80 FR 19238 - Federal Travel Regulation (FTR); Terms and Definitions for “Marriage”, “Spouse”, and “Domestic Partnership”

GENERAL SERVICES ADMINISTRATION

Federal Register Volume 80, Issue 69 (April 10, 2015)

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”.

[Federal Register Volume 80, Number 69 (Friday, April 10, 2015)]
[Rules and Regulations]
[Pages 19238-19241]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-08193]


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GENERAL SERVICES ADMINISTRATION

41 CFR Part 300-3

[FTR Amendment 2015-02; FTR Case 2014-301; Docket No. 
2014-0012; Sequence No. 1]
RIN 3090-AJ44


Federal Travel Regulation (FTR); Terms and Definitions for 
“Marriage”, “Spouse”, and “Domestic 
Partnership”

AGENCY: Office of Government-wide Policy, U.S. General Services 
Administration (GSA).

ACTION: Final rule.

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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

[[Page 19239]]

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”,

[[Page 19240]]

“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

0
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.

0
2. Amend §&thnsp;300-3.1 by-
0
a. In the definition “Domestic partnership” by-
0
1. Removing from paragraph (8) the word “and” at the end of 
the sentence;
0
2. Removing from paragraph (9) the period at the end of the sentence 
and adding “; and” in its place; and
0
3. Adding paragraph (10); and
0
b. Adding, in alphabetical order, the definitions 
“Marriage” and “Spouse”.
    The additions read as follows:


§&thnsp;300-3.1  What do the following terms mean?

* * * * *
    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

[[Page 19241]]

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