[Federal Register Volume 76, Number 145 (Thursday, July 28, 2011)]
[Proposed Rules]
[Pages 45204-45205]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-18971]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 76, No. 145 / Thursday, July 28, 2011 /
Proposed Rules
[[Page 45204]]
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: Proposed rule with request for comments.
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SUMMARY: The U.S. Office of Personnel Management (OPM) is issuing
proposed regulations to clarify that an employee's same-sex domestic
partner qualifies, and should be treated as, a family member for
purposes of eligibility for noncompetitive appointment based on
overseas employment, as provided in section 315.608 of title 5, Code of
Federal Regulations. These regulations implement, in part, a June 2,
2010, Presidential Memorandum by providing same-sex domestic partners
with the same employment opportunities that opposite-sex spouses of
Federal employees receive under 5 CFR 315.608.
DATES: Comments must be received on or before September 26, 2011.
ADDRESSES: You may submit comments, which are identified by RIN 3206-
AM35, by any of the following methods:
Federal eRuling Portal: http://www.regulations.gov. Follow
the instructions for submitting comments.
E-mail: employ@opm.gov. Include ``RIN 3206-AM35, Career
and Career-Conditional Employment'' in the subject line of the message.
Fax: (202) 606-4430.
Mail: Angela Bailey, Deputy Associate Director for
Recruitment and Hiring, U.S. Office of Personnel Management, Room 6566,
1900 E Street, NW., Washington, DC 20415-9700.
FOR FURTHER INFORMATION CONTACT: Michelle Glynn, 202-606-0960, Fax:
202-606-4430 by TDD: 202-418-3134, or e-mail: michelle.glynn@opm.gov.
SUPPLEMENTARY INFORMATION: The U.S. Office of Personnel Management
(OPM) is issuing proposed regulations to amend its current regulations
on career and career conditional employment at title 5, Code of Federal
Regulations (CFR), part 315. These changes would ensure that an
employee's same-sex domestic partner qualifies, and should be treated
as, a family member for purposes of eligibility for noncompetitive
appointment based on overseas employment, as provided in section
315.608 of title 5, CFR.
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 Section 1(a)(iii)
of the President's memorandum, which identified additional benefits OPM
had concluded it could offer and requested OPM to ``issue a proposed
rule that would clarify that employees' same-sex domestic partners
qualify as `family members' for purposes of noncompetitive appointments
made pursuant to Executive Order 12721 of July 30, 1990.''
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.
Section 315.608 of title 5, CFR, authorizes noncompetitive
appointments to competitive service positions in the United States for
certain family members of Federal employees and military personnel who
have served overseas. To be eligible for noncompetitive appointment
under this authority, a ``family member'' must have completed 52 weeks
of creditable service under a local hire appointment overseas during
the time he or she accompanied a Federal civilian employee or member of
a uniformed service officially assigned to an overseas location. Family
members must also meet all applicable provisions of 5 CFR 315.608 in
order to be eligible for noncompetitive appointment. The definition of
``family member'' in 5 CFR 315.608(e)(1) is currently limited to an
``unmarried child under the age of 23 or a spouse.'' To implement
section 1(a)(iii) of the President's June 2, 2010, memorandum, OPM is
proposing to change the definition of ``family member'' and to add new
definitions for ``domestic partner'' and ``domestic partnership'' at 5
CFR 315.608(e).
These definitions are based upon the definitions 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 (iv) of the domestic partnership definition requires 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, is intended to require only that there be
financial interdependence between the partners; it should not be
interpreted to
[[Page 45205]]
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 (vii).
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.
Documentation or proof of a family member relationship for purposes
of noncompetitive appointment eligibility 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 for all dependent and family member
relationships, including domestic partners.
E.O. 12866 and E.O. 13563 Regulatory Review
This rule has been reviewed by the Office of Management and Budget
in accordance with Executive Order 12866 and Executive Order 13563.
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
Government employees.
U.S. Office of Personnel Management.
John Berry,
Director.
Accordingly, OPM is proposing to amend 5 CFR part 315 as follows:
PART 315--CAREER AND CAREER-CONDITIONAL EMPLYOMENT
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 (e)(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 an
employee or annuitant 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. 2011-18971 Filed 7-27-11; 8:45 am]
BILLING CODE 6325-39-P