[Federal Register Volume 77, Number 220 (Wednesday, November 14, 2012)]
[Rules and Regulations]
[Pages 67743-67744]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-27743]

Rules and Regulations
                                                Federal Register

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Federal Register / Vol. 77, No. 220 / Wednesday, November 14, 2012 / 
Rules and Regulations

[[Page 67743]]


5 CFR Parts 890

RIN 3206-AM74

Federal Employees Health Benefits Program Coverage for Certain 
Intermittent Employees

AGENCY: Office of Personnel Management.

ACTION: Interim final rule.


SUMMARY: The United States Office of Personnel Management (OPM) is 
issuing an interim final rule to amend the Federal Employees Health 
Benefits Program (FEHBP) regulations to make certain employees who work 
on intermittent schedules eligible to be enrolled in a health benefits 
plan under the FEHBP. This rule is intended to allow agencies such as 
the Federal Emergency Management Agency (FEMA) to apply to OPM for 
authorization to offer FEHBP coverage to intermittent employees engaged 
in emergency response functions.

DATES: This rule is effective November 9, 2012. OPM must receive 
comments on or before January 14, 2013.

ADDRESSES: Send written comments to Michael W. Kaszynski, Senior Policy 
Analyst, Planning and Policy Analysis, U.S. Office of Personnel 
Management, Room 3415, 1900 E Street NW., Washington, DC; or FAX to 
(202) 606-4640 Attn: Michael Kaszynski. You may also submit comments 
using the Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.

[email protected] or (202) 606-0004.

SUPPLEMENTARY INFORMATION: On July 17, 2012, OPM issued an interim 
final regulation to extend eligibility for health insurance coverage 
under the Federal Employees Health Benefits program (FEHBP) to 
temporary firefighters and fire protection personnel. 77 FR 42417. In 
addition, in recognition of the fact that there may be other groups of 
employees not currently covered by the FEHB program because of the 
temporary nature of their appointments, the 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 FEHBP 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. OPM is currently reviewing the comments it 
received in response to its interim final regulation.
    In the meantime, a major natural disaster, Hurricane Sandy, struck 
the East Coast of the United States at the end of October. 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 have gone without power, gasoline has been scarce, and massive 
flooding and cold temperatures have increased the hardship on those 
living in the storm's path. President Obama declared that major 
disasters had 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), have worked and continue to work 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 
be exposed to dangerous conditions, and put their health and safety at 
risk in order to assist those who have been affected by the storm. 
Because many of these FEMA employees work intermittent schedules within 
the meaning of 5 CFR 340.403, they are not eligible for FEHBP coverage 
under OPM's regulations, specifically 5 CFR 890.102(c)(3).
    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. It is empowered to 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 has concluded that its current policy of 
categorically excluding intermittent employees from FEHBP coverage is 
no longer in the public interest and should be changed. Therefore, OPM 
is issuing this interim regulation to allow agencies to request FEHBP 
coverage for intermittent employees engaged in emergency response and 
recovery work as defined by the Stafford Act. In addition, if OPM 
grants any such requests, it is reserving the authority to limit FEHBP 
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 FEHBP 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.

Waiver of Proposed Rulemaking

    OPM is issuing this regulation as an interim final rule. Under 
section 553(b) of the Administrative Procedure Act (APA) (5 U.S.C. 551 
et seq.), an agency may issue a final rule without first publishing a 
general notice of proposed rulemaking when it determines, for good 
cause, that notice and public comment are impracticable, unnecessary, 
or contrary to the public

[[Page 67744]]

interest. We have determined that this standard is satisfied.
    Hurricane Sandy left death and massive destruction in its wake. 
Many of the people in the storm's path continue to be exposed both to 
the elements (just as colder weather has arrived) and to inherently 
hazardous conditions where they are located and are thus in immediate 
need of emergency assistance. FEMA is playing a major role, working 
with state and local partners, to provide this assistance. Therefore, 
the federal government has a critical need to deploy additional 
qualified emergency response workers to serve the American people.
    Moreover, emergency response workers are voluntarily exposing 
themselves to hazardous working conditions every day. They have a need 
for health insurance coverage to obtain preventive care, to allow for 
early detection of potentially serious conditions, and to address any 
health issues that may arise as a result of their service. The 
regulatory obstacle preventing such agencies as FEMA from submitting a 
request for FEHBP coverage of these men and women should thus be 
eliminated without delay.
    Because of these conditions, OPM has determined that it would be 
impracticable, unnecessary, and contrary to the public interest to 
delay putting the provisions of this interim final regulation in place 
until a public notice and comment process has been completed. We find 
good cause to waive the notice of proposed rulemaking and to issue this 
final rule on an interim basis. We will accept public comments on this 
interim final rule for 60 days.
    We are also dispensing with the usual requirement that a new rule 
not take effect until 30 days after it is issued. Instead, this rule is 
effective immediately upon public display. Immediate effectiveness is 
authorized because this is a substantive rule granting an exception to 
the prohibition on providing health insurance coverage to intermittent 
employees. See 5 U.S.C. 553(d)(1). Moreover, for the reasons set forth 
above, there is good cause to make this rule effective immediately.

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 FEHB.

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.


    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 Parts 890

    Administrative practice and procedure, Government employees, Health 
facilities, Health insurance, Health professions, Reporting and 
recordkeeping requirements, Retirement.

    U.S. Office Of Personnel Management.
John Berry,

    Accordingly, OPM is amending title 5, Code of Federal Regulations, 
Chapter I as follows:


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 paragraph (i) to read as 

Sec.  890.102  Coverage.

* * * * *
    (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. 2012-27743 Filed 11-9-12; 4:15 pm]