[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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  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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