[Federal Register Volume 88, Number 187 (Thursday, September 28, 2023)]
[Rules and Regulations]
[Pages 66677-66679]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-21254]



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 Rules and Regulations
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  Federal Register / Vol. 88 , No. 187 / Thursday, September 28, 2023 / 
Rules and Regulations  

[[Page 66677]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 315

[Docket ID: OPM-2023-0026]
RIN 3206-AO57


Noncompetitive Appointment of Certain Military Spouses

AGENCY: Office of Personnel Management.

ACTION: Interim final rule; request for comments.

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SUMMARY: The Office of Personnel Management (OPM) is issuing interim 
regulations to implement the changes authorized by the National Defense 
Authorization Act (NDAA) for Fiscal Year (FY) 2023 on the 
noncompetitive appointment authority for certain military spouses. 
These changes extend certain temporary provisions and remove the 
reporting requirements that were imposed by the NDAA for FY 2019. These 
changes will continue to enhance the recruitment and hiring of military 
spouses for permanent Federal positions in the competitive service.

DATES: The interim regulations are effective on September 28, 2023. 
Comments must be received on or before November 27, 2023.

ADDRESSES: You may submit comments, identified by docket number and/or 
Regulation Identifier Number (RIN) and by title, by the following 
method:
     Federal Rulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
    All submissions received must include the agency name and docket 
number or RIN for this document. The general policy for comments and 
other submissions from members of the public is to make these 
submissions available for public viewing at https://www.regulations.gov 
as they are received without change, including any personal identifiers 
or contact information.

FOR FURTHER INFORMATION CONTACT: Michelle Glynn, telephone: 202-606-
1571, fax: 202-606-4430, TDD: 202-418-3134, or email: 
[email protected].

SUPPLEMENTARY INFORMATION: On December 23, 2022, the President signed 
the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2023 
(Pub. L. 117-263) (``FY 2023 NDAA''). Section 573(d) of Public Law 115-
232 (``FY 2019 NDAA'') provided for a temporary amendment to 5 U.S.C. 
3330d to expand the eligibility for noncompetitive appointment of 
spouses currently married to a member of the armed forces on active 
duty. Under the FY 2019 NDAA, this authority would have sunset on 
August 13, 2023, which is reflected in OPM's current regulations. 
Section 1111 of the FY 2023 NDAA extended the temporary amendment until 
December 31, 2028.
    Section 573(d) of the FY 2019 NDAA required agencies to report 
annually to OPM on the number of relocating and non-relocating spouses 
of current military members appointed; the types of positions filled 
(by title, series, and grade level); and the effectiveness of this 
hiring authority. Section 573(d) also required a report to Congress 18 
months after enactment that had become obsolete. The FY 2023 NDAA 
removed these temporary agency reporting requirements established under 
the FY 2019 NDAA. Although the reporting requirements have been removed 
from statute, section 3(f) of Executive Order 13832, of May 9, 2018, 
Enhancing Noncompetitive Civil Service Appointments of Military 
Spouses, imposed similar agency reporting requirements that are still 
in effect.
    The changes in the FY 2023 NDAA became effective upon the 
President's signature. OPM is amending its regulations through this 
interim final rule to reflect the provisions of the FY 2023 NDAA.

Waiver of Notice of Proposed Rule Making

    OPM is issuing this rulemaking as an interim final rule because it 
has determined that, under the Administrative Procedure Act (APA), 5 
U.S.C. 553(b)(3)(B), it would be impracticable and contrary to the 
public interest to delay a final regulation until a public notice and 
comment process has been completed. OPM is also waiving general notice 
of proposed rulemaking under the Civil Service Reform Act's parallel 
rulemaking provisions at 5 U.S.C. 1103(b)(3) because the interim rule 
is necessary to be implemented expeditiously as a result of a statutory 
change to enhance the recruitment and employment of military spouses in 
the Federal government.
    Accordingly, to ensure the regulations accurately reflect the 
current state of the law, OPM finds that good cause exists to waive the 
general notice of proposed rulemaking pursuant to 5 U.S.C. 
553(b)(3)(B). Expeditious issuance of this interim final regulation is 
required to prevent confusion in light of the (now invalid) August 13, 
2023 sunset date reflected in the regulations for the expanded 
eligibility for noncompetitive appointment of spouses married to 
members of the armed forces on active duty. OPM will promulgate a final 
rule as soon as practical after receiving public comments on the 
interim final rule.

Waiver of Delay in Effective Date

    Pursuant to 5 U.S.C. 553(d)(3), OPM finds that good cause exists to 
waive the delay in effective date and make these regulations effective 
in less than 30 days. The delay in effective date is being waived 
because the provisions of the law extending the noncompetitive 
appointment authority became effective upon enactment, December 23, 
2022, and a delay could result in certain military spouses improperly 
losing consideration for appointment.

Expected Impact of This Interim Final Rule

A. Statement of Need

    OPM is issuing this interim rule to implement statutory changes 
codified at 5 U.S.C. 3330d, which extends the eligibility date for 
noncompetitive appointment of military spouses married to a member of 
the armed forces on active duty; and removes the temporary agency 
reporting requirements established under section 573(d) of Public Law 
115-232. These changes are required under the provisions of the FY 2023 
NDAA.

B. Impact

    OPM's interim final rule allows spouses married to members of the 
armed forces on active duty to remain

[[Page 66678]]

eligible for noncompetitive appointment under this hiring authority 
until December 31, 2028. On May 25, 2023, OPM issued CHCO Memo with 
updated guidance for this hiring authority, to include announcing the 
sunsetting date, the December 31, 2028 eligibility date, for spouses 
married to active duty members of the armed forces.\1\
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    \1\ https://www.chcoc.gov/content/noncompetitive-appointment-certain-military-spouses-questions-and-answers.
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    Under the FY 2019 NDAA provisions, these spouses were eligible 
until August 12, 2023. We anticipate that these statutory changes will 
improve and enhance the effectiveness of the noncompetitive appointment 
of these spouses consistent with E.O. 13832, which instructs agencies 
to consider military spouses to the greatest extent possible when 
filling positions in the competitive service.

C. Regulatory Alternatives

    There are no regulatory alternatives to this interim final rule 
because OPM is required to implement the statute.

D. Costs

    The costs associated with the interim final rule are minimal and 
include: the costs associated with the resources needed to process a 
potentially higher volume of job applicants for Federal jobs, and the 
usual learning curve of implementing a regulatory change. To help 
minimize the latter costs, OPM intends to provide technical assistance 
upon request to any agency that may require such assistance. Because 
agency resources and the potential volume of increased job applicants 
vary, OPM cannot monetize the costs of these rules.

E. Benefits

    The interim final rule will benefit military spouses married to 
military members on active duty and hiring agencies as well. This rule 
will make clear that these spouses are eligible for noncompetitive 
appointment under this hiring authority until December 31, 2028, the 
sunset date of the FY 2023 NDAA provisions. Additionally, this rule 
benefits agencies by relieving them of the duplicative reporting 
requirements established under the FY 2019 NDAA provisions.

Regulatory Review

    Executive Orders 13563, 12866, and 14094 direct agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). In 
accordance with the provisions of Executive Order 12866, this interim 
final rule was reviewed by the Office of Management and Budget as a 
significant regulatory action, but not significant under Section 
(3)(f)(1) of Executive Order 14094.

Regulatory Flexibility Act

    The Director of OPM certifies that this regulation will not have a 
significant economic impact on a substantial number of small entities 
because it applies only to Federal agencies and employees.

E.O. 13132, Federalism

    This regulation will not have substantial direct effects on the 
States, on the relationship between the National Government and the 
States, or on distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 13132, OPM has determined that this interim final rule does not 
have federalism implications that require preparation of a federalism 
summary impact statement.

E.O. 12988, Civil Justice Reform

    OPM has determined this interim final rule meets the relevant 
standards of Executive Order 12988.

Unfunded Mandates Reform Act of 1995

    This interim final rule will not result in the expenditure by 
State, local or tribal governments or the private sector of more than 
$100 million annually. Thus, no written assessment of unfunded mandates 
is required.

Congressional Review Act

    The Congressional Review Act (5 U.S.C. 801 et seq.) requires rules 
(as defined in 5 U.S.C. 804) to be submitted to Congress before taking 
effect. OPM will submit to Congress and the Comptroller General of the 
United States a report regarding the issuance of this action before its 
effective date, as required by 5 U.S.C. 801. OMB's Office of 
Information and Regulatory Affairs has determined that this is not a 
``major rule'' as defined by the Congressional Review Act (5 U.S.C. 
804(2)).

Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35)

    This regulatory action will not impose any reporting or 
recordkeeping requirements under the Paperwork Reduction Act.

List of Subjects in 5 CFR Part 315

    Government employees.

Office of Personnel Management.
Kayyonne Marston,
Federal Register Liaison.

    Accordingly, OPM amends 5 CFR part 315 as follows:

PART 315--CAREER AND CAREER-CONDITIONAL EMPLOYMENT

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

    Authority: 5 U.S.C. 1302, 2301, 2302, 3301, and 3302; E.O. 
10577, 19 FR 7521, 3 CFR, 1954-1958 Comp., p. 218; and E.O. 13162, 
65 FR 43211, 3 CFR, 2000 Comp., p. 283, unless otherwise noted. 
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, 43 FR 1917, 3 CFR, 1978 Comp., p. 111. Sec. 
315.606 also issued under E.O. 11219, 30 FR 6381, 3 CFR, 1964-1965 
Comp., p. 303. Sec. 315.607 also issued under 22 U.S.C. 2560. Sec. 
315.608 also issued under E.O. 12721, 55 FR 31349, 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, 73 FR 56703, 3 CFR, 2008 Comp., p. 241; Sec. 566, 
Pub. L. 112-239, 126 Stat. 1632 (5 U.S.C. 3330d); Sec. 1131, Pub. L. 
114-328, 130 Stat. 2000 (5 U.S.C. 3330d(c)); Sec. 573, Pub. L. 115-
232, 132 Stat. 1636 (5 U.S.C. 3330d); and E.O. 13832, 83 FR 22343, 3 
CFR, 2018 Comp., p. 808. Sec. 315.708 also issued under E.O. 13318, 
68 FR 66317, 3 CFR, 20043 Comp., p. 265. Sec. 315.710 also issued 
under E.O. 12596, 52 FR 17537, 3 CFR, 1987 Comp., p. 229; E.O. 
13832, 83 FR 22343, 3 CFR, 2018 Comp., p. 808; and Sec. 573, Pub. L. 
115-232, 132 Stat. 1636 (5 U.S.C. 3330d), Sec. 1111, Pub. L. 117-
263, 136 Stat. 2395 (5 U.S.C. 3330d).

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

0
2. Amend Sec.  315.612 by:
0
a. Revising paragraphs (c), (d), and (e) by replacing each occurrence 
of ``August 12, 2023'' with ``December 31, 2028''.
0
b. Revising paragraphs (c), (d), and (e) by replacing each occurrence 
of ``August 13, 2023'' with ``January 1, 2029''.
0
c. Revising paragraph (h) to read as follows.


Sec.  315.612  Noncompetitive appointment of certain military spouses.

* * * * *
    (h) Agency reporting requirements. (1) As required by Executive 
Order 13832, each agency shall report annually (by December 31st of 
each year) to OPM and the Department of Labor on:
    (i) The number of positions made available under the military 
spouse hiring authority;

[[Page 66679]]

    (ii) The number of applications submitted under the military spouse 
hiring authority;
    (iii) The number of military spouses appointed under the military 
spouse hiring authority during the preceding fiscal year; and
    (iv) Actions taken to advertise the military spouse hiring 
authority, and any other actions taken to promote the hiring of 
military spouses.
    (2) Agencies must send their reports electronically to OPM's 
Employee Services, VETS Office at [email protected].
    (3) Agencies are also required to send their reports separately and 
directly to Department of Labor (DOL) at [email protected].

[FR Doc. 2023-21254 Filed 9-27-23; 8:45 am]
BILLING CODE 6325-39-P