2011-24605. Federal Travel Regulation (FTR); Terms and Definitions for “Dependent”, “Domestic Partner”, “Domestic Partnership”, and “Immediate Family”

AGENCY:

Office of Governmentwide Policy, General Services Administration (GSA).

ACTION:

Final rule.

SUMMARY:

GSA has adopted as final, with two changes, an interim rule amending the Federal Travel Regulation (FTR) by adding terms and definitions for “Dependent”, “Domestic partner”, and “Domestic partnership”, and by revising the definition of “Immediate family” to include “Domestic partner” and children, dependent parents, and dependent brothers and sisters of the Domestic partner as named members of the employee's household. This final rule also adds references to domestic partners and domestic partnerships, where applicable, in the FTR.

DATES:

Effective date: September 28, 2011.

FOR FURTHER INFORMATION CONTACT:

For clarification of content, contact Mr. Rick Miller, Office of Travel, Transportation, and Asset Management (MT), General Services Administration, at [phone] or e-mail at [e-mail]. Contact the Regulatory Secretariat (MVCB), 1275 First Street, NE., Washington, DC 20417, [phone], for information pertaining to status or publication schedules. Please cite FTR Amendment 2011-04; FTR case 2010-303.

SUPPLEMENTARY INFORMATION:

A. Background

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.” GSA conducted its review and, as part of that review, identified a number of changes to the FTR that could be made. Subsequently, on June 2, 2010, President Obama signed a Presidential Memorandum, “Extension of Benefits to Same-Sex Domestic Partners of Federal Employees,” which directed 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.

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 final rule adds the same terms and definitions, based on a published Office of Personnel Management (OPM) memorandum to agencies, dated June 2, 2010, “Implementation of the President's Memorandum Regarding Extension of Benefits to Same-Sex Domestic Partners of Federal Employees,” and guidance from 5 CFR 875, “Federal Long Term Care Insurance Program,” for “Domestic partner” and “Domestic partnership”, adds a definition for “Dependent”, and revises the definition of “Immediate family” to include “Domestic partner” and children, dependent parents, and dependent brothers and sisters of the Domestic partner as named members of the employee's household. This rule also adds references to “Domestic partners” and “domestic partnership,” where applicable, to travel and relocation allowances permitted under existing statutes. Due to current statutory restrictions, this final rule does not apply to house-hunting trip expense reimbursement, the relocation income tax allowance, the income tax reimbursement allowance, or non-Federal source travel.

B. Summary of Comments Received

GSA received 13 comments on the interim rule published in the Federal Register on November 3, 2010 (75 FR 67629).

• Three associations and three individuals supported the rule, four individuals opposed it, and three comments did not express an opinion but posed specific inquiries.
• Four individuals, including two who opposed the rule overall, asked about including opposite-sex domestic partners.
• Two individuals and one association asked about making the rule retroactive.
• Three individuals asked how partnership status will be determined.
• One association offered alternate language for two definitions included in the rule.

As previously mentioned, several comments to the interim rule noted that the changes to the FTR definition of “Immediate family” exclude opposite-sex domestic partners. As the Presidential Memoranda of June 17, 2009, and June 2, 2010, do not specifically address opposite-sex domestic partners, opposite-sex domestic partners have not been included within the definition of “Immediate family.”

In regards to the comments received suggesting retroactive application, the Presidential Memoranda did not address retroactivity; neither is there specific authority mandating GSA to do so. To assist with implementation, FTR § 302-2.3 states that relocation allowances are determined by the regulations that are in effect at the time an employee reports for duty at his or her new duty station. Thus, if orders are issued and the employee reports to the permanent duty station prior to March 3, 2011 (the effective date of the interim rule), there is no domestic partner coverage. However, if orders are issued and the employee reports to the new permanent duty station on or after March 3, 2011, there is coverage under the domestic partner benefits effective on March 3, 2011. Finally, if the orders are issued prior to March 3, 2011, and the employee does not report until after March 3, 2011, then the orders can be amended in accordance with the FTR.

As further noted above, several comments related to the status of domestic partnerships and how this status will be determined. GSA believes that the requirements listed in the new definition of “Domestic Partnership” are sufficient to determine partnership status. As Federal agencies use a wide variety of processes and systems to manage travel and relocation, GSA is deferring to individual agencies to develop their own processes for determining partnership status in accordance with the definition of “Domestic Partnership.”

Finally, one association recommended changing the definition of “Domestic Partnership.” Specifically, it was recommended that GSA change the factor, “[a]re not related in a way that, if they were of opposite sex, would prohibit legal marriage in the U.S. jurisdiction in which they reside” to “[a]re 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”. GSA has considered this suggestion and is amending the definition of “Domestic Partnership”.

This association also recommended changing the factor “[s]hare responsibility for a significant measure of each other's financial obligations” to “[a]re financially interdependent.” GSA considered this suggestion and has chosen to continue to use the interim rule's definition in order to be consistent with the OPM definition. However, as a result of this comment, GSA is including a “Note” at the end of the definition for “Domestic Partnership,” referencing OPM's position that this criterion, requires only that there be financial interdependence between the partners, and that it should not be interpreted to exclude partnerships in which one partner stays at home while the other is the primary breadwinner (see e.g., 76 FR 45204, July 28, 2011).

The same association also suggested adding the term “in loco parentis” for both children and dependent adults within the definition of “Immediate family.” Similarly, GSA considered this recommendation and has decided to maintain consistency with OPM's definition.

C. 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 Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

D. Regulatory Flexibility Act

This final rule will not have 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 the Administrative Procedures Act per 5 U.S.C. 553(a)(2) because it applies to agency management or personnel. However, this final rule is being published because this is a significant rule under Section 6(a)(3)(B) of Executive Order 12866 and to provide transparency in the promulgation of Federal policies.

E. Paperwork Reduction Act

The Paperwork Reduction Act does not apply because the changes to the FTR 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.

F. 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 Parts 300-3, 301-30, 301-31, Appendix E to Chapter 301, 302-3, 302-4, 302-6, and 303-70

• Government employees
• Relocation
• Travel, and Transportation expenses

Dated: June 30, 2011.

Martha Johnson,

Administrator of General Services.

Interim Rule Adopted as Final With Two Changes

Accordingly, the interim rule amending 41 CFR parts 300-3, 301-30, 301-31, Appendix E to Chapter 301, 302-3, 302-4, 302-6, and 303-70, which was published in the Federal Register at 75 FR 67629 on November 3, 2010, is adopted as a final rule with two changes.

For the reasons set forth in the preamble, under 5 U.S.C. 5701-5709, 5721-5738, and 5741-5742, 41 CFR part 300-3 is amended to read as follows:

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, Office of Management and Budget Circular No. A-126, revised May 22, 1992.

2. Amend § 300-3.1 by—

(a) Removing from the definition “Domestic partnership”, paragraph (7), “they reside” and adding “the domestic partnership was formed” in its place; and

(b) Adding a “Note” at the end of the definition “Domestic partnership” to read as follows:

§ 300-3.1

What do the following terms mean?

* * * * *

Note to definition of “Domestic partnership”:

The definition of “Domestic partnership” requires that the partners “share responsibility for a significant measure of each other's financial obligations.” This criterion requires only that there be financial interdependence between the partners and should not be interpreted to exclude partnerships in which one partner stays at home while the other is the primary breadwinner.

* * * * *