Federal Employees Health Benefits Program Coverage for Certain Firefighters and Intermittent Emergency Response Personnel, 83110-83112 [2016-27901]

Download as PDF 83110 Federal Register / Vol. 81, No. 224 / Monday, November 21, 2016 / Rules and Regulations OFFICE OF PERSONNEL MANAGEMENT 5 CFR Part 890 RIN 3206–AM66 Federal Employees Health Benefits Program Coverage for Certain Firefighters and Intermittent Emergency Response Personnel Office of Personnel Management. ACTION: Final rule. AGENCY: The Office of Personnel Management (OPM) is issuing a final rule to amend the Federal Employees Health Benefits (FEHB) Program regulations to make certain firefighters hired under a temporary appointment and certain intermittent emergency response personnel eligible to be enrolled in a health benefits plan under the FEHB Program. These amendments were the subject of interim rules published on July 19, 2012 and November 14, 2012. DATES: This rule is effective November 21, 2016. FOR FURTHER INFORMATION CONTACT: Michael W. Kaszynski, Senior Policy Analyst at Michael.Kaszynski@opm.gov or (202) 606–0004. SUPPLEMENTARY INFORMATION: This final rule provides eligibility for health insurance coverage under the Federal Employees Health Benefits (FEHB) Program to certain wildfire protection employees and certain intermittent emergency response personnel. The Federal Government has a critical need to hire and quickly deploy qualified firefighters, other fire protection personnel, and certain intermittent emergency response personnel to areas of the country where disasters caused by humans or nature require their services. The Federal agencies that routinely deploy firefighters to respond to these disasters, including the Departments of Agriculture and Interior, have used temporary appointment authorities which provide the flexibility they need to quickly increase their firefighting workforce during wildfire emergencies and then to decrease the workforce when the emergencies are resolved. Pursuant to 5 U.S.C. 8913(b), OPM has broad authority to prescribe the conditions under which employees are eligible to enroll in the FEHB Program and is empowered to include or exclude employees on the basis of the nature and type of their employment or conditions pertaining to their appointments, including the duration of the appointments. This regulation asabaliauskas on DSK3SPTVN1PROD with RULES SUMMARY: VerDate Sep<11>2014 17:02 Nov 18, 2016 Jkt 241001 allows agencies to make FEHB coverage offers to these firefighters and fire protection personnel, as well as their families, pursuant to OPM’s broad regulatory authority under 5 U.S.C. 8913(b), allowing them to obtain health insurance through their employers on day one of employment. OPM deems the extension of offers of coverage to be appropriate because firefighters face unique hazards and risks to their health. The day-to-day job of a firefighter involves frequent exposure to environmental risk factors that can precipitate the onset of severe and life-threatening diseases like cancer. See Guidotti TL, Evaluating causality for occupational cancers: the example of firefighters. Occup. Med. (Lond). 2007;57;466–71. The nature of this work necessarily involves intense physical stress that can result in potentially fatal cardiac events, job-related injuries, and an adverse psychological impact. See U.S. Dep’t of Homeland Security, U.S. Fire Admin., Fire-Related Firefighter Injuries Reported to NFIRS, Topical Fire Report Series, Vol. 11, Issue 7, February 2011, available at http://www.usfa. fema.gov/downloads/pdf/statistics/ v11i7.pdf; Kales SN, Soteriades ES, Christoudias SG, Christiani DC, Firefighters and on-duty deaths from coronary heart disease: a case control study. Environ. Health. 2003; 2(1):14; Carey MG, Al-Zaiti SS, Dean GE, Sessanna L, Finnell DS, Sleep Problems, Depression, Substance Use, Social Bonding, and Quality of Life in Professional Firefighters. J. Occup. Environ. Med. 2011; 53(8):928–33. Although firefighters are eligible for workers’ compensation for injuries suffered on the job, they nonetheless have a heightened need for health insurance coverage, so that they can obtain preventive care and benefit from early detection of the chronic and lifethreatening conditions from which they face increased risk, in addition to receiving treatment for illnesses and injuries from which they are currently suffering. Providing firefighters coverage under the FEHB Program acknowledges the unique hazards and increased risks that they face for their Federal service and enhances the quality of their lives by ensuring access to the medical benefits necessary to promote prevention and early intervention, as well as treatment for diseases that cannot be prevented. In addition, in order to protect the public health and safety, the Departments of Agriculture and Interior have had a critical need over the years for experienced firefighting personnel. The agencies wish not only to recruit experienced firefighters this year, but PO 00000 Frm 00004 Fmt 4700 Sfmt 4700 also to maintain their interest in returning to serve during subsequent fire seasons. Offering health insurance coverage on day one of employment will support these Departments’ efforts to recruit and retain qualified firefighters and fire protection personnel for both this year’s and future fire seasons. OPM is working closely with the Departments of Agriculture and Interior to ensure firefighters are able to promptly enroll for FEHB coverage with minimal burden. OPM recognizes that there may be other groups of employees not currently eligible for the FEHB Program because of the nature of their work schedules, but who are similarly situated to firefighting personnel in that they perform emergency response services. Accordingly, OPM has also added a new subsection (i) to its regulations that permits agencies to request that OPM extend FEHB coverage to such employees. OPM intends to construe this subsection narrowly, applying it only to employees engaged in emergency response services similar to the services being performed by those responding to the wildfires, and only when requested by their employing agencies. On July 19, 2012, OPM issued an interim final regulation to extend eligibility for health insurance coverage and a full Government contribution under the FEHB Program to temporary firefighters and fire protection personnel at 77 FR 42417. In addition, recognizing that there may be other groups of employees not currently covered by the FEHB Program because of the temporary nature of their appointments, the interim rule allowed agencies to request that OPM extend FEHB coverage to similarly situated temporary employees. We also solicited comments from the public regarding whether OPM should explicitly provide FEHB coverage to employees who are appointed pursuant to section 306(b)(1) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5149(b)(1)) (‘‘Stafford Act’’) to respond to major disasters and emergencies declared by the President. In the meantime, a major natural disaster, Hurricane Sandy, struck the East Coast of the United States at the end of October 2012. The storm resulted in loss of life and major destruction of property across a wide swath of the Eastern seaboard. In affected areas, 8.5 million people went without power, gasoline was scarce, and massive flooding and cold temperatures increased the hardship on those living in the storm’s path. President Obama declared that major disasters had E:\FR\FM\21NOR1.SGM 21NOR1 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 224 / Monday, November 21, 2016 / Rules and Regulations occurred in Connecticut, New York, New Jersey, and Rhode Island, making disaster assistance available to those in the areas heaviest hit by the storm. The President also signed Federal emergency declarations for Connecticut, New York, New Jersey, New Hampshire, Massachusetts, Virginia, West Virginia, Maryland, Pennsylvania, Delaware, Rhode Island, and the District of Columbia. Federal agencies, including the Federal Emergency Management Agency (FEMA), worked with state and local partners to respond to this emergency. Over 3,000 FEMA employees were immediately deployed to the hardest hit areas. These FEMA workers may have been exposed to dangerous conditions, and put their health and safety at risk in assisting others. Many of FEMA emergency employees continue to work schedules that prevent them from being eligible for FEHB coverage on day one of employment due to OPM’s regulations, specifically 5 CFR 890.102(c)(3), 890.102(j)(1), and 890.102(j)(2). Pursuant to 5 U.S.C. 8913(b), OPM has broad authority to prescribe the conditions under which employees are eligible to enroll in the FEHB Program. OPM may include or exclude employees on the basis of the nature and type of their employment or conditions pertaining to their appointments, ‘‘such as short-term appointment, seasonal or intermittent employment, and employment of like nature.’’ Id. Intermittent emergency response employees often work in conditions that may expose them to various environmental hazards, similar to the wildland firefighters covered by the regulation described above. In light of the need for agencies to attract and bring emergency workers on board quickly and in recognition of the hazardous conditions those employees often face, OPM concluded in 2012 that its current policy of categorically excluding intermittent employees from FEHB coverage was no longer in the public interest and should be changed. Therefore, on November 14, 2012, OPM issued an interim final regulation at 77 FR 67743 to allow agencies to request FEHB coverage for intermittent employees engaged in emergency response and recovery work as defined by the Stafford Act. Since the publication of that rule, OPM also expanded coverage under the FEHB Program to certain temporary, seasonal and intermittent employees who are expected to work at least 130 hours per calendar month for at least 90 days. In addition, if OPM grants any such requests, it is reserving the authority to limit FEHB coverage for intermittent VerDate Sep<11>2014 17:02 Nov 18, 2016 Jkt 241001 employees only to the periods during which they are in a pay status. This would promote parity between intermittent employees and temporary employees like the wildland firefighters, who receive FEHB coverage only when called up for duty. It would also allow OPM the discretion to craft an appropriate approach to health insurance coverage based on the potentially diverse work schedules of intermittent employees. We have received a number of comments on our two interim final regulations from Federal agencies, an employee association, a trade association of carriers, and a number of individual employees and union members. Most commenters expressed support for the interim final regulations. The following summarizes and responds to the remaining comments: Comment: In many cases, there is no way to identify positions whose incumbents provide emergency response services for wildland fire protection. The language in Benefits Administration Letter (BAL) 12–203 seems to contradict, and be superior to, that of the rule itself in two important ways. First, in the rule the determination of eligibility is based on identification of positions, whereas in the Letter it is based on duties actually performed. Second, in the rule the determination of eligible positions is made by OPM, whereas in the Letter the determination of eligible duties is made by agencies. Clearly, the only way in which eligibility of militia members may be determined consistent with the rule’s intent is by the process articulated in the Letter: By consideration of duties by agencies. Response: The new rule at 5 CFR 890.102(h) states: Notwithstanding paragraphs (c)(1) and (2) of this section, an employee who is in a position identified by OPM that provides emergency response services for wildland fire protection is eligible to be enrolled in a health benefits plan under this part. BAL 12–203 clarifies the intent of the new rule with the following critically relevant statements: ‘‘The following positions [. . .] are covered for purposes of 5 CFR 890.102(h): Any position (including supervisory positions) the duties of which include high risk or lifethreatening work to control and extinguish wildland fires, to rescue persons endangered by fire, or to reduce or eliminate potential fire hazards, or involving the provision of direct on-site assistance to others engaged in such work. PO 00000 Frm 00005 Fmt 4700 Sfmt 4700 83111 ‘‘[I]n determining whether to extend health benefits coverage for employees, agencies should focus on the duties performed, regardless of the position’s title, occupational series, grade level or geographic location.’’ Therefore, there is no conflict between the rule and the BAL. The rule correctly points out that OPM has the ultimate authority to make eligibility determinations while the BAL delegates this authority to the agencies as it does for most FEHB Program eligibility determinations. Comment: Eligibility should be expanded to other groups. Response: The commenters believe that expanding the scope of coverage to include other temporary seasonal employees in the final rule is warranted. Since the publication of the interim final regulation, OPM expanded coverage under the FEHB Program to certain temporary, seasonal and intermittent employees. The final regulation is available at 79 FR 62325 and was published October 17, 2014. This regulation allows agencies to provide offers of FEHB coverage to firefighters and emergency response personnel identified by OPM that are not eligible under the FEHB modification rule due to their work schedules. Comment: Are these new groups eligible for other Federal Benefit Programs? Response: The regulation does not create eligibility under any other benefit program. Comment: One trade association of carriers questioned the requirements for eligibility for enrollment under this new authority and felt that they needed clarification to know when to terminate enrollments. Response: In the FEHB Program, employing offices are responsible for making enrollment and coverage termination decisions. Carriers must process enrollment and termination transactions based on agency determinations as they do today. OPM has considered these comments and determined that the interim final regulations should be finalized and published with no changes. 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 only adds additional groups to the list of groups eligible for coverage under the FEHB Program. E:\FR\FM\21NOR1.SGM 21NOR1 83112 Federal Register / Vol. 81, No. 224 / Monday, November 21, 2016 / Rules and Regulations eligibility requests, OPM may limit the coverage of intermittent employees under a health benefits plan to the periods of time during which they are in a pay status. * * * * * Executive Orders 13563 and 12866, Regulatory Review This rule has been reviewed by the Office of Management and Budget in accordance with Executive Orders 13563 and 12866. Federalism We have examined this rule in accordance with Executive Order 13132, ‘‘Federalism,’’ and have determined that this rule will not have any negative impact on the rights, roles and responsibilities of State, local, or tribal governments. 1. The authority citation for part 890 continues to read as follows: Authority: 5 U.S.C. 8913; Sec. 890.301 also issued under sec. 311 of Pub. L. 111–03, 123 Stat. 64; Sec. 890.111 also issued under section 1622(b) of Pub. L. 104–106, 110 Stat. 521; Sec. 890.112 also issued under section 1 of Pub. L. 110–279, 122 Stat. 2604; 5 U.S.C. 8913; Sec. 890.803 also issued under 50 U.S.C. 403p, 22 U.S.C. 4069c and 4069c–1; subpart L also issued under sec. 599C of Pub. L. 101–513, 104 Stat. 2064, as amended; Sec. 890.102 also issued under sections 11202(f), 11232(e), 11246 (b) and (c) of Pub. L. 105– 33, 111 Stat. 251; and section 721 of Pub. L. 105–261, 112 Stat. 2061. 2. Section 890.102 is amended by revising paragraphs (h) and (i) to read as follows: ■ asabaliauskas on DSK3SPTVN1PROD with RULES These special conditions are issued for the Pilatus Aircraft, Ltd., Model PC–12, PC–12/45, and PC–12/47 airplanes. This airplane as modified by Finnoff Aviation will have a novel or unusual design feature associated with the installation of a rechargeable lithium battery. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards. DATES: These special conditions are effective November 21, 2016 and are applicable on November 10, 2016. FOR FURTHER INFORMATION CONTACT: Ruth Hirt, Federal Aviation Administration, Programs and Procedures, ACE–114, Small Airplane Directorate, Aircraft Certification Service, 901 Locust; Kansas City, Missouri 64106; telephone (816) 329– 4108; facsimile (816) 329–4090. SUPPLEMENTARY INFORMATION: SUMMARY: ■ Coverage. * * * * (h) Notwithstanding paragraphs (c)(1) and (2) of this section, an employee who is in a position identified by OPM that provides emergency response services for wildland fire protection is eligible to be enrolled in a health benefits plan under this part. (i) Notwithstanding paragraphs (c)(1) through (3) of this section, upon request by the employing agency, OPM may grant eligibility to employees performing similar types of emergency response services to enroll in a health benefits plan under this part. In granting Jkt 241001 14 CFR Part 23 Federal Aviation Administration (FAA), DOT. ACTION: Final special conditions. PART 890—FEDERAL EMPLOYEES HEALTH BENEFITS PROGRAM 17:02 Nov 18, 2016 Federal Aviation Administration AGENCY: Accordingly, OPM is amending 5 CFR part 890 as follows: VerDate Sep<11>2014 DEPARTMENT OF TRANSPORTATION Special Conditions: Pilatus Aircraft, Ltd., Model PC–12, PC–12/45, and PC– 12/47 Airplanes, Lithium Batteries U.S. Office of Personnel Management. Beth F. Cobert, Acting Director. * BILLING CODE 6325–63–P [Docket No. FAA–2016–9001; Special Conditions No. 23–278–SC] List of Subjects in 5 CFR Part 890 Administrative practice and procedure, Government employees, Health facilities, Health insurance, Health professions, Hostages, Iraq, Kuwait, Lebanon, Military personnel, Reporting and recordkeeping requirements, Retirement. § 890.102 [FR Doc. 2016–27901 Filed 11–18–16; 8:45 am] Background On September 28, 2015, Finnoff Aviation applied for a supplemental type certificate for installation of a rechargeable lithium battery in the Model PC–12, PC–12/45, and PC–12/47 airplanes. The Model PC–12, PC–12/45, and PC–12/47 airplanes are singleengine turboprop-powered business aircraft that can accommodate up to nine passengers with a take-off weight up to 10,450 pounds. The current regulatory requirements for part 23 airplanes do not contain PO 00000 Frm 00006 Fmt 4700 Sfmt 4700 adequate requirements for the application of rechargeable lithium batteries in airborne applications. This type of battery possesses certain failure and operational characteristics with maintenance requirements that differ significantly from that of the nickelcadmium (Ni-Cd) and lead-acid rechargeable batteries currently approved in other normal, utility, acrobatic, and commuter category airplanes. Therefore, the FAA is issuing this special condition to address (1) all characteristics of the rechargeable lithium batteries and their installation that could affect safe operation of the modified Model PC–12, PC–12/45, and PC–12/47 airplanes, and (2) appropriate Instructions for Continued Airworthiness (ICAW) that include maintenance requirements to ensure the availability of electrical power from the batteries when needed. Type Certification Basis Under the provisions of § 21.101, Finnoff Aviation must show that the Model PC–12, PC–12/45, and PC–12/47 airplanes, as changed, continue to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. A78EU 1 or the applicable regulations in effect on the date of application for the change. If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 23) do not contain adequate or appropriate safety standards for the Model PC–12, PC–12/45, and PC–12/47 airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16. In addition to the applicable airworthiness regulations and special conditions, the Model PC–12, PC–12/45, and PC–12/47 airplanes must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36. The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type-certification basis under § 21.101. Special conditions are initially applicable to the model for which they are issued. Should the applicant apply for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same or similar novel or unusual design feature, the special conditions would 1 http://rgl.faa.gov/Regulatory_and_Guidance_ Library/rgMakeModel.nsf/0/6BCB00B1F3CA4EF8 86257FED0069EF2D?OpenDocument. E:\FR\FM\21NOR1.SGM 21NOR1

Agencies

[Federal Register Volume 81, Number 224 (Monday, November 21, 2016)]
[Rules and Regulations]
[Pages 83110-83112]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-27901]



[[Page 83110]]

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OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 890

RIN 3206-AM66


Federal Employees Health Benefits Program Coverage for Certain 
Firefighters and Intermittent Emergency Response Personnel

AGENCY: Office of Personnel Management.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Office of Personnel Management (OPM) is issuing a final 
rule to amend the Federal Employees Health Benefits (FEHB) Program 
regulations to make certain firefighters hired under a temporary 
appointment and certain intermittent emergency response personnel 
eligible to be enrolled in a health benefits plan under the FEHB 
Program. These amendments were the subject of interim rules published 
on July 19, 2012 and November 14, 2012.

DATES: This rule is effective November 21, 2016.

FOR FURTHER INFORMATION CONTACT: Michael W. Kaszynski, Senior Policy 
Analyst at Michael.Kaszynski@opm.gov or (202) 606-0004.

SUPPLEMENTARY INFORMATION: This final rule provides eligibility for 
health insurance coverage under the Federal Employees Health Benefits 
(FEHB) Program to certain wildfire protection employees and certain 
intermittent emergency response personnel. The Federal Government has a 
critical need to hire and quickly deploy qualified firefighters, other 
fire protection personnel, and certain intermittent emergency response 
personnel to areas of the country where disasters caused by humans or 
nature require their services. The Federal agencies that routinely 
deploy firefighters to respond to these disasters, including the 
Departments of Agriculture and Interior, have used temporary 
appointment authorities which provide the flexibility they need to 
quickly increase their firefighting workforce during wildfire 
emergencies and then to decrease the workforce when the emergencies are 
resolved.
    Pursuant to 5 U.S.C. 8913(b), OPM has broad authority to prescribe 
the conditions under which employees are eligible to enroll in the FEHB 
Program and is empowered to include or exclude employees on the basis 
of the nature and type of their employment or conditions pertaining to 
their appointments, including the duration of the appointments. This 
regulation allows agencies to make FEHB coverage offers to these 
firefighters and fire protection personnel, as well as their families, 
pursuant to OPM's broad regulatory authority under 5 U.S.C. 8913(b), 
allowing them to obtain health insurance through their employers on day 
one of employment.
    OPM deems the extension of offers of coverage to be appropriate 
because firefighters face unique hazards and risks to their health. The 
day-to-day job of a firefighter involves frequent exposure to 
environmental risk factors that can precipitate the onset of severe and 
life-threatening diseases like cancer. See Guidotti TL, Evaluating 
causality for occupational cancers: the example of firefighters. Occup. 
Med. (Lond). 2007;57;466-71. The nature of this work necessarily 
involves intense physical stress that can result in potentially fatal 
cardiac events, job-related injuries, and an adverse psychological 
impact. See U.S. Dep't of Homeland Security, U.S. Fire Admin., Fire-
Related Firefighter Injuries Reported to NFIRS, Topical Fire Report 
Series, Vol. 11, Issue 7, February 2011, available at http://www.usfa.fema.gov/downloads/pdf/statistics/v11i7.pdf; Kales SN, 
Soteriades ES, Christoudias SG, Christiani DC, Firefighters and on-duty 
deaths from coronary heart disease: a case control study. Environ. 
Health. 2003; 2(1):14; Carey MG, Al-Zaiti SS, Dean GE, Sessanna L, 
Finnell DS, Sleep Problems, Depression, Substance Use, Social Bonding, 
and Quality of Life in Professional Firefighters. J. Occup. Environ. 
Med. 2011; 53(8):928-33.
    Although firefighters are eligible for workers' compensation for 
injuries suffered on the job, they nonetheless have a heightened need 
for health insurance coverage, so that they can obtain preventive care 
and benefit from early detection of the chronic and life-threatening 
conditions from which they face increased risk, in addition to 
receiving treatment for illnesses and injuries from which they are 
currently suffering. Providing firefighters coverage under the FEHB 
Program acknowledges the unique hazards and increased risks that they 
face for their Federal service and enhances the quality of their lives 
by ensuring access to the medical benefits necessary to promote 
prevention and early intervention, as well as treatment for diseases 
that cannot be prevented.
    In addition, in order to protect the public health and safety, the 
Departments of Agriculture and Interior have had a critical need over 
the years for experienced firefighting personnel. The agencies wish not 
only to recruit experienced firefighters this year, but also to 
maintain their interest in returning to serve during subsequent fire 
seasons. Offering health insurance coverage on day one of employment 
will support these Departments' efforts to recruit and retain qualified 
firefighters and fire protection personnel for both this year's and 
future fire seasons. OPM is working closely with the Departments of 
Agriculture and Interior to ensure firefighters are able to promptly 
enroll for FEHB coverage with minimal burden.
    OPM recognizes that there may be other groups of employees not 
currently eligible for the FEHB Program because of the nature of their 
work schedules, but who are similarly situated to firefighting 
personnel in that they perform emergency response services. 
Accordingly, OPM has also added a new subsection (i) to its regulations 
that permits agencies to request that OPM extend FEHB coverage to such 
employees. OPM intends to construe this subsection narrowly, applying 
it only to employees engaged in emergency response services similar to 
the services being performed by those responding to the wildfires, and 
only when requested by their employing agencies.
    On July 19, 2012, OPM issued an interim final regulation to extend 
eligibility for health insurance coverage and a full Government 
contribution under the FEHB Program to temporary firefighters and fire 
protection personnel at 77 FR 42417. In addition, recognizing that 
there may be other groups of employees not currently covered by the 
FEHB Program because of the temporary nature of their appointments, the 
interim rule allowed agencies to request that OPM extend FEHB coverage 
to similarly situated temporary employees. We also solicited comments 
from the public regarding whether OPM should explicitly provide FEHB 
coverage to employees who are appointed pursuant to section 306(b)(1) 
of the Robert T. Stafford Disaster Relief and Emergency Assistance Act 
(42 U.S.C. 5149(b)(1)) (``Stafford Act'') to respond to major disasters 
and emergencies declared by the President.
    In the meantime, a major natural disaster, Hurricane Sandy, struck 
the East Coast of the United States at the end of October 2012. The 
storm resulted in loss of life and major destruction of property across 
a wide swath of the Eastern seaboard. In affected areas, 8.5 million 
people went without power, gasoline was scarce, and massive flooding 
and cold temperatures increased the hardship on those living in the 
storm's path. President Obama declared that major disasters had

[[Page 83111]]

occurred in Connecticut, New York, New Jersey, and Rhode Island, making 
disaster assistance available to those in the areas heaviest hit by the 
storm. The President also signed Federal emergency declarations for 
Connecticut, New York, New Jersey, New Hampshire, Massachusetts, 
Virginia, West Virginia, Maryland, Pennsylvania, Delaware, Rhode 
Island, and the District of Columbia.
    Federal agencies, including the Federal Emergency Management Agency 
(FEMA), worked with state and local partners to respond to this 
emergency. Over 3,000 FEMA employees were immediately deployed to the 
hardest hit areas. These FEMA workers may have been exposed to 
dangerous conditions, and put their health and safety at risk in 
assisting others. Many of FEMA emergency employees continue to work 
schedules that prevent them from being eligible for FEHB coverage on 
day one of employment due to OPM's regulations, specifically 5 CFR 
890.102(c)(3), 890.102(j)(1), and 890.102(j)(2). Pursuant to 5 U.S.C. 
8913(b), OPM has broad authority to prescribe the conditions under 
which employees are eligible to enroll in the FEHB Program. OPM may 
include or exclude employees on the basis of the nature and type of 
their employment or conditions pertaining to their appointments, ``such 
as short-term appointment, seasonal or intermittent employment, and 
employment of like nature.'' Id. Intermittent emergency response 
employees often work in conditions that may expose them to various 
environmental hazards, similar to the wildland firefighters covered by 
the regulation described above. In light of the need for agencies to 
attract and bring emergency workers on board quickly and in recognition 
of the hazardous conditions those employees often face, OPM concluded 
in 2012 that its current policy of categorically excluding intermittent 
employees from FEHB coverage was no longer in the public interest and 
should be changed. Therefore, on November 14, 2012, OPM issued an 
interim final regulation at 77 FR 67743 to allow agencies to request 
FEHB coverage for intermittent employees engaged in emergency response 
and recovery work as defined by the Stafford Act. Since the publication 
of that rule, OPM also expanded coverage under the FEHB Program to 
certain temporary, seasonal and intermittent employees who are expected 
to work at least 130 hours per calendar month for at least 90 days.
    In addition, if OPM grants any such requests, it is reserving the 
authority to limit FEHB coverage for intermittent employees only to the 
periods during which they are in a pay status. This would promote 
parity between intermittent employees and temporary employees like the 
wildland firefighters, who receive FEHB coverage only when called up 
for duty. It would also allow OPM the discretion to craft an 
appropriate approach to health insurance coverage based on the 
potentially diverse work schedules of intermittent employees.
    We have received a number of comments on our two interim final 
regulations from Federal agencies, an employee association, a trade 
association of carriers, and a number of individual employees and union 
members. Most commenters expressed support for the interim final 
regulations. The following summarizes and responds to the remaining 
comments:
    Comment: In many cases, there is no way to identify positions whose 
incumbents provide emergency response services for wildland fire 
protection. The language in Benefits Administration Letter (BAL) 12-203 
seems to contradict, and be superior to, that of the rule itself in two 
important ways. First, in the rule the determination of eligibility is 
based on identification of positions, whereas in the Letter it is based 
on duties actually performed. Second, in the rule the determination of 
eligible positions is made by OPM, whereas in the Letter the 
determination of eligible duties is made by agencies. Clearly, the only 
way in which eligibility of militia members may be determined 
consistent with the rule's intent is by the process articulated in the 
Letter: By consideration of duties by agencies.
     Response: The new rule at 5 CFR 890.102(h) states:
    Notwithstanding paragraphs (c)(1) and (2) of this section, an 
employee who is in a position identified by OPM that provides emergency 
response services for wildland fire protection is eligible to be 
enrolled in a health benefits plan under this part.
    BAL 12-203 clarifies the intent of the new rule with the following 
critically relevant statements:
    ``The following positions [. . .] are covered for purposes of 5 CFR 
890.102(h): Any position (including supervisory positions) the duties 
of which include high risk or life-threatening work to control and 
extinguish wildland fires, to rescue persons endangered by fire, or to 
reduce or eliminate potential fire hazards, or involving the provision 
of direct on-site assistance to others engaged in such work.
    ``[I]n determining whether to extend health benefits coverage for 
employees, agencies should focus on the duties performed, regardless of 
the position's title, occupational series, grade level or geographic 
location.''
    Therefore, there is no conflict between the rule and the BAL. The 
rule correctly points out that OPM has the ultimate authority to make 
eligibility determinations while the BAL delegates this authority to 
the agencies as it does for most FEHB Program eligibility 
determinations.
    Comment: Eligibility should be expanded to other groups.
    Response: The commenters believe that expanding the scope of 
coverage to include other temporary seasonal employees in the final 
rule is warranted. Since the publication of the interim final 
regulation, OPM expanded coverage under the FEHB Program to certain 
temporary, seasonal and intermittent employees. The final regulation is 
available at 79 FR 62325 and was published October 17, 2014. This 
regulation allows agencies to provide offers of FEHB coverage to 
firefighters and emergency response personnel identified by OPM that 
are not eligible under the FEHB modification rule due to their work 
schedules.
    Comment: Are these new groups eligible for other Federal Benefit 
Programs?
    Response: The regulation does not create eligibility under any 
other benefit program.
    Comment: One trade association of carriers questioned the 
requirements for eligibility for enrollment under this new authority 
and felt that they needed clarification to know when to terminate 
enrollments.
    Response: In the FEHB Program, employing offices are responsible 
for making enrollment and coverage termination decisions. Carriers must 
process enrollment and termination transactions based on agency 
determinations as they do today.
    OPM has considered these comments and determined that the interim 
final regulations should be finalized and published with no changes.

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 
only adds additional groups to the list of groups eligible for coverage 
under the FEHB Program.

[[Page 83112]]

Executive Orders 13563 and 12866, Regulatory Review

    This rule has been reviewed by the Office of Management and Budget 
in accordance with Executive Orders 13563 and 12866.

Federalism

    We have examined this rule in accordance with Executive Order 
13132, ``Federalism,'' and have determined that this rule will not have 
any negative impact on the rights, roles and responsibilities of State, 
local, or tribal governments.

List of Subjects in 5 CFR Part 890

    Administrative practice and procedure, Government employees, Health 
facilities, Health insurance, Health professions, Hostages, Iraq, 
Kuwait, Lebanon, Military personnel, Reporting and recordkeeping 
requirements, Retirement.

U.S. Office of Personnel Management.
Beth F. Cobert,
Acting Director.

    Accordingly, OPM is amending 5 CFR part 890 as follows:

PART 890--FEDERAL EMPLOYEES HEALTH BENEFITS PROGRAM

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1. The authority citation for part 890 continues to read as follows:

    Authority:  5 U.S.C. 8913; Sec. 890.301 also issued under sec. 
311 of Pub. L. 111-03, 123 Stat. 64; Sec. 890.111 also issued under 
section 1622(b) of Pub. L. 104-106, 110 Stat. 521; Sec. 890.112 also 
issued under section 1 of Pub. L. 110-279, 122 Stat. 2604; 5 U.S.C. 
8913; Sec. 890.803 also issued under 50 U.S.C. 403p, 22 U.S.C. 4069c 
and 4069c-1; subpart L also issued under sec. 599C of Pub. L. 101-
513, 104 Stat. 2064, as amended; Sec. 890.102 also issued under 
sections 11202(f), 11232(e), 11246 (b) and (c) of Pub. L. 105-33, 
111 Stat. 251; and section 721 of Pub. L. 105-261, 112 Stat. 2061.


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2. Section 890.102 is amended by revising paragraphs (h) and (i) to 
read as follows:


Sec.  890.102  Coverage.

* * * * *
    (h) Notwithstanding paragraphs (c)(1) and (2) of this section, an 
employee who is in a position identified by OPM that provides emergency 
response services for wildland fire protection is eligible to be 
enrolled in a health benefits plan under this part.
    (i) Notwithstanding paragraphs (c)(1) through (3) of this section, 
upon request by the employing agency, OPM may grant eligibility to 
employees performing similar types of emergency response services to 
enroll in a health benefits plan under this part. In granting 
eligibility requests, OPM may limit the coverage of intermittent 
employees under a health benefits plan to the periods of time during 
which they are in a pay status.
* * * * *
[FR Doc. 2016-27901 Filed 11-18-16; 8:45 am]
 BILLING CODE 6325-63-P