Noncompetitive Appointment of Certain Military Spouses, 40471-40477 [E9-19340]

Agencies

• Office of Personnel Management
• Personnel Management Office

[Federal Register Volume 74, Number 154 (Wednesday, August 12, 2009)]
[Rules and Regulations]
[Pages 40471-40477]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-19340]



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Federal Register / Vol. 74, No. 154 / Wednesday, August 12, 2009 / 
Rules and Regulations

[[Page 40471]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Parts 315 and 316

RIN 3206-AL73


Noncompetitive Appointment of Certain Military Spouses

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 final 
regulations which establish a noncompetitive hiring authority for 
certain military spouses to positions in the competitive service. These 
regulations implement Executive Order 13473 dated September 25, 2008, 
which authorizes noncompetitive appointments in the civil service for 
spouses of certain members of the armed forces. The intended effect of 
this rule is to facilitate the entry of military spouses into the 
Federal civil service as part of an effort to recruit and retain 
skilled and experienced members of the armed forces and to recognize 
and honor the service of members injured, disabled, or killed in 
connection with their service.

DATES: This rule is effective September 11, 2009.

FOR FURTHER INFORMATION CONTACT: Jacquelyn A. Carrington at (202) 606-
0960, FAX at (202) 606-2329, TDD at (202) 418-3134, or e-mail at 
jacquelyn.carrington@opm.gov.

SUPPLEMENTARY INFORMATION: On December 5, 2008, OPM issued proposed 
regulations in the Federal Register at 73 FR 74071 to regulate the 
noncompetitive appointment of certain military spouses in parts 315 and 
316 of title 5, Code of Federal Regulations (CFR). We requested 
comments on the proposed rule to be submitted by January 5, 2009.
    OPM received comments from 43 individuals, 10 Federal agencies, and 
1 military family organization that were pertinent to the proposed 
changes. A discussion of the comments we received is categorized below 
into the following areas: Agency Authority, Definitions, Eligibility, 
Conditions, Proof of Eligibility, Acquisition of Competitive Status, 
and Miscellaneous.

Agency Authority

    An individual asked OPM to explain the circumstances under which 
eligible spouses can be appointed under this authority. The 
circumstances under which spouses may be appointed are listed at Sec.  
315.612(a). Agencies may use this authority to noncompetitively appoint 
to the competitive service eligible spouses to temporary, term, or 
permanent positions consistent with the provisions of Sec.  315.612 and 
5 CFR part 316. For more specifics concerning the use of this 
authority, OPM will issue supplemental guidance on the use of this 
authority, which will be available at https://www.opm.gov.

Definitions

    One agency commented that the Merit Systems Protection Board 
decision in Edward Thomas Hesse v. Department of the Army (104 M.S.P.R. 
647, 2007) may impact the definition of ``active duty'' in Sec.  
315.612(b)(1). OPM does not agree with the agency's comment. The Hesse 
decision related to the definition of ``disabled veteran'' under 5 
U.S.C. 2108(2). The term ``active duty'' in Sec.  315.612(b) is defined 
using the language from Executive Order 13473. Neither the Executive 
Order nor the regulation changes the statutory definition of ``disabled 
veteran.''
    Two agencies suggested revising the definition of ``member of the 
armed forces or service member'' in Sec.  315.612(b)(4)(ii) to clarify 
that a service member's 100 percent disability must be military-related 
or service-connected. OPM agrees clarification is needed and we have 
amended section 315.612(b)(4)(ii) accordingly.
    One agency suggested that OPM modify the definition of ``member of 
the armed forces or service member'' in section 315.612(b)(4)(ii) to 
include the spouse of a military member who has been declared 
catastrophically injured by his or her attending physician, but whose 
formal disability rating is not yet finalized. OPM cannot adopt this 
suggestion because section 2(e) of E.O. 13473 defines a totally 
disabled veteran as having a disability rating of 100 percent from the 
appropriate military entity.
    A national military family association suggested that OPM expand 
section 315.612(b)(4)(i) to include a service member who receives 
follow-on orders to a military command in the same geographic area to 
which he or she is already stationed. OPM is not adopting this 
suggestion because E.O. 13473 does not authorize noncompetitive 
appointment eligibility for service members who receive follow-on 
orders.
    The same organization suggested that OPM expand section 
315.612(b)(4)(i) to include the spouse of a National Guard or Reserve 
service member activated for more than 180 days who did not receive 
permanent change of station (PCS) orders when activated. OPM cannot 
adopt this suggestion because section 3(a) of E.O. 13473 limits 
eligibility under this authority to spouses of service members in 
receipt of PCS orders (except in cases in which the service member 
incurs a 100 percent service-connected disability or is killed while on 
active duty).
    One individual suggested OPM delete the provision in section 
315.612(b)(ii) requiring a 100 percent disability rating for certain 
service members with a service-connected disability. OPM cannot adopt 
this suggestion because section 2(e)(i) of E.O. 13473 specifies that a 
100 percent disability is required for an individual with a service-
connected disability.
    An individual suggested that OPM delete the period at the end of 
section 315.612(b)(4)(ii) to better clarify the definition of a 
``member of the armed services or service member.'' We agree that 
clarity is needed and have modified the punctuation in section 
315.612(b)(4) to make clear that a ``member of the armed services or 
service member'' means an individual who meets any of the three 
criteria contained in the definition instead of having to meet all 
three criteria.
    One individual and one national military family association asked 
whether eligibility under this authority is limited to spouses of 
injured service members or those killed while on active duty. Section 
315.612(a) explains that eligibility under this authority, in 
accordance with the other provisions of

[[Page 40472]]

this rule, applies to the spouse of a service member serving on active 
duty in the armed forces who has received PCS orders; the spouse of a 
100 percent disabled service member whose disability resulted from 
active duty in the armed forces; and, the un-remarried widow or widower 
of a service member who was killed while on active duty in the armed 
forces.
    One commenter asked whether a service member must have been killed 
in combat, as opposed to being killed while on active duty but not in 
combat, in order for the spouse of that service member to be eligible 
under this authority. One agency asked whether the service member must 
have been performing actual duty or simply have been in an active duty 
status for the spouse to be eligible. Section 3(c) of the E.O. states 
that the unmarried widow or widower of a member of the Armed Forces who 
was killed while performing active duty are eligible for non-
competitive appointment under this authority. Because the intent of the 
E.O. is to help widows and widowers of spouses killed in the service of 
our nation, OPM is applying the E.O. language broadly to include 
spouses of anyone killed while in active duty status (i.e., the 
individual need not have been killed in ``combat'').
    Two individuals and one national military family association 
suggested that an individual who marries after his or her military 
spouse receives PCS orders should be eligible for noncompetitive 
appointment under this authority. OPM is not adopting this suggestion. 
The intent of E.O. 13473 is to provide employment opportunities for 
individuals who are married to service members at the time these 
service members receive their orders to relocate, become 100 percent 
disabled, or are killed.
    One individual suggested that this authority apply to spouses of 
individuals on training duty or who are attending military service 
schools. Section 2(c) of E.O. 13473 specifically excludes training 
duties and attendance at service schools from coverage under this 
authority.

Eligibility

    One individual and two agencies recommended revising section 
315.612(c)(3) to clarify that the geographical limitation applies only 
to the spouse of a member of the armed services or service member 
defined in section 315.612(b)(4)(i). We agree that clarification is 
needed and have modified section 315.612(c)(3) accordingly.
    One individual and three agencies asked whether the spouse of a 
service member must relocate with the service member in order to be 
eligible for noncompetitive appointment under this authority, for 
example, if the service member goes on an unaccompanied tour. As stated 
in section 3(a) of the E.O., the spouse must relocate with the service 
member in order to be eligible for appointment under this authority.
    Another individual recommended providing eligibility for the widow 
or widower of a service member who dies after separation or medical 
retirement as a result of injury sustained on active duty. OPM cannot 
adopt this recommendation because section 3(c) of E.O. 13473 specifies 
that eligibility is provided for service members who are killed while 
performing active duty.
    One agency asked whether agencies can use this authority to appoint 
an individual whose service member spouse dies while assigned to an 
unaccompanied tour. Although the spouse was not eligible for 
appointment under section 315.612(c)(1) because the military member was 
on an unaccompanied tour, the spouse could become eligible under 
section 315.612(c)(3) as the un-remarried widow or widower of a service 
member killed while on active duty.
    One agency recommended revising section 315. 612(c)(1) to provide 
eligibility for individuals who wait to marry until they have orders to 
relocate, or subsequently marry after the relocation. The agency 
suggests that the two-year eligibility period should be predicated on 
the military member's orders and proof of marriage, regardless of when 
or where the marriage takes place. OPM cannot adopt this 
recommendation. Section 3 of E.O. 13473 specifies that eligibility for 
appointment under this authority is limited to spouses who relocate to 
the service member's new permanent duty station. To be eligible for the 
noncompetitive appointment in this scenario, the spouse must accompany 
the military member on permanent change of station orders. In order to 
prove his or her eligibility, the spouse must present documentation 
authorizing him or her to accompany the service member to the new duty 
station along with a copy of the PCS orders. Military orders, however, 
only authorize dependent travel if the service member is married at the 
time the orders are processed. For this reason, individuals who wait to 
marry after their spouse relocates are not eligible for noncompetitive 
appointment under this authority.
    Five agencies and one individual commented on the geographic 
limitation contained in section 315.612(c)(3). One of the agencies 
recommended revising the language in this paragraph to add that the 
agency head's designee at the Chief Human Capital Officer (CHCO) level, 
or comparable level in a non-CHCO agency, may waive the geographic 
limitation. OPM agrees that the head of the agency could delegate the 
waiver authority to his or her designee, and we have modified the 
language in paragraph (c)(3) accordingly.
    The individual commenter suggested removing the geographic 
restriction from section 315.612(c)(3) because some spouses may not be 
able to relocate due to family obligations. OPM is not adopting this 
suggestion. Section 3(a) of E.O. 13473 specifically states spouses are 
eligible to be appointed under this authority provided that the spouse 
relocates to the member's new permanent duty station.
    Two of the agencies suggested the term ``geographic area'' be 
further defined, e.g., by establishing a mileage standard as the basis 
for determining the geographic area within which the noncompetitive 
appointing authority will apply. OPM is not adopting these suggestions. 
Establishing a definitive mileage standard may adversely affect certain 
spouses' eligibility for appointment. We believe the agency is in the 
best position to determine the reasonableness of commuting distance 
within its location. In fact, most agencies have defined ``commuting 
area'' in their merit promotion plans established under 5 CFR part 335. 
Also, the parameters in section 315.612(c)(3) specify that the 
geographic limit is based on the duty station specified on the service 
member's PCS orders. (OPM notes that we have clarified language in 
paragraph (c)(3) to specify the geographic limitation applies only to 
spouses who relocated with their spouses and are eligible for 
appointment under section 315.612(b)(1).)
    One of these same agencies recommended modifying section 
315.612(c)(3) to waive the geographic limitation if no Federal agency 
exists in the geographic area to which the military member is relocated 
or there are none that employs the occupational specialty for which the 
spouse qualifies, e.g., a nursing assistant or health care information 
technology specialist. OPM is not adopting this suggestion. The intent 
of these provisions is to provide employment opportunities for 
individuals negatively impacted by their military spouse's relocation, 
not to provide employment opportunities

[[Page 40473]]

within the spouse's occupational specialty.
    The other agency suggested OPM provide guidance on applying the 
geographic limitation. OPM will address this concern in supplemental 
guidance material which will be available on the OPM Web site at https://www.opm.gov.

Conditions

    Five individuals, ten agencies, and one national military family 
organization suggested the 2-year eligibility period specified in 
section 315.612(d)(1) should be eliminated or extended. OPM is not 
adopting this suggestion because the intent of this hiring authority is 
to provide employment access for certain individuals negatively 
impacted by their military spouses' relocation, incapacitation, or 
death. We believe 2 years is a reasonable time period for affected 
individuals to obtain Federal employment via this authority. We note 
that spouses of 100 percent disabled service members and service 
members killed while on active duty will have a veterans' preference 
entitlement in addition to eligibility under this appointing authority.
    Two agencies asked whether the 2 year time limit specified under 
section 315.612(d)(1) is extended if the eligible individual is 
appointed to a temporary or term appointment. The 2 year time limit 
cannot be extended for individuals appointed to temporary or term 
positions under this authority. The intent of this hiring authority is 
to provide employment access for certain individuals. The 2 year time 
limit is consistent with other noncompetitive appointing authorities. 
We also note again that spouses of 100 percent disabled service members 
and service members killed while on active duty will have a veterans' 
preference entitlement in addition to eligibility under this appointing 
authority.
    One agency commented that the date in section 315.612(d)(1)(i) 
should be revised from 2 years from the date of the service member's 
PCS orders to 2 years from the reporting or effective date stated in 
the orders, to eliminate any confusion, as some may think this is the 
issuance date. OPM is not adopting this suggestion. We believe a 2 year 
period from the date the orders are issued provides consistency and 
equitable treatment of affected individuals because individuals' 
reporting times may vary.
    Two agencies and one individual commented on section 315.612(d)(3), 
which would have provided eligibility to spouses who relocated with a 
service member within 1 year prior to the effective date of the final 
regulations. One of these agencies recommended removing this 
retroactive eligibility. The other agency recommended extending the 
period to 2 years, and the individual commenter suggested extending the 
period back to September 11, 2001. OPM is adopting the recommendation 
to delete this provision from the final regulation. The separate 1-year 
retroactive provision is not needed for spouses who have already 
relocated with the service member because their eligibility has been 
established under section 315.612(d)(1). This section provides 
eligibility for 2 years from the date of the member's PCS orders. E.O. 
13473 does not contain a grandfather provision for service members who 
may have met the eligibility criteria in prior years. We have replaced 
the language in paragraph (d)(3) with the language in paragraph (d)(4) 
of the proposed regulations and deleted paragraph (d)(4).
    One agency asked if there is a limit on the number of 
noncompetitive appointments a spouse of a 100 percent disabled or 
deceased service member may receive. There is no limit on the number of 
appointments a spouse of a 100 percent disabled veteran or the widow or 
widower of a deceased service member may receive under this authority; 
however, these spouses remain subject to the 2-year period specified in 
section 315.612(d)(1)(ii). Spouses of relocating service members are 
limited to only one appointment under this authority per PCS order.
    Three agencies asked whether the 2-year eligibility period 
specified in section 315.612(d)(1) begins on the date of the PCS orders 
or the date the eligible spouse relocates to the new duty station. 
Section 315.612(d)(1)(i) states that the 2-year eligibility period 
begins on the date of the service member's PCS orders.
    One agency and one individual suggested OPM eliminate the 
requirement in section 315.612(d)(2), which limits an individual's 
eligibility to one appointment per PCS relocation. OPM is not adopting 
this suggestion because the intent of this rule is to provide 
employment opportunities to individuals negatively impacted by a PCS 
move.

Proof of Eligibility

    Two agencies suggested we modify section 315.612(e)(1)(c) to 
specify that documentation must verify an individual's current marriage 
to a service member. OPM is not adopting this suggestion because we do 
not believe this clarification is necessary. Section 315.612(b)(6) 
defines a spouse as the husband or wife of a member of the armed 
forces. This definition implies that a spouse is a current spouse. 
Agencies also commented that the regulations should ensure the currency 
and reliability of documentation of death or disability. OPM believes 
that the proof of eligibility requirements in section 315.612(e) is 
sufficiently detailed. It is incumbent on each agency to accept 
eligibility documents from military spouses seeking noncompetitive 
appointment that are as reliable as the eligibility documents submitted 
by applicants for veterans preference. See Instructions on 
Documentation Required accompanying the Standard Form 15, Application 
for 10-Point Veterans Preference, available at https://www.opm.gov/forms.
    One of these agencies also suggested we modify the parenthetical 
examples in section 315.612(e)(1)(ii) and (iii) by changing the ``or'' 
to ``and'' in these examples. We are not adopting this suggestion 
because there are valid forms of documentation, other than a marriage 
license, which some individuals may be able to produce in lieu of a 
marriage license in order to prove their eligibility under this 
authority. Our intention is provide individuals with as much 
flexibility as possible when proving their eligibility.
    One agency asked whether the documentation of 100 percent service-
connected disability rating applies regardless of how long the member 
has been retired from active duty. The amount of time a member has been 
separated or retired from active duty due to service-connected 
disability is not a factor when considering a spouse's eligibility 
under this authority.
    One agency recommended revising section 315.612(e)(2)(ii) to add at 
the end, ``resulting from active duty'' to ensure the disability 
resulted from active duty, a military-related cause, and not another 
cause. OPM is not adopting this suggestion because the documentation 
specified in paragraph (b)(4)(ii) is sufficient to prove a service-
connected disability.

Acquisition of Competitive Status and Tenure on Appointment

    One agency asked for confirmation that the noncompetitive 
appointing authority does not apply to appointments made under the 
Federal Career Intern Program (FCIP) because section 315.612 requires a 
career-conditional appointment, unless the appointee has already 
completed the service requirements for career tenure. The agency is 
correct. Appointments under the FCIP authority are made in the excepted 
service.

[[Page 40474]]

    One agency asked whether spouses convert to career appointments 
after 1 year or 3 years of appointment under this authority because 
section 315.612(g) specifies that an eligible military spouse hired 
under this authority has a career-conditional appointment until the 
employee fulfills the requirements for career tenure. The agency 
misread the requirement. Section 315.612(g) reads: ``An appointment 
under paragraph (a) of this section is career-conditional unless the 
appointee has already satisfied the requirements for career tenure or 
is exempt from the service requirement pursuant to Sec.  315.201.''

Miscellaneous

    One agency asked whether agencies must rate and rank eligible 
spouses when making appointments using this authority. Because this is 
a noncompetitive hiring authority, agencies are not required to rate 
and rank individuals when using this authority. Agencies must evaluate 
eligible spouses to determine whether they meet the qualifications for 
the positions being filled.
    One individual asked whether this appointing authority applies only 
to positions being filled in the competitive service. Similarly, one 
agency asked if it is correct to say that the authority under section 
315.612 is no different than a VRA or the Student Employment Education 
Program and other Schedule A appointing authorities. A noncompetitive 
appointment is an appointment to, or placement in, a position in the 
competitive service that is not made by selection from an open 
competitive examination and that is usually based on current or prior 
Federal service. This authority applies only to positions being filled 
in the competitive service.
    One individual commented that this authority is not necessary 
because there is already an Executive order for family members 
returning from overseas appointments. The hiring authority provided by 
section 315.608 for certain former overseas employees is a separate 
noncompetitive hiring authority established under Executive Order 
11219. The new authority provided by section 315.612 established under 
Executive Order 13473 does not affect or take precedence over other 
available appointing authorities.
    One individual suggested that OPM change the rules pertaining to 
citizenship requirements for Federal employment to allow foreign 
military spouses to be eligible under this appointing authority. 
Executive Order 11935, signed on September 2, 1976, restricts the 
employment of non-citizens in competitive service positions covered by 
title 5 of the U.S. Code. Executive Order 13473, which provides for the 
noncompetitive appointment of certain military spouses, does not amend 
E.O. 11935, nor does it provide OPM with any authority to supersede the 
citizenship requirement.
    One commenter asked whether OPM will specify the qualifications 
requirements pertaining to the various positions agencies may fill 
under this authority. Agencies use Governmentwide qualification 
standards when filling positions in the competitive service. The 
qualification requirements will vary depending on the specific position 
an agency is seeking to fill. Agencies will identify the qualification 
requirements in the vacancy announcement advertising the specific 
position to be filled. This authority is not limited to specific 
positions, and may be used to fill any position in the competitive 
service.
    The same individual asked whether agencies will be required to 
report, via Central Personnel Data File (CPDF), appointments made under 
this authority. Agencies must submit hiring activity reports for this 
authority to CPDF the same as when making other appointments. OPM will 
then capture this CPDF data on the use of this authority to monitor, on 
an ad hoc basis, the use of this authority.
    Three agencies asked OPM to clarify whether agencies are required 
to post a Federal vacancy announcement prior to appointing individuals 
under this authority. If a vacancy announcement is required, two of 
these agencies suggested that OPM eliminate this requirement in 
conjunction with use of this appointing authority. Per 5 U.S.C. 
3330(b), agencies must follow public notice requirements (i.e., posting 
of a vacancy announcement on the USAJOBS Web site) when using this 
authority to fill permanent or term positions, or temporary positions 
lasting more than 1-year. In addition, 5 CFR part 330 requires agencies 
to advertise jobs lasting more than 120 days. In response to a 
commenter's question, these vacancy announcement requirements apply to 
competitive service positions in the National Security Personnel System 
(NSPS). OPM will issue question and answer guidance which will include 
information on the use of this appointing authority for NSPS positions.
    Another individual asked how eligible spouses can find out about 
employment opportunities under this authority. Spouses may find out 
about job opportunities under this authority on OPM's USAJOBS Web site 
(https://www.usajobs.gov). In addition, some agencies may choose to have 
information on their Web sites specific to positions being filled 
through this authority. Job seekers should, therefore, check the Web 
sites of agencies in which they may wish to work, in addition to 
USAJOBS.
    Two individuals inquired about the type of vacancy announcements 
eligible spouses may respond to in applying for employment under this 
authority. Eligible spouses may apply for positions advertised as being 
open to the ``public,'' ``all sources,'' or ``status candidates.'' Use 
of this authority, however, is at the discretion of the hiring agency.
    One individual asked whether this authority will have any affect on 
other veterans' hiring authorities, such as Veterans Recruitment Act 
(VRA) appointments. OPM cannot predict the impact of this appointing 
authority because use of this authority is at the discretion of hiring 
agencies.
    One agency suggested that this noncompetitive hiring authority 
should not apply in overseas locations because of the possible 
difficulty in administering rotation programs. OPM is not adopting the 
suggestion to limit applicability of this authority. Depending on the 
circumstances surrounding the location of the position, use of any 
competitive service appointing authority may be problematic (for 
example, when a treaty with a host nation restricts appointing U.S. 
citizens abroad). As a noncompetitive hiring authority, this authority 
is available for agencies to use at their discretion.
    One agency asked whether there is a selection priority if more than 
one eligible applies under this authority or if multiple candidates 
eligible for noncompetitive appointments apply for a position. Agencies 
have the discretion to select and appoint individuals under any 
available appointing authority. In accordance with 5 CFR 335.103(b)(4), 
agency merit promotion plans must provide for management's right to 
select from other appropriate sources. This authority is one among many 
other sources authorized and available to agencies, such as other 
noncompetitive authorities, competitive examining, merit promotion, and 
excepted authorities under 5 CFR part 213. OPM will issue question and 
answer guidance on the use of noncompetitive authorities generally. The 
guidance will address appropriate consideration of applicants who have 
eligibility for noncompetitive appointment, and who are also eligible

[[Page 40475]]

for consideration under competitive or merit promotion procedures.
    One individual asked whether any mechanisms will be put in place to 
prevent personnel officers and military commanders from hiring their 
spouses regardless of whether the spouses are qualified. Another person 
suggested that oversight mechanisms were needed at military 
installations to safeguard against abuses by these entities when using 
this authority. Mechanisms such as nepotism rules, merit system 
principles, and prohibited personnel practices are currently in place 
to ensure administrative probity with respect to agencies' use of this 
appointing authority. Oversight at local military installations is the 
responsibility of the Installation Commander or his or her designee. In 
addition, OPM conducts periodic audits of agencies' hiring practices to 
ensure agencies are using the various appointing authorities 
appropriately and in a manner consistent with all applicable laws and 
regulations.
    The same individual noted his belief that this authority provides a 
hiring preference for eligible military spouses. OPM disagrees with 
this assertion. This authority is a noncompetitive hiring mechanism; it 
does not establish or constitute a hiring preference for eligible 
spouses, nor does it create an entitlement to a Federal job for an 
eligible spouse. Use of this authority is completely at the discretion 
of hiring agencies. As a result, it is one of many hiring tools 
agencies may use to recruit needed individuals.
    One individual and one agency asked whether an unmarried widow or 
widower (i.e., eligible for appointment under section 
315.612(c)(1)(ii)) who accepts an appointment under this authority and 
remarries after being employed under this authority will be permitted 
to remain employed. Yes, individuals eligible under section 
315.612(c)(1)(ii) who remarry after becoming employed under this 
authority will not lose their jobs because of their remarriage.
    One agency asked OPM to explain the effect of telework arrangements 
on the geographic limitations specified in section 315.612(c)(3). 
Spouses eligible under paragraph (b)(4)(i) of this section must 
relocate with their service member spouse per paragraph (c)(1)(ii). 
Upon relocation, these individuals are subject to the same agency 
workplace flexibility policies as are other employees of that agency. 
We wish to remind readers the intent of the proposal was to benefit 
individuals negatively impacted by their military spouses' relocation. 
Individuals eligible under paragraph (b)(4)(i) should not be allowed to 
leverage this authority unless they have actually relocated per the 
intent of E.O. 13473.
    One individual asked whether there are any grade-level limitations 
for positions filled through this appointing authority. OPM is not 
imposing any grade-level limitation on positions filled through this 
hiring authority.
    Another individual asked whether the spouse of a 100 percent 
disabled Vietnam Veteran has eligibility under this rule. Spouses of 
any 100 percent disabled veteran have a 2-year eligibility period from 
the date of the documentation verifying the service member is 100 
percent disabled, per section 315.612(d)(1)(ii). Spouses of 100 percent 
disabled Vietnam Veterans who are not eligible under this appointing 
authority may be eligible for veterans' preference based on their 
military spouses' disability. For more information, we encourage such 
spouses to visit VETSINFO Guide at https://www.opm.gov/veterans/html/vetsinfo.asp.
    One agency asked how agencies will know if the military spouse has 
used his or her eligibility and been selected for another position in 
the local commuting area. OPM advises agencies to ensure they ask 
potential appointees under this authority whether they have used the 
one-time eligibility under section 315.612(d)(3). OPM will address this 
issue further in the supplemental guidance.
    One agency asked how spouses of relocated service members should be 
treated after they are appointed under this authority. This agency also 
asked whether the spouse would be available for a new excepted 
appointment if he or she resigned from an appointment under this 
authority and reapplied. OPM believes the regulation is clear as 
written. The authority under section 315.612(g) provides that a 
selectee is appointed under a career-conditional appointment, unless 
the selectee meets or is exempt from the service requirement for career 
tenure pursuant to section 315.201. Once appointed, the selectee is 
treated as any other career or career-conditional employee. Again, 
agencies appoint individuals selected under this authority to the 
competitive, not the excepted, service.
    One agency commented that OPM needs to issue clear guidance on how 
human resources (HR) offices are to properly refer applicants who are 
eligible under multiple appointment authorities, particularly when one 
or more eligibilities afford/s an applicant veterans' preference and 
one or more do not. The agency also urged OPM to address separately 
general procedures to be followed by HR offices conducting recruitment 
for applicants with status and special appointment eligibility, and by 
HR offices conducting delegated examining. OPM agrees and will issue 
supplemental guidance, which will be available on the OPM Web site at 
https://www.opm.gov.
    Another individual asked whether agencies are required to establish 
training programs in conjunction with filling positions using this 
hiring authority. OPM is not requiring agencies to establish or utilize 
training programs when filling positions under this authority. We 
remind readers this authority is simply a noncompetitive hiring 
mechanism for positions in the competitive service; it is not a 
training and development program for eligible spouses.
    The same individual asked whether this authority would have any 
impact on agencies' use of mobility agreements. Use of this authority 
has no impact on an agency's decision to use mobility agreements (which 
are applicable to an agency's current employees, not those eligible 
under this rule).
    Three individuals were opposed to the proposed rule because they 
are opposed to the policy reflected in E.O. 13473 One of these 
individuals only supports eligibility for noncompetitive appointment of 
only individuals defined in section 315.612(b)(4)(ii) and (iii). OPM 
cannot implement this comment because we are obligated to issue 
regulations that implement the E.O.
    Three individuals commented only to support the proposed rule.
    One individual asked when the proposed rule would become effective. 
The effective date of this rule will be 30 days from the date the final 
rules are published in the Federal Register.
    One individual asked whether this rule applies to retired service 
members who are married to individuals serving on active duty. Prior 
military service, in and of itself, does not prohibit an individual 
from meeting the definition of ``spouse'' in section 315.612(b)(6). 
Provided they meet all applicable rules, such individuals are eligible 
under this authority.
    The same individual asked whether agencies may use this authority 
to appoint eligible spouses who currently have a Federal job. Yes, 
agencies may use this authority to noncompetitively appoint eligible 
spouses who currently have a Federal job, consistent with all 
applicable provisions.
    The same individual also asked whether agencies must apply 
veterans' preference when making appointments under this authority. 
When a

[[Page 40476]]

noncompetitive list is used in conjunction with a competitive list, 
there is no obligation to exhaust preference eligibles from the 
competitive list before making selections from the noncompetitive list. 
In addition, once an agency has determined to make the selection from 
the noncompetitive list, there is no ability to apply veterans' 
preference. Veterans' preference requirements apply only when positions 
are filled from a list prepared through a competitive hiring process or 
when positions are filled pursuant to part 302 of OPM's regulations.
    One agency asked whether eligibles being considered under this 
authority may be appointed to the excepted service if they do not have 
all of the required documentation. The authority under section 315.612 
is for appointments in the competitive service only.
    OPM received 8 comments that were outside the scope of this 
regulation.

Regulatory Flexibility Act

    I certify that these regulations will not have a significant 
economic impact on a substantial number of small entities because the 
regulations pertain only to Federal employees and agencies.

Paperwork Reduction Act

    The information collection requirements contained in this final 
rule are currently approved by OMB under RIN 3206-AL73. This final 
regulation does not modify this approved collection.

Executive Order 12866, Regulatory Review

    This rule has been reviewed by the Office of Management and Budget 
in accordance with Executive Order 12866.

List of Subjects in 5 CFR Parts 315 and 316

    Government employees.

Office of Personnel Management.
John Berry,
Director.

0
Accordingly, OPM is issuing final regulations to amend title 5, Code of 
Federal Regulations, part 315, subpart F, and part 316, as follows:

PART 315--CAREER AND CAREER-CONDITIONAL EMPLOYMENT

Subpart F--Career or Career-Conditional Appointment Under Special 
Authorities

0
1. The authority citation for part 315 is revised to read as follows:

    Authority: 5 U.S.C. 1302, 3301, and 3302; E.O. 10577, 3 CFR, 
1954-1958 Comp. p. 218, unless otherwise noted; and E.O. 13162. 
Secs. 315.601 and 315.609 also issued under 22 U.S.C. 3651 and 3652. 
Secs. 315.602 and 315.604 also issued under 5 U.S.C. 1104. Sec. 
315.603 also issued under 5 U.S.C. 8151. Sec. 315.605 also issued 
under E.O. 12034, 3 CFR, 1978 Comp. p. 111. Sec. 315.606 also issued 
under E.O. 11219, 3 CFR, 1964-1965 Comp. p. 303. Sec. 315.607 also 
issued under 22 U.S.C. 2506. Sec. 315.608 also issued under E.O. 
12721, 3 CFR, 1990 Comp. p. 293. Sec. 315.610 also issued under 5 
U.S.C. 3304(c). Sec. 315.611 also issued under 5 U.S.C. 3304(f). 
Sec. 315.612 also issued under E.O. 13473. Sec. 315.708 also issued 
under E.O. 13318, 3 CFR, 2004 Comp. p. 265. Sec. 315.710 also issued 
under E.O. 12596, 3 CFR, 1987 Comp. p. 229. Subpart I also issued 
under 5 U.S.C. 3321, E.O. 12107, 3 CFR, 1978 Comp. p. 264.


0
2. Add Sec.  315.612 to subpart F to read as follows:


Sec.  315.612  Noncompetitive appointment of certain military spouses.

    (a) Agency authority. In accordance with the provisions of this 
section, an agency may appoint noncompetitively a spouse of a member of 
the armed forces serving on active duty who has orders specifying a 
permanent change of station (not for training), a spouse of a 100 
percent disabled service member injured while on active duty, or the 
un-remarried widow or widower of a service member who was killed while 
performing active duty.
    (b) Definitions. (1) Active duty means full-time duty in the armed 
forces, including full-time National Guard duty, except that for 
Reserve Component members the term ``active duty'' does not include 
training duties or attendance at service schools.
    (2) Armed forces has the meaning given that term in 10 U.S.C. 101.
    (3) Duty station means the permanent location to which a member of 
the armed forces is assigned for duty as specified on the individual's 
permanent change of station (PCS) orders.
    (4) Member of the armed forces or service member means an 
individual who:
    (i) Is serving on active duty in the armed forces under orders 
specifying the individual is called or ordered to active duty for more 
than 180 consecutive days, has been issued orders for a permanent 
change of station, and is authorized for dependent travel (i.e., the 
travel of the service member's family members) as part of the orders 
specifying the individual's permanent change of station;
    (ii) Retired from active duty in the armed forces with a service-
connected disability rating of 100 percent as documented by a branch of 
the armed forces, or retired or was released or discharged from active 
duty in the armed forces and has a disability rating of 100 percent as 
documented by the Department of Veterans Affairs; or
    (iii) Was killed while serving on active duty in the armed forces.
    (5) Permanent change of station means the assignment, reassignment, 
or transfer of a member of the armed forces from his or her present 
duty station or location without return to the previous duty station or 
location.
    (6) Spouse means the husband or wife of a member of the armed 
forces.
    (c) Eligibility. (1) A spouse of a member of the armed forces as 
defined in paragraph (b)(4)(i) of this section must have:
    (i) Married the member of the armed forces on, or prior to, the 
date of the service member's orders authorizing a permanent change of 
station; and
    (ii) Relocated with the member of the armed forces to the new duty 
station specified in the documentation ordering a permanent change of 
station.
    (2) A spouse of a member of the armed forces as defined in 
paragraph (b)(4)(iii) of this section must be the un-remarried widow or 
widower of the member of the armed forces killed on active duty in the 
armed forces.
    (3) For spouses eligible under paragraph (b)(4)(i) of this section, 
noncompetitive appointment under this section is limited to the 
geographic area, as specified on the service member's permanent change 
of station orders. It includes the service member's duty station and 
the surrounding area from which people reasonably can be expected to 
travel daily to and from work. The head of an agency, or his or her 
designee, may waive this limitation (i.e., accept applications from 
spouses) if no Federal agency exists in the spouse's geographic area. 
Spouses of active duty military members who are on retirement or 
separation PCS orders from active duty are not eligible to be appointed 
using this authority unless the service member is injured with a 100 
percent disability.
    (4) Spouses of retired or separated active duty members who have a 
100 percent disability are not restricted to a geographical location.
    (d) Conditions. (1) In accordance with the provisions of this 
section, spouses are eligible for noncompetitive appointment for a 
maximum of 2 years from the date of:
    (i) The service member's permanent change of station orders;
    (ii) Documentation verifying the member of the armed forces is 100 
percent disabled; or

[[Page 40477]]

    (iii) Documentation verifying the member of the armed forces was 
killed while on active duty.
    (2) A spouse may receive only one noncompetitive appointment under 
this section to a permanent position per the service member's orders 
authorizing a permanent change of station.
    (3) Any law, Executive order, or regulation that disqualifies an 
applicant for appointment also disqualifies a spouse for appointment 
under this section.
    (e) Proof of Eligibility. (1) Prior to appointment, the spouse of a 
member of the armed forces as defined in paragraph (b)(4)(i) of this 
section must submit to the employing agency:
    (i) A copy of the service member's active duty orders which 
authorize a permanent change of station. This authorization must 
include:
    (A) A statement authorizing the service member's spouse to 
accompany the member to the new permanent duty station;
    (B) The specific location to which the member of the armed forces 
is to be assigned, reassigned, or transferred pursuant to permanent 
change of station orders; and
    (C) The effective date of the permanent change of station; and
    (ii) Documentation verifying marriage to the member of the armed 
forces (i.e., a marriage license or other legal documentation verifying 
marriage).
    (2) Prior to appointment, the spouse of a member of the armed 
forces as defined in paragraph (b)(4)(ii) of this section must submit 
to the employing agency copies of:
    (i) Documentation showing the member of the armed forces was 
released or discharged from active duty due to a service-connected 
disability;
    (ii) Documentation showing the member of the armed forces retired, 
or was released or discharged from active duty, with a disability 
rating of 100 percent; and
    (iii) Documentation verifying marriage to the member of the armed 
forces (i.e., a marriage license or other legal documentation verifying 
marriage).
    (3) Prior to appointment, the spouse of a member of the armed 
forces as defined in paragraph (b)(4)(iii) of this section must submit 
to the employing agency copies of:
    (i) Documentation showing the individual was released or discharged 
from active duty due to his or her death while on active duty;
    (ii) Documentation verifying the member of the armed forces was 
killed while serving on active duty; and
    (iii) Documentation verifying marriage to the member of the armed 
forces (i.e., a marriage license or other legal documentation verifying 
marriage); and
    (iv) A statement certifying that he or she is the un-remarried 
widow or widower of the service member.
    (f) Acquisition of competitive status. A person appointed under 
paragraph (a) of this section acquires competitive status automatically 
upon completion of probation.
    (g) Tenure on appointment. An appointment under paragraph (a) of 
this section is career-conditional unless the appointee has already 
satisfied the requirements for career tenure or is exempt from the 
service requirement pursuant to Sec.  315.201.

PART 316--TEMPORARY AND TERM EMPLOYMENT

0
3. The authority citation for part 316 continues to read as follows:

    Authority: 5 U.S.C. 3301, 3302; E.O. 10577, 3 CFR, 1954-1958 
Comp., p. 218.


0
4. Section 316.302(b)(3) is revised to read as follows:


Sec.  316.302  Selection of term employees.

* * * * *
    (b) * * *
    (3) Career-conditional appointment under Sec.  315.601, 315.604, 
315.605, 315.606, 315.607, 315.608, 315.609, 315.612, or 315.711 of 
this chapter;
* * * * *

0
5. Section 316.402(b)(3) is revised to read as follows:


Sec.  316.402  Procedures for making temporary appointments.

* * * * *
    (b) * * *
    (3) Career-conditional appointment under Sec.  315.601, 315.604, 
315.605, 315.606, 315.607, 315.608, 315.609, 315.612, 315.703, or 
315.711 of this chapter.
* * * * *
[FR Doc. E9-19340 Filed 8-11-09; 8:45 am]
BILLING CODE 6325-39-P