Veterans' Preference

AGENCY:

Office of Personnel Management.

ACTION:

Interim rule with request for comments.

SUMMARY:

The Office of Personnel Management (OPM) is issuing interim regulations to implement statutory changes to veterans' preference contained in the National Defense Authorization Act for FY 2006. These changes expand the definition of a veteran and clarify veterans' preference eligibility for individuals discharged or released from active duty. The intended effect of these changes is to provide conformity between veterans' preference laws and OPM regulations, to further ensure that job seeking veterans receive the preference to which they are entitled.

DATES:

Interim rule effective June 9, 2006; comments must be received on or before August 8, 2006.

ADDRESSES:

Send or deliver written comments to Mark Doboga, Deputy Associate Director for Talent and Capacity Policy, U.S. Office of Personnel Management, Room 6551, 1900 E Street, NW., Washington, DC 20415-9700; e-mail employ@opm.gov; fax: (202) 606-2329. Comments may also be sent through the Federal eRulemaking Portal at: http://www.regulations.gov. All submissions received through the Portal must include the agency name and docket number or Regulation Identifier Number (RIN) for this rulemaking.

FOR FURTHER INFORMATION CONTACT:

Scott A. Wilander by telephone at (202) 606-0960; by fax at (202) 606-0390; TTY at (202) 606-3134; or by e-mail at Scott.Wilander@opm.gov.

SUPPLEMENTARY INFORMATION:

The National Defense Authorization Act for Fiscal Year 2006, Public Law 109-163, was signed into law by the President on January 6, 2006, containing two provisions (sections 1111 and 1112 of Title XI) which amend section 2108(1) of title 5, United States Code. Section 1111 of Title XI of the Act expands the definition of a veteran in 5 U.S.C. 2108(1) to include individuals who served on active duty 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 the date prescribed by Presidential proclamation or by law as the last day of Operation Iraqi Freedom. OPM is revising its regulation by adding this new definition to § 211.102(a) consistent with this statutory change. In addition, we are taking this opportunity to revise § 211.102(a) to include anyone who served on active duty during the period beginning August 2, 1990, and ending January 2, 1992, as previously established by the National Defense Authorization Act for Fiscal Year 1998 (Pub. L. 105-85).

The National Defense Authorization Act for Fiscal Year 2006 also amended 5 U.S.C. 2108(1) by clarifying that individuals who are released or discharged from active duty in the armed forces, as opposed to being separated from the armed forces, may receive veterans' preference provided these individuals meet other applicable veterans' preference eligibility requirements. Because this clarification requires agencies to give the same effect to a “release or discharge from active duty” as they would to a “separation from the armed forces,” we are modifying the definition of a veteran in § 211.102(a) of this Part to be consistent with this statutory clarification. We are also modifying the definition of a disabled veteran in § 211.102(b) to be consistent with the change to § 211.102(a) and amendments to 5 U.S.C. 2108(1).

Lastly, we are amending § 211.102(g) to correspond with the changes in § 211.102(a) and (b). This amendment replaces the term “Separated under honorable conditions” with “Discharged or released from active duty” consistent with the statutory change contained in the Act. This new definition does not alter the requirement that a discharge or release from active duty must be under honorable conditions (i.e., an honorable or general discharge).

Waiver of Notice of Proposed Rulemaking

Pursuant to 5 U.S.C. 553(b)(3)(B), I find that good cause exists for waiving the general notice of proposed rulemaking. Waiver of advance notice is necessary to ensure that the regulations become effective immediately and agencies understand completely their obligations under the amendments to 5 U.S.C. 2108(1) and do not unwittingly deny veterans' preference based upon regulations that are now obsolete. If OPM's regulations were permitted to remain as currently written, while OPM solicited comments upon its proposed revisions, there is a chance that reservists recently released from active duty in Iraq or Afghanistan, for example, might be denied veterans' preference based upon the language of the current regulations. In light of the sacrifices being made by individuals who do not serve full time in the armed forces, but who have been called to active duty for significant periods of service, the public interest lies with immediate publication, subject to subsequent revisions after comments are received and fully evaluated. The revised language in the interim regulation will ensure that returning individuals discharged or released from active duty in the armed forces receive the veterans preference to which they are entitled under statute.

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

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

PART 211—VETERAN PREFERENCE

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

Authority: 5 U.S.C. 1302.

2. In § 211.102, revise paragraphs (a), (b), and (g) to read as follows: