[Federal Register Volume 89, Number 106 (Friday, May 31, 2024)]
[Rules and Regulations]
[Pages 47067-47068]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-11825]



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 Rules and Regulations
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains regulatory documents 
 having general applicability and legal effect, most of which are keyed 
 to and codified in the Code of Federal Regulations, which is published 
 under 50 titles pursuant to 44 U.S.C. 1510.
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  Federal Register / Vol. 89, No. 106 / Friday, May 31, 2024 / Rules 
and Regulations  

[[Page 47067]]



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: Final rule.

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SUMMARY: This final rule adopts, without change, an interim final rule 
implementing the changes authorized by the National Defense 
Authorization Act (NDAA) for Fiscal Year (FY) 2023 regarding 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: This final rule is effective on May 31, 2024.

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 September 28, 2023, the Office of 
Personnel Management (OPM) published an interim final rule in the 
Federal Register at 88 FR 66677 to implement changes authorized by the 
National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2023 on 
the noncompetitive appointment authority for certain military spouses. 
OPM made these changes to implement provisions in the FY 2023 NDAA, 
Public Law 117-263. 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 
was reflected in OPM's 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 amended its regulations through the interim 
final rule to reflect the provisions of the FY 2023 NDAA.

Comments Received on the Interim Final Rule

    Although the interim final rule was effective immediately upon 
publication, OPM provided a 60-day comment period, which ended November 
27, 2023. OPM received nine comments on the interim rule: one comment 
from a federal agency and four individual comments. Four other 
individual comments were not responsive to the subject matter discussed 
in the rule and contained privacy protected information.
    One Federal agency (comment OPM-2023-0026-006) recommended OPM 
remove the reference to ``. . . January 1, 2029, or later . . .'' in 5 
CFR 315.612(e)(1)(ii). The interim final rule allows spouses married to 
members of the armed forces on active duty to remain eligible for non-
competitive appointment until December 31, 2028. In accordance with the 
FY 2023 NDAA, on January 1, 2029, eligibility for spouses married to 
members of the armed forces on active duty will require the spouse to 
be indicated on the service member's permanent change of station (PCS) 
orders. The agency suggested that a military spouse should be eligible 
for appointment after January 1, 2029, regardless of the date of the 
PCS orders. OPM cannot adopt this suggestion. Section 573 of the FY 
2019 NDAA amended 5 U.S.C. 3330d by, among other things, authorizing 
the head of an agency to appoint noncompetitively the spouse of a 
member of the armed forces on active duty. This amendment was 
originally to sunset in August 2023, but has since been extended until 
December 31, 2028, by the FY 2023 NDAA. After December 31, 2028, the 
statutory provisions will require a military spouse to have PCS orders 
dated January 1, 2029, or later to be eligible for noncompetitive 
appointment. The statute did not give OPM the authority to waive or 
modify this date.
    Another individual (OPM-2023-0026-0004) did not support OPM's 
interim final rule. This commenter stated that special considerations 
for military spouses negatively impacts recruitment of the best and 
brightest individuals for Federal jobs. OPM does not share this view 
and does not have discretion in implementing this provision, which was 
mandated by statute. Furthermore, OPM notes that several noncompetitive 
and excepted service hiring authorities have been codified to groups of 
applicants in obtaining Federal employment.
    Another individual (OPM-2023-0026-0005) suggested OPM apply these 
rules to spouses of the Department of State's Foreign Service. This 
commenter stated Foreign Service spouses face strains similar to those 
of military families, such as frequent moves overseas, without 
receiving the same level of support that military spouses receive. OPM 
cannot adopt this suggestion because the implementing statute does not 
provide for noncompetitive appointment of spouses of Foreign Service 
personnel unless otherwise eligible under these provisions.
    Another commenter (OPM-2023-0026-0002) provided positive feedback 
and fully supported the swift implementation and expedited effective 
date, saying that the interim final rule ensured that the regulations 
accurately

[[Page 47068]]

reflect the current statute. OPM appreciates this comment.
    A different commenter (OPM-2023-0026-0003) generally supported the 
interim final rule. This individual stated that, although spouses of 
active-duty members face the hardship challenges of finding employment, 
the change to the recruitment date would give them a positive 
advantage. This commenter suggested that if the intent of the rule is 
to enhance the recruitment and hiring of military spouses for permanent 
Federal positions in the competitive service then OPM should remove the 
January 1, 2029 date. OPM appreciates this comment but notes the 
January 1, 2029 recruitment date is specified in statute and that OPM 
cannot alter it via regulation.
    OPM is adopting the interim final rule with no changes.

Expected Impact of This Final Rule

    This final rule adopts, without change, the interim final rule 
implementing statutory changes codified at 5 U.S.C. 3330d, which 
extended the eligibility date for noncompetitive appointment of 
military spouses married to a member of the armed forces on active duty 
until December 31, 2028, and removed the temporary agency reporting 
requirements established under section 573(d) of Public Law 115-232. 
OPM did not receive any comments on the costs identified in the interim 
final rule. The final rule will benefit military spouses married to 
military members on active duty and hiring agencies by reflecting the 
statutorily revised sunset date for the noncompetitive appointment 
hiring authority in the FY 2023 NDAA. This rule also benefits agencies 
by removing duplicative reporting requirements originally established 
under the FY 2019 NDAA provisions.

Administrative Procedure Act

    On September 28, 2023, OPM published an interim final rule (88 FR 
66677) and determined that there was a basis under the Administrative 
Procedure Act for issuing the interim final rule with immediate effect. 
OPM has considered all relevant input and information contained in the 
comments submitted in response to the interim final rule and has 
concluded that no changes to the interim final rule are warranted. OPM 
is adopting the provisions of the interim final rule as a final rule 
with no changes.

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). The 
Office of Management and Budget has determined that this final rule is 
not a ``significant regulatory action'' under Section (3)(f) Executive 
Order 12866, as amended by Executive Order 14094.

Regulatory Flexibility Act

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

Federalism

    This final rule 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 final rule does not have 
federalism implications that require preparation of a federalism 
summary impact statement.

Civil Justice Reform

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

Unfunded Mandates Reform Act of 1995

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

Congressional Review Act

    OMB's Office of Information and Regulatory Affairs has determined 
this final rule does not satisfy the criteria listed in 5 U.S.C. 
804(2).

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

    This final regulatory action will not impose any additional 
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.

PART 315--CAREER AND CAREER-CONDITIONAL EMPLOYMENT

0
Accordingly, the interim rule published in the Federal Register on 
September 28, 2023, at 88 FR 66677, amending 5 CFR part 315, is adopted 
as final without change.

[FR Doc. 2024-11825 Filed 5-30-24; 8:45 am]
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