This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

11684 

Vol. 76, No. 42 

Thursday, March 3, 2011 

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: Proposed rule. 

SUMMARY: The Office of Personnel 

Management (OPM) proposes to amend 

its regulations to include same-sex 

domestic partners to the class of persons 

for which an insurable interest is 

presumed to exist. The proposed rule, 

therefore, 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 existing 

rule. 

DATES: We must receive your comments 

by April 4, 2011. 

ADDRESSES: You may submit comments, 

identified by docket number and/or RIN 

number 3206–AM20 by any of the 

following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• E-mail: combox@opm.gov. Include 

RIN number 3206–AM20 in the subject 

line of the message. 

• Mail: John Panagakos, Retirement 

Policy, Retirement Services, Office of 

Personnel Management, 1900 E. Street, 

NW., Washington, DC 20415–3200. 

FOR FURTHER INFORMATION CONTACT: 

Kristine Prentice or Roxann Johnson, 

(202) 606–0299. 

SUPPLEMENTARY INFORMATION: The Office 

of Personnel Management (OPM) is 

amending 5 CFR 831.613(e) and 5 CFR 

842.605(e) to add persons in same-sex 

domestic partnerships to the 

relationships listed as having a 

presumption of an insurable interest 

under §§ 831.613(e)(1) and 

842.605(e)(1). Retiring employees and 

Members of Congress (Members), who 

submit evidence to demonstrate that 

they are in good health and who are not 

retiring on disability are generally able 

to elect a reduced annuity to provide an 

insurable interest survivor annuity. 

However, the employee or Member must 

establish that the person elected has an 

insurable interest in the continued life 

of the employee or Member. An 

insurable interest in the continued life 

of a retiring employee or Member is 

presumed to exist for certain 

relationships listed under 

§§ 831.613(e)(1) and 842.605(e)(1). 

Currently, the relationships listed under 

§§ 831.613(e)(1) and 842.605(e)(1) 

include the following: 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. 

If employees or Members elect an 

insurable interest annuity for a person 

who does not fall under one of these 

categories, the employee or Member 

must submit affidavits along with his or 

her election to establish the existence of 

a relationship between the named 

beneficiary of the election 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. Without such proof, the 

employee or Member will fail to meet 

the statutory requirement to establish 

the insurable interest relationship and 

the election will be denied. 

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, OPM proposes to add to the 

relationships listed in §§ 831.613(e) and 

842.605(e) of the United States Code of 

Federal Regulations those individuals 

who have entered into a domestic 

partnership with an individual of the 

same sex who is a retiring employee or 

Member. For the purposes of these 

regulations, an insurable interest will be 

presumed to exist for employees or 

Members having a same-sex domestic 

partner. 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 http:// 

www.chcoc.gov/transmittals/

TransmittalDetails.

aspx?TransmittalID=2982. 

To demonstrate eligibility to elect an 

insurable interest annuity, at retirement, 

OPM will ask employees and Members 

to provide proof to establish the 

existence of, or former existence of, his 

or her domestic partnership, in addition 

to evidence of his or her good health. 

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 proposing to amend 5 

CFR parts 831 and 842 as follows: 

PART 831—RETIREMENT 

1. The authority citation for part 831 

continues to read as follows: 


srobinson on DSKHWCL6B1PROD with PROPOSALS
Federal Register / Vol. 76, No. 42 / Thursday, March 3, 2011 / Proposed Rules 11685 

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 Public Law 

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 

Public Law 105–33, 111 Stat. 251; Sec. 

831.201(g) also issued under Secs. 7(b) and 

(e) of Public Law 105–274, 112 Stat. 2419; 

Sec. 831.201(i) also issued under Secs. 3 and 

7(c) of Public Law 105–274, 112 Stat. 2419; 

Sec. 831.204 also issued under Sec. 102(e) of 

Public Law 104–8, 109 Stat. 102, as amended 

by Sec. 153 of Public Law 104–134, 110 Stat. 

1321; Sec. 831.205 also issued under Sec. 

2207 of Public Law 106–265, 114 Stat. 784; 

Sec. 831.206 also issued under Sec. 1622(b) 

of Public Law 104–106, 110 Stat. 515; Sec. 

831.301 also issued under Sec. 2203 of Public 

Law 106–265, 114 Stat. 780; Sec. 831.303 

also issued under 5 U.S.C. 8334(d)(2) and 

Sec. 2203 of Public Law 106–235, 114 Stat. 

780; Sec. 831.502 also issued under 5 U.S.C. 

8337; Sec. 831.502 also issued under Sec. 

1(3), E.O. 11228, 3 CFR 1965–1965 Comp. p. 

317; Sec. 831.663 also issued under Secs. 

8339(j) and (k)(2); Secs. 831.663 and 831.664 

also issued under Sec. 11004(c)(2) of Public 

Law 103–66, 107 Stat. 412; Sec. 831.682 also 

issued under Sec. 201(d) of Public Law 99– 

251, 100 Stat. 23; Sec. 831.912 also issued 

under Sec. 636 of Appendix C to Public Law 

106–554, 114 Stat. 2763A–164; Subpart V 

also issued under 5 U.S.C. 8343a and Sec. 

6001 of Public Law 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. Revise 831.613(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; 

(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 

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 Public Law 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 Public Law 104– 

8, 109 Stat. 102, as amended by Sec. 153 of 

Public Law 104–134, 110 Stat. 1321–102; 

Sec. 842.107 also issued under Secs. 

11202(f), 11232(e), and 11246(b) of Public 

Law 105–33, 111 Stat. 251, and Sec. 7(b) of 

Public Law 105–274, 112 Stat. 2419; Sec. 

842.108 also issued under Sec. 7(e) of Public 

Law 105–274, 112 Stat. 2419; Sec. 842.109 

also issued under Sec. 1622(b) of Public Law 

104–106, 110 Stat. 515; Sec. 842.213 also 

issued under 5 U.S.C. 8414(b)(1)(B) and 

Sec.1313(b)(5) of Public Law 107–296, 116 

Stat. 2135; Secs. 842.304 and 842.305 also 

issued under Sec. 321(f) of Public Law 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 Public Law 101–508, 104 Stat. 

1388; Sec. 842.707 also issued under Sec. 

6001 of Public Law 100–203, 101 Stat. 1300; 

Sec. 842.708 also issued under Sec. 4005 of 

Public Law 101–239, 103 Stat. 2106 and Sec. 

7001 of Public Law 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 Public Law 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. 

4. Revise 842.605(e) to read as 

follows: 

§ 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 samesex 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 


srobinson on DSKHWCL6B1PROD with PROPOSALS
11686 Federal Register / Vol. 76, No. 42 / Thursday, March 3, 2011 / Proposed Rules 

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 

evidence to establish the named 

beneficiary’s date of birth. 

* * * * * 

[FR Doc. 2011–4791 Filed 3–2–11; 8:45 am] 

BILLING CODE 6325–39–P 

DEPARTMENT OF HOMELAND 

SECURITY 

8 CFR Parts 214 and 299 

[CIS No. 2443–08; DHS Docket No. USCIS– 

2008–0014] 

RIN 1615–AB71 

Registration Requirement for 

Petitioners Seeking to File H–1B 

Petitions on Behalf of Aliens Subject to 

the Numerical Limitations 

AGENCY: U.S. Citizenship and 

Immigration Services, DHS. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Department of Homeland 

Security is proposing to amend its 

regulations governing petitions filed on 

behalf of H–1B alien workers subject to 

annual numerical limitations or exempt 

from numerical limitations by virtue of 

having earned a U.S. master’s or higher 

degree (also referred to as the ‘‘65,000 

cap’’ and ‘‘20,000 cap’’ respectively, or 

the ‘‘cap’’ collectively). This rule 

proposes to require employers seeking 

to petition for H–1B workers subject to 

the cap to first file electronic 

registrations with U.S. Citizenship and 

Immigration Services (USCIS) during a 

designated registration period. Under 

this proposed rule, if USCIS anticipates 

that the H–1B cap will not be reached 

by the first day that H–1B petitions may 

be filed for a particular fiscal year, 

USCIS would notify all registered 

employers that they are eligible to file 

H–1B petitions on behalf of the 

beneficiaries named in the selected 

registrations. USCIS would continue to 

accept and select registrations until the 

H–1B cap is reached. On the other hand, 

if USCIS anticipates that the H–1B cap 

will be reached by the first day that H– 

1B petitions may be filed for a particular 

fiscal year, USCIS would close the 

registration before such date and 

randomly select a sufficient number of 

timely filed registrations to meet the 

applicable cap. USCIS proposes to allow 

only those petitioners whose 

registrations are randomly selected to 

file H–1B petitions for the cap-subject 

prospective worker named in the 

registration. USCIS would create a 

waitlist containing some or all of the 

remaining registrations, based on USCIS 

statistical estimates of how many more 

registrations may be needed to fill the 

caps should the initial pool of selected 

registrations fall short. USCIS would 

notify the employers of those 

registrations placed on the waitlist when 

and if they are eligible to file an H–1B 

petition. Employers whose registrations 

were neither randomly selected to file 

petitions nor placed on the waitlist 

would receive notification that they 

were not selected to file petitions in that 

fiscal year. 

USCIS anticipates that this new 

process will reduce administrative 

burdens and associated costs on 

employers who currently must spend 

significant time and resources 

compiling the petition and supporting 

documentation for each potential 

beneficiary without certainty that the 

statutory cap has not been reached. The 

proposed mandatory registration 

process also will alleviate 

administrative burdens on USCIS 

service centers that process H–1B 

petitions. 

DATES: Written comments must be 

submitted on or before May 2, 2011. 

ADDRESSES: You may submit comments, 

identified by DHS Docket No. USCIS– 

2008–0014 by one of the following 

methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• E-mail: You may submit comments 

directly to USCIS by e-mail at 

rfs.regs@dhs.gov. Include DHS Docket 

No. USCIS–2008–0014 in the subject 

line of the message. 

• Mail: Chief, Regulatory Products 

Division, U.S. Citizenship and 

Immigration Services, Department of 

Homeland Security, 20 Massachusetts 

Avenue, NW., Washington, DC 20529– 

2020. To ensure proper handling, please 

reference DHS Docket No. USCIS–2008– 

0014 on your correspondence. This 

mailing address may also be used for 

paper, disk, or CD–ROM submissions. 

• Hand Delivery/Courier: U.S. 

Citizenship and Immigration Services, 

Department of Homeland Security, 20 

Massachusetts Avenue, NW., 

Washington, DC 20529–2020. Contact 

Telephone Number is (202) 272–8377. 

FOR FURTHER INFORMATION CONTACT: 

Shelly Sweeney, Adjudications Officer, 

Business Employment Services Team, 

Service Center Operations Directorate, 

U.S. Citizenship and Immigration 

Services, Department of Homeland 

Security, 20 Massachusetts Avenue, 

NW., 2nd Floor, Washington, DC 

20529–2060, telephone (202) 272–8410. 

SUPPLEMENTARY INFORMATION: This 

supplementary information section is 

organized as follows: 

I. Public Participation 

II. Background 

A. Current H–1B Petition Process 

B. H–1B Nonimmigrants Subject to H–1B 

Caps 

C. Current Random Selection Process 

D. Fiscal Year 2009 Filings 

III. Proposed Registration Program 


srobinson on DSKHWCL6B1PROD with PROPOSALS