[Federal Register Volume 81, Number 224 (Monday, November 21, 2016)]
[Rules and Regulations]
[Pages 83107-83109]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-27886]



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  Federal Register / Vol. 81, No. 224 / Monday, November 21, 2016 / 
Rules and Regulations  

[[Page 83107]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 211

RIN 3206-AM79


Veterans' Preference

AGENCY: U.S. Office of Personnel Management.

ACTION: Final rule.

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SUMMARY: The U.S. Office of Personnel Management (OPM) is issuing a 
final rule that implements statutory changes pertaining to veterans' 
preference. These changes were made 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 has updated its 
regulations to reference existing requirements for the alternative 
ranking and selection procedure called ``category rating,'' and to add 
a reference to the end date of Operation Iraqi Freedom, which affected 
veteran status and preference eligibility. This action aligns OPM's 
regulations with existing statutes.

DATES: This rule will be effective December 21, 2016.

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: On December 29, 2014, OPM issued an interim 
rule at 79 FR 77833, which implemented statutory changes pertaining to 
veterans' preference. This action was taken to align OPM's regulations 
with existing statutes. Specifically, the interim rule (1) was issued 
in response to the Hubbard Act, which establishes a new category of 
preference for veterans discharged or released from active duty by 
reason of a sole survivorship discharge; (2) implemented the VOW 
(Veterans Opportunity to Work) to Hire Heroes Act of 2011, which 
provides for treatment of certain applicants as veterans or disabled 
veterans if they have not been separated or discharged from active 
duty, but submit a certification that they are expected to be 
discharged or released under honorable conditions within 120 days; (3) 
referenced the existing requirements for the alternative ranking and 
selection procedure called ``category rating;'' and (4) added a 
reference to the end date of Operation Iraqi Freedom.
    During the 60-day comment period between December 29, 2014, and 
February 27, 2015, OPM received a total of 12 sets of comments, of 
which 4 were from individuals and 8 were from Federal agencies.

Discussion of Comments

Operation Iraqi Freedom

    Six agencies sought guidance on corrective actions and remedies for 
applicants who may have erroneously received veterans' preference after 
the ending date of Operation Iraqi Freedom. These comments are outside 
the scope of the rulemaking. OPM notes that corrective actions and 
remedies are already addressed in the Delegated Examining Operations 
Handbook (DEOH) and in our guidance pertaining to Variations on the OPM 
Web site. Remedial actions are also addressed in Interagency Delegated 
Examining Agreements.
    Four agencies asked OPM to amend the rule to extend preference 
eligibility to any persons who erroneously received preference after 
the end of Operation Iraqi Freedom, at least until December 29, 2014 
(the date of the interim rule). OPM lacks authority to change the end 
date of Operation Iraqi Freedom or to create a category of veterans' 
preference that is not prescribed by law.

Implementation of the VOW (Veterans Opportunity To Work) To Hire Heroes 
Act

    One agency commented that implementation of the VOW act may delay 
the hiring process while the hiring agency verifies the service 
member's character of discharge from the military. This agency believes 
the veteran has 120 days (from receipt of the veteran's job 
application) during which he or she can be considered for a federal 
job, and this 120-day period will extend an agency's time-to-hire. The 
commenter specifically asked if an agency must now hold a vacancy open 
until each veteran applicant has been discharged or released from 
active duty under honorable conditions.
    OPM disagrees that implementation of the VOW act will result in 
delays in the hiring process. The certification letter is a statement 
that the individual is expected to be separated from active duty in the 
armed forces under honorable conditions not later than 120 days after 
the certification statement is submitted as part of the service 
member's job application package. The certification statement ensures 
that veterans who are expected to be discharged or released in the near 
term are not denied their preference in the early stages of the hiring 
process; agencies are to award such veterans with tentative preference 
until the job seeking veteran provides his or her DD Form 214 
indicating character of service qualifying for preference, prior to 
appointment.
    However, submission of the certification letter does not extend the 
hiring process. The VOW to Hire Veterans Act of 2011 does not require 
agencies to hold positions open until every applicant has been 
discharged or released from active duty or to delay hiring selections.
    Four agencies asked OPM to specify the format and contents of a 
certification letter in greater detail. As described in the 
supplementary information accompanying the interim rule, the 
certification letter should be on the letterhead of the appropriate 
military branch in which the veteran served, and it should specify the 
veteran's military service dates, the veteran's expected date of 
release or discharge from active duty service, and the veteran's 
expected character of service. Commenters requested that OPM also 
require that the

[[Page 83108]]

certification be signed by a commanding officer, list the applicants' 
campaign badges, and list the applicant's final rank, pay grade, and 
expected type of separation, e.g., retirement, to assist in 
adjudicating preference eligibility. Because the certification letter 
is a military document issued by the Armed Forces, OPM is not mandating 
specific format and content requirements in the final rule. However, we 
will confer with the Department of Defense and provide more detail in 
the VetGuide and the Delegated Examining Operations Handbook.
    One of these agencies asked how hiring agencies should publicize 
the contents of the certification letter to applicants. This comment is 
outside the scope of the rulemaking. However, OPM notes that agencies 
have the discretion to describe the VOW certification letter contents 
in their job opportunity announcements, or describe the contents of 
these letters on the agency's Web site. Agency headquarters human 
resources offices can circulate information about the certification 
letter to agency components, delegated examining units, Veterans 
Employment Program Offices (VEPOs), etc.
    One agency suggested that the last sentence of Sec.  211.102(h) be 
revised to state that before appointment, ``the service member's 
character of service and qualifying discharge or release must be 
verified through a DD Form 214 or equivalent DD form,'' or that OPM 
provide examples of documents agencies may consider to be the 
equivalent of a DD Form 214. The current text refers to ``equivalent 
documentation'' instead of an ``equivalent DD form.'' OPM is not 
adopting this suggestion. The reference to ``equivalent documentation'' 
was intended to include documentation such as disability letters issued 
by the Department of Veterans Affairs, and other official documents 
issued by a branch of the armed forces which may not be designated as a 
Department of Defense form but may help a veteran establish his or her 
entitlement to veterans' preference.
    Another agency suggested that OPM require the certification letter 
to be dated within 120 days of the closing date of the job announcement 
to which the veteran is applying. OPM cannot adopt this suggestion. The 
Vow to Hire Veterans Act of 2011 (at 5 U.S.C. 2108a(a)(2) and (b)(2)) 
specifies that a certification is an expectation that the service 
member will be ``discharged or released from active duty in the armed 
forces under honorable conditions not later than 120 days after the 
date of the submission of the certification'' (emphasis supplied).
    The same agency asked OPM to clarify how agencies should adjudicate 
veterans' preference for individuals who submit certification letters 
showing that the expected date of discharge or release from active duty 
has already passed. The agency recommended that OPM amend the 
regulation to treat such ``expired'' certificates as conclusive 
evidence that the service member has been discharged or released from 
active duty under honorable conditions. OPM does not accept this 
recommendation because the certification expresses only an expectation, 
and cannot be conclusive evidence that the expected event has in fact 
occurred.

Implementation of the Hubbard Act

    One agency suggested that OPM add a clause to the final rule which 
``grandfathers'' or grants veterans' preference based on a sole 
survivorship discharge to individuals who met the requirements of the 
Hubbard Act prior to the effective date of the interim regulation. (The 
President signed the Act on August 29, 2008. OPM's interim rule became 
effective on December 29, 2014). In response, section 211.102(c) of the 
interim regulation already recognized, as qualifying, discharges or 
releases from active duty after August 29, 2008 by reason of a sole 
survivorship discharge. Therefore no additional changes are needed in 
the final rule to address the agency's comment.
    Another agency asked where a sole survivorship discharge would be 
documented on an individual's Department of Defense (DD) form 214. 
While this comment is outside the scope of the rulemaking, OPM notes 
that an individual's sole survivorship discharge may be indicated on 
the DD-214 in several places: The block pertaining to ``character of 
service,'' the section pertaining to ``service data,'' or the section 
labeled ``remarks.'' Individuals receiving sole survivor releases or 
discharges from their active duty service may have separate 
documentation which they can submit along with their resumes in order 
to claim preference.

Implementation of Category Rating

    One individual asked OPM to identify the types of positions 
classified as scientific and professional positions, for purposes of 5 
U.S.C. 3319(b), which states, with respect to category rating, that 
``[f]or other than scientific and professional positions at GS-9 of the 
General Schedule (equivalent or higher), qualified preference-eligibles 
who have a compensable service-connected disability of 10 percent or 
more shall be listed in the highest quality category.'' This comment is 
outside the scope of the rulemaking. In addition, OPM notes that 
adopting the recommendation would result in an unnecessarily lengthy 
listing in the Code of Federal Regulations and would be subject to 
periodic change. OPM already publishes a list of scientific and 
professional job series and titles in appendix K of the Delegated 
Examining Operations Handbook, which is available on OPM's Web site.
    The same individual also recommended that we amend the rule to 
allow certain disabled veterans to ``float'' (i.e., be listed at the 
top of a certificate of eligibles under the numerical ranking process, 
or placed in the highest quality category under the category rating 
process), even for scientific and professional positions at GS-9 and 
higher, if they have certain scientific and professional skills. This 
recommendation is outside the scope of the rulemaking. In addition, OPM 
cannot adopt this recommendation because it would conflict with 
statutory requirements in 5 U.S.C. 3313(1) and 3319(b).

General Comments

    Two individuals and one agency expressed their support for and 
approval of the interim rule. The agency noted that the rule's 
provision implementing the VOW to Hire Heroes Act of 2011 is consistent 
with the existing practice of granting ``tentative preference'' to 
applicants who have not yet been separated or discharged from active 
duty.
    One agency recommended that OPM amend section 211.102(d)(5) of the 
interim rule to clarify the retention standing, during a reduction in 
force, of a Federal employee who is still in a terminal leave status 
with the military. OPM addressed this in the supplementary information 
accompanying the interim rule. We stated that veterans' preference does 
not apply to persons not yet discharged or released from active duty. 
As a result, such individuals would not receive veterans' preference 
during a reduction in force.
    Four commenters asked whether (or when) OPM would update its 
implementing guidance pertaining to the provisions in the interim 
regulation. These comments are outside the scope of the rulemaking. OPM 
notes in response that it has updated the VetGuide, our Federal 
Employment Policy Handbook: Veterans and the Civil Service.

[[Page 83109]]

    One agency recommended that OPM amend the rule to delegate 
veterans' preference adjudication for the government solely to the 
Department of Labor or the Department of Veterans Affairs, not to each 
delegated examining agency, for purposes of quality and consistency. 
This comment is outside the scope of the rulemaking. Moreover, OPM 
believes that it would complicate the hiring process if each agency had 
to refer its veterans preference adjudication decisions to other 
agencies, and no case has been presented to OPM for designating any 
particular agency or agencies to conduct consolidated adjudication 
services.
    Another agency suggested OPM remove the second or consecutive 
occurrence of the word ``in'' which appears in section 211.102(d)(2), 
and that we change the word ``raking'' to ``rating'' in section 
211.102(d)(4). OPM has adopted these suggestions.

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.
Beth F. Cobert,
Acting 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 
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 the order prescribed by Sec.  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 ranking 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 Department 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. 2016-27886 Filed 11-18-16; 8:45 am]
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