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Rules and Regulations Federal Register

40471 

Vol. 74, No. 154 

Wednesday, August 12, 2009 

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. 

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 § 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 § 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 

http://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 

§ 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 

§ 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 

§ 315.612(b)(4)(ii) to clarify that a 

service member’s 100 percent disability 

must be military-related or serviceconnected. 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 serviceconnected 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 


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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 noncompetitive 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 nonCHCO 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 


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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 http://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 http:// 

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 serviceconnected 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 serviceconnected 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 careerconditional 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. 


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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 § 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 (http:// 

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 


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

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 http:// 

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 


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40476 Federal Register / Vol. 74, No. 154 / Wednesday, August 12, 2009 / Rules and Regulations 

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. 

■ 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 CAREERCONDITIONAL EMPLOYMENT 

Subpart F—Career or CareerConditional Appointment Under 

Special Authorities 

■ 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. 

■ 2. Add § 315.612 to subpart F to read 

as follows: 

§ 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 unremarried 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 unremarried 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 


jlentini on DSKJ8SOYB1PROD with RULES
Federal Register / Vol. 74, No. 154 / Wednesday, August 12, 2009 / Rules and Regulations 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 § 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: 

§ 316.302 Selection of term employees. 

* * * * * 

(b) * * * 

(3) Career-conditional appointment 

under § 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: 

§ 316.402 Procedures for making 

temporary appointments. 

* * * * * 

(b) * * * 

(3) Career-conditional appointment 

under § 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 

FEDERAL RESERVE SYSTEM 

12 CFR Part 226 

[Regulation Z; Docket No. R–1365] 

Truth in Lending 

AGENCY: Board of Governors of the 

Federal Reserve System. 

ACTION: Final rule; staff commentary. 

SUMMARY: The Board is publishing a 

final rule amending the staff 

commentary that interprets the 

requirements of Regulation Z (Truth in 

Lending). The Board is required to 

adjust annually the dollar amount that 

triggers requirements for certain home 

mortgage loans bearing fees above a 

certain amount. The Home Ownership 

and Equity Protection Act of 1994 

(HOEPA) sets forth rules for homesecured loans in which the total points 

and fees payable by the consumer at or 

before loan consummation exceed the 

greater of $400 or 8 percent of the total 

loan amount. In keeping with the 

statute, the Board has annually adjusted 

the $400 amount based on the annual 

percentage change reflected in the 

Consumer Price Index as reported on 

June 1st. The adjusted dollar amount for 

2010 is $579. 

DATES: Effective Date: January 1, 2010. 

FOR FURTHER INFORMATION CONTACT: 

Dana Miller, Attorney, Division of 

Consumer and Community Affairs, 

Board of Governors of the Federal 

Reserve System, at (202) 452–3667. For 

the users of Telecommunications Device 

for the Deaf (‘‘TDD’’) only, contact (202) 

263–4869. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The Truth in Lending Act (TILA; 15 

U.S.C. 1601–1666j) requires creditors to 

disclose credit terms and the cost of 

consumer credit as an annual 

percentage rate. The act requires 

additional disclosures for loans secured 

by a consumer’s home, and permits 

consumers to cancel certain transactions 

that involve their principal dwelling. 

TILA is implemented by the Board’s 

Regulation Z (12 CFR part 226). The 

Board’s official staff commentary (12 

CFR part 226 (Supp. I)) interprets the 

regulation, and provides guidance to 

creditors in applying the regulation to 

specific transactions. 

In 1995, the Board published 

amendments to Regulation Z 

implementing HOEPA, contained in the 

Riegle Community Development and 

Regulatory Improvement Act of 1994, 

Public Law 103–325, 108 Stat. 2160 (60 

FR 15463). These amendments, 

contained in §§ 226.32 and 226.34 of the 

regulation, impose substantive 

limitations and additional disclosure 

requirements on certain closed-end 

home mortgage loans bearing rates or 

fees above a certain percentage or 

amount. As enacted, the statute requires 

creditors to comply with the HOEPA 

rules if the total points and fees payable 

by the consumer at or before loan 

consummation exceed the greater of 

$400 or 8 percent of the total loan 

amount. TILA and Regulation Z provide 

that the $400 figure shall be adjusted 

annually on January 1 by the annual 


jlentini on DSKJ8SOYB1PROD with RULES