[Federal Register Volume 76, Number 145 (Thursday, July 28, 2011)]
[Proposed Rules]
[Pages 45204-45205]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-18971]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 76, No. 145 / Thursday, July 28, 2011 / 
Proposed Rules  

[[Page 45204]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 315

RIN 3206-AM35


Noncompetitive Appointment of Certain Former Overseas Employees

AGENCY: U.S. Office of Personnel Management.

ACTION: Proposed rule with request for comments.

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SUMMARY: The U.S. Office of Personnel Management (OPM) is issuing 
proposed regulations to clarify that an employee's same-sex domestic 
partner qualifies, and should be treated as, a family member for 
purposes of eligibility for noncompetitive appointment based on 
overseas employment, as provided in section 315.608 of title 5, Code of 
Federal Regulations. These regulations implement, in part, a June 2, 
2010, Presidential Memorandum by providing same-sex domestic partners 
with the same employment opportunities that opposite-sex spouses of 
Federal employees receive under 5 CFR 315.608.

DATES: Comments must be received on or before September 26, 2011.

ADDRESSES: You may submit comments, which are identified by RIN 3206-
AM35, by any of the following methods:
     Federal eRuling Portal: http://www.regulations.gov. Follow 
the instructions for submitting comments.
     E-mail: [email protected]. Include ``RIN 3206-AM35, Career 
and Career-Conditional Employment'' in the subject line of the message.
     Fax: (202) 606-4430.
     Mail: Angela Bailey, Deputy Associate Director for 
Recruitment and Hiring, U.S. Office of Personnel Management, Room 6566, 
1900 E Street, NW., Washington, DC 20415-9700.

FOR FURTHER INFORMATION CONTACT: Michelle Glynn, 202-606-0960, Fax: 
202-606-4430 by TDD: 202-418-3134, or e-mail: [email protected].

SUPPLEMENTARY INFORMATION: The U.S. Office of Personnel Management 
(OPM) is issuing proposed regulations to amend its current regulations 
on career and career conditional employment at title 5, Code of Federal 
Regulations (CFR), part 315. These changes would ensure that an 
employee's same-sex domestic partner qualifies, and should be treated 
as, a family member for purposes of eligibility for noncompetitive 
appointment based on overseas employment, as provided in section 
315.608 of title 5, CFR.

Background

    On June 17, 2009, President Obama issued a memorandum regarding 
Federal benefits and non-discrimination that requested the Secretary of 
State and the Director of OPM, in consultation with the Department of 
Justice, to extend previously identified statutorily based benefits 
that those agencies believed could be extended to qualified same-sex 
domestic partners of Federal employees consistent with underlying law. 
This memorandum also directed the heads of executive departments and 
agencies, in consultation with OPM, to conduct a review of the benefits 
offered by their respective departments and agencies to determine 
whether they had the authority to extend such benefits to the same-sex 
domestic partners of Federal employees. The memorandum further 
requested that OPM, in consultation with the Department of Justice, 
make recommendations regarding any additional measures that could be 
taken to provide benefits to the same-sex domestic partners of Federal 
Government employees, consistent with existing law.
    On June 2, 2010, the President issued another memorandum, entitled 
``Extension of Benefits to Same-Sex Domestic Partners of Federal 
Employees,'' that published the results of the review and identified 
the benefits that could be extended to same-sex domestic partners and 
their families. This proposed regulation responds to Section 1(a)(iii) 
of the President's memorandum, which identified additional benefits OPM 
had concluded it could offer and requested OPM to ``issue a proposed 
rule that would clarify that employees' same-sex domestic partners 
qualify as `family members' for purposes of noncompetitive appointments 
made pursuant to Executive Order 12721 of July 30, 1990.''
    Also on June 2, 2010, OPM issued a Memorandum for the Heads of 
Executive Departments and Agencies, entitled ``Implementation of the 
President's Memorandum Regarding Extension of Benefits to Same-Sex 
Domestic Partners of Federal Employees'' to help fulfill the 
Administration's policy. The memorandum provides definitions to help 
ensure its consistent application across the Federal Government.
    Section 315.608 of title 5, CFR, authorizes noncompetitive 
appointments to competitive service positions in the United States for 
certain family members of Federal employees and military personnel who 
have served overseas. To be eligible for noncompetitive appointment 
under this authority, a ``family member'' must have completed 52 weeks 
of creditable service under a local hire appointment overseas during 
the time he or she accompanied a Federal civilian employee or member of 
a uniformed service officially assigned to an overseas location. Family 
members must also meet all applicable provisions of 5 CFR 315.608 in 
order to be eligible for noncompetitive appointment. The definition of 
``family member'' in 5 CFR 315.608(e)(1) is currently limited to an 
``unmarried child under the age of 23 or a spouse.'' To implement 
section 1(a)(iii) of the President's June 2, 2010, memorandum, OPM is 
proposing to change the definition of ``family member'' and to add new 
definitions for ``domestic partner'' and ``domestic partnership'' at 5 
CFR 315.608(e).
    These definitions are based upon the definitions contained in the 
Memorandum for the Heads of Executive Departments and Agencies, 
entitled ``Implementation of the President's Memorandum Regarding 
Extension of Benefits to Same-Sex Domestic Partners of Federal 
Employees,'' which OPM issued on June 2, 2010.
    Paragraph (iv) of the domestic partnership definition requires that 
the partners ``share responsibility for a significant measure of each 
other's financial obligations.'' This criterion, which appears in this 
and in prior regulations promulgated pursuant to the President's June 
2, 2010, memorandum, is intended to require only that there be 
financial interdependence between the partners; it should not be 
interpreted to

[[Page 45205]]

exclude partnerships in which one partner stays at home while the other 
is the primary breadwinner.
    We have made a slight change to the wording of criterion (vii). 
That criterion is intended to prohibit recognition of domestic 
partnerships between individuals who are related in a manner that would 
preclude them from marrying were they of opposite sexes. We are 
maintaining this criterion, but clarifying that the determination is to 
be made at the time the domestic partnership is formed. It should not 
be re-examined if the couple relocates to a different jurisdiction. 
This approach is consistent with treatment of opposite-sex marriages.
    For the reasons outlined in the President's June 17, 2009, and June 
2, 2010, memoranda, these regulations extend domestic partnership 
benefits only to same-sex couples who are currently unable to obtain 
spousal benefits by entering a Federally recognized marriage.
    Documentation or proof of a family member relationship for purposes 
of noncompetitive appointment eligibility would be based on each 
agency's internal policies. Agencies have authority to request 
additional information in cases of suspected abuse or fraud, and they 
would continue to be able to exercise that authority under these 
proposed regulations. Agencies would be expected to apply the same 
standards for verification for all dependent and family member 
relationships, including domestic partners.

E.O. 12866 and E.O. 13563 Regulatory Review

    This rule has been reviewed by the Office of Management and Budget 
in accordance with Executive Order 12866 and Executive Order 13563.

Regulatory Flexibility Act

    I certify that this regulation will not have a significant economic 
impact on a substantial number of small entities because it affects 
only Federal agencies and employees.

List of Subjects

    Government employees.

U.S. Office of Personnel Management.
John Berry,
Director.

    Accordingly, OPM is proposing to amend 5 CFR part 315 as follows:

PART 315--CAREER AND CAREER-CONDITIONAL EMPLYOMENT

    1. The authority citation for part 315 continues 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. 2560. 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. In Sec.  315.608, paragraph (e)(1) is revised and paragraphs 
(e)(6) and (e)(7) are added to read as follows:


Sec.  315.608  Noncompetitive appointment of certain former overseas 
employees.

    (e) * * *
    (1) Family member. An unmarried child under age 23, a spouse, or a 
domestic partner. An individual must have been a family member at the 
time he or she met the overseas service requirement and other 
conditions but does not need to be a family member at the time of 
noncompetitive appointment in the United States.
* * * * *
    (6) Domestic partner. A person in a domestic partnership with an 
employee or annuitant of the same sex
    (7) Domestic partnership. A committed relationship between two 
adults, of the same sex, in which the partners:
    (i) Are each other's sole domestic partner and intend to remain so 
indefinitely;
    (ii) Maintain a common residence, and intend to continue to do so 
(or would maintain a common residence but for an assignment abroad or 
other employment-related, financial, or similar obstacle);
    (iii) Are at least 18 years of age and mentally competent to 
consent to contract;
    (iv) Share responsibility for a significant measure of each other's 
financial obligations;
    (v) Are not married or joined in a civil union to anyone else;
    (vi) Are not the domestic partner of anyone else;
    (vii) Are not related in a way that, if they were of opposite sex, 
would prohibit legal marriage in the U.S. jurisdiction in which the 
domestic partnership was formed;
    (viii) Are willing to certify, if required by the agency, that they 
understand that willful falsification of any documentation required to 
establish that an individual is in a domestic partnership may lead to 
disciplinary action and the recovery of the cost of benefits received 
related to such falsification, as well as constitute a criminal 
violation under 18 U.S.C. 1001, and that the method for securing such 
certification, if required, shall be determined by the agency; and
    (ix) Are willing promptly to disclose, if required by the agency, 
any dissolution or material change in the status of the domestic 
partnership.
* * * * *
[FR Doc. 2011-18971 Filed 7-27-11; 8:45 am]
BILLING CODE 6325-39-P