[Federal Register Volume 77, Number 140 (Friday, July 20, 2012)]
[Rules and Regulations]
[Pages 42901-42903]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-17536]

[[Page 42901]]

Vol. 77


No. 140

July 20, 2012

Part IV

Office of Personnel Management


5 CFR Parts 315, 550, 591, et al.

 Same-Sex Domestic Partners: Noncompetitive Appointment of Certain 
Former Overseas Employees; Change in Definitions; Child Care Costs for 
Lower Income Employees; Presumption of Insurable Interest; Final Rules; 
Expanding Coverage of Children Federal Flexible Benefits Plan: Pre-Tax 
Payment of Health Benefits Premiums; Proposed Rule

Federal Register / Vol. 77 , No. 140 / Friday, July 20, 2012 / Rules 
and Regulations

[[Page 42902]]



5 CFR Part 315

RIN 3206-AM35

Noncompetitive Appointment of Certain Former Overseas Employees

AGENCY: U.S. Office of Personnel Management.

ACTION: Final rule.


SUMMARY: The U.S. Office of Personnel Management (OPM) is issuing final 
regulations to establish that an employee's same-sex domestic partner 
qualifies as a family member for purposes of eligibility for 
noncompetitive appointment based on overseas employment. The intended 
effect of this regulation is to ensure same-sex domestic partners are 
treated as family members.

DATES: This rule is effective August 20, 2012.

FOR FURTHER INFORMATION CONTACT: Michelle Glynn, 202-606-0960, Fax: 
202-606-2329 by TDD: 202-418-3134, or email: [email protected].

SUPPLEMENTARY INFORMATION: On July 28, 2011, OPM published proposed 
regulations in the Federal Register at 76 FR 45204 to establish that an 
employee's same-sex domestic partner qualifies as, and should be 
treated as, a family member for purposes of eligibility for 
noncompetitive appointment based on overseas employment, as provided in 
Sec.  315.608 of title 5, Code of Federal Regulations. This final rule 
makes the proposed changes in response to the Obama Administration's 
request, in Presidential Memoranda dated June 17, 2009, and June 2, 
2010, that agencies consider extending benefits, where possible, to 
same-sex domestic partners, and OPM's determination to make benefits 
available to same-sex domestic partners, to the extent feasible, in 
this context. In particular, the rule is responsive to Section 
1(a)(iii) of the Presidential Memorandum dated June 2, 2010, entitled 
``Extension of Benefits to Same-Sex Domestic Partners of Federal 
Employees,'' which requested OPM to ``issue a proposed rule that would 
clarify that employee's same-sex domestic partners qualify as `family 
members' for purposes of noncompetitive appointments made pursuant to 
Executive Order 12721 of July 30, 1990.'' OPM received comments from 3 
individuals on the proposed rule.
    One individual commented that the eligibility for noncompetitive 
appointment should only be granted if the same-sex couple has entered 
into a legal marriage contract. OPM is not adopting this suggestion. 
Marriage is not an option for same-sex couples with respect to Federal 
benefits, because of the Defense of Marriage Act (``DOMA''), 1 U.S.C. 
7. Even if DOMA were not an obstacle, same-sex couples are not 
permitted to marry in most states. Thus, if we were to extend this 
eligibility only to those who are able to enter into a legal marriage 
contract, we would be defeating the objective, which is to provide the 
same opportunity to same-sex partners of Federal employees that spouses 
    One individual commented that the definition of ``domestic 
partner'' is too vague and would allow for casual relationships to be 
considered to be domestic partnerships for purposes of noncompetitive 
appointment eligibility. The commenter also suggested that domestic 
partners, in order to be covered, should be in a union recognized by a 
State or other legal body. OPM disagrees with these comments. OPM notes 
that the term ``domestic partner'' is defined at length in the 
regulation and specifies that the underlying domestic partnership must 
meet nine criteria, which are enumerated in the regulation. In 
connection with the Presidential Memoranda referenced above, OPM 
Director John Berry issued a June 2, 2010, 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 provides standard 
definitions for agencies to use in undertaking changes to their 
existing regulations in response to the President's request. The 
definition adopted here includes a provision (described in Sec.  
315.608(e)(7)) which allows agencies to require same-sex domestic 
partners to certify their relationship is a committed one, rather than 
a casual one, for eligibility under this section. Therefore, the 
concern underlying this comment has already been addressed, and OPM 
does not plan to adopt the commenter's suggestion.
    We have, however, revised the definition of domestic partner 
slightly by replacing the phrase ``employee or annuitant of the same 
sex'' with ``sponsor of the same sex.'' The original phrase was 
inaccurate and did not conform to paragraph (e)(2) of this section, 
entitled ``Sponsor,'' which sets out the categories of Federal 
affiliation that can give rise creditable service for a family member. 
Pursuant to paragraph (e)(2), this provision covers family members of 
``[a] Federal civilian employee, a Federal nonappropriated fund 
employee, or a member of a uniformed service who is officially assigned 
to an overseas area.'' By using the term ``sponsor,'' instead, we have 
incorporated this definition.
    An agency commented that section (iv) of the definition of 
``domestic partnership,'' which requires that the partners ``share 
responsibility for a significant measure of each other's financial 
obligations'' should be read to include relationships where one person 
works and the other does not. We agree. This criterion, which appears 
in this and in prior regulations promulgated in response 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 require the exclusion of partnerships in which one 
partner stays at home while the other is the primary breadwinner.''
    One individual commented that this rule discriminates against 
family members who are not same-sex partners. OPM disagrees, noting 
that the definition of ``family member'' has simply been broadened to 
include a person in a domestic partnership with a sponsor of the same 
sex, but is otherwise unchanged. Spouses of sponsors (i.e., spouses of 
opposite sex, pursuant to DOMA) and unmarried children under age 23 
will continue to be covered as before. OPM has declined to extend the 
definition of family member to the partner of an opposite-sex sponsor 
because opposite-sex couples may bring themselves within coverage by 
marrying. As discussed above, because of DOMA, marriage is not an 
option for same-sex couples wishing to obtain Federal benefits.

Executive Order 13563 and Executive Order 12866, Regulatory Review

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

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 in 5 CFR Part 315

    Government employees.

U.S. Office of Personnel Management.
 John Berry,
    Accordingly, OPM is amending 5 CFR part 315 as follows:

[[Page 42903]]


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 (7) are added to read as follows:

Sec.  315.608  Noncompetitive appointment of certain former overseas 

    (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 a 
sponsor 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 
    (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 
* * * * *

[FR Doc. 2012-17536 Filed 7-19-12; 8:45 am]