81_FR_83331 81 FR 83107 - Veterans' Preference

81 FR 83107 - Veterans' Preference

OFFICE OF PERSONNEL MANAGEMENT

Federal Register Volume 81, Issue 224 (November 21, 2016)

Page Range83107-83109
FR Document2016-27886

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.

Federal Register, Volume 81 Issue 224 (Monday, November 21, 2016)
[Federal Register Volume 81, Number 224 (Monday, November 21, 2016)]
[Rules and Regulations]
[Pages 83107-83109]
From the Federal Register Online  [www.thefederalregister.org]
[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.

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

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]
BILLING CODE 6325-39-P



                                                                                                                                                                                                   83107

                                                  Rules and Regulations                                                                                         Federal Register
                                                                                                                                                                Vol. 81, No. 224

                                                                                                                                                                Monday, November 21, 2016



                                                  This section of the FEDERAL REGISTER                    interim rule at 79 FR 77833, which                    Implementation of the VOW (Veterans
                                                  contains regulatory documents having general            implemented statutory changes                         Opportunity To Work) To Hire Heroes
                                                  applicability and legal effect, most of which           pertaining to veterans’ preference. This              Act
                                                  are keyed to and codified in the Code of                action was taken to align OPM’s
                                                  Federal Regulations, which is published under                                                                    One agency commented that
                                                                                                          regulations with existing statutes.                   implementation of the VOW act may
                                                  50 titles pursuant to 44 U.S.C. 1510.
                                                                                                          Specifically, the interim rule (1) was                delay the hiring process while the hiring
                                                  The Code of Federal Regulations is sold by              issued in response to the Hubbard Act,                agency verifies the service member’s
                                                  the Superintendent of Documents. Prices of              which establishes a new category of                   character of discharge from the military.
                                                  new books are listed in the first FEDERAL               preference for veterans discharged or                 This agency believes the veteran has 120
                                                  REGISTER issue of each week.                            released from active duty by reason of                days (from receipt of the veteran’s job
                                                                                                          a sole survivorship discharge; (2)                    application) during which he or she can
                                                                                                          implemented the VOW (Veterans                         be considered for a federal job, and this
                                                  OFFICE OF PERSONNEL                                     Opportunity to Work) to Hire Heroes                   120-day period will extend an agency’s
                                                  MANAGEMENT                                              Act of 2011, which provides for                       time-to-hire. The commenter
                                                                                                          treatment of certain applicants as                    specifically asked if an agency must
                                                  5 CFR Part 211                                          veterans or disabled veterans if they                 now hold a vacancy open until each
                                                  RIN 3206–AM79                                           have not been separated or discharged                 veteran applicant has been discharged
                                                                                                          from active duty, but submit a                        or released from active duty under
                                                  Veterans’ Preference                                    certification that they are expected to be            honorable conditions.
                                                  AGENCY:  U.S. Office of Personnel                       discharged or released under honorable                   OPM disagrees that implementation of
                                                  Management.                                             conditions within 120 days; (3)                       the VOW act will result in delays in the
                                                                                                          referenced the existing requirements for              hiring process. The certification letter is
                                                  ACTION: Final rule.
                                                                                                          the alternative ranking and selection                 a statement that the individual is
                                                  SUMMARY:   The U.S. Office of Personnel                 procedure called ‘‘category rating;’’ and             expected to be separated from active
                                                  Management (OPM) is issuing a final                     (4) added a reference to the end date of              duty in the armed forces under
                                                  rule that implements statutory changes                  Operation Iraqi Freedom.                              honorable conditions not later than 120
                                                  pertaining to veterans’ preference. These                  During the 60-day comment period                   days after the certification statement is
                                                  changes were made in response to the                    between December 29, 2014, and                        submitted as part of the service
                                                  Hubbard Act, which broadened the                        February 27, 2015, OPM received a total               member’s job application package. The
                                                  category of individuals eligible for                    of 12 sets of comments, of which 4 were               certification statement ensures that
                                                  veterans’ preference; and to implement                  from individuals and 8 were from                      veterans who are expected to be
                                                  the VOW (Veterans Opportunity to                        Federal agencies.                                     discharged or released in the near term
                                                  Work) to Hire Heroes Act of 2011,                                                                             are not denied their preference in the
                                                                                                          Discussion of Comments
                                                  which requires Federal agencies to treat                                                                      early stages of the hiring process;
                                                  certain active duty service members as                  Operation Iraqi Freedom                               agencies are to award such veterans
                                                  preference eligibles for purposes of an                                                                       with tentative preference until the job
                                                                                                            Six agencies sought guidance on                     seeking veteran provides his or her DD
                                                  appointment to the competitive service,
                                                                                                          corrective actions and remedies for                   Form 214 indicating character of service
                                                  even though the service members have
                                                                                                          applicants who may have erroneously                   qualifying for preference, prior to
                                                  not been discharged or released from
                                                                                                          received veterans’ preference after the               appointment.
                                                  active duty and do not have a
                                                                                                          ending date of Operation Iraqi Freedom.                  However, submission of the
                                                  Department of Defense (DD) Form 214,
                                                                                                          These comments are outside the scope                  certification letter does not extend the
                                                  Certificate of Release or Discharge from
                                                                                                          of the rulemaking. OPM notes that                     hiring process. The VOW to Hire
                                                  Active Duty. In addition, OPM has
                                                                                                          corrective actions and remedies are                   Veterans Act of 2011 does not require
                                                  updated its regulations to reference
                                                                                                          already addressed in the Delegated                    agencies to hold positions open until
                                                  existing requirements for the alternative
                                                                                                          Examining Operations Handbook                         every applicant has been discharged or
                                                  ranking and selection procedure called
                                                                                                          (DEOH) and in our guidance pertaining                 released from active duty or to delay
                                                  ‘‘category rating,’’ and to add a reference
                                                                                                          to Variations on the OPM Web site.                    hiring selections.
                                                  to the end date of Operation Iraqi
                                                                                                          Remedial actions are also addressed in                   Four agencies asked OPM to specify
                                                  Freedom, which affected veteran status
                                                                                                          Interagency Delegated Examining                       the format and contents of a certification
                                                  and preference eligibility. This action
                                                                                                          Agreements.                                           letter in greater detail. As described in
                                                  aligns OPM’s regulations with existing
                                                  statutes.                                                 Four agencies asked OPM to amend                    the supplementary information
                                                                                                          the rule to extend preference eligibility             accompanying the interim rule, the
                                                       This rule will be effective
                                                  DATES:                                                  to any persons who erroneously                        certification letter should be on the
asabaliauskas on DSK3SPTVN1PROD with RULES




                                                  December 21, 2016.                                      received preference after the end of                  letterhead of the appropriate military
                                                  FOR FURTHER INFORMATION CONTACT:                        Operation Iraqi Freedom, at least until               branch in which the veteran served, and
                                                  Michael Gilmore by telephone on (202)                   December 29, 2014 (the date of the                    it should specify the veteran’s military
                                                  606–2429, by fax at (202) 606–4430, by                  interim rule). OPM lacks authority to                 service dates, the veteran’s expected
                                                  TTY at (202) 418–3134, or by email at                   change the end date of Operation Iraqi                date of release or discharge from active
                                                  Michael.gilmore@opm.gov.                                Freedom or to create a category of                    duty service, and the veteran’s expected
                                                  SUPPLEMENTARY INFORMATION: On                           veterans’ preference that is not                      character of service. Commenters
                                                  December 29, 2014, OPM issued an                        prescribed by law.                                    requested that OPM also require that the


                                             VerDate Sep<11>2014   17:02 Nov 18, 2016   Jkt 241001   PO 00000   Frm 00001   Fmt 4700   Sfmt 4700   E:\FR\FM\21NOR1.SGM   21NOR1


                                                  83108            Federal Register / Vol. 81, No. 224 / Monday, November 21, 2016 / Rules and Regulations

                                                  certification be signed by a commanding                 submission of the certification’’                     disability of 10 percent or more shall be
                                                  officer, list the applicants’ campaign                  (emphasis supplied).                                  listed in the highest quality category.’’
                                                  badges, and list the applicant’s final                     The same agency asked OPM to                       This comment is outside the scope of
                                                  rank, pay grade, and expected type of                   clarify how agencies should adjudicate                the rulemaking. In addition, OPM notes
                                                  separation, e.g., retirement, to assist in              veterans’ preference for individuals who              that adopting the recommendation
                                                  adjudicating preference eligibility.                    submit certification letters showing that             would result in an unnecessarily
                                                  Because the certification letter is a                   the expected date of discharge or release             lengthy listing in the Code of Federal
                                                  military document issued by the Armed                   from active duty has already passed.                  Regulations and would be subject to
                                                  Forces, OPM is not mandating specific                   The agency recommended that OPM                       periodic change. OPM already publishes
                                                  format and content requirements in the                  amend the regulation to treat such                    a list of scientific and professional job
                                                  final rule. However, we will confer with                ‘‘expired’’ certificates as conclusive                series and titles in appendix K of the
                                                  the Department of Defense and provide                   evidence that the service member has                  Delegated Examining Operations
                                                  more detail in the VetGuide and the                     been discharged or released from active               Handbook, which is available on OPM’s
                                                  Delegated Examining Operations                          duty under honorable conditions. OPM                  Web site.
                                                  Handbook.                                               does not accept this recommendation                      The same individual also
                                                     One of these agencies asked how                      because the certification expresses only              recommended that we amend the rule to
                                                  hiring agencies should publicize the                    an expectation, and cannot be                         allow certain disabled veterans to
                                                  contents of the certification letter to                 conclusive evidence that the expected                 ‘‘float’’ (i.e., be listed at the top of a
                                                  applicants. This comment is outside the                 event has in fact occurred.                           certificate of eligibles under the
                                                  scope of the rulemaking. However, OPM                   Implementation of the Hubbard Act                     numerical ranking process, or placed in
                                                  notes that agencies have the discretion                                                                       the highest quality category under the
                                                                                                             One agency suggested that OPM add
                                                  to describe the VOW certification letter                                                                      category rating process), even for
                                                                                                          a clause to the final rule which
                                                  contents in their job opportunity                                                                             scientific and professional positions at
                                                                                                          ‘‘grandfathers’’ or grants veterans’
                                                  announcements, or describe the                          preference based on a sole survivorship               GS–9 and higher, if they have certain
                                                  contents of these letters on the agency’s               discharge to individuals who met the                  scientific and professional skills. This
                                                  Web site. Agency headquarters human                     requirements of the Hubbard Act prior                 recommendation is outside the scope of
                                                  resources offices can circulate                         to the effective date of the interim                  the rulemaking. In addition, OPM
                                                  information about the certification letter              regulation. (The President signed the                 cannot adopt this recommendation
                                                  to agency components, delegated                         Act on August 29, 2008. OPM’s interim                 because it would conflict with statutory
                                                  examining units, Veterans Employment                    rule became effective on December 29,                 requirements in 5 U.S.C. 3313(1) and
                                                  Program Offices (VEPOs), etc.                           2014). In response, section 211.102(c) of             3319(b).
                                                     One agency suggested that the last                   the interim regulation already                        General Comments
                                                  sentence of § 211.102(h) be revised to                  recognized, as qualifying, discharges or
                                                  state that before appointment, ‘‘the                    releases from active duty after August                  Two individuals and one agency
                                                  service member’s character of service                   29, 2008 by reason of a sole                          expressed their support for and
                                                  and qualifying discharge or release must                survivorship discharge. Therefore no                  approval of the interim rule. The agency
                                                  be verified through a DD Form 214 or                    additional changes are needed in the                  noted that the rule’s provision
                                                  equivalent DD form,’’ or that OPM                       final rule to address the agency’s                    implementing the VOW to Hire Heroes
                                                  provide examples of documents                           comment.                                              Act of 2011 is consistent with the
                                                  agencies may consider to be the                            Another agency asked where a sole                  existing practice of granting ‘‘tentative
                                                  equivalent of a DD Form 214. The                        survivorship discharge would be                       preference’’ to applicants who have not
                                                  current text refers to ‘‘equivalent                     documented on an individual’s                         yet been separated or discharged from
                                                  documentation’’ instead of an                           Department of Defense (DD) form 214.                  active duty.
                                                  ‘‘equivalent DD form.’’ OPM is not                      While this comment is outside the scope                 One agency recommended that OPM
                                                  adopting this suggestion. The reference                 of the rulemaking, OPM notes that an                  amend section 211.102(d)(5) of the
                                                  to ‘‘equivalent documentation’’ was                     individual’s sole survivorship discharge              interim rule to clarify the retention
                                                  intended to include documentation                       may be indicated on the DD–214 in                     standing, during a reduction in force, of
                                                  such as disability letters issued by the                several places: The block pertaining to               a Federal employee who is still in a
                                                  Department of Veterans Affairs, and                     ‘‘character of service,’’ the section                 terminal leave status with the military.
                                                  other official documents issued by a                    pertaining to ‘‘service data,’’ or the                OPM addressed this in the
                                                  branch of the armed forces which may                    section labeled ‘‘remarks.’’ Individuals              supplementary information
                                                  not be designated as a Department of                    receiving sole survivor releases or                   accompanying the interim rule. We
                                                  Defense form but may help a veteran                     discharges from their active duty service             stated that veterans’ preference does not
                                                  establish his or her entitlement to                     may have separate documentation                       apply to persons not yet discharged or
                                                  veterans’ preference.                                   which they can submit along with their                released from active duty. As a result,
                                                     Another agency suggested that OPM                    resumes in order to claim preference.                 such individuals would not receive
                                                  require the certification letter to be                                                                        veterans’ preference during a reduction
                                                  dated within 120 days of the closing                    Implementation of Category Rating                     in force.
                                                  date of the job announcement to which                     One individual asked OPM to identify                  Four commenters asked whether (or
                                                  the veteran is applying. OPM cannot                     the types of positions classified as                  when) OPM would update its
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                                                  adopt this suggestion. The Vow to Hire                  scientific and professional positions, for            implementing guidance pertaining to
                                                  Veterans Act of 2011 (at 5 U.S.C.                       purposes of 5 U.S.C. 3319(b), which                   the provisions in the interim regulation.
                                                  2108a(a)(2) and (b)(2)) specifies that a                states, with respect to category rating,              These comments are outside the scope
                                                  certification is an expectation that the                that ‘‘[f]or other than scientific and                of the rulemaking. OPM notes in
                                                  service member will be ‘‘discharged or                  professional positions at GS–9 of the                 response that it has updated the
                                                  released from active duty in the armed                  General Schedule (equivalent or higher),              VetGuide, our Federal Employment
                                                  forces under honorable conditions not                   qualified preference-eligibles who have               Policy Handbook: Veterans and the Civil
                                                  later than 120 days after the date of the               a compensable service-connected                       Service.


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                                                                   Federal Register / Vol. 81, No. 224 / Monday, November 21, 2016 / Rules and Regulations                                             83109

                                                     One agency recommended that OPM                      of this section, if the active duty service           of non-preference eligibles if numerical
                                                  amend the rule to delegate veterans’                    was performed:                                        scores have not been assigned.
                                                  preference adjudication for the                            (1) In a war;                                         (4) Under alternative ranking and
                                                  government solely to the Department of                     (2) In a campaign or expedition for                selection procedures, i.e., category
                                                  Labor or the Department of Veterans                     which a campaign badge has been                       rating, preference eligibles are listed
                                                  Affairs, not to each delegated examining                authorized;                                           ahead of individuals who are not
                                                  agency, for purposes of quality and                        (3) During the period beginning April              preference eligibles in accordance with
                                                  consistency. This comment is outside                    28, 1952, and ending July 1, 1955;                    5 U.S.C. 3319.
                                                  the scope of the rulemaking. Moreover,                     (4) For more than 180 consecutive                     (5) Preference eligibles, other than
                                                  OPM believes that it would complicate                   days, other than for training, any part of            those who have not yet been discharged
                                                  the hiring process if each agency had to                which occurred during the period                      or released from active duty, are
                                                  refer its veterans preference                           beginning February 1, 1955, and ending                accorded a higher retention standing
                                                  adjudication decisions to other agencies,               October 14, 1976;                                     than non-preference eligibles in the
                                                  and no case has been presented to OPM                      (5) During the period beginning                    event of a reduction in force in
                                                  for designating any particular agency or                August 2, 1990, and ending January 2,                 accordance with 5 U.S.C. 3502.
                                                  agencies to conduct consolidated                        1992; or                                                 (6) Veterans’ preference does not
                                                  adjudication services.                                     (6) For more than 180 consecutive                  apply, however, to inservice placement
                                                     Another agency suggested OPM                         days, other than for training, any part of            actions such as promotions.
                                                  remove the second or consecutive                        which occurred during the period                         (e) Armed forces means the United
                                                  occurrence of the word ‘‘in’’ which                     beginning September 11, 2001, and                     States Army, Navy, Air Force, Marine
                                                  appears in section 211.102(d)(2), and                   ending on August 31, 2010, the last day               Corps, and Coast Guard.
                                                  that we change the word ‘‘raking’’ to                   of Operation Iraqi Freedom.                              (f) Active duty or active military duty:
                                                  ‘‘rating’’ in section 211.102(d)(4). OPM                   (b) Disabled veteran means a person                   (1) For veterans defined in paragraphs
                                                  has adopted these suggestions.                          who has been discharged or released                   (a)(1) through (3) and disabled veterans
                                                  E.O. 12866, Regulatory Review                           from active duty in the armed forces                  defined in paragraph (b) of this section,
                                                                                                          under honorable conditions performed                  means active duty with military pay and
                                                    This rule has been reviewed by the                    at any time, or who has a certification               allowances in the armed forces, and
                                                  Office of Management and Budget in                      as defined in paragraph (h) of this                   includes training, determining physical
                                                  accordance with Executive Order 12866.                  section, and who has established the                  fitness, and service in the Reserves or
                                                  Regulatory Flexibility Act                              present existence of a service-connected              National Guard; and
                                                                                                          disability or is receiving compensation,                 (2) For veterans defined in paragraphs
                                                     I certify that this regulation would not                                                                   (a)(4) through (6) of this section, means
                                                                                                          disability retirement benefits, or a
                                                  have a significant economic impact on                                                                         full-time duty with military pay and
                                                                                                          pension because of a statute
                                                  a substantial number of small entities                                                                        allowances in the armed forces, and
                                                                                                          administered by the Department of
                                                  because it affects only Federal                                                                               does not include training, determining
                                                                                                          Veterans Affairs or a military
                                                  employees.                                                                                                    physical fitness, or service in the
                                                                                                          department.
                                                  List of Subjects in 5 CFR Part 211                         (c) Sole survivor veteran means a                  Reserves or National Guard.
                                                    Government employees, Veterans.                       person who was discharged or released                    (g) Discharged or released from active
                                                                                                          from a period of active duty after August             duty means with either an honorable or
                                                  U.S. Office of Personnel Management.                    29, 2008, by reason of a sole                         general discharge from active duty in
                                                  Beth F. Cobert,                                         survivorship discharge (as that term is               the armed forces. The Department of
                                                  Acting Director.                                        defined in 10 U.S.C. 1174(i)), and who                Defense is responsible for administering
                                                     Accordingly, OPM revises part 211 of                 meets the definition of a ‘‘veteran’’ in              and defining military discharges.
                                                  title 5, Code of Federal Regulations, to                paragraph (a) of this section, with the                  (h) Certification means any written
                                                  read as follows:                                        exception that he or she is not required              document from the armed forces that
                                                                                                          to meet any of the length of service                  certifies the service member is expected
                                                  PART 211—VETERAN PREFERENCE                             requirements prescribed by paragraph                  to be discharged or released from active
                                                                                                          (a).                                                  duty service in the armed forces under
                                                  Sec.                                                                                                          honorable conditions not later than 120
                                                                                                             (d) Preference eligible means a
                                                  211.101     Purpose.
                                                                                                          veteran, disabled veteran, sole survivor              days after the date the certification is
                                                  211.102     Definitions.
                                                  211.103     Administration of preference.               veteran, spouse, widow, widower, or                   submitted for consideration in the
                                                                                                          mother who meets the definition of                    hiring process, at the time and in the
                                                     Authority: 5 U.S.C. 1302, 2108, 2108a.                                                                     manner prescribed by the applicable job
                                                                                                          ‘‘preference eligible’’ in 5 U.S.C. 2108.
                                                  § 211.101    Purpose.                                      (1) Preference eligibles other than sole           opportunity announcement. Prior to
                                                    The purpose of this part is to define                 survivor veterans are entitled to have 5              appointment, the service member’s
                                                  veterans’ preference and the                            or 10 points added to their earned score              character of service and qualifying
                                                  administration of preference in Federal                 on a civil service examination in                     discharge or release must be verified
                                                  employment. (5 U.S.C. 2108, 2108a)                      accordance with 5 U.S.C. 3309.                        through a DD form 214 or equivalent
                                                                                                             (2) Under numerical ranking and                    documentation.
                                                  § 211.102    Definitions.                               selection procedures for competitive
                                                                                                                                                                § 211.103   Administration of preference.
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                                                    For the purposes of preference in                     service hiring, preference eligibles are
                                                  Federal employment, the following                       entered on registers in the order                        Agencies are responsible for making
                                                  definitions apply:                                      prescribed by § 332.401 of this chapter.              all preference determinations except for
                                                    (a) Veteran means a person who has                       (3) Under excepted service examining               preference based on a common law
                                                  been discharged or released from active                 procedures in part 302 of this chapter,               marriage. Such a claim must be referred
                                                  duty in the armed forces under                          preference eligibles are listed ahead of              to OPM’s General Counsel for decision.
                                                  honorable conditions, or who has a                      persons with the same ratings who are                 [FR Doc. 2016–27886 Filed 11–18–16; 8:45 am]
                                                  certification as defined in paragraph (h)               not preference eligibles, or listed ahead             BILLING CODE 6325–39–P




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Document Created: 2018-02-14 08:33:51
Document Modified: 2018-02-14 08:33:51
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionFinal rule.
DatesThis rule will be effective December 21, 2016.
ContactMichael 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]
FR Citation81 FR 83107 
RIN Number3206-AM79
CFR AssociatedGovernment Employees and Veterans

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