release from active duty.

Nature of VRAs

    Another Federal agency suggested the final regulations allow 
military experience to be qualifying at GS-3 or equivalent levels, 
regardless of the type of appointment. OPM did not adopt this

[[Page 72066]]

recommendation because it is beyond the scope of the Act, which only 
pertains to VRA appointments.
    An agency suggested the final regulation define what equivalent 
means for purposes of qualifying veterans at the GS-3 level or 
equivalent. OPM agrees in part that clarification is needed and intends 
to update VetGuide to explain that the term equivalent means positions 
in the Federal Wage System or other pay systems involving duties 
comparable to those at the GS-3 level.
    Another agency recommended that OPM modify the statement in 307.103 
that any military service is qualifying at the GS-3 level or equivalent 
to read any military service is qualifying, at a minimum, at the GS-3 
level or equivalent. OPM is not adopting this suggestion because we do 
not believe the additional language is needed. The sentence immediately 
preceding the language in question in section 307.103 specifically 
states that covered veterans may be appointed to any position for which 
the individual is qualified, up to and including the GS-11 or 
equivalent level. Military experience may be credited towards grade 
levels above the GS-3 level or equivalent in accordance with OPM or 
OPM-approved agency-specific qualification standards.
    An individual suggested OPM define the phrase ``under honorable 
conditions'' to include general and uncharacterized discharges. Two 
individuals and a Federal agency recommended that we provide detailed 
explanations and examples of the types of discharges considered to be 
``under honorable conditions.'' A third individual asked that we 
clarify whether an uncharacterized discharge is considered to be a 
discharge granted ``under honorable conditions.'' OPM is not adopting 
these suggestions because the Department of Defense (DoD) is 
responsible for defining terms used for character of military service 
discharges. OPM agrees clarification would be helpful and intends to 
provide guidance and examples in VetGuide of the types of discharges 
DoD has determined to be under honorable conditions.
    An individual suggested we clarify whether 30 percent disabled 
veterans are subject to the GS-11 or equivalent grade level limitation. 
OPM is not adopting this suggestion on the basis that the regulation 
clearly limits the appointment of any veteran to the GS-11 or 
equivalent grade level. We note that a separate hiring authority, 
authorized under section 3112 of title 5, United States Code, specific 
to 30 percent or more disabled veterans, does not contain a grade level 
limitation for initial appointment under that authority.
    One individual suggested the final regulations clarify whether 
agencies are required to post vacancy announcements prior to filling 
jobs under the VRA authority. OPM disagrees further clarification is 
necessary. The regulation clearly states that VRAs are excepted 
appointments made without competition. As a consequence, VRAs do not 
require public notice as is the case with any appointment in the 
excepted service. However, agencies may advertise for these positions 
if they choose to do so.
    A Federal agency suggested the final regulations clarify whether an 
individual can receive more than one VRA appointment, assuming the 
individual is otherwise eligible. OPM agrees further clarification may 
be helpful. OPM intends to update VetGuide with a statement explaining 
there is no limit on the number of VRA appointments an individual may 
receive as long as the individual meets the definition of covered 
veteran at the time of appointment.
    The Act also changed the name of the VRA from ``Veterans 
Readjustment Appointment'' to ``Veterans Recruitment Appointment.'' 
This final regulation also updates those parts of title 5, Code of 
Federal Regulations, to reflect this name change wherever used in those 
parts.

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 will not have a significant economic 
impact on a substantial number of small entities because it would apply 
only to Federal agencies and employees.

List of Subjects in 5 CFR Parts 300, 307, 315, 316, 330, 335, 550, 
551, and 720

    Administrative practice and procedure, Armed forces reserves, Civil 
rights, Claims, District of Columbia, Equal employment opportunity, 
Freedom of information, Government employees, Individuals with 
disabilities, Lawyers, Reporting and recordkeeping requirements, 
Selective Service System, Veterans, Wages.

Office of Personnel Management.
Linda M. Springer,
Director.

0
Accordingly, OPM amends 5 CFR parts 300, 315, 316, 330, 335, 550, 551, 
and 720 and revises part 307 as set forth below:

PART 300--EMPLOYMENT (GENERAL)

0
1. The authority citation for part 300 continues to read as follows:

    Authority: 5 U.S.C. 552, 3301, and 3302; E.O. 10577, 3 CFR 1954-
1958 Comp., page 218, unless otherwise noted.
    Secs. 300.101 through 300.104 also issued under 5 U.S.C. 7201, 
7204, and 7701; E.O. 11478, 3 CFR 1966-1970 Comp., page 803.
    Secs. 300.401 through 300.408 also issued under 5 U.S.C. 
1302(c), 2301, and 2302.
    Secs. 300.501 through 300.507 also issued under 5 U.S.C. 
1103(a)(5).
    Sec. 300.603 also issued under 5 U.S.C. 1104.


0
2. Revise paragraph (b) of Sec.  300.301 to read as follows:


Sec.  300.301  Authority.

* * * * *
    (b) In accordance with 5 U.S.C. 3341, an agency may detail an 
employee in the excepted service to a position in the excepted service 
and may also detail an excepted service employee serving under Schedule 
A, Schedule B, or a Veterans Recruitment Appointment, to a position in 
the competitive service.
* * * * *

0
3. Revise part 307 to read as follows:

PART 307--VETERANS RECRUITMENT APPOINTMENTS

Sec.
307.101 Purpose.
307.102 Definitions.
307.103 Nature of VRAs.
307.104 Treatment of individuals serving under VRAs.
307.105 Appeal rights.

    Authority: 5 U.S.C. 3301, 3302; E.O. 11521, 3 CFR, 1970 Comp., 
p. 912; 38 U.S.C. 4214.


Sec.  307.101  Purpose.

    This part implements 38 U.S.C. 4214 and Executive Order 11521, 
which authorizes agencies to appoint qualified covered veterans to 
positions in the competitive service under Veterans Recruitment 
Appointments (VRAs) without regard to the competitive examining system.


Sec.  307.102  Definitions.

    For purposes of this part--
    Agency, as defined in 38 U.S.C. 4211(5), means any agency of the 
Federal Government or the District of Columbia, including any Executive 
agency as defined in section 105 of title 5, and the United States 
Postal Service and Postal Rate Commission.
    Covered veterans, as defined in 38 U.S.C. 4212(a)(3), means any of 
the following:
    (1) Disabled veterans;
    (2) Veterans who served on active duty in the Armed Forces during a 
war or in a campaign or expedition for

[[Page 72067]]

which a campaign badge has been authorized;
    (3) Veterans who, while serving on active duty with the Armed 
Forces, participated in a United States military operation for which an 
Armed Forces Service Medal (AFSM) was awarded pursuant to Executive 
Order 12985 (61 FR 1209); and
    (4) Recently separated veterans.
    Disabled veteran, as defined in 38 U.S.C. 4211 means:
    (1) A veteran who is entitled to compensation (or who, but for the 
receipt of military retired pay, would be entitled to compensation) 
under laws administered by the Secretary of Veterans Affairs; or
    (2) A person who was discharged or released from active duty 
because of a service-connected disability.
    Qualified, as defined in 38 U.S.C. 4212(a)(3) with respect to 
employment in a position, means having the ability to perform the 
essential functions of the position with or without reasonable 
accommodation for an individual with a disability.
    Recently separated veteran, as defined in 38 U.S.C. 4211(6), means 
any veteran during the three-year period beginning on the date of such 
veteran's discharge or release from active duty.
    Substantially continuous service is defined in 5 CFR 315.201(b)(3).
    War means any armed conflict declared by Congress as such.


Sec.  307.103  Nature of VRAs.

    VRAs are excepted appointments, made without competition, to 
positions otherwise in the competitive service. The veterans' 
preference procedures of part 302 of this chapter apply when there are 
preference eligible candidates being considered for a VRA. Qualified 
covered veterans who were separated under honorable conditions may be 
appointed to any position in the competitive service at grade levels up 
to and including GS-11 or equivalent, provided they meet the 
qualification standards for the position. To be eligible for a VRA as a 
covered veteran under paragraph (2) or (3) of the definition of that 
term in Sec.  307.102, the veteran must be in receipt of the 
appropriate campaign badge, expeditionary medal, or AFSM. For purposes 
of a VRA, any military service is qualifying at the GS-3 level or 
equivalent. Upon satisfactory completion of 2 years of substantially 
continuous service, the incumbent's VRA must be converted to a career 
or career conditional appointment. An individual may receive more than 
one VRA appointment as long as the individual meets the definition of a 
covered veteran at the time of appointment.


Sec.  307.104  Treatment of individuals serving under VRAs.

    (a) Because VRAs are made to positions otherwise in the competitive 
service, the incumbents, like competitive service employees, may be 
reassigned, promoted, demoted, or transferred in accordance with the 
provisions of part 335 of this chapter.
    (b) A veteran with less than 15 years of education must receive 
training or education prescribed by the agency.
    (c) Appointments are subject to investigation by OPM. A law, 
Executive order, or regulation that disqualifies a person for 
appointment in the competitive service also disqualifies a person for a 
VRA.
    (d) The Veterans Recruitment Appointment date for a recently 
separated veteran must occur before the end of the 3-year eligibility 
period and may not be extended.


Sec.  307.105  Appeal rights.

    Individuals serving under VRAs have the same appeal rights as 
excepted service employees under parts 432 and 752 of this chapter. In 
addition, as established in Sec.  315.806 of this chapter, any 
individual serving under a VRA, whose employment under the appointment 
is terminated within 1 year after the date of such appointment, has the 
same right to appeal that termination as a career or career-conditional 
employee has during the first year of employment.

PART 315--CAREER AND CAREER-CONDITIONAL APPOINTMENT

0
4. The authority citation for part 315 continues to read as follows:

    Authority: 5 U.S.C. 1302, 3301, and 3302; E.O. 10577, 3 CFR, 
1954-1958 Comp., p. 218, unless otherwise noted; and E.O. 13162. 
Secs. 315.601 and 315.609 also issued under 22 U.S.C. 3651 and 3652. 
Secs. 315.602 and 315.604 also issued under 5 U.S.C. 1104. Sec. 
315.603 also issued under 5 U.S.C. 8151. Sec. 315.605 also issued 
under E.O. 12034, 3 CFR, 1978 Comp., p. 111. Sec. 315.606 also 
issued under E.O. 11219, 3 CFR, 1964-1965 Comp., p. 303. Sec. 
315.607 also issued under 22 U.S.C. 2506. Sec. 315.608 also issued 
under E.O. 12721, 3 CFR, 1990 Comp., p. 293. Sec. 315.610 also 
issued under 5 U.S.C. 3304(d). Sec. 315.611 also issued under 
Section 511, Pub. L. 106-117, 113 Stat. 1575-76. Sec. 315.708 also 
issued under E.O. 13318. Sec. 315.710 also issued under E.O. 12596, 
3 CFR, 1987 Comp., p. 229. Subpart I also issued under 5 U.S.C. 
3321, E.O. 12107, 3 CFR, 1978 Comp., p. 264.

PART 315--[AMENDED]

0
5. In part 315, remove the word ``readjustment'' and add in its place 
the word ``recruitment'' wherever it appears.

PART 316--TEMPORARY AND TERM EMPLOYMENT

0
6. The authority citation for part 316 continues to read as follows:

    Authority: 5 U.S.C. 3301, 3302; E.O. 10577, 3 CFR, 1954-1958 
Comp., p. 218.

PART 316--[AMENDED]

0
7. In part 316, subparts C and D, remove the word ``readjustment'' and 
add in its place the word ``recruitment'' wherever it appears.

PART 330--RECRUITMENT, SELECTION, AND PLACEMENT (GENERAL)

0
8. The authority citation for part 330 continues to read as follows:

    Authority: 5 U.S.C. 1302, 3301, 3302; E.O. 10577, 19 FR 7521, 3 
CFR, 1954-58, Comp., p. 218.
    Section 330.102 also issued under 5 U.S.C. 3327.
    Subpart B also issued under 5 U.S.C. 3315 and 8151.
    Section 330.401 also issued under 5 U.S.C. 3310.
    Subpart G also issued under 5 U.S.C. 8337(h) and 8456(b).
    Subpart K also issued under sec. 11203 of Pub. L. 105-33 (111 
Stat. 738) and Pub. L. 105-274 (112 Stat. 2424).
    Subpart L also issued under sec. 1232 of Pub. L. 96-70, 93 Stat. 
452.

PART 330--[AMENDED]

0
9. In part 330, subparts B, F, and G, remove the word ``readjustment'' 
and add in its place the word ``recruitment'' wherever it appears.

PART 335--PROMOTION AND INTERNAL PLACEMENT

0
10. The authority citation for part 335 continues to read as follows:

    Authority: 5 U.S.C. 3301, 3302, 3330; E.O. 10577, 3 CFR 1954-
1958 Comp., p. 218; 5 U.S.C. 3304(f), and Pub. L. 106-117.

Sec.  335.103  [Amended]

0
11. In Sec.  335.103, remove the word ``readjustment'' and add in its 
place the word ``recruitment'' wherever it appears.

[[Page 72068]]

PART 550--PAY ADMINISTRATION (GENERAL)

Subpart G--Severance Pay

0
12. The authority citation for part 550, subpart G, continues to read 
as follows:

    Authority: 5 U.S.C. 5595; E.O. 11257, 3 CFR, 1964-1965 Comp., p. 
357.

Sec.  550.703  [Amended]

0
13. In Sec.  550.703, remove the word ``readjustment'' and add in its 
place the word ``recruitment'' wherever it appears.

PART 551--PAY ADMINISTRATION UNDER THE FAIR LABOR STANDARDS ACT 
(GENERAL)

0
14. The authority citation for part 551 continues to read as follows:

    Authority: 5 U.S.C. 5542(c); Sec. 4(f) of the Fair Labor 
Standards Act of 1938, as amended by Pub. L. 93-259, 88 Stat. 55 (29 
U.S.C. 204(f)).

Sec.  551.423  [Amended]

0
15. In Sec.  551.423, remove the word ``readjustment'' and add in its 
place the word ``recruitment'' wherever it appears.

PART 720--AFFIRMATIVE EMPLOYMENT PROGRAMS

0
16. The authority citation for part 720 continues to read as follows:

    Authority: 5 U.S.C. 7201; 42 U.S.C. 2000e; 38 U.S.C. 101(2), 
2011(3), 2014; 5 U.S.C. 3112; 29 U.S.C. 791(b).


0
17. Revise Sec.  720.301 to read as follows:


Sec.  720.301  Purpose and authority.

    This subpart sets forth requirements for agency disabled veteran 
affirmative action programs (DVAAPs) designed to promote Federal 
employment and advancement opportunities for qualified disabled 
veterans. The regulations in this subpart are prescribed pursuant to 
responsibilities assigned to the Office of Personnel Management (OPM) 
under 38 U.S.C. 4214, and section 307 of the Civil Service Reform Act 
of 1978 (5 U.S.C. 3112).

[FR Doc. 05-23497 Filed 11-30-05; 8:45 am]
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