[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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  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.

-----------------------------------------------------------------------

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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