[Federal Register Volume 79, Number 120 (Monday, June 23, 2014)]
[Rules and Regulations]
[Pages 35490-35492]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-14504]



28 CFR Part 32

[Docket No.: OJP (BJA) 1646]
RIN 1121-AA80

Public Safety Officers' Benefits Program

AGENCY: Office of Justice Programs, Justice.

ACTION: Final rule.


SUMMARY: The Office of Justice Programs (OJP) of the U.S. Department of 
Justice is amending its regulation defining ``Spouse'' for purposes of 
implementing the Public Safety Officers' Benefits (PSOB) Act, 
associated statutes, and Program. Prior to the Supreme Court 
invalidating section 3 of the Defense of Marriage Act (DOMA) DOMA 
prevented OJP from recognizing same-sex surviving spouses for the 
purposes of awarding PSOB Act benefits. As amended, the final 
regulation recognizes as a spouse, for purposes of the PSOB program, a 
person who lawfully enters into a marriage in one jurisdiction, even 
when living in another jurisdiction, and without regard to the law of 
the other jurisdiction.

DATES: Effective July 23, 2014.

Assistance (BJA), OJP, at (202) 514-6278, or toll-free at 1 (888) 744-


I. Background

    In a document published in the Federal Register on March 5, 2014 
(79 FR 12434), OJP proposed to amend its regulation at 28 CFR 32.3, 
defining spouse for purposes of the PSOB Act and program. The comment 
period ended on April 4, 2014. OJP received

[[Page 35491]]

four comments from interested individuals and organizations. Three of 
the commentators generally approved of the proposed amendments but 
suggested that OJP broaden its definition of spouse and child. One 
commentator stated that OJP's definition exceeded the federalism 
framework in Windsor and suggested that OJP revise the regulation to 
recognize only those marriages valid under the law of the individual's 
domicile. The comments are discussed below. Based on the rationale 
described in this document and in the notice of proposed rulemaking, 
OJP adopts the proposed rule as indicated in this document.

II. Comments

Definition of Spouse

    We received several comments regarding the scope of the proposed 
definition of spouse. Concerned that the new rule would have no effect 
on states that do not allow same-sex marriage, or only allow common law 
marriages, one commentator suggested that OJP revise the rule to 
include in the definition of a spouse those persons in a same-sex 
relationship for ten or more years. Two commentators suggested that OJP 
expand the proposed definition of spouse to include persons in other 
``legally recognized'' or ``non-marriage legal unions'' such as civil 
unions and domestic partnerships.
    OJP's current and proposed definition of spouse are premised on its 
interpretation of the laws authorizing payment of benefits to surviving 
spouses, e.g., 42 U.S.C. 3796(a), as requiring that an individual must 
be in a valid marriage to be considered a spouse. Accordingly, we make 
no change to the proposed rule based on the comments.

Definition of Child

    Citing various concerns that a legal relationship between a parent 
and child, as determined by state law, is often necessary to establish 
eligibility as a ``child'' for federal benefits, one commentator 
recommended that OJP expand its definition of ``stepchild'' to include 
the child of a parent standing in loco parentis, ``where in loco 
parentis means those with day-to-day responsibilities to care for and 
financially support a child, with whom a biological or legal 
relationship is not necessary.''
    Current OJP regulations define an adopted child as an individual 
(1) legally adopted by the public safety officer (PSO), or (2) known by 
the PSO not to be his or her biological child, and in a parent-child 
relationship with the PSO despite such knowledge.\1\ Because the 
regulatory definition provides eligibility based on a parent-child 
relationship that does not require the PSO to be or have been married 
to the biological or legally adoptive parent of the child or to have 
legally adopted the child, the existing definition satisfies the 
commentator's request. As a result, we make no changes to current 

    \1\ ``Parent-child relationship means a relationship between a 
public safety officer and another individual, in which the officer 
has the role of parent (other than biological or legally-adoptive), 
as shown by convincing evidence.'' 28 CFR 32.3.

    One commentator, citing concerns about possible bias of state-level 
claims processors, suggested that OJP revise Sec.  32.3 by adding to 
the definition of parent-child relationship the following language: ``A 
parent-child relationship should be assessed without regard to the 
sexual orientation or gender identity of the parties involved.''
    OJP disagrees that such change is necessary. Apart from a hearing 
that may be conducted locally by OJP appointed hearing officers, all 
PSOB claims are processed in BJA's Washington, DC, office, and reviewed 
by PSOB Counsel to ensure compliance with governing law. Moreover, 
nothing in the current regulatory definition of parent-child 
relationship, or OJP's process for adjudicating claims requires that 
OJP assess the sexual orientation or gender identity of the PSO upon 
which a finding as to the existence of a parent-child relationship 
would be based. Because such information is not relevant to BJA finding 
whether a person acted as a parent to a child, we make no changes based 
on this comment.

The Proposed Rule Is Inconsistent With Windsor

    Asserting that the proposed definition of spouse was contrary to 
the federalism framework in U.S. v. Windsor, one commentator stated 
that OJP should have conducted a Federalism Assessment before 
publishing the proposed rule and requested that OJP revise the final 
rule to determine marital status based on the law of the PSO's 
    The Federalism Assessment contemplated by Executive Order 13132 
(1999) involves a determination as to whether a proposed rule would 
have substantial direct effects on the States, on the relationship 
between the federal government and the States, or on the distribution 
of power and responsibilities among the various levels of government. 
The proposed rule, governing the identification of who is a proper 
beneficiary in a relatively small federal program (700 claims annually) 
paying benefits to individuals has no substantial direct effect on the 
States or on a particular State. Moreover, the rule does not change the 
relationship between state and federal governments, or alter the 
distribution of power between such governments. Accordingly, OJP's 
position that no Federalism Assessment was necessary remains unchanged.
    The Windsor decision held that it was unconstitutional for the 
federal government to treat unequally a subset of state-sanctioned 
marriages. With the Court's invalidation of section 3 of the Defense of 
Marriage Act, OJP sought to fashion a rule that enables it to 
efficiently and fairly provide benefits to the surviving spouses and 
children of fallen PSOs in an increasingly mobile workforce that often 
marries in one state and resides in another. OJP is authorized to 
prescribe regulations necessary to carry out the PSOB program, e.g., 42 
U.S.C. 3796c(a), and a regulation reflecting a policy choice to pay 
benefits based on the law of the place in which a valid marriage was 
entered is consistent with Windsor's dictate against federal 
discrimination against a subset of marriages. As a result, we make no 
change based on the comments.

III. Regulatory Requirements

Executive Order 12866 and 13563--Regulatory Planning and Review

    This rule has been drafted and reviewed in accordance with 
Executive Order 12866, ``Regulatory Planning and Review'' section 1(b), 
Principles of Regulation, and in accordance with Executive Order 13563, 
``Improving Regulation and Regulatory Review,'' section 1(b), General 
Principles of Regulation. 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). The costs of implementing this rule would be minimal, as 
it would impose no costs on state, local, or tribal governments, or on 
the private sector.
    The Office of Justice Programs has determined that this rule is not 
a ``significant regulatory action'' under section 3(f) of the Executive 
Order, and accordingly this rule has not been reviewed by the Office of 
Management and Budget.

[[Page 35492]]

Executive Order 13132--Federalism

    This rule would not have substantial direct effects on the States, 
on the relationship between the federal government and the States, or 
on distribution of power and responsibilities among the various levels 
of government. The PSOB program provides benefits to individuals and 
does not impose any special or unique requirements on States or 
localities. Therefore, in accordance with Executive Order No. 13132, 
OJP has determined that this rule does not have sufficient federalism 
implications to warrant the preparation of a Federalism Assessment.

Executive Order 12988--Civil Justice Reform

    This rule meets the applicable standards set forth in sections 3(a) 
& (b)(2) of Executive Order No. 12988. Pursuant to section 3(b)(1)(I) 
of the Executive Order, nothing in this rule or any previous rule (or 
in any administrative policy, directive, ruling, notice, guideline, 
guidance, or writing) directly relating to the program that is the 
subject of this rule is intended to create any legal or procedural 
rights enforceable against the United States, except as may be 
contained within part 32 of title 28 of the Code of Federal 

Regulatory Flexibility Act

    This rule would not have a significant economic impact on a 
substantial number of small entities for the following reasons: this 
rule addresses federal agency procedures; furthermore, this rule would 
make amendments to clarify existing regulations and agency practice 
concerning public safety officers' death, disability, and education 
benefits and would do nothing to increase the financial burden on any 
small entities. Therefore, an analysis of the impact of this rule on 
such entities is not required under the Regulatory Flexibility Act (5 
U.S.C. 601 et seq.).

Paperwork Reduction Act of 1995

    This rule would not impose any new reporting or recordkeeping 
requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 
et seq.).

Unfunded Mandates Reform Act of 1995

    This rule would not result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of 
$100,000,000 or more in any one year, and it will not significantly or 
uniquely affect small governments. The PSOB program is a federal 
benefits program that provides benefits directly to qualifying 
individuals. Therefore, no actions were deemed necessary under the 
provisions of the Unfunded Mandates Reform Act of 1995.

List of Subjects in 28 CFR Part 32

    Administrative practice and procedure, Claims, Disability benefits, 
Education, Emergency medical services, Firefighters, Law enforcement 
officers, Reporting and recordkeeping requirements, Rescue squad.

    Accordingly, for the reasons set forth in the preamble, part 32 of 
chapter I of Title 28 of the Code of Federal Regulations is amended as 


1. The authority citation for 28 CFR Part 32 continues to read as 

    Authority: 42 U.S.C. ch. 46, subch. XII; 42 U.S.C. 3782(a), 
3787, 3788, 3791(a), 3793(a)(4) & (b), 3795a, 3796c-1, 3796c-2; sec. 
1601, title XI, Pub. L. 90-351, 82 Stat. 239; secs. 4 through 6, 
Pub. L. 94-430, 90 Stat. 1348; secs. 1 and 2, Pub. L. 107-37, 115 
Stat. 219.

2. Amend Sec.  32.3 by revising the definition of ``Spouse'' to read as 

Sec.  32.3  Definitions.

* * * * *
    Spouse means someone with whom an individual entered into marriage 
lawfully under the law of the jurisdiction in which it was entered into 
and from whom the individual is not divorced, and includes a spouse 
living apart from the individual, other than pursuant to divorce, 
except that, notwithstanding any other provision of law, to determine 
whether an individual is a spouse of a public safety officer within the 
meaning of this definition when more than one individual is purported 
to be such a spouse, the PSOB Program will apply the law of the 
jurisdiction that it determines has the most significant interest in 
the marital status of the public safety officer:
    (1) On the date of the officer's death, with respect to a claim 
under subpart B of this part or by virtue of such death; or
    (2) As of the injury date, with respect to a claim not under 
subpart B of this part or by virtue of the officer's death.
* * * * *

    Dated: June 13, 2014.
Karol V. Mason,
Assistant Attorney General.
[FR Doc. 2014-14504 Filed 6-20-14; 8:45 am]