[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
Friday,
No. 140
July 20, 2012
Part IV
Office of Personnel Management
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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]]
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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: Final rule.
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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
enjoy.
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,
Director.
Accordingly, OPM is amending 5 CFR part 315 as follows:
[[Page 42903]]
PART 315--CAREER AND CAREER-CONDITIONAL EMPLOYMENT
0
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.
0
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
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 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
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. 2012-17536 Filed 7-19-12; 8:45 am]
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