[Federal Register Volume 79, Number 123 (Thursday, June 26, 2014)]
[Proposed Rules]
[Pages 36279-36281]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-14703]


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GENERAL SERVICES ADMINISTRATION

41 CFR Part 300-3

[FTR Case 2014-301; Docket No. 2014-0012, Sequence 1]
RIN 3090-AJ44


Federal Travel Regulation (FTR); Terms and Definitions for 
``Marriage,'' ``Spouse,'' and ``Domestic Partnership''

AGENCY: Office of Government-wide Policy, General Services 
Administration (GSA).

ACTION: Proposed rule.

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[[Page 36280]]

SUMMARY: The General Services Administration (GSA) is proposing to 
amend the Federal Travel Regulation (FTR) by adding terms and 
definitions for ``Marriage'' and ``Spouse,'' and by proposing to revise 
the definition of ``Domestic Partnership''.

DATES: Interested parties should submit written comments to the 
Regulatory Secretariat at one of the address shown below on or before 
August 25, 2014 to be considered in the formation of the final rule.

ADDRESSES: Submit comments identified by FTR Case 2014-301 by any of 
the following methods:
     Federal eRulemaking Portals: http://www.regulations.gov. 
Submit comments via the Federal eRulemaking portal by searching for 
``FTR Case 2014-301''. Select the link ``Comment Now'' that corresponds 
with ``FTR Case 2014-301'' and follow the instructions provided at the 
screen. Please include your name, company name (if any), and ``FTR Case 
2014-301'' on your attached document.
     Fax: 202-208-1398.
     Mail: General Services Administration, Regulatory 
Secretariat (MVCB), 1800 F Street NW., Attn: Hada Flowers, Washington, 
DC 20405-0001.
    Instructions: Please submit comments only and cite FTR case 2014-
301 in all correspondence related to this case. All comments received 
will be posted without change to http://www.regulations.gov, including 
any personal information provided.

FOR FURTHER INFORMATION CONTACT: For clarification of content, contact 
Rick Miller, Office of Government-wide Policy, Travel and Relocation 
Policy Division at (202) 501-3822 or email at [email protected]. 
Contact the U.S. General Services Administration, Regulatory 
Secretariat Division (MVCB), 1800 F Street NW., Washington, DC 20405-
0001, (202) 501-4755, for information pertaining to status or 
publication schedules. Please cite FTR Case 2014-301.

SUPPLEMENTARY INFORMATION:

A. Background

    Section 3 of the Defense of Marriage Act (DOMA) 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. Because of DOMA, the Federal Government has been 
heretofore prohibited from recognizing marriages of same-sex couples 
for the purposes of travel and relocation entitlements.
    On June 17, 2009, President Obama signed a Presidential Memorandum 
on Federal Benefits and Non-Discrimination stating that ``[t]he heads 
of all other executive departments and agencies, in consultation with 
the Office of Personnel Management, shall conduct a review of the 
benefits provided by their respective departments and agencies to 
determine what authority they have to extend such benefits to same-sex 
domestic partners of Federal employees.'' As part of its review, GSA 
identified a number of changes to the Federal Travel Regulation (FTR) 
that could be made. Subsequently, on June 2, 2010, President Obama 
signed a Presidential Memorandum directing agencies to immediately take 
actions, consistent with existing law, to extend certain benefits, 
including travel and relocation benefits, to same-sex domestic partners 
of Federal employees, and, where applicable, to the children of same-
sex domestic partners of Federal employees.
    GSA published an interim rule and a final rule, respectively in the 
Federal Register on November 3, 2010, and on September 28, 2011 (75 FR 
67629 and 76 FR 59914), that fulfilled the Presidential Memorandum by, 
among other things, amending the definition of ``immediate family'' in 
the FTR to include same-sex domestic partners and their dependents.
    On June 26, 2013, in United States v. Windsor, 570 U.S. 12 (2013), 
the Supreme Court of the United States (Supreme Court) held Section 3 
of DOMA unconstitutional. As a result of this decision, GSA is now able 
to extend travel and relocation entitlements to Federal employees who 
are legally married to spouses of the same sex. Pursuant to 5 U.S.C. 
5707, the Administrator of General Services is authorized to prescribe 
necessary regulations to implement laws regarding Federal employees who 
are traveling while in the performance of official business away from 
their official stations. Similarly, 5 U.S.C. 5738 mandates that the 
Administrator of General Services prescribe regulations relating to 
official relocation. The overall implementing authority is the FTR, 
codified in Title 41 of the Code of Federal Regulations, Chapters 300-
304 (41 CFR Chapters 300-304).
    Pursuant to this authority, this proposed rule adds a definition 
for the terms ``Marriage'' and ``Spouse,'' and proposes to revise the 
definition of the term ``Domestic Partnership.'' Due to current 
statutory restrictions, however, this proposed final rule does not 
apply to the relocation income tax allowance or the income tax 
reimbursement allowance for state tax laws when the applicable state 
does not recognize same-sex marriage.
    The term ``marriage'' is proposed to include any marriage, 
including a marriage between individuals of the same sex, that was 
entered into in a state (or foreign country) whose laws authorize the 
marriage, even if the married couple is domiciled in a state (or 
foreign country) that does not recognize the validity of the marriage. 
The term also includes common law marriage in states where such 
marriages are recognized, so long as they are proven according to the 
applicable state laws. The term ``spouse'' is proposed to include any 
individual who has entered into such a marriage.
    The term ``marriage'' will not include registered domestic 
partnerships, civil unions, or other similar formal relationships 
recognized under state (or foreign country) law that are not 
denominated as a marriage under that state's (or foreign country's) 
law, and the terms ``spouse,'' ``husband and wife,'' ``husband,'' and 
``wife'' do not include individuals who have entered into such a 
relationship. This conclusion will apply regardless of whether 
individuals who have entered into such relationships are of the 
opposite sex or the same sex.
    At the time the definition of ``immediate family'' in the FTR was 
amended to include same-sex domestic partners and their dependents, 
Section 3 of DOMA prohibited GSA from recognizing same-sex marriages. 
Thus, the availability of same-sex marriage in a particular state was 
not relevant to the determination of coverage eligibility for travel 
and relocation benefits. Now that, pursuant to Windsor and the 
amendments proposed by this rule, FTR coverage is available to the 
same-sex spouses of Federal employees, GSA has reconsidered the need 
and scope of the extension of FTR coverage to same-sex domestic 
partners. A minority of states currently permits same-sex marriage, and 
therefore, many same-sex couples do not have the same access to 
marriage that is available to opposite-sex couples. Until marriage is 
available to same-sex couples in all fifty states, the extension of 
benefits to same-sex domestic partners will continue to play an 
important role in bridging the gap in legal treatment between same-sex 
and opposite-sex couples. Therefore, GSA proposes tailoring FTR 
coverage to those same-sex couples who would marry, but live in states 
where same-sex marriage is prohibited.
    Same-sex couples living in states that allow them to marry have 
access to many, if not all, of the protections that

[[Page 36281]]

married opposite-sex couples enjoy. Therefore, for employees living in 
states where they are able to marry, there is less need to create a 
separate path by which same-sex domestic partners are eligible for FTR 
benefits. For those employees unable to marry under the laws of the 
states in which they live, however, it is appropriate to extend FTR 
coverage to same-sex domestic partners in the form described in this 
regulation.
    Therefore, the term ``domestic partnership'' is proposed to be 
updated to read that same-sex domestic partners that have a documented 
domestic partnership, and reside in a state (or foreign country) whose 
laws do not recognize the validity of same-sex marriage will still be 
considered an immediate family member under the FTR, only if they 
certify that they would marry but for the failure of their state of 
residence to permit same-sex marriage. For those individuals who reside 
in states (or foreign countries) that authorize the marriage of two 
individuals of the same sex, the individuals will no longer be 
considered domestic partners or immediate family members due to the 
certification requirement.

B. Executive Orders 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives, and if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This is a ``significant regulatory action,'' and 
therefore, was subject to review under section 6(b) of E.O. 12866, 
Regulatory Planning and Review, dated September 30, 1993. Accordingly, 
the proposed rule has been reviewed by the Office of Management and 
Budget. This proposed rule is not a major rule under 5 U.S.C. 804.

C. Regulatory Flexibility Act

    This proposed rule will not have a significant economic impact on a 
substantial number of small entities within the meaning of the 
Regulatory Flexibility Act, 5 U.S.C. 601, et seq. This proposed rule is 
also exempt from Administrative Procedure Act per 5 U.S.C. 553(a)(2), 
because it applies to agency management or personnel.

D. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the changes to 
the Federal Travel Regulation do not impose recordkeeping or 
information collection requirements, or the collection of information 
from offerors, contractors, or members of the public that require the 
approval of the Office of Management and Budget under 44 U.S.C. 3501, 
et seq.

E. Small Business Regulatory Enforcement Fairness Act

    This proposed rule is also exempt from Congressional review 
prescribed under 5 U.S.C. 801 since it relates solely to agency 
management and personnel.

List of Subjects in 41 CFR Part 300-3

    Government employees, Relocation, Travel, and Transportation 
expenses.

    Dated: June 18, 2014.
Christine J. Harada,
Associate Administrator, Office of Governmentwide Policy.

    For the reasons set forth in the Preamble, under 5 U.S.C. 5701-
5709, 5721-5738, and 5741-5742, GSA proposes to amend 41 CFR part 300-
3, as set forth below:

PART 300-3--GLOSSARY OF TERMS

0
1. The authority citation for 41 CFR part 300-3 continues to read as 
follows:

    Authority:  5 U.S.C. 5707; 40 U.S.C. 121(c); 49 U.S.C. 40118; 5 
U.S.C. 5738; 5 U.S.C. 5741-5742; 20 U.S.C. 905(a); 31 U.S.C. 1353; 
E.O. 11609, as amended; 3 CFR, 1971-1975 Comp., p. 586, OMB Circular 
No. A-126, revised May 22, 1992.

0
2. Amend Sec.  300-3.1 by--
0
a. In the definition ``Domestic partnership''
0
1. Removing from paragraph (8) the word ``and'' at the end of the 
sentence;
0
2. Removing from paragraph (9) the period at the end of the sentence 
and adding ``; and'' in its place; and
0
3. Adding paragraph (10); and
0
b. Adding, in alphabetical order, the definitions ``Marriage'' and 
``Spouse''.
    The additions read as follows:


Sec.  300-3.1  What do the following terms mean?

* * * * *
    Domestic partnership-- * * *
    (10) Certify that they would marry but for the failure of their 
state of residence to permit same-sex marriage.
* * * * *
    Marriage--A legal union between individuals that was entered into 
in a state (or foreign country) whose laws authorize the marriage, even 
if the married couple is domiciled in a state (or foreign country) that 
does not recognize the validity of the marriage. The term also includes 
common law marriage in a state (or foreign country) where such 
marriages are recognized, so long as they are proven according to the 
applicable state or foreign laws. The term marriage does not include 
registered domestic partnerships, civil unions, or other similar formal 
relationships recognized under state (or foreign country) law that are 
not denominated as a marriage under that state's (or foreign country's) 
law.
* * * * *
    Spouse--Any individual who is lawfully married, including an 
individual married to a person of the same sex who was legally married 
in a state that recognizes such marriages, regardless of whether or not 
the individual's state of residency recognizes such marriages. The term 
``spouse'' does not include individuals in a formal relationship 
recognized by a state, which is other than marriage, such as a domestic 
partnership or a civil union.

[FR Doc. 2014-14703 Filed 6-25-14; 8:45 am]
BILLING CODE 6820-14-P