[Federal Register Volume 73, Number 235 (Friday, December 5, 2008)]
[Proposed Rules]
[Pages 74071-74073]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-28747]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 73, No. 235 / Friday, December 5, 2008 / 
Proposed Rules

[[Page 74071]]



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: Proposed rule.

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SUMMARY: The U.S. Office of Personnel Management (OPM) is issuing 
proposed regulations that allow agencies to noncompetitively appoint 
certain military spouses to positions in the competitive service. These 
regulations implement Executive Order 13473, 73 FR 56703 (Sept. 28, 
2008), which authorizes noncompetitive appointments in the Civil 
Service for spouses of certain members of the armed forces. These 
regulations 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: Comments will be considered if received by January 5, 2009.

ADDRESSES: Send, fax, or deliver written comments to Angela Bailey, 
Deputy Associate Director, Center for Talent and Capacity Policy, U.S. 
Office of Personnel Management, 1900 E Street, NW., Room 6500, 
Washington, DC 20415, e-mail to employ@opm.gov, or FAX to 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: Jacquelyn Carrington at (202) 606-
0960, FAX at (202) 606-2329, TDD at (202) 418-3134, or e-mail 
jacquelyn.carrington@opm.gov.

SUPPLEMENTARY INFORMATION: On September 25, 2008, the President signed 
Executive Order 13473 (73 FR 56703) allowing agencies to make 
noncompetitive appointments of spouses of certain members of the armed 
forces. To implement this Executive order, the Office of Personnel 
Management is proposing to add a new section 315.612 to subpart F of 
part 315, title 5, Code of Federal Regulations, and revise part 316, 
Temporary and Term Appointment, subpart C, section 316.302, and subpart 
D, section 316.402, to permit noncompetitive permanent, term, or 
temporary appointment of military spouses, respectively. This authority 
allows agencies to recruit and noncompetitively appoint spouses of 
certain members of the armed forces to positions in the competitive 
service. These regulations do not provide a hiring preference for 
military spouses, nor do they establish selection priority for these 
individuals. Consistent with other noncompetitive appointment 
authorities, these individuals must apply to a Federal vacancy 
announcement to be considered. This proposal creates a pool of 
applicants from which agencies may make noncompetitive selections if 
they choose to do so.

Agency Authority

    Paragraph (a) of the proposed new Sec.  315.612 explains the intent 
of the Executive order, which authorizes agencies to noncompetitively 
appoint certain military spouses to competitive service positions under 
certain circumstances. Specifically, agencies are authorized to appoint 
noncompetitively the spouse of a service member serving on active duty 
in the armed forces who has received permanent change of station 
orders, the spouse of a 100 percent disabled service member whose 
disability resulted from active duty in the armed forces, or the un-
remarried widow or widower of a service member who was killed while on 
active duty in the armed forces.

Definitions

    Paragraph (b) of proposed Sec.  315.612 contains six definitions 
necessary for the administration of the section.

Eligibility

    Paragraph (c) of proposed Sec.  315.612 provides the criteria that 
a military spouse must meet to be eligible for noncompetitive 
appointment under this section. This paragraph also contains the 
eligibility criteria that a member of the armed forces on active duty 
must meet in order for his or her spouse to be eligible for 
noncompetitive appointment under this section.
    This paragraph specifies that to be eligible for appointment under 
this section, the spouse of a member of the armed forces who is serving 
on active duty must be married to the member of the armed forces on, or 
before, the date of the service member's orders relocating him or her 
to another permanent duty station. It also specifies that the spouse 
must accompany the service member to the new permanent duty station.
    This paragraph makes clear that the spouse of a deceased service 
member must be the un-remarried widow or widower of a member of the 
armed forces killed while on active duty in order to be eligible for 
noncompetitive appointment under this section.
    Lastly, this paragraph provides that under this section agencies 
may appoint eligible spouses only to positions within the geographic 
area containing the permanent duty station to which the service member 
has been transferred or reassigned. The head of an agency, however, may 
waive this limitation if there are no Federal agencies within the 
geographic area in which the new duty station is located. Eligible 
spouses of 100 percent disabled service members, or service members who 
were killed while on active duty, are not subject to the geographic 
area limitation.

Conditions

    Paragraph (d) of proposed Sec.  315.612 provides the conditions 
under which an agency may appoint a military spouse noncompetitively 
under this section. This paragraph specifies that a spouse remains 
eligible for a noncompetitive appointment for a maximum of 2 years from 
the date of the (a) service member's orders authorizing a permanent 
change of station; (b) the documentation showing the service member is 
100 percent disabled; or (c) the documentation showing the service 
member was killed while on active duty.
    This paragraph also specifies that an eligible spouse may receive 
only one noncompetitive appointment to a permanent Federal job per each 
set of orders authorizing the service member's

[[Page 74072]]

permanent change of station. OPM is not proposing a limitation on the 
number of temporary or term appointments an eligible spouse may have 
per permanent change of duty location authorization.
    This paragraph provides that individuals who accompany their 
military spouses to the new duty station within 1 year of the effective 
date of these regulations are eligible for noncompetitive appointment 
under this section.
    Lastly, this paragraph provides that any provision that would 
disqualify an applicant for Federal appointment also disqualifies a 
spouse for appointment under these provisions.

Proof of Eligibility

    Paragraph (e) of proposed Sec.  315.612 explains the documentation 
that an agency hiring representative must have received from a spouse 
before making a noncompetitive appointment under this section. Spouses 
of active duty military members must submit to the hiring agency the 
following information: A copy of the military member's active duty 
orders authorizing a permanent change of duty station, and proof that 
the spouse was married to the military member at the time of the 
orders' issuance.
    The spouse of an individual with a 100 percent disability rating 
must submit to the hiring agency documentation that states the 
individual is 100 percent disabled as a result of a service-connected 
disability that occurred while the individual was on active military 
duty, and proof that the spouse is married to the military member.
    The spouse of an individual killed while on active duty must submit 
to the hiring agency documentation that shows the military member was 
serving on active military duty at the time of his or her death, proof 
that the spouse was married to the military member at the time of his 
or her death, and a statement certifying that he or she is the un-
remarried widow or widower of the service member.

Acquisition of Competitive Status

    Paragraph (f) of proposed Sec.  315.612 provides the military 
spouse appointed under this section acquires competitive status upon 
completion of a probationary period.

Tenure on Appointment

    Paragraph (g) of proposed Sec.  315.612 specifies that an eligible 
military spouse hired under this authority has a career-conditional 
appointment until the employee fulfills the requirements for career 
tenure.

Temporary and Term Employment

    The proposed regulations also revise Sec. Sec.  316.302 and 316.402 
to authorize agencies to make noncompetitive term or temporary 
appointments, respectively, of spouses eligible under the proposed 
provisions of Sec.  315.612.

30-Day Comment Period

    OPM is imposing a 30-day comment period on this proposed rule.

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.

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.
Michael W. Hager,
Acting Director.

    Accordingly, OPM proposes to amend title 5, Code of Federal 
Regulations, part 315, subpart F, and part 316, as follows:

PART 315--CAREER AND CAREER-CONDITIONAL EMPLOYMENT

    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.

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

    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, 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.
    In this section,
    (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 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.
    (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

[[Page 74073]]

    (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) A spouse's eligibility for noncompetitive appointment under 
this section is limited to the geographic area, as specified on the 
member of the armed forces' 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 may waive this limitation (i.e., 
accept applications from spouses) if no Federal agency exists in the 
spouse's geographic area.
    (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
    (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) In accordance with the provisions of this section, spouses who 
relocated with a member of the armed forces to the location provided in 
the service member's permanent change of station orders within 1 year 
prior to the effective date of these regulations are eligible for 
noncompetitive appointment under this section.
    (4) 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 (e.g., 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 (e.g., 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 (e.g., 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

    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.

    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;
* * * * *
    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. E8-28747 Filed 12-4-08; 8:45 am]
BILLING CODE 6325-39-P