[Federal Register Volume 79, Number 175 (Wednesday, September 10, 2014)]
[Rules and Regulations]
[Pages 53601-53603]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-21587]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 79, No. 175 / Wednesday, September 10, 2014 /
Rules and Regulations
[[Page 53601]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 550
RIN 3206-AM58
Flag Recognition Benefit for Fallen Federal Civilian Employees
AGENCY: Office of Personnel Management.
ACTION: Final rule.
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SUMMARY: The U.S. Office of Personnel Management (OPM) is issuing final
regulations to implement the Civilian Service Recognition Act of 2011.
The final regulations will assist agencies in administering a United
States flag recognition benefit for fallen Federal civilian employees,
and describe the eligibility requirements and procedures to request a
flag.
DATES: Effective October 10, 2014.
FOR FURTHER INFORMATION CONTACT: Nikki Johnson at (202) 606-2720, by
fax at (202) 606-4264, or by email at [email protected].
SUPPLEMENTARY INFORMATION: The U.S. Office of Personnel Management,
following coordination with the U.S. Department of Defense and the U.S.
Department of Homeland Security, issued proposed regulations and
requested comments on June 17, 2013, (78 FR 36312) to implement the
Civilian Service Recognition Act of 2011 (Pub. L. 112-73, December 20,
2011), hereafter referred to as ``the Act.'' For those civilian
employees who die under certain circumstances in the course of serving
their country, the Act authorizes agency heads to give United States
flags to beneficiaries as a way to formally express sympathy and
gratitude on behalf of the Nation.
OPM received comments from two Federal agencies, a private
association for career federal executives (``the Association''), and
two individuals. We reviewed the public comments, considered them, and
decided upon any revisions we concluded were appropriate in light of
that consideration. We have summarized the comments below, and also
indicate how we disposed of them in the final regulations.
Background
The Act authorizes, and these regulations provide policies for,
recognizing certain Federal civilian employees who die of injuries
incurred in connection with their employment for their duty and
sacrifice. Prior to this legislation, a few agencies had separate,
limited authority to confer such recognition. Under the Act, Executive
agencies, the United States Postal Service, and the Postal Regulatory
Commission may furnish flags to the beneficiaries of employees who died
of injuries incurred in connection with their employment as a result of
criminal acts, acts of terrorism, natural disasters, or other
circumstances as determined by the President.
OPM is amending part 550 of title 5, Code of Federal Regulations,
by adding a new subpart (subpart O) titled ``Flag Recognition Benefit
for Fallen Federal Civilian Employees'' that establishes a
comprehensive, Governmentwide approach to honor Federal civilian
employees who die of certain injuries incurred in connection with their
employment. These regulations also provide agencies flexibility to
develop additional procedures when honoring these employees.
General
We received a comment from a Federal agency recommending OPM revise
Sec. 550.1501(a) to indicate that the employee's injuries must be
incurred in connection with his or her employment with the Federal
Government, as stated in the statute. We agree with the agency's
suggested change and have revised the paragraph to mirror the statutory
language.
Eligibility
We received four comments (three from the Association and one from
an individual) regarding eligibility for a flag. Both the Association
and the individual observed that the phrase ``other circumstances'' was
vague and that clarification was needed to define what constitutes
``other circumstances.'' The Association suggested that there be
additional guidance to assist agencies to determine whether a cause of
death that does not fall neatly into a stated category should be
granted. The individual stated that OPM should revise Sec.
550.1504(iv) to provide that the President may delegate this
determination.
OPM expects that most deaths warranting flag recognition will fall
into the categories specified in law (i.e., a criminal act, an act of
terrorism, or a natural disaster). In any event, at this time, the
authority to determine which other circumstances would warrant such
recognition is reserved to the President. OPM cannot confer authorities
upon the President, but there is nothing in the Act that precludes the
President from delegating this authority in the future if he wishes to
do so.
In addition, one comment stated that OPM should track deaths that
did not fall into one of the original categories. OPM will not track
the ``other circumstance'' cause of death requests as we anticipate
they will occur rarely and, therefore, we do not see the need to
establish an additional administrative process.
Order of Precedence
We received four comments (two from individuals, one from the
Association, and one from an agency) regarding order of precedence when
granting a flag. Three of the comments focused on including same-sex
marriage, domestic partnership, or civil unions in the order of
precedence.
The Act already provides that widows or widowers may be awarded a
flag. On June 26, 2013, the Supreme Court ruled that Section 3 of the
Defense of Marriage Act (DOMA) is unconstitutional. As a result of this
decision, there would be no basis for construing ``widow'' or
``widower'' as excluding surviving spouses of same-sex marriages. The
surviving spouse of a same-sex marriage would be a widow or widower,
and this category is already included in the order of precedence.
Surviving members of a domestic partnership or civil union could
also qualify to be recipients of a flag, within the order of
precedence, but only within the category of those having a close family
affiliation. The ``close family affiliation'' category encompasses any
non-marital domestic partner, whether same-sex or different-sex,
irrespective of
[[Page 53602]]
whether the individual was in a state-sanctioned legal relationship,
such as a civil union or domestic partnership, with the deceased
employee. Although requests from surviving members of a domestic
partnership or civil union would not receive the same level of
precedence as surviving spouses of same-sex marriages, that result is a
function of the statutory language itself. The statute specifically
identified ``spouses,'' but not survivors of domestic partnerships or
civil unions as among the individuals who would be eligible for such a
benefit by virtue of the statute itself. The statute provided OPM with
the means to determine what other sorts of relationships might justify
the award of a flag, but only for the situation where no request has
been received from a spouse, child, sibling, or parent of the deceased
employee.
The Association's comment focused on defining ``close family
affiliation'' and providing examples. The commenter suggested that the
term is unclear. OPM believes the established order of precedence,
which is modeled after other similar listings in regulation, is clear
as listed. The term ``close family affiliation'' conveys a generally
understood type of relationship and the regulation leaves its
application to agency discretion on a case-by-case basis.
Beneficiary Responsibilities
We received two comments on beneficiary responsibilities (one from
an individual and one from the Association). Both commenters noted a
concern that the burden of proving eligibility would fall
disproportionately on the next of kin and argued that a formal written
request with supporting documentation should not be necessary because
the agency will already be aware of the circumstances surrounding the
employee's death, and therefore his or her eligibility for the flag
benefit. The Association also recommended the agency notify the
beneficiary of the flag benefit to ease the burden of a grieving
beneficiary and make the distribution of a flag as smooth and quick as
possible. We agree that in most cases an agency will already be aware
of the circumstances of an employee's death in these types of
situations and generally will not need to require proof of the
employee's eligibility. Therefore, we have revised Sec. 550.1506 of
the regulations to focus on having the agency assist a grieving
beneficiary in requesting a flag in a timely manner by making the
necessary determinations.
Agency Responsibilities
We received two comments from one agency on agency
responsibilities. One comment recommends that OPM revise Sec.
550.1507(a) to remove the requirement for an agency to include in its
procedures reaching out to survivors of known eligible employees to
provide information and offer assistance on obtaining the flag. We have
considered this recommendation and have revised this provision to make
it clear that an agency is required to adopt such procedures only if it
determines it wishes to award a flag pursuant to the Act. When an
agency has made such a determination, it must reach out to survivors of
known eligible employees in order to ease any burden on the
beneficiaries of obtaining a flag. We encourage each agency to make a
decision in advance of receiving a first request under the Act whether
the agency will want to furnish a flag in an appropriate case. If the
answer is in the affirmative, the agency would be well-advised to adopt
these procedures in advance, so that it will be in a position to assist
a potential beneficiary expeditiously if and when a potentially
appropriate case arises.
The agency also recommends that OPM revise Sec. 550.1507(b) to
provide agencies with the flexibility to establish their own process
for notifying employees of the flag benefit. We concur that agencies
should have flexibility in notifying employees and have removed the
example, ``usually as part of the agency's regular benefits information
sharing,'' that was perceived to limit this flexibility. In order to
provide consistency Governmentwide, we have maintained the requirement
that the notification should occur annually.
Miscellaneous Issues
We have made additional revisions to the text of Sec. 550.1501
General, Sec. 550.1505 Order of precedence, and Sec. 550.1506
Beneficiary receipt of a flag in order to achieve greater technical
clarity. The substance of these provisions has not been changed.
E.O. 12866, Regulatory Review
This rule has been reviewed by the U.S. Office of Management and
Budget in accordance with E.O. 12866.
Regulatory Flexibility Act
I certify that these regulations would not have a significant
economic impact on a substantial number of small entities because they
would apply only to Federal agencies and employees.
List of Subjects in 5 CFR Part 550
Administrative practice and procedure, Claims, Government
employees, Wages.
U.S. Office of Personnel Management.
Katherine Archuleta,
Director.
Accordingly, OPM is amending part 550 of title 5, Code of Federal
Regulations, by adding a new subpart O to read as follows:
PART 550--PAY ADMINISTRATION (GENERAL)
Subpart O--Flag Recognition Benefit for Fallen Federal Civilian
Employees
Sec.
550.1501 General.
550.1502 Coverage.
550.1503 Definitions.
550.1504 Eligibility.
550.1505 Order of precedence.
550.1506 Beneficiary receipt of a flag.
550.1507 Agency responsibilities.
Authority: 5 U.S.C. 5570 note; also issued under Sec. 2 of Pub.
L. 112-73, 125 Stat.784-785.
Subpart O--Flag Recognition Benefit for Fallen Federal Civilian
Employees
Sec. 550.1501 General.
(a) Statutory authority. This subpart implements the Civilian
Service Recognition Act of 2011 (Public Law 112-73; December 20, 2011),
reprinted as a note to 5 U.S.C.A. 5570, which authorizes agencies to
give a flag of the United States to a beneficiary of a Federal civilian
employee who dies of injuries incurred in connection with his or her
employment with the Federal Government, under specific circumstances.
(b) Eligibility. Agencies may furnish a flag to the beneficiary (as
defined in Sec. 550.1503) of an eligible employee (as specified in
Sec. 550.1504) who died on or after December 20, 2011.
Sec. 550.1502 Coverage.
This subpart applies to--
(a) Executive agencies as defined in section 105 of title 5, United
States Code, the United States Postal Service, and the Postal
Regulatory Commission; and
(b) Employees as defined in section 2105 of title 5, United States
Code; an officer or employee of the United States Postal Service; and
an officer or employee of the Postal Regulatory Commission.
Sec. 550.1503 Definitions.
In this subpart--
Agency means an Executive agency as defined in 5 U.S.C. 105, the
United
[[Page 53603]]
States Postal Service, or the Postal Regulatory Commission.
Authorized agency official means the head of an agency or an
official who is authorized to act for the head of the agency in the
matter concerned.
Beneficiary means the eligible person who may request the flag
following the order of precedence specified in Sec. 550.1505.
Employee means an employee as defined in section 2105 of title 5,
United States Code; an officer or employee of the United States Postal
Service; and an officer or employee of the Postal Regulatory
Commission.
Flag means a standard United States flag that is at least 3 feet by
5 feet.
Sec. 550.1504 Eligibility.
(a) An authorized agency official may, upon the request of a
beneficiary, furnish one United States flag for an individual who--
(1) Was an employee of the agency at the time of death; and
(2) Died of injuries incurred in connection with such individual's
employment with the Federal Government suffered as a result of--
(i) A criminal act;
(ii) An act of terrorism;
(iii) A natural disaster; or
(iv) Other circumstances, as determined by the President.
(b) An authorized agency official may not furnish a flag when the
death is the result of--
(1) Unlawful or negligent action of the employee;
(2) Willful misconduct of the employee; or
(3) Activities unrelated to the employee's status as a Federal
employee.
(c) The decision whether to furnish a flag to the beneficiary of an
eligible employee is at the discretion of the agency. When an
authorized agency official determines the agency will furnish a flag
for a deceased eligible employee, the official must follow the order of
precedence specified in Sec. 550.1505.
Sec. 550.1505 Order of precedence.
If the authorized agency official determines the agency will
furnish a flag, it must be issued to one beneficiary pursuant to the
following order of precedence--
(a) The widow or widower;
(b) If none, to a child (including step, foster, or adopted child),
according to age (i.e., oldest to youngest);
(c) If none, to a parent (including step, foster, or adoptive
parent);
(d) If none, to a sibling (including step, half, or adopted
sibling), according to age; (i.e., oldest to youngest);
If none, to any individual related by blood or close family
affiliation.
Sec. 550.1506 Beneficiary receipt of a flag.
One eligible beneficiary, following the order of precedence in
Sec. 550.1505, may be provided a flag by the agency once the agency
has--
(a) Documented the date and nature of death of the employee and
certified that it conforms to the eligibility criteria in Sec.
550.1504;
(b) Received a request from a beneficiary; and
(c) Established the beneficiary's relationship to the deceased
employee and determined whether the beneficiary may receive the flag,
consistent with the order of precedence under 550.1505.
Sec. 550.1507 Agency responsibilities.
To efficiently and effectively implement the provisions of the law
and these regulations, an agency that wishes to furnish a flag pursuant
to this part must --
(a) Establish procedures for procuring and furnishing a flag,
including reaching out to survivors of known eligible employees to
provide information and offer assistance on obtaining a flag;
(b) Notify its employees of the flag benefit annually; and
(c) Disclose information necessary to prove that a deceased
individual is an eligible employee as described in Sec. 550.1504 to
the extent that such information is not classified and to the extent
that such disclosure does not endanger the national security of the
United States.
[FR Doc. 2014-21587 Filed 9-9-14; 8:45 am]
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