[Federal Register Volume 76, Number 145 (Thursday, July 28, 2011)]
[Proposed Rules]
[Pages 45205-45208]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-18975]


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OFFICE OF PERSONNEL MANAGEMENT

5 CFR Parts 550 and 591

RIN 3206-AM31


Change in Definitions; Evacuation Pay and the Separate 
Maintenance Allowance at Johnston Island

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 is proposing to revise 
its regulations on evacuation pay and the separate maintenance 
allowance for duty at Johnston Island to ensure that same-sex domestic 
partners of Federal employees and the children of such domestic 
partners have access to these benefits to the same extent as spouses of 
Federal employees and their children. These changes would fulfill the 
Administration policy expressed in Sections 1(a)(v) and (a)(vii) of the 
President's June 2, 2010, memorandum on the ``Extension of Benefits to 
Same-Sex Domestic Partners of Federal Employees.''

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

ADDRESSES: You may submit comments, identified by RIN number ``3206-
AM31'' using either of the following methods:
    Federal eRulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting comments. All submissions received through 
the Portal must include the agency name and docket number or Regulation 
Identifier Number (RIN) for this rulemaking.

[[Page 45206]]

    Mail: Jerome D. Mikowicz, Deputy Associate Director, Pay and Leave, 
U.S. Office of Personnel Management, Room 7H31, 1900 E Street, NW., 
Washington, DC 20415-8200.

FOR FURTHER INFORMATION CONTACT: Kurt Springmann, by telephone at (202) 
606-2858 or by e-mail at [email protected].

SUPPLEMENTARY INFORMATION: The U.S. Office of Personnel Management 
(OPM) is issuing proposed regulations to amend its current regulations 
on evacuation pay at title 5 CFR, part 550, subpart D, and separate 
maintenance allowance for duty at Johnston Island, at title 5 CFR, part 
591, subpart D. These changes would ensure that same-sex domestic 
partners of Federal employees and the children of such domestic 
partners have the same access to these benefits that spouses of Federal 
employees and their children have.

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 two portions of 
the President's memorandum, which identified additional benefits OPM 
had concluded it could offer and requested OPM to (1) ``clarify that 
under appropriate circumstances, employees' same-sex domestic partners 
and their children qualify as dependents for purposes of evacuation 
payments made under 5 U.S.C. 5522-5523''; and (2) ``clarify that 
employees' same-sex domestic partners qualify as dependents for 
purposes of calculating the extra allowance payable under 5 U.S.C. 
5942a to assist employees stationed on Johnston Island, subject to any 
limitations applicable to spouses.''
    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.

Changes to Evacuation Pay Regulations

    The law and regulations governing evacuation pay (5 U.S.C. 5522-
5523 and subpart D of 5 CFR, part 550) provide for payments to offset 
certain expenses incurred because of the evacuation of an employee's 
dependents. In response to the Administration's policy to extend 
benefits to domestic partners of employees, and their children, where 
consistent with law, OPM has undertaken to clarify the evacuation pay 
regulations. OPM is altering its definition of dependent, and is adding 
new definitions for domestic partner, domestic partnership, and family 
member.
    In the current regulations at Sec.  550.402, dependent is defined 
as ``a relative of the employee residing with the employee and 
dependent on the employee for support.'' OPM proposes to change the 
definition of dependent to read ``a family member of the employee 
residing with the employee and dependent on the employee for support.'' 
In order to ensure consistent implementation of the Administration's 
policy and to clarify the definition of dependent, OPM is also adding 
definitions for domestic partner, domestic partnership, and family 
member.
    These definitions are based upon those 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 (4) of the domestic partnership definition requires that 
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, [requires only that there be financial 
interdependence between the partners; it should not be interpreted to 
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 (7). 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.
    The definition of family member is derived from a regulation 
recently published in response to the President's original memorandum 
that amended OPM's regulations on sick leave, voluntary leave transfer, 
voluntary leave bank, and emergency leave transfer. This final 
regulation was published on June 14, 2010 (75 FR 33491), in response to 
Section 1 of the President's original memorandum.
    We believe the modification of the definition of dependent and the 
addition of definitions for domestic partner, domestic partnership, and 
family member, read together, provide a full picture of who qualifies 
for benefits authorized in 5 CFR part 550, subpart D.
    Documentation or proof of a dependent or family member relationship 
for purposes of eligibility for evacuation payments 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 of requests for payments for all dependent 
and family member relationships, including domestic partners.

[[Page 45207]]

Changes to Separate Maintenance Allowance for Duty at Johnston Island

    In response to the directive to clarify the separate maintenance 
allowance for duty at Johnston Island for purposes of calculating the 
extra allowance payable under 5 U.S.C. 5942a, OPM is altering its 
current definition of family member, and is adding new definitions for 
domestic partner and domestic partnership.
    The current regulations found at Sec.  591.402 define a family 
member as ``one or more of the following relatives of an employee who 
would normally reside with the employee except for circumstances 
warranting the granting of a separate maintenance allowance, but who 
does not receive from the Government an allowance similar to that 
granted to the employee and who is not deemed to be a family member of 
another employee for the purpose of determining the amount of a 
separate maintenance allowance or similar allowance:

    OPM proposes to revise the definition of family member to add 
applicable references to domestic partners.
    We believe the modification of the definition of family member 
and the addition of definitions for domestic partner and domestic 
partnership, clarify coverage for purposes of separate maintenance 
allowance. The definitions for domestic partner and domestic 
partnership are the same as those proposed for the evacuation pay 
regulations in this publication.

    Documentation or proof of a family member relationship for purposes 
of eligibility for a separate maintenance allowance at Johnston Island 
will 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 of requests for payments for all 
family members relationships, including domestic partners.

Amount of Payment

    OPM is also adding a reference to domestic partner in Sec.  
591.403(a). The current regulations read: ``The annual rate of the 
separate maintenance allowance paid to an employee shall be determined 
by the number of individuals, including a spouse and/or one or more 
other family members, that are maintained at a location other than 
Johnston Island.'' OPM proposes to change the regulations to say: ``The 
annual rate of the separate maintenance allowance paid to an employee 
shall be determined by the number of individuals, including a spouse, a 
domestic partner, and/or one or more other family members, who are 
maintained at a location other than Johnston Island.'' We believe this 
helps to clarify the coverage.

E.O. 12866, Regulatory Review

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

Regulatory Flexibility Act

    I certify that these regulations will not have a significant 
economic impact on a substantial number of small entities because they 
will 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.
John Berry,
Director.

    Accordingly, OPM is proposing to amend 5 CFR parts 550 and 591 as 
follows:

PART 550--PAY ADMINISTRATION (GENERAL)

Subpart D--Payments and Flexibilities During an Evacuation

    1. The authority citation for subpart D of part 550 continues to 
read as follows:

    Authority:  5 U.S.C. 5527; E.O. 10982, 3 CFR 1959-1963, p.502.

    2. In Sec.  550.402, the definition of ``dependent'' is revised and 
the definitions of ``domestic partner'', ``domestic partnership'', and 
``family member'' are added to read as follows:


Sec.  550.402  Definitions.

* * * * *
    Dependent means a family member of the employee residing with the 
employee and dependent on the employee for support.
* * * * *
    Domestic partner means a person in a domestic partnership with an 
employee or annuitant of the same sex.
    Domestic partnership means a committed relationship between two 
adults of the same sex in which the partners--
    (1) Are each other's sole domestic partner and intend to remain so 
indefinitely;
    (2) 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);
    (3) Are at least 18 years of age and mentally competent to consent 
to contract;
    (4) Share responsibility for a significant measure of each other's 
financial obligations;
    (5) Are not married or joined in a civil union to anyone else;
    (6) Are not the domestic partner of anyone else;
    (7) 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;
    (8) 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, will be determined by the agency; and
    (9) Are willing promptly to disclose, if required by the agency, 
any dissolution or material change in the status of the domestic 
partnership.
* * * * *
    Family member means an individual with any of the following 
relationships to the employee:
    (1) Spouse, and parents thereof;
    (2) Sons and daughters, and spouses thereof;
    (3) Parents, and spouses thereof;
    (4) Brothers and sisters, and spouses thereof;
    (5) Grandparents and grandchildren, and spouses thereof;
    (6) Domestic partner, and children and parents thereof, including a 
domestic partner of any individual in paragraphs (2)-(5) of this 
definition; and
    (7) Any individual related by blood or affinity whose close 
association with the employee is the equivalent of a family 
relationship.
* * * * *

PART 591--ALLOWANCES AND DIFFERENTIALS

Subpart D--Separate Maintenance Allowance for Duty at Johnston 
Island

    3. The authority citation for subpart D of part 591 continues to 
read as follows:

    Authority:  5 U.S.C. 5942a(b); E.O. 12822, 3 CFR, 1992 Comp., p. 
325.

    4. In Sec.  591.402, the definitions of ``domestic partner'' and 
``domestic partnership'' are added, and the definition of ``family 
member'' is revised to read as follows:

[[Page 45208]]

Sec.  591.402  Definitions.

* * * * *
    Domestic partner means a person in a domestic partnership with an 
employee or annuitant of the same sex.
    Domestic partnership means a committed relationship between two 
adults of the same sex in which the partners--
    (1) Are each other's sole domestic partner and intend to remain so 
indefinitely;
    (2) 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);
    (3) Are at least 18 years of age and mentally competent to consent 
to contract;
    (4) Share responsibility for a significant measure of each other's 
financial obligations;
    (5) Are not married or joined in a civil union to anyone else;
    (6) Are not the domestic partner of anyone else;
    (7) 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;
    (8) 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, will be determined by the agency; and
    (9) Are willing promptly to disclose, if required by the agency, 
any dissolution or material change in the status of the domestic 
partnership.
    Family member means one or more of the following relatives of an 
employee who would normally reside with the employee except for 
circumstances warranting the granting of a separate maintenance 
allowance, but who does not receive from the Government an allowance 
similar to that granted to the employee and who is not deemed to be a 
family member of another employee for the purpose of determining the 
amount of a separate maintenance allowance or similar allowance:
    (1) Children who are unmarried and under 21 years of age or who, 
regardless of age, are incapable of self-support, including natural 
children, step and adopted children, and those under legal guardianship 
or custody of the employee, or of the employee's spouse or domestic 
partner, when they are expected to be under such legal guardianship or 
custody at least until they reach 21 years of age and when dependent 
upon and normally residing with the guardian;
    (2) Parents (including step and legally adoptive parents) of the 
employee, or of the employee's spouse or domestic partner, when such 
parents are at least 51 percent dependent on the employee for support;
    (3) Sisters and brothers (including step or adoptive sisters and 
brothers) of the employee, or of the employee's spouse or domestic 
partner, when such sisters and brothers are at least 51 percent 
dependent on the employee for support, unmarried and under 21 years of 
age, or regardless of age, are incapable of self-support;
    (4) Spouse, excluding a spouse independently entitled to and 
receiving a similar allowance; or
    (5) Domestic partner, excluding a domestic partner independently 
entitled to and receiving a similar allowance.
* * * * *
    4. In Sec.  591.403, revise paragraph (a) to read as follows:


Sec.  591.403  Amount of payment.

    (a) The annual rate of the separate maintenance allowance paid to 
an employee shall be determined by the number of individuals, including 
a spouse, a domestic partner, and/or one or more other family members, 
who are maintained at a location other than Johnston Island.
* * * * *
[FR Doc. 2011-18975 Filed 7-27-11; 8:45 am]
BILLING CODE 6325-39-P