[Federal Register Volume 78, Number 183 (Friday, September 20, 2013)]
[Rules and Regulations]
[Pages 57783-57784]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-22898]



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 Rules and Regulations
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  Federal Register / Vol. 78, No. 183 / Friday, September 20, 2013 / 
Rules and Regulations  

[[Page 57783]]



FEDERAL RETIREMENT THRIFT INVESTMENT BOARD

5 CFR Parts 1651 and 1690


Implementation of United States v. Windsor

AGENCY: Federal Retirement Thrift Investment Board.

ACTION: Interim final rule with request for comments.

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SUMMARY: The Federal Retirement Thrift Investment Board (FRTIB) is 
revising its regulations to provide that the FRTIB will look to the 
laws of the jurisdiction of celebration to determine whether a Thrift 
Savings Plan participant is married.

DATES: This interim final rule is effective September 20, 2013. 
Comments should be received on or before October 21, 2013.

ADDRESSES: You may submit comments using one of the following methods:
     Mail: Office of General Counsel, Attn: James B. Petrick, 
Federal Retirement Thrift Investment Board, 77 K Street NE., 
Washington, DC 20002.
     Hand Delivery/Courier: The address for sending comments by 
hand delivery or courier is the same as that for submitting comments by 
mail.
     Facsimile: Comments may be submitted by facsimile at (202) 
942-1676.
    The most helpful comments explain the reason for any recommended 
change and include data, information, and the authority that supports 
the recommended change.

FOR FURTHER INFORMATION CONTACT: Laurissa Stokes at (202) 942-1645.

SUPPLEMENTARY INFORMATION: The FRTIB administers the Thrift Savings 
Plan (TSP), which was established by the Federal Employees' Retirement 
System Act of 1986 (FERSA), Public Law 99-335, 100 Stat. 514. The TSP 
provisions of FERSA are codified, as amended, largely at 5 U.S.C. 8351 
and 8401-79. The TSP is a tax-deferred retirement savings plan for 
Federal civilian employees and members of the uniformed services. The 
TSP is similar to cash or deferred arrangements established for 
private-sector employees under section 401(k) of the Internal Revenue 
Code (26 U.S.C. 401(k)).
    Section 3 of the Defense of Marriage Act (codified at 1 U.S.C. 7) 
provided that, when used in a Federal law, the term ``marriage'' would 
mean only a legal union between one man and one woman as husband and 
wife, and that the term ``spouse'' referred only to a person of the 
opposite sex who is a husband or a wife. The U.S. Supreme Court 
recently held in United States v. Windsor that section 3 of the Defense 
of Marriage Act is unconstitutional. Windsor requires the FRTIB to 
defer to state law in determining the marital status of TSP 
participants.
    The FRTIB anticipates conflicting state laws. For example, a same-
sex couple might get married in a state that permits same-sex marriage 
and then move to a state that does not recognize same-sex marriages 
performed in other states or foreign countries. Whether that couple is 
married for TSP purposes will hinge on whether the FRTIB looks to the 
laws of the jurisdiction of celebration (i.e., the jurisdiction in 
which the marriage was initially established) or the laws of the 
participant's state of domicile.
    The TSP has one existing choice-of-law provision pertaining to 
marriage. It is found in 5 CFR 1651.5(a), and says that the state law 
of the participant's domicile will be used to determine whether a 
participant was married for purposes of distributing death benefits 
from his or her TSP account.
    The FRTIB is required by statute to administer the Thrift Savings 
Plan solely in the interest of its participants and beneficiaries and 
for the exclusive purposes of (1) providing benefits to participants 
and their beneficiaries, and (2) defraying the reasonable expenses of 
administering the Thrift Savings Fund. 5 U.S.C. 8477(b)(1)(A). Section 
1651.5(a) prohibits the FRTIB from offering certain TSP benefits to the 
same-sex spouses of participants who are domiciled in states that do 
not recognize same-sex marriages performed in other states or foreign 
countries. The current choice-of-law is detrimental to a population of 
TSP participants and does not serve to defray the expenses of 
administering the Thrift Savings Fund. Therefore, the FRTIB is revising 
its regulations to provide that the FRTIB will look to the jurisdiction 
of celebration to determine a participant's marital status. The FRTIB 
will adopt a final rule after consideration of public comments on this 
interim rule.

Interim Final Rule and Request for Comments

    Under section 553(b) of the Administrative Procedure Act (APA) (5 
U.S.C. 551 et seq.) a general notice of proposed rulemaking is not 
required when an agency, for good cause, finds that notice and public 
comment thereon are impracticable, unnecessary, or contrary to the 
public interest. The FRTIB has determined that immediate action is 
necessary to allow the FRTIB to implement United States v. Windsor in a 
manner that comports with its statutory obligation to administer the 
Thrift Savings Plan solely in the interest of its participants and 
beneficiaries to the extent consistent with Chapter 5 of the United 
States Code.
    The FRTIB encourages public comments on this interim final rule. 
The FRTIB will adopt a final rule after consideration of public 
comments on this interim rule.

Regulatory Flexibility Act

    I certify that this regulation will not have a significant economic 
impact on a substantial number of small entities. This regulation will 
affect Federal employees and members of the uniformed services who 
participate in the Thrift Savings Plan, which is a Federal defined 
contribution retirement savings plan created under the Federal 
Employees' Retirement System Act of 1986 (FERSA), Public Law 99-335, 
100 Stat. 514, and which is administered by the FRTIB. It will also 
affect spouses, former spouses, children, or dependents of TSP 
participants.

Paperwork Reduction Act

    I certify that these regulations do not require additional 
reporting under the criteria of the Paperwork Reduction Act.

Unfunded Mandates Reform Act of 1995

    Pursuant to the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 602, 
632, 653, 1501-1571, the effects of this

[[Page 57784]]

regulation on state, local, and tribal governments and the private 
sector have been assessed. This regulation will not compel the 
expenditure in any one year of $100 million or more by state, local, 
and tribal governments, in the aggregate, or by the private sector. 
Therefore, a statement under Sec.  1532 is not required.

Submission to Congress and the General Accounting Office

    Pursuant to 5 U.S.C. 810(a)(1)(A), the FRTIB submitted a report 
containing this rule and other required information to the U.S. Senate, 
the U.S. House of Representatives, and the Comptroller General of the 
United States before publication of this rule in the Federal Register. 
This rule is not a major rule as defined at 5 U.S.C. 804(2).

List of Subjects

5 CFR Part 1651

    Claims, Government employees, Pensions, Retirement.

5 CFR Part 1690

    Government employees, Pensions, Retirement.

Gregory T. Long,
Executive Director, Federal Retirement Thrift Investment Board.

    For the reasons stated in the preamble, the FRTIB amends 5 CFR 
chapter VI as follows:

PART 1651--DEATH BENEFITS

0
1. The authority citation for part 1651 continues to read as follows:

    Authority: 5 U.S.C. 8424(d), 8432d, 8432(j), 8433(e), 
8435(c)(2), 8474(b)(5) and 8474(c)(1).


Sec.  1651.1  [Amended]

0
2. Amend paragraph (b) Sec.  1651.1 to remove the definition of 
``domicile.''
0
3. Revise paragraph (a) of Sec.  1651.5 to read as follows:


Sec.  1651.5  Spouse of participant.

    (a) For purposes of payment under Sec.  1651.2(a)(2) and 
establishment of beneficiary participant accounts under Sec.  1651.19, 
the spouse of the participant is the person to whom the participant was 
married on the date of death. A person is considered to be married even 
if the parties are separated, unless a court decree of divorce or 
annulment has been entered. The laws of the jurisdiction in which the 
marriage was initially established will be used to determine whether 
the participant was married on the date of death.
* * * * *

PART 1690--THRIFT SAVINGS PLAN

0
4. The authority citation for part 1690 continues to read as follows:

    Authority: 5 U.S.C. 8474.


0
5. Revise the definition of ``spouse'' in Sec.  1690.1 to read as 
follows:


Sec.  1690.1  Definitions.

* * * * *
    Spouse means the person to whom a TSP participant is married on the 
date he or she signs a form on which the TSP requests spousal 
information. Where a participant is seeking to reclaim an account that 
has been forfeited pursuant to 5 CFR 1650.16, spouse means the person 
to whom the participant was married on the withdrawal deadline. For 
purposes of 5 CFR 1651.5 and 5 CFR 1651.19, spouse means the person to 
whom the participant was married on the date of the participant's 
death. A TSP participant is considered to be married even if the 
parties are separated, unless a court decree of divorce or annulment 
has been entered. The laws of the jurisdiction in which the marriage 
was initially established will be used to determine whether a TSP 
participant is married.
* * * * *
[FR Doc. 2013-22898 Filed 9-19-13; 8:45 am]
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