Presumption of Insurable Interest for Same-Sex Domestic Partners, 42909-42913 [2012-17542]
Download as PDF
<![CDATA[
Federal Register / Vol. 77, No. 140 / Friday, July 20, 2012 / Rules and Regulations
(b) Subject to any restrictions
applicable under paragraph (a)(3)(i) of
this section, an employee who qualifies
as a lower-income employee under the
agency’s child care subsidy program is
eligible to receive a child care subsidy
for the care of each child under age 13
or, in the case of a disabled child, under
age 18.
§ 792.204 Agency responsibilities;
reporting requirement.
[FR Doc. 2012–17539 Filed 7–19–12; 8:45 am]
(a) Before funds may be obligated as
provided in this subpart, an agency
intending to initiate a child care subsidy
program must provide notice to the
Subcommittees on Financial Services
and General Government of the House
and Senate Appropriations Committees,
as well as to OPM.
(b) Agencies must notify the
committees referred to in paragraph (a)
of this section and OPM annually of
their intention to provide child care
subsidies. Funds may be obligated
immediately after the notifications have
been made.
(c) Agencies are responsible for
tracking the utilization of their funds
and reporting the results to OPM in a
manner prescribed by OPM.
(d) OPM will produce a biannual
report on agencies’ use of the authority
to pay child care subsidies; however,
OPM will collect annual data from the
agencies.
§ 792.205 Administration of child care
subsidy programs.
(a) An agency may administer its
child care subsidy program directly or
by contract with another entity, using
procedures prescribed under the Federal
Acquisition Regulations. Regardless of
what entity administers the program,
the Federal agency is responsible for
establishing how eligibility and subsidy
amounts will be determined.
(b) An agency contract must specify
that any unexpended funds will be
returned to the agency after the contract
is completed.
tkelley on DSK3SPTVN1PROD with RULES3
§ 792.206
Payment of subsidies.
(a) Payment of child care subsidies
must be made directly to child care
providers, unless one of the following
exceptions applies:
(1) In overseas locations, the agency
may pay the employee if the provider
deals only in foreign currency.
(2) In unique circumstances, an
agency may obtain written permission
from OPM to pay the employee directly.
(b) An agency may make advance
payments to a child care provider in
certain circumstances, such as when the
provider requires payment up to one
month in advance of rendering services.
VerDate Mar<15>2010
19:04 Jul 19, 2012
Jkt 226001
An agency may not make advance
payments for more than one month
before the employee receives child care
services except where an agency has
contracted with another entity to
administer the child care subsidy
program, in which case the agency may
advance payments to the entity
administering the program as long as the
requirements in § 792.205(b) are met.
BILLING CODE 6325–39–P
OFFICE OF PERSONNEL
MANAGEMENT
5 CFR Parts 831 and 842
RIN 3206–AM20
Presumption of Insurable Interest for
Same-Sex Domestic Partners
Office of Personnel
Management.
ACTION: Final rule.
AGENCY:
The Office of Personnel
Management (OPM) is amending its
regulations to add same-sex domestic
partners to the class of persons for
which an insurable interest is presumed
to exist. The rule is designed to relieve
federal employees with same-sex
domestic partners from the evidentiary
requirements in existing regulations for
persons outside this class. Additionally,
OPM is taking this step to recognize that
individuals with same-sex domestic
partners have the same presumption of
an insurable interest in the continued
life of employees or Members as the
class of persons listed in the prior rule.
DATES: Effective July 20, 2012.
FOR FURTHER INFORMATION CONTACT:
Kristine Prentice or Roxann Johnson,
(202) 606–0299.
SUPPLEMENTARY INFORMATION: Pursuant
to the President’s June 2, 2010,
Memorandum for the Heads of
Executive Departments and Agencies on
Extension of Benefits to Same-Sex
Domestic Partners of Federal
Employees, on Thursday, March 3,
2011, the Office of Personnel
Management (OPM) published proposed
regulations in the Federal Register at 76
FR 11684 requesting comments
concerning proposed changes to 5 CFR
831.613(e) and 5 CFR 842.605(e). The
proposed rule added persons in samesex domestic partnerships to the
relationships listed as having a
presumption of an insurable interest
under 5 CFR 831.613(e)(1) and
842.605(e)(1).
An employee or Member of Congress
(Member) in good health may elect a
SUMMARY:
PO 00000
Frm 00009
Fmt 4701
Sfmt 4700
42909
reduced annuity at retirement to
provide for an insurable interest annuity
for anyone who has an insurable interest
in the continued life of the employee or
Member. Although an employee or
Member can elect an insurable interest
annuity for anyone with an insurable
interest in the employee’s or Member’s
continued life, the insurable interest
regulations at 5 CFR 831.613(e)(1) and
842.605(e)(1) lists certain relationships
where an insurable interest is presumed
to exist.
Under the rule, the list of presumed
insurable interest relationships included
‘‘spouses,’’ ‘‘former spouses,’’ ‘‘blood or
adopted relatives closer than first
cousins,’’ ‘‘common law spouses,’’ or
‘‘persons to whom employees or
Members are engaged to be married.’’
Prior to publication of this rule, a samesex domestic partner of an employee or
Member was not included in the list of
relationships presumed to have an
insurable interest in the continued life
of the employee or Member. If an
employee or Member elected an
insurable interest annuity for a person
who did not receive the presumption
under 5 CFR 831.613(e)(1) and 5 CFR
842.605(e)(1), the employee or Member
had to submit affidavits along with his
or her election to prove that the
designated individual had an insurable
interest in the continued life of the
employee or Member.
As explained in the proposed rule,
this final rule adds ‘‘same-sex domestic
partners,’’ ‘‘former same-sex domestic
partners,’’ and ‘‘persons with whom the
employee or Member has agreed to enter
into a same-sex domestic partnership’’
to the class of persons OPM will
presume has an insurable interest in the
continued life of the employee or
Member. Thus, when an employee or
Member elects a domestic partner for an
insurable interest annuity, he or she will
no longer need to submit affidavits as
evidence that the individual has an
insurable interest in the employee or
Member.
The term ‘‘domestic partnership’’ has
the same meaning as that ascribed to it
in the Memorandum issued by OPM
Director Berry on June 2, 2010, to Heads
of Executive Departments and Agencies
concerning Implementation of the
President’s Memorandum Regarding
Extension of Benefits to Same-Sex
Domestic Partners of Federal
Employees. See https://www.chcoc.gov/
transmittals/TransmittalDetails.aspx?
TransmittalID=2982.
Comments
We received several comments
regarding the proposed rule, and they
are addressed below. For the most part,
E:\FR\FM\20JYR3.SGM
20JYR3
tkelley on DSK3SPTVN1PROD with RULES3
42910
Federal Register / Vol. 77, No. 140 / Friday, July 20, 2012 / Rules and Regulations
OPM has not addressed comments it
received that were aimed at substantive
benefits and procedural issues outside
the scope of the regulations. To the
extent a comment recommended
expanding or limiting the presumptive
class, OPM has addressed those
comments to clarify the intended scope
of the rule.
One advocacy group commented that
OPM should consider removing the
requirement that domestic partners
share the same residence. To meet the
definition of ‘‘domestic partnership’’ a
same-sex couple must show that they
‘‘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).’’ The advocacy group
acknowledged the proposed rule’s
exception to the residency requirement
but noted that the exception ‘‘is too
narrow and likely discriminatory.’’
The definition of ‘‘domestic
partnership’’ contained in this
regulation is drawn from guidance
issued by OPM Director Berry on June
2, 2010, at the President’s request,
determining whether to extend
particular benefits to same sex partners
pursuant to the President’s
memorandum. See https://
www.chcoc.gov/transmittals/
TransmittalDetails.aspx?TransmittalID=
2982. The guidance is intended to
provide indicia that demonstrate a level
of commitment in the relationship
typically demonstrated by marriage.
OPM has used a similar definition of a
‘‘domestic partnership’’ in its Absence
and Leave as well as its Federal Long
Term Care regulations, see 75 FR 33491
(June 14, 2010) (codified at 5 CFR
630.201) and 75 FR 30267 (June 1, 2010)
(codified at 5 CFR 875.213), and OPM
has tried to maintain consistency in this
rule with the criteria necessary for
proving the existence of a ‘‘domestic
partnership’’ in the Absence and Leave
and the FLTC regulations. Accordingly,
we have determined not to adopt this
suggestion.
Another advocacy group
recommended that OPM consider
expanding the existing presumption of a
‘‘blood or adopted relative closer than
first cousins’’ to include children with
whom an employee or Member acts in
loco parentis. This comment, however,
goes beyond the scope of the proposed
rule, which was not published for the
purpose of amending the relationships
already included in the list of presumed
insurable interest relationships. The
existing list has already undergone
public notice and comment.
VerDate Mar<15>2010
19:04 Jul 19, 2012
Jkt 226001
Furthermore, the regulation is
sufficient to protect the interest of those
employees or Members who are in an in
loco parentis relationship with a child.
If an employee or Member wishes to
elect a child who would not otherwise
receive the presumption of an insurable
interest under 5 CFR 831.613(e)(1) or
842.605(e)(1), the employee or Member
may submit, along with the election,
‘‘affidavits from one or more persons
with personal knowledge of the named
beneficiary’s having an insurable
interest in the employee or a Member.’’
These affidavits must ‘‘set forth the
relationship, if any, between the named
beneficiary and the employee or
Member, the extent to which the named
beneficiary is dependent on the
employee or Member, and the reason
why the named beneficiary may expect
to derive financial benefit from the
continued life of the employee or
Member.’’ Thus, because employees and
Members may elect children in loco
parentis relationships with employees
or Members under 5 CFR 831.613(e)(3)
or 842.605(e)(3), their interests are
sufficiently protected under this rule.
Several commenters suggested that
same-sex couples who are legally
married in jurisdictions that allow for
same-sex marriage should be treated as
‘‘spouses’’ under 5 CFR 831.613(e)(1)(i)
and 5 CFR 842.605(e)(1)(i), rather than
as ‘‘domestic partners’’ as defined by
this rule.
At this time, the Defense of Marriage
Act, 1 U.S.C. 7, precludes us from
adopting this suggestion. Same-sex
couples in a state-recognized marriage,
however, are likely to satisfy the
definition of ‘‘domestic partnership,’’
and thus will be free to submit any
relevant documentation for OPM’s
consideration that they think is
appropriate to show that they satisfy the
definition of a domestic partnership.
One commenter suggested that the
requirements providing that ‘‘domestic
partners’’ must be ‘‘each other’s sole
domestic partner and intend to remain
so indefinitely,’’ and that ‘‘domestic
partners’’ must ‘‘share responsibility for
a significant measure of each other’s
financial obligations’’ in order to qualify
for the presumption under the amended
rule are unnecessary because none of
the other listed classes under 5 CFR
831.613(e)(1) and 842.605(e)(1) are
subject to similar requirements.
The commenter, however, appears to
misunderstand the difference between
the standards for insurable interest and
the standards for establishing the
existence of a domestic partnership. The
requirements that domestic partners
must be each other’s sole domestic
partner and intend to remain so
PO 00000
Frm 00010
Fmt 4701
Sfmt 4700
indefinitely and that domestic partners
must share responsibility for a
significant measure of each other’s
financial obligations are about
establishing the existence of a
‘‘domestic partnership,’’ which then
entitles the partners to the presumption
of an insurable interest. Moreover, as
stated above, the standards for
establishing a domestic partnership are
drawn from government-wide guidance
issued by Director Berry pursuant to the
President’s memorandum.
OPM received several comments
expressing concern about the potential
costs this rule would impose on the
Federal Government. As a result, OPM
believes it is necessary to clarify
misconceptions some may have about
the regulatory changes OPM has made
to 5 CFR 864.613 and 842.605. The
modifications to the pre-existing rule
did not expand the class of persons
whom employees or Members may elect
for an insurable interest annuity, nor
did the changes to the pre-existing rule
alter who would bear the cost of
providing the insurable interest annuity.
The modification to the pre-existing rule
merely included same-sex domestic
partners in the class of persons that
OPM will presume have an insurable
interest in the continued life of the
employee or Member. The cost of
providing an insurable interest annuity
continues to be borne primarily by the
employee or Member. As a result, there
is no significant cost increase, and OPM
declines to change its decision to add
same-sex domestic partners to the class
of persons that OPM will presume have
an insurable interest in the continued
life of an employee or Member.
Similarly, OPM received a comment
that suggested that the list of persons
presumed to have an insurable interest
is already too broad, and that OPM
should exclude not only same-sex
domestic partners from this
presumption but also persons engaged
to be married. This comment goes
beyond the scope of the proposed rule,
which was not published for the
purpose of deleting any relationships
already enumerated in the list of
presumed insurable interest
relationships. The existing list has
already undergone public notice and
comment. We also decline to make the
suggested modification because the
listed presumptions are consistent with
the purpose of the law and OPM’s
longstanding administration of the
insurable interest benefit.
Some commenters suggested that
OPM provide retired individuals with a
new opportunity to elect an insurable
interest annuity for same-sex domestic
partners as a result of the regulatory
E:\FR\FM\20JYR3.SGM
20JYR3
tkelley on DSK3SPTVN1PROD with RULES3
Federal Register / Vol. 77, No. 140 / Friday, July 20, 2012 / Rules and Regulations
change. OPM declines to adopt this
suggestion. The law providing for the
election of an insurable interest annuity
expressly provides that an insurable
interest election must be made at
retirement. The change to the rule at 5
CFR 831.613(e)(2)(i) and 842.605(e)(2)(i)
does not provide employees or Members
with a new election opportunity they
did not previously have under the preexisting rule. The regulatory change
merely modifies the evidentiary
requirements employees or Members
must meet to elect an insurable interest
annuity for a same-sex domestic partner.
One commenter suggests that
imposing the requirement that couples
show proof of the existence of a ‘‘samesex domestic partner’’ undermines
OPM’s stated purpose for publishing
this rule—to relieve same-sex domestic
partners of the evidentiary burdens
imposed on individuals who do not fall
within the presumptive classes. The
commenter suggested that OPM has
merely replaced one evidentiary burden
imposed on same-sex domestic
partnerships for another (i.e., the
submission of affidavits from one or
more persons with personal knowledge
of the named beneficiary’s insurable
interest in the employee or Member
versus the submission of evidence that
the designated beneficiary meets the
definition of a ‘‘same-sex domestic
partner’’ as defined by the rule).
OPM, however, has consistently
required domestic partners to meet an
evidentiary burden to establish that they
are in a ‘‘domestic partnership.’’ That is
because the relationship is not verifiable
through government records (i.e., there
is no marriage certificate) or, if such a
certificate or record exist, OPM is
unable to recognize same-sex marriages
for purposes of establishing eligibility to
federal benefits. This burden is the same
for a host of other Federal benefits.
Upon meeting the evidentiary burden to
establish a domestic partnership with
respect to any benefit, the domestic
partners would then be relieved of the
additional burden they would have to
meet (absent the presumption) to qualify
for an insurable interest annuity.
We also received several comments
suggesting that opposite-sex domestic
partners should be included in the class
of persons for whom OPM will presume
an insurable interest exists. We decline
to adopt this suggestion because
opposite-sex domestic partners have the
option of getting married in order to
obtain the presumption. This is not an
option for same-sex couples with
respect to Federal benefits.
Some commenters expressed concerns
that the regulatory change would invite
abuse or fraud. Some were concerned,
VerDate Mar<15>2010
19:04 Jul 19, 2012
Jkt 226001
for example, that there were insufficient
safeguards to preclude individuals who
were not in a ‘‘domestic partnership’’ as
defined by the rule to be able to claim
benefits they would not otherwise be
entitled to receive.
OPM believes, however, that
sufficient safeguards are in place to
discourage individuals from
fraudulently claiming the presumption
as a domestic partner of an employee or
Member. Section 831.613(viii) of the
rule, for example, requires that parties
are ‘‘willing to certify, if required by
OPM, 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.’’ The provision under 18 U.S.C.
1001, provides that if an applicant
intentionally makes false or misleading
statements, certifications, or responses
on government forms, he or she may be
subject to a fine of not more than
$10,000 or imprisonment of not more
than five years.
Executive Order 12866, Regulatory
Review
This rule has been reviewed by the
Office of Management and Budget in
accordance with Executive Order 12866.
Regulatory Flexibility Act
I certify that this regulation will not
have a significant economic impact on
a substantial number of small entities
because the regulation will only affect
retirement payments to retired
employees or Members who elect an
insurable interest annuity for a person
with whom they have entered into a
domestic partnership or civil union.
List of Subjects in 5 CFR Parts 831 and
842
Administrative practice and
procedure, Air traffic controllers,
Alimony, Claims, Disability benefits,
Firefighters, Government employees,
Income taxes, Intergovernmental
relations, Law enforcement officers,
Pensions, Reporting and recordkeeping
requirements, Retirement.
Office of Personnel Management.
John Berry,
Director.
For the reasons discussed in the
preamble, the Office of Personnel
Management is amending 5 CFR parts
831 and 842 as follows:
PO 00000
Frm 00011
Fmt 4701
Sfmt 4700
42911
PART 831—RETIREMENT
1. The authority citation for part 831
continues to read as follows:
■
Authority: 5 U.S.C. 8347; Sec. 831.102 also
issued under 5 U.S.C. 8334; Sec. 831.106 also
issued under 5 U.S.C. 552a; Sec. 831.108 also
issued under 5 U.S.C. 8336(d)(2); Sec.
831.114 also issued under 5 U.S.C.
8336(d)(2), and Sec. 1313(b)(5) of Pub. L.
107–296, 116 Stat. 2135; Sec. 831.201(b)(1)
also issued under 5 U.S.C. 8347(g); Sec.
831.201(b)(6) also issued under 5 U.S.C.
7701(b)(2); Sec. 831.201(g) also issued under
Secs. 11202(f), 11232(e), and 11246(b) of Pub.
L. 105–33, 111 Stat. 251; Sec. 831.201(g) also
issued under Secs. 7(b) and (e) of Pub. L.
105–274, 112 Stat. 2419; Sec. 831.201(i) also
issued under Secs. 3 and 7(c) of Pub. L. 105–
274, 112 Stat. 2419; Sec. 831.204 also issued
under Sec. 102(e) of Pub. L. 104–8, 109 Stat.
102, as amended by Sec. 153 of Pub. L. 104–
134, 110 Stat. 1321; Sec. 831.205 also issued
under Sec. 2207 of Pub. L. 106–265, 114 Stat.
784; Sec. 831.206 also issued under Sec.
1622(b) of Pub. L. 104–106, 110 Stat. 515;
Sec. 831.301 also issued under Sec. 2203 of
Pub. L. 106–265, 114 Stat. 780; Sec. 831.303
also issued under 5 U.S.C. 8334(d)(2) and
Sec. 2203 of Pub. L. 106–235, 114 Stat. 780;
Sec. 831.502 also issued under 5 U.S.C. 8337,
and under Sec. 1(3), E.O. 11228, 3 CFR 1965–
1965 Comp. p. 317; Sec. 831.663 also issued
under 5 U.S.C. 8339(j) and (k)(2); Secs.
831.663 and 831.664 also issued under Sec.
11004(c)(2) of Pub. L. 103–66, 107 Stat. 412;
Sec. 831.682 also issued under Sec. 201(d) of
Pub. L. 99–251, 100 Stat. 23; Sec. 831.912
also issued under Sec. 636 of Appendix C to
Pub. L. 106–554, 114 Stat. 2763A–164;
Subpart P also issued under Sec. 535(d) of
Title V of Division E of Pub. L. 110–161, 121
Stat. 2042; Subpart V also issued under 5
U.S.C. 8343a and Sec. 6001 of Pub. L. 100–
203, 101 Stat. 1330–275; Sec. 831.2203 also
issued under Sec. 7001(a)(4) of Public Law
101–508, 104 Stat. 1388–328.
2. In 831.613, revise paragraph (e) to
read as follows:
■
§ 831.613 Election of insurable interest
annuities.
*
*
*
*
*
(e) An insurable interest annuity may
be elected to provide a survivor benefit
only for a person who has an insurable
interest in the retiring employee or
Member.
(1) An insurable interest is presumed
to exist with—
(i) The current spouse;
(ii) The current same-sex domestic
partner;
(iii) A blood or adopted relative closer
than first cousins;
(iv) A former spouse;
(v) A former same-sex domestic
partner;
(vi) A person to whom the employee
or Member is engaged to be married, or
a person with whom the employee or
Member has agreed to enter into a samesex domestic partnership;
E:\FR\FM\20JYR3.SGM
20JYR3
tkelley on DSK3SPTVN1PROD with RULES3
42912
Federal Register / Vol. 77, No. 140 / Friday, July 20, 2012 / Rules and Regulations
(vii) A person with whom the
employee or Member is living in a
relationship that would constitute a
common-law marriage in jurisdictions
recognizing common-law marriages;
(2) For purposes of this section, the
term ‘‘same-sex domestic partner’’
means a person in a domestic
partnership with an employee or
annuitant of the same sex and the term
‘‘domestic partnership’’ is defined as a
committed relationship between two
adults, of the same sex, in which the
partners—
(i) Are each other’s sole domestic
partner and intend to remain so
indefinitely;
(ii) 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);
(iii) Are at least 18 years of age and
mentally competent to consent to
contract;
(iv) Share responsibility for a
significant measure of each other’s
financial obligations;
(v) Are not married or joined in a civil
union to anyone else;
(vi) Are not the domestic partner of
anyone else;
(vii) 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; and
(viii) Are willing to certify, if required
by OPM, 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.
(3) When an insurable interest is not
presumed, the employee or Member
must submit affidavits from one or more
persons with personal knowledge of the
named beneficiary’s insurable interest
in the employee or Member. The
affidavits must set forth the
relationship, if any, between the named
beneficiary and the employee or
Member, the extent to which the named
beneficiary is dependent on the
employee or Member, and the reasons
why the named beneficiary might
reasonably expect to derive financial
benefit from the continued life of the
employee or Member.
(4) The employee or Member may be
required to submit documentary
evidence to establish the named
beneficiary’s date of birth.
*
*
*
*
*
VerDate Mar<15>2010
19:04 Jul 19, 2012
Jkt 226001
PART 842—FEDERAL EMPLOYEES
RETIREMENT SYSTEM—BASIC
ANNUITY
3. The authority citation for part 842
continues to read as follows:
■
Authority: 5 U.S.C. 8461(g); Secs. 842.104
and 842.106 also issued under 5 U.S.C.
8461(n); Sec. 842.104 also issued under Secs.
3 and 7(c) of Pub. L. 105–274, 112 Stat. 2419;
Sec. 842.105 also issued under 5 U.S.C.
8402(c)(1) and 7701(b)(2); Sec. 842.106 also
issued under Sec. 102(e) of Pub. L. 104–8,
109 Stat. 102, as amended by Sec. 153 of Pub.
L. 104–134, 110 Stat. 1321–102; Sec. 842.107
also issued under Secs. 11202(f), 11232(e),
and 11246(b) of Pub. L. 105–33, 111 Stat.
251, and Sec. 7(b) of Pub. L. 105–274, 112
Stat. 2419; Sec. 842.108 also issued under
Sec. 7(e) of Pub. L. 105–274, 112 Stat. 2419;
Sec. 842.109 also issued under Sec. 1622(b)
of Public Law 104–106, 110 Stat. 515; Sec.
842.208 also issued under Sec. 535(d) of Title
V of Division E of Pub. L. 110–161, 121 Stat.
2042; Sec. 842.213 also issued under 5 U.S.C.
8414(b)(1)(B) and Sec. 1313(b)(5) of Pub. L.
107–296, 116 Stat. 2135; Secs. 842.304 and
842.305 also issued under Sec. 321(f) of Pub.
L. 107–228, 116 Stat. 1383, Secs. 842.604 and
842.611 also issued under 5 U.S.C. 8417; Sec.
842.607 also issued under 5 U.S.C. 8416 and
8417; Sec. 842.614 also issued under 5 U.S.C.
8419; Sec. 842.615 also issued under 5 U.S.C.
8418; Sec. 842.703 also issued under Sec.
7001(a)(4) of Pub. L. 101–508, 104 Stat. 1388;
Sec. 842.707 also issued under Sec. 6001 of
Pub. L. 100–203, 101 Stat. 1300; Sec. 842.708
also issued under Sec. 4005 of Pub. L. 101–
239, 103 Stat. 2106 and Sec. 7001 of Pub. L.
101–508, 104 Stat. 1388; Subpart H also
issued under 5 U.S.C. 1104; Sec. 842.810 also
issued under Sec. 636 of Appendix C to Pub.
L. 106–554 at 114 Stat. 2763A–164; Sec.
842.811 also issued under Sec. 226(c)(2) of
Public Law 108–176, 117 Stat. 2529; Subpart
J also issued under Sec. 535(d) of Title V of
Division E of Pub. L. 110–161, 121 Stat. 2042.
4. In § 842.605, revise paragraph (e) to
read as follows:
■
§ 842.605
rate.
Election of insurable interest
*
*
*
*
*
(e) An insurable interest rate may be
elected to provide a survivor benefit
only for a person who has an insurable
interest in the retiring employee or
Member.
(1) An insurable interest is presumed
to exist with—
(i) The current spouse;
(ii) The same-sex domestic partner;
(iii) A blood or adopted relative closer
than first cousins;
(iv) A former spouse;
(v) A former same-sex domestic
partner;
(vi) A person to whom the employee
or Member is engaged to be married, or
a person with whom the employee or
Member has agreed to enter into a samesex domestic partnership;
(vii) A person with whom the
employee or Member is living in a
PO 00000
Frm 00012
Fmt 4701
Sfmt 4700
relationship that would constitute a
common-law marriage in jurisdictions
recognizing common-law marriages;
(2) For purposes of this section, the
term ‘‘same-sex domestic partner’’
means a person in a domestic
partnership with an employee or
annuitant of the same sex, and the term
‘‘domestic partnership’’ is defined as a
committed relationship between two
adults, of the same sex, in which the
partners—
(i) Are each other’s sole domestic
partner and intend to remain so
indefinitely;
(ii) 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);
(iii) Are at least 18 years of age and
mentally competent to consent to
contract;
(iv) Share responsibility for a
significant measure of each other’s
financial obligations;
(v) Are not married or joined in a civil
union to anyone else;
(vi) Are not the domestic partner of
anyone else;
(vii) 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; and
(viii) 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, shall be
determined by the agency.
(3) When an insurable interest is not
presumed, the employee or Member
must submit affidavits from one or more
persons with personal knowledge of the
named beneficiary’s having an insurable
interest in the employee or Member.
The affidavits must set forth the
relationship, if any, between the named
beneficiary and the employee or
Member, the extent to which the named
beneficiary is dependent on the
employee or Member, and the reasons
why the named beneficiary might
reasonably expect to derive financial
benefit from the continued life of the
employee or Member.
(4) The employee or Member may be
required to submit documentary
E:\FR\FM\20JYR3.SGM
20JYR3
Federal Register / Vol. 77, No. 140 / Friday, July 20, 2012 / Rules and Regulations
evidence to establish the named
beneficiary’s date of birth.
*
*
*
*
*
[FR Doc. 2012–17542 Filed 7–19–12; 8:45 am]
tkelley on DSK3SPTVN1PROD with RULES3
BILLING CODE 6325–39–P
VerDate Mar<15>2010
19:04 Jul 19, 2012
Jkt 226001
PO 00000
Frm 00013
Fmt 4701
Sfmt 9990
E:\FR\FM\20JYR3.SGM
20JYR3
42913
]]>Agencies
[Federal Register Volume 77, Number 140 (Friday, July 20, 2012)]
[Rules and Regulations]
[Pages 42909-42913]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-17542]
-----------------------------------------------------------------------
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Parts 831 and 842
RIN 3206-AM20
Presumption of Insurable Interest for Same-Sex Domestic Partners
AGENCY: Office of Personnel Management.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Office of Personnel Management (OPM) is amending its
regulations to add same-sex domestic partners to the class of persons
for which an insurable interest is presumed to exist. The rule is
designed to relieve federal employees with same-sex domestic partners
from the evidentiary requirements in existing regulations for persons
outside this class. Additionally, OPM is taking this step to recognize
that individuals with same-sex domestic partners have the same
presumption of an insurable interest in the continued life of employees
or Members as the class of persons listed in the prior rule.
DATES: Effective July 20, 2012.
FOR FURTHER INFORMATION CONTACT: Kristine Prentice or Roxann Johnson,
(202) 606-0299.
SUPPLEMENTARY INFORMATION: Pursuant to the President's June 2, 2010,
Memorandum for the Heads of Executive Departments and Agencies on
Extension of Benefits to Same-Sex Domestic Partners of Federal
Employees, on Thursday, March 3, 2011, the Office of Personnel
Management (OPM) published proposed regulations in the Federal Register
at 76 FR 11684 requesting comments concerning proposed changes to 5 CFR
831.613(e) and 5 CFR 842.605(e). The proposed rule added persons in
same-sex domestic partnerships to the relationships listed as having a
presumption of an insurable interest under 5 CFR 831.613(e)(1) and
842.605(e)(1).
An employee or Member of Congress (Member) in good health may elect
a reduced annuity at retirement to provide for an insurable interest
annuity for anyone who has an insurable interest in the continued life
of the employee or Member. Although an employee or Member can elect an
insurable interest annuity for anyone with an insurable interest in the
employee's or Member's continued life, the insurable interest
regulations at 5 CFR 831.613(e)(1) and 842.605(e)(1) lists certain
relationships where an insurable interest is presumed to exist.
Under the rule, the list of presumed insurable interest
relationships included ``spouses,'' ``former spouses,'' ``blood or
adopted relatives closer than first cousins,'' ``common law spouses,''
or ``persons to whom employees or Members are engaged to be married.''
Prior to publication of this rule, a same-sex domestic partner of an
employee or Member was not included in the list of relationships
presumed to have an insurable interest in the continued life of the
employee or Member. If an employee or Member elected an insurable
interest annuity for a person who did not receive the presumption under
5 CFR 831.613(e)(1) and 5 CFR 842.605(e)(1), the employee or Member had
to submit affidavits along with his or her election to prove that the
designated individual had an insurable interest in the continued life
of the employee or Member.
As explained in the proposed rule, this final rule adds ``same-sex
domestic partners,'' ``former same-sex domestic partners,'' and
``persons with whom the employee or Member has agreed to enter into a
same-sex domestic partnership'' to the class of persons OPM will
presume has an insurable interest in the continued life of the employee
or Member. Thus, when an employee or Member elects a domestic partner
for an insurable interest annuity, he or she will no longer need to
submit affidavits as evidence that the individual has an insurable
interest in the employee or Member.
The term ``domestic partnership'' has the same meaning as that
ascribed to it in the Memorandum issued by OPM Director Berry on June
2, 2010, to Heads of Executive Departments and Agencies concerning
Implementation of the President's Memorandum Regarding Extension of
Benefits to Same-Sex Domestic Partners of Federal Employees. See https://www.chcoc.gov/transmittals/TransmittalDetails.aspx?TransmittalID=2982.
Comments
We received several comments regarding the proposed rule, and they
are addressed below. For the most part,
[[Page 42910]]
OPM has not addressed comments it received that were aimed at
substantive benefits and procedural issues outside the scope of the
regulations. To the extent a comment recommended expanding or limiting
the presumptive class, OPM has addressed those comments to clarify the
intended scope of the rule.
One advocacy group commented that OPM should consider removing the
requirement that domestic partners share the same residence. To meet
the definition of ``domestic partnership'' a same-sex couple must show
that they ``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).'' The
advocacy group acknowledged the proposed rule's exception to the
residency requirement but noted that the exception ``is too narrow and
likely discriminatory.''
The definition of ``domestic partnership'' contained in this
regulation is drawn from guidance issued by OPM Director Berry on June
2, 2010, at the President's request, determining whether to extend
particular benefits to same sex partners pursuant to the President's
memorandum. See https://www.chcoc.gov/transmittals/TransmittalDetails.aspx?TransmittalID=2982. The guidance is intended to
provide indicia that demonstrate a level of commitment in the
relationship typically demonstrated by marriage. OPM has used a similar
definition of a ``domestic partnership'' in its Absence and Leave as
well as its Federal Long Term Care regulations, see 75 FR 33491 (June
14, 2010) (codified at 5 CFR 630.201) and 75 FR 30267 (June 1, 2010)
(codified at 5 CFR 875.213), and OPM has tried to maintain consistency
in this rule with the criteria necessary for proving the existence of a
``domestic partnership'' in the Absence and Leave and the FLTC
regulations. Accordingly, we have determined not to adopt this
suggestion.
Another advocacy group recommended that OPM consider expanding the
existing presumption of a ``blood or adopted relative closer than first
cousins'' to include children with whom an employee or Member acts in
loco parentis. This comment, however, goes beyond the scope of the
proposed rule, which was not published for the purpose of amending the
relationships already included in the list of presumed insurable
interest relationships. The existing list has already undergone public
notice and comment.
Furthermore, the regulation is sufficient to protect the interest
of those employees or Members who are in an in loco parentis
relationship with a child. If an employee or Member wishes to elect a
child who would not otherwise receive the presumption of an insurable
interest under 5 CFR 831.613(e)(1) or 842.605(e)(1), the employee or
Member may submit, along with the election, ``affidavits from one or
more persons with personal knowledge of the named beneficiary's having
an insurable interest in the employee or a Member.'' These affidavits
must ``set forth the relationship, if any, between the named
beneficiary and the employee or Member, the extent to which the named
beneficiary is dependent on the employee or Member, and the reason why
the named beneficiary may expect to derive financial benefit from the
continued life of the employee or Member.'' Thus, because employees and
Members may elect children in loco parentis relationships with
employees or Members under 5 CFR 831.613(e)(3) or 842.605(e)(3), their
interests are sufficiently protected under this rule.
Several commenters suggested that same-sex couples who are legally
married in jurisdictions that allow for same-sex marriage should be
treated as ``spouses'' under 5 CFR 831.613(e)(1)(i) and 5 CFR
842.605(e)(1)(i), rather than as ``domestic partners'' as defined by
this rule.
At this time, the Defense of Marriage Act, 1 U.S.C. 7, precludes us
from adopting this suggestion. Same-sex couples in a state-recognized
marriage, however, are likely to satisfy the definition of ``domestic
partnership,'' and thus will be free to submit any relevant
documentation for OPM's consideration that they think is appropriate to
show that they satisfy the definition of a domestic partnership.
One commenter suggested that the requirements providing that
``domestic partners'' must be ``each other's sole domestic partner and
intend to remain so indefinitely,'' and that ``domestic partners'' must
``share responsibility for a significant measure of each other's
financial obligations'' in order to qualify for the presumption under
the amended rule are unnecessary because none of the other listed
classes under 5 CFR 831.613(e)(1) and 842.605(e)(1) are subject to
similar requirements.
The commenter, however, appears to misunderstand the difference
between the standards for insurable interest and the standards for
establishing the existence of a domestic partnership. The requirements
that domestic partners must be each other's sole domestic partner and
intend to remain so indefinitely and that domestic partners must share
responsibility for a significant measure of each other's financial
obligations are about establishing the existence of a ``domestic
partnership,'' which then entitles the partners to the presumption of
an insurable interest. Moreover, as stated above, the standards for
establishing a domestic partnership are drawn from government-wide
guidance issued by Director Berry pursuant to the President's
memorandum.
OPM received several comments expressing concern about the
potential costs this rule would impose on the Federal Government. As a
result, OPM believes it is necessary to clarify misconceptions some may
have about the regulatory changes OPM has made to 5 CFR 864.613 and
842.605. The modifications to the pre-existing rule did not expand the
class of persons whom employees or Members may elect for an insurable
interest annuity, nor did the changes to the pre-existing rule alter
who would bear the cost of providing the insurable interest annuity.
The modification to the pre-existing rule merely included same-sex
domestic partners in the class of persons that OPM will presume have an
insurable interest in the continued life of the employee or Member. The
cost of providing an insurable interest annuity continues to be borne
primarily by the employee or Member. As a result, there is no
significant cost increase, and OPM declines to change its decision to
add same-sex domestic partners to the class of persons that OPM will
presume have an insurable interest in the continued life of an employee
or Member.
Similarly, OPM received a comment that suggested that the list of
persons presumed to have an insurable interest is already too broad,
and that OPM should exclude not only same-sex domestic partners from
this presumption but also persons engaged to be married. This comment
goes beyond the scope of the proposed rule, which was not published for
the purpose of deleting any relationships already enumerated in the
list of presumed insurable interest relationships. The existing list
has already undergone public notice and comment. We also decline to
make the suggested modification because the listed presumptions are
consistent with the purpose of the law and OPM's longstanding
administration of the insurable interest benefit.
Some commenters suggested that OPM provide retired individuals with
a new opportunity to elect an insurable interest annuity for same-sex
domestic partners as a result of the regulatory
[[Page 42911]]
change. OPM declines to adopt this suggestion. The law providing for
the election of an insurable interest annuity expressly provides that
an insurable interest election must be made at retirement. The change
to the rule at 5 CFR 831.613(e)(2)(i) and 842.605(e)(2)(i) does not
provide employees or Members with a new election opportunity they did
not previously have under the pre-existing rule. The regulatory change
merely modifies the evidentiary requirements employees or Members must
meet to elect an insurable interest annuity for a same-sex domestic
partner.
One commenter suggests that imposing the requirement that couples
show proof of the existence of a ``same-sex domestic partner''
undermines OPM's stated purpose for publishing this rule--to relieve
same-sex domestic partners of the evidentiary burdens imposed on
individuals who do not fall within the presumptive classes. The
commenter suggested that OPM has merely replaced one evidentiary burden
imposed on same-sex domestic partnerships for another (i.e., the
submission of affidavits from one or more persons with personal
knowledge of the named beneficiary's insurable interest in the employee
or Member versus the submission of evidence that the designated
beneficiary meets the definition of a ``same-sex domestic partner'' as
defined by the rule).
OPM, however, has consistently required domestic partners to meet
an evidentiary burden to establish that they are in a ``domestic
partnership.'' That is because the relationship is not verifiable
through government records (i.e., there is no marriage certificate) or,
if such a certificate or record exist, OPM is unable to recognize same-
sex marriages for purposes of establishing eligibility to federal
benefits. This burden is the same for a host of other Federal benefits.
Upon meeting the evidentiary burden to establish a domestic partnership
with respect to any benefit, the domestic partners would then be
relieved of the additional burden they would have to meet (absent the
presumption) to qualify for an insurable interest annuity.
We also received several comments suggesting that opposite-sex
domestic partners should be included in the class of persons for whom
OPM will presume an insurable interest exists. We decline to adopt this
suggestion because opposite-sex domestic partners have the option of
getting married in order to obtain the presumption. This is not an
option for same-sex couples with respect to Federal benefits.
Some commenters expressed concerns that the regulatory change would
invite abuse or fraud. Some were concerned, for example, that there
were insufficient safeguards to preclude individuals who were not in a
``domestic partnership'' as defined by the rule to be able to claim
benefits they would not otherwise be entitled to receive.
OPM believes, however, that sufficient safeguards are in place to
discourage individuals from fraudulently claiming the presumption as a
domestic partner of an employee or Member. Section 831.613(viii) of the
rule, for example, requires that parties are ``willing to certify, if
required by OPM, 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.'' The provision
under 18 U.S.C. 1001, provides that if an applicant intentionally makes
false or misleading statements, certifications, or responses on
government forms, he or she may be subject to a fine of not more than
$10,000 or imprisonment of not more than five years.
Executive Order 12866, Regulatory Review
This rule has been reviewed by the Office of Management and Budget
in accordance with Executive Order 12866.
Regulatory Flexibility Act
I certify that this regulation will not have a significant economic
impact on a substantial number of small entities because the regulation
will only affect retirement payments to retired employees or Members
who elect an insurable interest annuity for a person with whom they
have entered into a domestic partnership or civil union.
List of Subjects in 5 CFR Parts 831 and 842
Administrative practice and procedure, Air traffic controllers,
Alimony, Claims, Disability benefits, Firefighters, Government
employees, Income taxes, Intergovernmental relations, Law enforcement
officers, Pensions, Reporting and recordkeeping requirements,
Retirement.
Office of Personnel Management.
John Berry,
Director.
For the reasons discussed in the preamble, the Office of Personnel
Management is amending 5 CFR parts 831 and 842 as follows:
PART 831--RETIREMENT
0
1. The authority citation for part 831 continues to read as follows:
Authority: 5 U.S.C. 8347; Sec. 831.102 also issued under 5
U.S.C. 8334; Sec. 831.106 also issued under 5 U.S.C. 552a; Sec.
831.108 also issued under 5 U.S.C. 8336(d)(2); Sec. 831.114 also
issued under 5 U.S.C. 8336(d)(2), and Sec. 1313(b)(5) of Pub. L.
107-296, 116 Stat. 2135; Sec. 831.201(b)(1) also issued under 5
U.S.C. 8347(g); Sec. 831.201(b)(6) also issued under 5 U.S.C.
7701(b)(2); Sec. 831.201(g) also issued under Secs. 11202(f),
11232(e), and 11246(b) of Pub. L. 105-33, 111 Stat. 251; Sec.
831.201(g) also issued under Secs. 7(b) and (e) of Pub. L. 105-274,
112 Stat. 2419; Sec. 831.201(i) also issued under Secs. 3 and 7(c)
of Pub. L. 105-274, 112 Stat. 2419; Sec. 831.204 also issued under
Sec. 102(e) of Pub. L. 104-8, 109 Stat. 102, as amended by Sec. 153
of Pub. L. 104-134, 110 Stat. 1321; Sec. 831.205 also issued under
Sec. 2207 of Pub. L. 106-265, 114 Stat. 784; Sec. 831.206 also
issued under Sec. 1622(b) of Pub. L. 104-106, 110 Stat. 515; Sec.
831.301 also issued under Sec. 2203 of Pub. L. 106-265, 114 Stat.
780; Sec. 831.303 also issued under 5 U.S.C. 8334(d)(2) and Sec.
2203 of Pub. L. 106-235, 114 Stat. 780; Sec. 831.502 also issued
under 5 U.S.C. 8337, and under Sec. 1(3), E.O. 11228, 3 CFR 1965-
1965 Comp. p. 317; Sec. 831.663 also issued under 5 U.S.C. 8339(j)
and (k)(2); Secs. 831.663 and 831.664 also issued under Sec.
11004(c)(2) of Pub. L. 103-66, 107 Stat. 412; Sec. 831.682 also
issued under Sec. 201(d) of Pub. L. 99-251, 100 Stat. 23; Sec.
831.912 also issued under Sec. 636 of Appendix C to Pub. L. 106-554,
114 Stat. 2763A-164; Subpart P also issued under Sec. 535(d) of
Title V of Division E of Pub. L. 110-161, 121 Stat. 2042; Subpart V
also issued under 5 U.S.C. 8343a and Sec. 6001 of Pub. L. 100-203,
101 Stat. 1330-275; Sec. 831.2203 also issued under Sec. 7001(a)(4)
of Public Law 101-508, 104 Stat. 1388-328.
0
2. In 831.613, revise paragraph (e) to read as follows:
Sec. 831.613 Election of insurable interest annuities.
* * * * *
(e) An insurable interest annuity may be elected to provide a
survivor benefit only for a person who has an insurable interest in the
retiring employee or Member.
(1) An insurable interest is presumed to exist with--
(i) The current spouse;
(ii) The current same-sex domestic partner;
(iii) A blood or adopted relative closer than first cousins;
(iv) A former spouse;
(v) A former same-sex domestic partner;
(vi) A person to whom the employee or Member is engaged to be
married, or a person with whom the employee or Member has agreed to
enter into a same-sex domestic partnership;
[[Page 42912]]
(vii) A person with whom the employee or Member is living in a
relationship that would constitute a common-law marriage in
jurisdictions recognizing common-law marriages;
(2) For purposes of this section, the term ``same-sex domestic
partner'' means a person in a domestic partnership with an employee or
annuitant of the same sex and the term ``domestic partnership'' is
defined as a committed relationship between two adults, of the same
sex, in which the partners--
(i) Are each other's sole domestic partner and intend to remain so
indefinitely;
(ii) 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);
(iii) Are at least 18 years of age and mentally competent to
consent to contract;
(iv) Share responsibility for a significant measure of each other's
financial obligations;
(v) Are not married or joined in a civil union to anyone else;
(vi) Are not the domestic partner of anyone else;
(vii) 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; and
(viii) Are willing to certify, if required by OPM, 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.
(3) When an insurable interest is not presumed, the employee or
Member must submit affidavits from one or more persons with personal
knowledge of the named beneficiary's insurable interest in the employee
or Member. The affidavits must set forth the relationship, if any,
between the named beneficiary and the employee or Member, the extent to
which the named beneficiary is dependent on the employee or Member, and
the reasons why the named beneficiary might reasonably expect to derive
financial benefit from the continued life of the employee or Member.
(4) The employee or Member may be required to submit documentary
evidence to establish the named beneficiary's date of birth.
* * * * *
PART 842--FEDERAL EMPLOYEES RETIREMENT SYSTEM--BASIC ANNUITY
0
3. The authority citation for part 842 continues to read as follows:
Authority: 5 U.S.C. 8461(g); Secs. 842.104 and 842.106 also
issued under 5 U.S.C. 8461(n); Sec. 842.104 also issued under Secs.
3 and 7(c) of Pub. L. 105-274, 112 Stat. 2419; Sec. 842.105 also
issued under 5 U.S.C. 8402(c)(1) and 7701(b)(2); Sec. 842.106 also
issued under Sec. 102(e) of Pub. L. 104-8, 109 Stat. 102, as amended
by Sec. 153 of Pub. L. 104-134, 110 Stat. 1321-102; Sec. 842.107
also issued under Secs. 11202(f), 11232(e), and 11246(b) of Pub. L.
105-33, 111 Stat. 251, and Sec. 7(b) of Pub. L. 105-274, 112 Stat.
2419; Sec. 842.108 also issued under Sec. 7(e) of Pub. L. 105-274,
112 Stat. 2419; Sec. 842.109 also issued under Sec. 1622(b) of
Public Law 104-106, 110 Stat. 515; Sec. 842.208 also issued under
Sec. 535(d) of Title V of Division E of Pub. L. 110-161, 121 Stat.
2042; Sec. 842.213 also issued under 5 U.S.C. 8414(b)(1)(B) and Sec.
1313(b)(5) of Pub. L. 107-296, 116 Stat. 2135; Secs. 842.304 and
842.305 also issued under Sec. 321(f) of Pub. L. 107-228, 116 Stat.
1383, Secs. 842.604 and 842.611 also issued under 5 U.S.C. 8417;
Sec. 842.607 also issued under 5 U.S.C. 8416 and 8417; Sec. 842.614
also issued under 5 U.S.C. 8419; Sec. 842.615 also issued under 5
U.S.C. 8418; Sec. 842.703 also issued under Sec. 7001(a)(4) of Pub.
L. 101-508, 104 Stat. 1388; Sec. 842.707 also issued under Sec. 6001
of Pub. L. 100-203, 101 Stat. 1300; Sec. 842.708 also issued under
Sec. 4005 of Pub. L. 101-239, 103 Stat. 2106 and Sec. 7001 of Pub.
L. 101-508, 104 Stat. 1388; Subpart H also issued under 5 U.S.C.
1104; Sec. 842.810 also issued under Sec. 636 of Appendix C to Pub.
L. 106-554 at 114 Stat. 2763A-164; Sec. 842.811 also issued under
Sec. 226(c)(2) of Public Law 108-176, 117 Stat. 2529; Subpart J also
issued under Sec. 535(d) of Title V of Division E of Pub. L. 110-
161, 121 Stat. 2042.
0
4. In Sec. 842.605, revise paragraph (e) to read as follows:
Sec. 842.605 Election of insurable interest rate.
* * * * *
(e) An insurable interest rate may be elected to provide a survivor
benefit only for a person who has an insurable interest in the retiring
employee or Member.
(1) An insurable interest is presumed to exist with--
(i) The current spouse;
(ii) The same-sex domestic partner;
(iii) A blood or adopted relative closer than first cousins;
(iv) A former spouse;
(v) A former same-sex domestic partner;
(vi) A person to whom the employee or Member is engaged to be
married, or a person with whom the employee or Member has agreed to
enter into a same-sex domestic partnership;
(vii) A person with whom the employee or Member is living in a
relationship that would constitute a common-law marriage in
jurisdictions recognizing common-law marriages;
(2) For purposes of this section, the term ``same-sex domestic
partner'' means a person in a domestic partnership with an employee or
annuitant of the same sex, and the term ``domestic partnership'' is
defined as a committed relationship between two adults, of the same
sex, in which the partners--
(i) Are each other's sole domestic partner and intend to remain so
indefinitely;
(ii) 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);
(iii) Are at least 18 years of age and mentally competent to
consent to contract;
(iv) Share responsibility for a significant measure of each other's
financial obligations;
(v) Are not married or joined in a civil union to anyone else;
(vi) Are not the domestic partner of anyone else;
(vii) 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; and
(viii) 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, shall be determined by the agency.
(3) When an insurable interest is not presumed, the employee or
Member must submit affidavits from one or more persons with personal
knowledge of the named beneficiary's having an insurable interest in
the employee or Member. The affidavits must set forth the relationship,
if any, between the named beneficiary and the employee or Member, the
extent to which the named beneficiary is dependent on the employee or
Member, and the reasons why the named beneficiary might reasonably
expect to derive financial benefit from the continued life of the
employee or Member.
(4) The employee or Member may be required to submit documentary
[[Page 42913]]
evidence to establish the named beneficiary's date of birth.
* * * * *
[FR Doc. 2012-17542 Filed 7-19-12; 8:45 am]
BILLING CODE 6325-39-P
