[Federal Register Volume 77, Number 140 (Friday, July 20, 2012)]
[Rules and Regulations]
[Pages 42903-42905]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-17540]


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OFFICE OF PERSONNEL MANAGEMENT

5 CFR Parts 550 and 591

RIN 3206-AM31


Change in Definitions; Evacuation Pay and the Separate 
Maintenance Allowance at Johnston Island

AGENCY: U.S. Office of Personnel Management.

ACTION: Final rule.

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SUMMARY: The U.S. Office of Personnel Management is revising its 
regulations on evacuation pay and the separate maintenance allowance 
for duty at Johnston Island to ensure that same-sex domestic partners 
of Federal employees and the children of such domestic partners have 
access to these benefits to the same extent as spouses of Federal 
employees and their children. These changes fulfill the Administration 
policy expressed in the President's June 2, 2010, memorandum on the 
``Extension of Benefits to Same-Sex Domestic Partners of Federal 
Employees.''

DATES: This rule is effective August 20, 2012.

FOR FURTHER INFORMATION CONTACT: Kurt Springmann, by telephone at (202) 
606-2858 or by email at pay-leave-policy@opm.gov.

SUPPLEMENTARY INFORMATION: The U.S. Office of Personnel Management 
(OPM) is issuing final regulations on evacuation pay at 5 CFR part 550, 
subpart D, and the separate maintenance allowance for duty at Johnston 
Island at 5 CFR part 591, subpart D. These regulations ensure that 
same-sex domestic partners of Federal employees and the children of 
such domestic partners have the same access to these benefits as 
opposite-sex spouses of Federal employees and their children.

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. These regulations respond to two portions of the 
President's memorandum, which identified additional benefits OPM had 
concluded it could offer and requested OPM to (1) ``clarify that under 
appropriate circumstances, employees' same-sex domestic partners and 
their children qualify as dependents for purposes of evacuation 
payments made under 5 U.S.C. 5522-5523''; and (2) ``clarify that 
employees' same-sex domestic partners qualify as dependents for 
purposes of calculating the extra allowance payable under 5 U.S.C. 
5942a to assist employees stationed on Johnston Island, subject to any 
limitations applicable to spouses.''
    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

[[Page 42904]]

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. To ensure consistent application of the 
definition of domestic partnership found in this memorandum, OPM wants 
to clarify paragraph (4) of the definition that states that domestic 
partners ``share responsibility for a significant measure of each 
other's financial obligations.'' This provision provides only for the 
financial interdependence between partners and should not be 
interpreted to exclude partnerships in which one partner stays at home 
while the other is the primary financial breadwinner.
    We are also clarifying paragraph (7) of the domestic partner 
definition that states that the domestic partners ``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.'' The intent of this language is 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.
    Executive Order 13563, Improving Regulation and Regulatory Review, 
sets out a series of requirements that must be followed, to the extent 
permitted by law, in issuing regulations. That Executive Order states 
that ``[w]here appropriate and permitted by law, each agency may 
consider (and discuss qualitatively) values that are difficult or 
impossible to quantify, including equity, human dignity, fairness, and 
distributive impacts.'' Such values are relevant here. In particular, 
this regulation would protect human dignity, and promote equity and 
fairness by ensuring equal access to these benefits for LGBT Federal 
employees.
    OPM published proposed regulations for public comment on July 28, 
2011, at 76 FR 45205. The 60-day comment period for the proposed 
regulations ended on September 26, 2011. We received no comments in 
response the proposed regulations. As a result, we are adopting the 
proposed regulations as final.

Executive Order 13563 and Executive Order 12866

    The Office of Management and Budget has reviewed this rule in 
accordance with E.O. 13563 and 12866.

Regulatory Flexibility Act

    I certify that these regulations will not have a significant 
economic impact on a substantial number of small entities because they 
will apply only to Federal agencies and employees.

List of Subjects

5 CFR Part 550

    Administrative practice and procedure, Claims, Government 
employees, Wages.

5 CFR Part 591

    Government employees, Travel and transportation expenses, Wages.

U.S. Office of Personnel Management.
John Berry,
Director.
    Accordingly, OPM is amending 5 CFR parts 550 and 591 as follows:

PART 550--PAY ADMINISTRATION (GENERAL)

Subpart D--Payments and Flexibilities During an Evacuation

0
1. The authority citation for subpart D of part 550 continues to read 
as follows:

    Authority: 5 U.S.C. 5527; E.O. 10982, 3 CFR 1959-1963, p. 502.


0
2. In Sec.  550.402, the definition of ``dependent'' is revised and the 
definitions of ``domestic partner'', ``domestic partnership'', and 
``family member'' are added to read as follows:


Sec.  550.402  Definitions.

* * * * *
    Dependent means a family member of the employee residing with the 
employee and dependent on the employee for support.
* * * * *
    Domestic partner means a person in a domestic partnership with an 
employee or annuitant of the same sex.
    Domestic partnership means a committed relationship between two 
adults of the same sex in which the partners--
    (1) Are each other's sole domestic partner and intend to remain so 
indefinitely;
    (2) 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);
    (3) Are at least 18 years of age and mentally competent to consent 
to contract;
    (4) Share responsibility for a significant measure of each other's 
financial obligations;
    (5) Are not married or joined in a civil union to anyone else;
    (6) Are not the domestic partner of anyone else;
    (7) 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;
    (8) 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, will be determined by the agency; and
    (9) Are willing promptly to disclose, if required by the agency, 
any dissolution or material change in the status of the domestic 
partnership.
* * * * *
    Family member means an individual with any of the following 
relationships to the employee:
    (1) Spouse, and parents thereof;
    (2) Sons and daughters, and spouses thereof;
    (3) Parents, and spouses thereof;
    (4) Brothers and sisters, and spouses thereof;
    (5) Grandparents and grandchildren, and spouses thereof;
    (6) Domestic partner, and children and parents thereof, including a 
domestic partner of any individual in paragraphs (2)-(5) of this 
definition; and
    (7) Any individual related by blood or affinity whose close 
association with the employee is the equivalent of a family 
relationship.
* * * * *

PART 591--ALLOWANCES AND DIFFERENTIALS

Subpart D--Separate Maintenance Allowance for Duty at Johnston 
Island

0
3. The authority citation for subpart D of part 591 continues to read 
as follows:

    Authority:  5 U.S.C. 5942a(b); E.O. 12822, 3 CFR, 1992 Comp., p. 
325.


[[Page 42905]]



0
4. In Sec.  591.402, the definitions of ``domestic partner'' and 
``domestic partnership'' are added, and the definition of ``family 
member'' is revised to read as follows:


Sec.  591.402  Definitions.

* * * * *
    Domestic partner means a person in a domestic partnership with an 
employee or annuitant of the same sex.
    Domestic partnership means a committed relationship between two 
adults of the same sex in which the partners--
    (1) Are each other's sole domestic partner and intend to remain so 
indefinitely;
    (2) 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);
    (3) Are at least 18 years of age and mentally competent to consent 
to contract;
    (4) Share responsibility for a significant measure of each other's 
financial obligations;
    (5) Are not married or joined in a civil union to anyone else;
    (6) Are not the domestic partner of anyone else;
    (7) 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;
    (8) 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, will be determined by the agency; and
    (9) Are willing promptly to disclose, if required by the agency, 
any dissolution or material change in the status of the domestic 
partnership.
    Family member means one or more of the following relatives of an 
employee who would normally reside with the employee except for 
circumstances warranting the granting of a separate maintenance 
allowance, but who does not receive from the Government an allowance 
similar to that granted to the employee and who is not deemed to be a 
family member of another employee for the purpose of determining the 
amount of a separate maintenance allowance or similar allowance:
    (1) Children who are unmarried and under 21 years of age or who, 
regardless of age, are incapable of self-support, including natural 
children, step and adopted children, and those under legal guardianship 
or custody of the employee, or of the employee's spouse or domestic 
partner, when they are expected to be under such legal guardianship or 
custody at least until they reach 21 years of age and when dependent 
upon and normally residing with the guardian;
    (2) Parents (including step and legally adoptive parents) of the 
employee, or of the employee's spouse or domestic partner, when such 
parents are at least 51 percent dependent on the employee for support;
    (3) Sisters and brothers (including step or adoptive sisters and 
brothers) of the employee, or of the employee's spouse or domestic 
partner, when such sisters and brothers are at least 51 percent 
dependent on the employee for support, unmarried and under 21 years of 
age, or regardless of age, are incapable of self-support;
    (4) Spouse, excluding a spouse independently entitled to and 
receiving a similar allowance; or
    (5) Domestic partner, excluding a domestic partner independently 
entitled to and receiving a similar allowance.
* * * * *

0
5. In Sec.  591.403, revise paragraph (a) to read as follows:


Sec.  591.403  Amount of payment.

    (a) The annual rate of the separate maintenance allowance paid to 
an employee is determined by the number of individuals, including a 
spouse, a domestic partner, and/or one or more other family members, 
who are maintained at a location other than Johnston Island.
* * * * *
[FR Doc. 2012-17540 Filed 7-19-12; 8:45 am]
BILLING CODE 6325-39-P