[Federal Register Volume 72, Number 144 (Friday, July 27, 2007)]
[Rules and Regulations]
[Page 41215]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-14490]



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 Rules and Regulations
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  Federal Register / Vol. 72, No. 144 / Friday, July 27, 2007 / Rules 
and Regulations  

[[Page 41215]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 211

RIN 3206-AL33


Veterans' Preference

AGENCY:  Office of Personnel Management.

ACTION: Interim rule with request for comments.

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

SUMMARY: The Office of Personnel Management (OPM) is issuing interim 
regulations to implement a change to the definition of ``active duty'' 
contained in Sec.  211.102(f) of title 5, Code of Federal Regulations. 
We are making this change in response to a Merit System Protection 
Board (MSPB) decision that affects eligibility for veterans' preference 
based on a service-connected disability. This action will conform OPM's 
regulations with MSPB's decision.

DATES: Interim rule effective July 27, 2007; comments must be received 
on or before September 25, 2007.

ADDRESSES: Send or deliver written comments to Mark Doboga, Deputy 
Associate Director for Talent and Capacity Policy, U.S. Office of 
Personnel Management, Room 6551, 1900 E Street, NW., Washington, DC 
20415-9700; e-mail: [email protected]; fax: (202) 606-2329. Comments may 
also be sent 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 rulemaking.

FOR FURTHER INFORMATION CONTACT: Scott A. Wilander by telephone at 
(202) 606-0960; by fax at (202) 606-0390; TTY at (202) 606-3134; or by 
e-mail at [email protected].

SUPPLEMENTARY INFORMATION: On February 6, 2007, the Merit Systems 
Protection Board (the Board) issued a decision in Edward Thomas Hesse 
v. Department of the Army (AT-3443-05-0936-I-1) that affects the 
eligibility criteria for veterans' preference based on a service-
connected disability under 5 U.S.C. 2108(2). The Board decided that, 
for the purposes of entitlement to veterans' preference, the term 
``active duty'' as used in 5 U.S.C. 2108(2) ``* * * may consist 
entirely of service for training purposes.''
    OPM is revising the definition of ``active duty'' in Sec.  
211.102(f) consistent with MSPB's decision. Former National Guard and 
Reserve members who served on active duty, including active duty for 
training, who were discharged or released from active duty under 
honorable conditions, and who establish the present existence of a 
service-connected disability or are receiving compensation, disability 
retirement benefits, or pension under the laws of the Department of 
Veterans Affairs or a military department are entitled to veterans' 
preference under 5 U.S.C. 2108(2).

Waiver of Notice of Proposed Rulemaking

    Pursuant to 5 U.S.C. 553(b)(3)(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 agencies understand completely their 
obligations under 5 U.S.C. 2108(2) and do not unwittingly deny 
veterans' preference based upon existing regulations. If OPM's 
regulations were permitted to remain as written while OPM solicited 
comments upon its proposed revisions, there is a possibility that 
Reservists or National Guard members with a service-connected 
disability who are released or discharged from active duty may be 
denied veterans' preference based upon the current language in 
regulations. The revised language in this interim regulation will 
ensure service-connected disabled individuals discharged or released 
from active duty in the armed forces receive the 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.
Linda M. Springer,
Director.

0
Accordingly, OPM is amending part 211 of title 5, Code of Federal 
Regulations, as follows:

PART 211--VETERAN PREFERENCE

0
1. The authority for part 211 continues to read as follows:

    Authority: 5 U.S.C. 1302.


0
2. In Sec.  211.102, revise paragraph (f) to read as follows:


Sec.  211.102  Definitions.

* * * * *
211.102(f) Active duty or military duty.
    (1) Active duty or active military duty for a veteran defined in 
paragraph (a) of this section means full-time duty with military pay 
and allowances in the armed forces, except for training or for 
determining physical fitness and except for service in the Reserves or 
National Guard.
    (2) Active duty or active military duty for a disabled veteran 
defined in paragraph (b) of this section means active duty with 
military pay and allowances in the armed forces, including training or 
for determining physical fitness and including service in the Reserves 
or National Guard.
* * * * *
 [FR Doc. E7-14490 Filed 7-26-07; 8:45 am]
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