ACTION:
Final rule.
SUMMARY:
The General Services Administration (GSA) is amending the Federal Travel Regulation (FTR) by adding terms and definitions for “Marriage” and “Spouse”, and by revising the definition of “Domestic Partnership”.
DATES:
This rule is effective April 10, 2015, subject to retroactivity principles as discussed herein.
FOR FURTHER INFORMATION CONTACT:
For clarification of content, contact Mr. Rick Miller, Office of Government-wide Policy (MA), Travel and Relocation Policy Division, U.S. General Services Administration, at 202-501-3822 or email at rodney.miller@gsa.gov. 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 Amendment 2015-02, FTR Case 2014-301.
SUPPLEMENTARY INFORMATION:
A. Background
Section 3 of the Defense of Marriage Act (DOMA), codified at 1 U.S.C. 7, provided that, when used in 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 had been prohibited from recognizing marriages of same-sex couples for all Federal purposes, including 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, 133 S. Ct. 2675 (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 Federal Travel Regulation (FTR), codified in Title 41 of the Code of Federal Regulations, Chapters 300-304 (41 CFR Chapters 300-304).
GSA published a proposed rule in the Federal Register on June 26, 2014 (79 FR 36279). The proposed rule recommended adding a definition for the terms “Marriage” and “Spouse”, and revising the definition of the term “Domestic Partnership”.
B. Summary of Comments Received
In response to the proposed rule, GSA received comments from six different entities (one Federal agency, one Federal employee, two individuals, and two associations). Some comments received were generally supportive as to the implementation of the changes to the FTR and some comments opposed the changes as written. All comments were carefully considered in the development of this final rule.
Two commenters supported the proposed rule without any additional changes made. One commenter requested a minor editorial change in section 300-3.1 in the revised definition for “Domestic Partner”, noting that the parenthetical “or foreign country” is not used in the term “Domestic Partnership”. The parenthetical “or foreign country” was used in the proposed rule for Supplementary Information under “A. Background” in explaining “Domestic Partnership”, and is used in the new term “Marriage”. They recommended further amending the term “Domestic Partnership” to add the term “or foreign country” after the word “state” in proposed paragraph 10 of the definition. GSA made the minor editorial change.
One commenter suggested that the effective date of the final rule be retroactive prior to the date of the Windsor decision (June 26, 2013). The comment stated this would allow employees who relocated prior to the Windsor decision, and who were legally married in states that recognized same-sex marriages, to be allowed to claim relocation entitlements for their same-sex spouses. This rule is effective from the date of publication, subject to retroactivity principles as discussed herein. As to retroactive application, if an employee or former employee amends a claim for reimbursement based upon application of the Windsor decision for expenses incurred prior to the effective date of this rule or prior to the date of the Windsor decision, the agency that authorized the travel or relocation should make a determination based upon the relevant circumstances of each individual case, in light of governing legal principles and agency regulations.
The two associations submitted comments opposing the changes in the proposed rule as written. Those comments are addressed herein together. One comment opposed adding to the definition of domestic partnership in section 300-3.1, the requirement that employees “certify that they would marry but for the failure of their state of residence to permit same-sex marriage” for those employees who reside in a state or other jurisdiction (or foreign country) whose laws do not permit same-sex marriage. In the same comment, the association also opposed requiring domestic partners, who reside in states or jurisdictions (or foreign countries) that authorize the marriage of two individuals of the same sex, to marry to be eligible for relocation entitlements as an immediate family member, if the employee is relocating to a foreign country.
The commenters stated that the changes would apply to Americans officially assigned to, or in transit to, foreign locations, and these individuals and their families would be at risk of losing existing legal protections and support provided to legally recognized partners. They also stated that by requiring employees to marry or certify their intent to do so, may put these employees and their partners and families at risk of persecution, incarceration, and execution while assigned abroad.
GSA recognizes that the legal landscape is rapidly changing, and certain states and other jurisdictions, as well as foreign countries, currently do not allow same-sex marriages. However, the proposed definition for the term “domestic partnership” in the FTR is in accordance with the definition used for other Federal employees benefit programs, and therefore, will not be changed. Employees with same-sex domestic partners living in states or other jurisdictions (or foreign countries) that allow them to marry have access to many, if not all, of the protections that married opposite-sex couples enjoy. Therefore, a separate category under the FTR's term “immediate family member” will not be created for employees and their domestic partners who live in states or other jurisdictions (or foreign countries) that allow them to marry but choose not to marry.
One comment suggested that GSA should make clear that agencies retain the authority to assign personnel abroad and afford staff and family assigned abroad the protections and support that will best promote the safety, efficiency, and effectiveness of their operation overseas. Since recruitment and assignment procedures are outside of the scope of the FTR, GSA did not address this issue.
Another comment suggested that the proposed changes would promote illegal discrimination and invidious state or other jurisdiction practices towards same-sex couples with regard to marriage, divorce, adoption, inheritance, property, tax filing, and spousal benefits. The changing of state or other jurisdiction benefit laws for marriage and/or domestic partners is outside the scope of the FTR, and therefore, is not addressed by GSA.
The associations strongly opposed GSA “abolishing” domestic partner benefits already extended. The associations stated that, given the limited access to marriage and other forms of non-marital relationship recognition for same-sex couples, along with the aforementioned issues associated with requiring couples to marry or certify an intent to marry, the proposed change would add further burdens for same-sex couples. Therefore, they suggested GSA should expand the terms for “spouse”, “marriage”, and “domestic partnership” to apply to both same-sex and opposite-sex domestic partners, thus extending travel and relocation benefits to partners in all relationships.
GSA is not abolishing already extended travel and relocation benefits. Rather, GSA is limiting benefits moving forward for same-sex domestic partners who choose not to marry, despite residing in states or other jurisdictions (or foreign countries) whose laws authorize same-sex marriage. Same-sex domestic partners who reside in states or other jurisdictions (or foreign countries) whose laws do not authorize same-sex marriage will still be permitted to claim travel and relocation benefits based upon the FTR and agency procedures for immediate family members. At this time, GSA is not including opposite-sex domestic partners as part of an employee's immediate family.
C. Major Changes in This Final Rule
Based upon the comments received and suggested changes, the final rule updates the FTR by adding the definitions “Marriage” and “Spouse”, and revises the definition of “Domestic partnership”.
The term “marriage” is added to include any marriage, including a marriage between individuals of the same sex, that was entered into in a state or other jurisdiction (or foreign country) whose laws authorize the marriage, even if the married couple is domiciled in a state or other jurisdiction (or foreign country) that does not recognize the validity of the marriage. The term also includes common law marriage in states or other jurisdictions where such marriages are recognized, so long as they are proven according to the applicable state/jurisdiction laws. The term “spouse” is added 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 other jurisdiction (or foreign) law that are not denominated as a marriage under that state's or other jurisdiction'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 or other jurisdiction was not relevant to the determination of coverage eligibility for travel and relocation benefits. Now that FTR coverage is available to the same-sex spouses of Federal employees, pursuant to Windsor and the amendments finalized by this rule, GSA has reconsidered the need and scope of the extension of FTR coverage to same-sex domestic partners. When the proposed rule was published on June 26, 2014, only a minority of states recognized same-sex marriages. However since then, a majority of states currently permit same-sex marriage; therefore many same-sex couples have the same access to marriage that is available to opposite-sex couples. However, until marriage is available to same-sex couples in all fifty states and other jurisdictions, 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 is tailoring FTR coverage to those same-sex couples who would marry, but live in states or other jurisdictions (or foreign countries) where same-sex marriage is prohibited.
Same-sex couples living in states or other jurisdictions that allow them to marry have access to many, if not all, of the protections that married opposite-sex couples enjoy. Therefore, for employees living in states or other jurisdictions 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 or other jurisdictions in which they live, however, it is appropriate to extend FTR coverage to same-sex domestic partners in the form described in this regulation.
The term “domestic partnership” is updated to read that same-sex domestic partners that have a documented domestic partnership, and reside in a state or other jurisdiction (or foreign country) whose laws do not permit same-sex marriage or recognize their validity, will still be considered an immediate family member, under the FTR and agency policy, only if they certify that they would marry but for the failure of their state or other jurisdiction (or foreign country) of residence to permit same-sex marriage. For those individuals who reside in states or other jurisdictions (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.
Due to current statutory restrictions, however, this final rule does not apply to the relocation income tax allowance or the income tax reimbursement allowance for state taxes when the applicable state law does not recognize same-sex marriage.
This case is included in GSA's retrospective review of existing regulations under Executive Order 13563. Additional information is located in GSA's retrospective review (2015), available at www.gsa.gov/improvingregulations.
D. 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 final rule has been reviewed by the Office of Management and Budget. This final rule is not a major rule under 5 U.S.C. 804.
E. Regulatory Flexibility Act
This final 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 final rule is also exempt from Administrative Procedure Act per 5 U.S.C. 553(a)(2), because it applies to agency management or personnel.
F. 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.
G. Small Business Regulatory Enforcement Fairness Act
This final 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: April 3, 2015.
Denise Turner Roth,
Acting Administrator of General Services.
For the reasons set forth in the Preamble, under 5 U.S.C. 5701-5709, 5721-5738, and 5741-5742, GSA amends 41 CFR part 300-3, as set forth below:
PART 300-3—GLOSSARY OF TERMS
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.
2. Amend § 300-3.1 by—
a. In the definition “Domestic partnership” by—
1. Removing from paragraph (8) the word “and” at the end of the sentence;
2. Removing from paragraph (9) the period at the end of the sentence and adding “; and” in its place; and
3. Adding paragraph (10); and
b. Adding, in alphabetical order, the definitions “Marriage” and “Spouse”.
The additions read as follows:
§ 300-3.1
Domestic Partnership — * * *
(10) Certify that they would marry but for the failure of their state or other jurisdiction (or foreign country) of residence to permit same-sex marriage.
Marriage —A legal union between individuals that was entered into in a state or other jurisdiction (or foreign country) whose laws authorize the marriage, even if the married couple is domiciled in a state or other jurisdiction (or foreign country) that does not recognize the validity of the marriage. The term also includes common law marriage in a state or other jurisdiction (or foreign country) where such marriages are recognized, so long as they are proven according to the applicable state, other jurisdiction, or foreign laws. The term marriage does not include registered domestic partnerships, civil unions, or other similar formal relationships recognized under state or other jurisdiction (or foreign country) law that are not denominated as a marriage under that state's or other jurisdiction (or foreign country's) law.
Spouse —Any individual who is lawfully married (unless legally separated), including an individual married to a person of the same sex who was legally married in a state or other jurisdiction (including a foreign county), 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 lawful marriage; it also does not include individuals in a marriage in a jurisdiction outside the United States that is not recognized as a lawful marriage under United States law.
[FR Doc. 2015-08193 Filed 4-9-15; 8:45 am]
BILLING CODE 6820-14-P