Unknown. Final rule

6,725 words·~31 min read·/register/2014/10/17/2014-24652

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--- schema: federal-register doc_type: fedreg source_file: FR-2014-10-17.xml --- 79 201 Friday, October 17, 2014 Contents Agriculture Agriculture Department See Forest Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: National Forest System Land Management Planning, 62412 2014-24656 Army Army Department See Engineers Corps NOTICES Performance Review Board Membership, 62432-62433 2014-24626 Blind or Severely Disabled, Committee for Purchase From People Who Are See Committee for Purchase From People Who Are Blind or Severely Disabled Consumer Financial Protection Bureau of Consumer Financial Protection NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals, 62420-62421 2014-24735 2014-24738 Centers Medicare Centers for Medicare & Medicaid Services RULES Medicare Program: Waivers in Connection With the Shared Savings Program; Continuation of Effectiveness; Extensions, 62356-62358 2014-24663 NOTICES Meetings: Medicare Program; Advisory Panel on Hospital Outpatient Payment, 62445-62447 2014-24755 Coast Guard Coast Guard RULES Drawbridge Operations: Atlantic Intracoastal Waterway (AICW), Newport River, Morehead City, NC, 62337-62338 2014-24774 Atlantic Intracoastal Waterway, Chesapeake, VA, 62338-62339 2014-24772 Offshore Supply Vessels of at Least 6,000 GT ITC;

Correction, 62358 2014-24716 Regulated Navigation Areas: Bridge 1 Structural Repairs, Portsmouth Naval Shipyard, Kittery, ME, 62339-62341 2014-24771 Safety Zones: English Station Emergency Environmental Response, Mill River, New Haven, CT, 62341-62344 2014-24768 Pier 39 36th Anniversary Fireworks Display, San Francisco Bay, San Francisco, CA, 62344-62346 2014-24780 Commerce Commerce Department See Foreign-Trade Zones Board See National Oceanic and Atmospheric Administration NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals, 62414-62415 2014-24678 2014-24679 2014-24686 Committee for Purchase Committee for Purchase From People Who Are Blind or Severely Disabled NOTICES Procurement List; Additions and Deletions, 62417-62418 2014-24710 2014-24720 Commodity Futures Commodity Futures Trading Commission NOTICES Schedule of Fees: Rule Enforcement Programs of Designated Contract Markets and Registered Futures Associations, 62418-62420 2014-24624 Defense Department Defense Department See Army Department See Engineers Corps NOTICES Arms Sales, 62421-62430 2014-24711 2014-24715 2014-24719 2014-24737 Meetings:

Threat Reduction Advisory Committee, 62430-62431 2014-24717 Privacy Act; Systems of Records, 62431-62432 2014-24765 Education Department Education Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Quick Response Information System 2015-2018 System Clearance, 62434 2014-24704 Energy Department Energy Department PROPOSED RULES Energy Conservation Programs for Consumer Products: Test Procedure for Ceiling Fans, 62522-62548 2014-22883 Engineers Engineers Corps NOTICES Environmental Impact Statements;

Availability, etc.: 76-slip Mooring and Launching Facility with Associated Piers, etc.; Virginia Beach, VA, 62433 2014-24623 Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: California; Air Resources Board—Consumer Products; Revisions, 62346-62350 2014-24492 Illinois; Gasoline Vapor Recovery Requirements; Ammendments, 62352-62356 2014-24462 Nevada; Clark County, Stationary Source Permits, 62350-62352 2014-24510 PROPOSED RULES Air Quality State Implementation Plans;

Approvals and Promulgations: California; California Air Resources Board—Consumer Products; Revisions, 62378-62379 2014-24491 Illinois; Gasoline Vapor Recovery Requirements; Amendments, 62378 2014-24464 Pennsylvania; Redesignation of the Harrisburg-Lebanon-Carlisle-York Nonattainment Areas, 62389-62408 2014-24596 Washington; Infrastructure Requirements for the 2008 Ozone and 2010 Nitrogen Dioxide National Ambient Air Quality Standards, 62379-62389 2014-24742 Washington; Infrastructure Requirements for the Fine Particulate Matter National Ambient Air Quality Standards, 62368-62378 2014-24723 NOTICES Air Quality State Implementation Plans;

Approvals and Promulgations: Delaware; Philadelphia-Wilmington-New Jersey Nonattainment Areas; Adequacy Status of Maintenance Plans, 62434-62435 2014-24726 Clean Air Act Operating Permit Program: Petition to Object to Title V Permits for Mettiki Coal, LLC, Maryland, 62435-62436 2014-24728 Environmental Impact Statements; Weekly Receipts, 62436 2014-24734 Meetings: Human Studies Review Board, 62437-62439 2014-24757 Science Advisory Board, Chemical Assessment Advisory Committee Augmented for the Review of EPA's Draft Trimethylbenzenes Assessment, 62436-62437 2014-24744 Pesticide Registrations:

Requests for Amendments to Delete Uses, 62439-62441 2014-24646 Executive Office of the President See Presidential Documents Federal Aviation Federal Aviation Administration RULES Establishment of Class E Airspace: Thomas, OK, 62336-62337 2014-24040 PROPOSED RULES Airworthiness Directives: Bombardier, Inc. Airplanes, 62363-62366 2014-24696 Establishment of Class E Airspace: Plainville, CT, 62366-62368 2014-24616 NOTICES Meetings: Aviation Rulemaking Advisory Committee; Transport Airplane and Engine Issues, 62507-62508 2014-24675 Petitions for Exemption;

Summaries, 62508-62513 2014-24664 2014-24665 2014-24667 2014-24668 2014-24669 2014-24670 2014-24671 2014-24672 2014-24673 2014-24674 Federal Deposit Federal Deposit Insurance Corporation NOTICES Terminations of Receivership: Covenant Bank, Chicago, IL, 62441 2014-24718 Federal Election Federal Election Commission RULES Aggregate Biennial Contribution Limits, 62335-62336 2014-24661 PROPOSED RULES Aggregate Biennial Contribution Limits, 62361-62363 2014-24660 Federal Maritime Federal Maritime Commission NOTICES Ocean Transportation Intermediary License Applicants, 62441-62442 2014-24692 Federal Railroad Federal Railroad Administration NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals, 62513-62517 2014-24688 Federal Reserve Federal Reserve System NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 62442-62444 2014-24690 Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 62444 2014-24712 Formations of, Acquisitions by, and Mergers of Savings and Loan Holding Companies; Correction, 62444 2014-24713 Meetings; Sunshine Act, 62444-62445 2014-24874 Federal Transit Federal Transit Administration NOTICES National Transit Database Information Collection;

Updates, 62517-62518 2014-24724 Fish Fish and Wildlife Service PROPOSED RULES Endangered and Threatened Wildlife and Plants: 12-Month Finding on Petition to Downlist the Arroyo Toad; Reclassification as Threatened, 62408-62409 2014-24548 NOTICES Endangered Species Permit Applications, 62453-62460 2014-24702 Food and Drug Food and Drug Administration NOTICES Food and Drug Administration Modernization Act: Modifications to the List of Recognized Standards, Recognition List Number: 037, 62447-62449 2014-24714 Foreign Trade Foreign-Trade Zones Board NOTICES Applications for Reorganization Under Alternative Site Frameworks:

Foreign-Trade Zone 207, Richmond, VA, 62415 2014-24721 Foreign-Trade Zone 288, Northwest Iowa, 62415 2014-24722 Forest Forest Service NOTICES Environmental Impact Statements; Availability, etc.: La Garita Hills Restoration Project, Saguache Ranger District, Rio Grande National Forest, CO, 62412-62414 2014-24769 Health and Human Health and Human Services Department See Centers for Medicare & Medicaid Services See Food and Drug Administration See Inspector General Office, Health and Human Services Department See National Institutes of Health Homeland Homeland Security Department See Coast Guard NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals: Case Assistance Form, 62450-62452 2014-24770 Housing Housing and Urban Development Department NOTICES Federal Property Suitable as Facilities to Assist the Homeless, 62452-62453 2014-24687 Inspector General Health Inspector General Office, Health and Human Services Department RULES Medicare Program: Waivers in Connection With the Shared Savings Program; Continuation of Effectiveness; Extensions, 62356-62358 2014-24663 Interior Interior Department See Fish and Wildlife Service See National Park Service See Ocean Energy Management Bureau International Trade Com International Trade Commission NOTICES Complaints:

Certain Personal Transporters, Components Thereof, and Manuals Therefor, 62464 2014-24705 Investigations; Determinations, Modifications, and Rulings, etc.: Boltless Steel Shelving Units Prepackaged for Sale from China, 62465 2014-24650 Certain Consumer Electronics with Display and Processing Capabilities, 62465-62466 2014-24638 Certain Multiple Mode Outdoor Grills and Parts Thereof, 62466-62467 2014-24642 Meetings; Sunshine Act, 62467 2014-24892 2014-24894 Labor Department Labor Department NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals: Evaluation of the Youth CareerConnect Grant Program, 62467-62469 2014-24676 Millenium Millennium Challenge Corporation NOTICES Compact With the Republic of El Salvador, 62469-62472 2014-24773 National Institute National Institutes of Health NOTICES Meetings: National Institute of Mental Health, 62450 2014-24791 National Institute on Alcohol Abuse and Alcoholism, 62449 2014-24790 National Oceanic National Oceanic and Atmospheric Administration RULES Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic:

Gulf King Mackerel in Western Zone; Coastal Migratory Pelagic Resources; Gulf of Mexico and South Atlantic; Accountability Measure and Closure, 62358-62359 2014-24709 PROPOSED RULES Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic: Coastal Migratory Pelagic Resources in the Gulf of Mexico and Atlantic Region; Amendment 20B, 62410-62411 2014-24689 NOTICES Meetings: New England Fishery Management Council, 62415-62417 2014-24706 2014-24707 2014-24708 National Park National Park Service NOTICES Meetings:

Cape Cod National Seashore Advisory Commission, 62460-62461 2014-24808 National Science National Science Foundation NOTICES Meetings: Advisory Committee for Computer and Information Science and Engineering, 62472-62473 2014-24691 Federal-Commercial Spectrum Data; Workshop, 62472 2014-24741 Nuclear Regulatory Nuclear Regulatory Commission RULES Definition of a Utilization Facility, 62329-62335 2014-24732 PROPOSED RULES Definition of a Utilization Facility, 62360-62361 2014-24733 Ocean Energy Management Ocean Energy Management Bureau NOTICES Bid Adequacy Procedures:

Procedural Change and Clarification of Definitions, 62461-62463 2014-24727 Oil and Gas Lease Sales: Central Gulf of Mexico Planning Area, Outer Continental Shelf, CPA Sale 235, 62463 2014-24729 Personnel Personnel Management Office RULES Federal Employees Health Benefits Program: Modification of Eligibility to Certain Employees on Temporary Appointments and Certain Employees on Seasonal and Intermittent Schedules, 62325-62329 2014-24652 Postal Regulatory Postal Regulatory Commission NOTICES New Postal Products, 62473 2014-24693 Presidential Documents Presidential Documents PROCLAMATIONS San Gabriel Mountains National Monument;

Establishment (Proc. 9194), 62303-62322 2014-24849 Special Observances: Blind Americans Equality Day (Proc. 9195), 62549-62552 2014-24931 Columbus Day (Proc. 9193), 62301-62302 2014-24848 General Pulaski Memorial Day (Proc. 9192), 62299-62300 2014-24847 International Day of the Girl (Proc. 9191), 62297-62298 2014-24845 National School Lunch Week (Proc. 9190), 62295-62296 2014-24844 EXECUTIVE ORDERS Committees; Establishment, Renewal, Termination, etc.: Southeastern Pennsylvania Transportation Authority Labor Dispute;

Emergency Board To Investigate (EO 13679), 62323-62324 2014-24851 Securities Securities and Exchange Commission NOTICES Applications: Managed Portfolio Series, et al., 62482-62488 2014-24877 New Mountain Finance Corp., et al., 62481-62482 2014-24685 SunAmerica Series Trust, et al., 62473-62480 2014-24684 Self-Regulatory Organizations; Proposed Rule Changes: Chicago Board Options Exchange, Inc., 62502-62504 2014-24680 Financial Industry Regulatory Authority, Inc., 62489-62492, 62500-62502 2014-24681 2014-24682 NYSE Arca, Inc., 62492-62500 2014-24683 Surface Transportation Surface Transportation Board NOTICES Discontinuance of Service Exemptions:

Georgia Southwestern Railroad, Inc., and Central of Georgia Railroad Co., Schley and Sumpter Counties, GA, 62518-62519 2014-24731 Susquehanna Susquehanna River Basin Commission NOTICES Projects Approved for Consumptive Uses of Water, 62504-62506 2014-24700 Projects Rescinded for Consumptive Uses of Water, 62506-62507 2014-24701 Transportation Department Transportation Department See Federal Aviation Administration See Federal Railroad Administration See Federal Transit Administration See Surface Transportation Board Treasury Treasury Department NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals, 62519 2014-24763 Appointment of Members: Legal Division to the Performance Review Board, Internal Revenue Service, 62519 2014-24654 Veteran Affairs Veterans Affairs Department NOTICES Wait-Time Goals of the Department for the Veterans Choice Program, 62519-62520 2014-24897 Separate Parts In This Issue Part II Energy Department, 62522-62548 2014-22883 Part III Presidential Documents, 62549-62552 2014-24931 Reader Aids Consult the Reader Aids section at the end of this page for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.

To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions. 79 201 Friday, October 17, 2014 Rules and Regulations OFFICE OF PERSONNEL MANAGEMENT 5 CFR Part 890 RIN 3206-AM86 Federal Employees Health Benefits Program Modification of Eligibility to Certain Employees on Temporary Appointments and Certain Employees on Seasonal and Intermittent Schedules AGENCY:

Office of Personnel Management. ACTION: Final rule. SUMMARY: The United States Office of Personnel Management

(OPM)is issuing a final rule to modify eligibility for enrollment under the Federal Employees Health Benefits

(FEHB)Program to certain temporary, seasonal, and intermittent employees who are identified as full-time employees. This final rule follows a notice of proposed rulemaking published July 29, 2014. This regulation will allow newly eligible Federal employees to enroll no later than January 2015. DATES: This final rule is effective November 17, 2014. FOR FURTHER INFORMATION CONTACT: Marguerite Martel, Senior Policy Analyst at

(202)606-0004. SUPPLEMENTARY INFORMATION: OPM is modifying eligibility for coverage under the Federal Employees Health Benefits

(FEHB)Program to certain temporary, seasonal, and intermittent Federal employees who are expected to work a full-time schedule, which is generally based on the definition of full-time employee under section 4980H of the Internal Revenue Code (IRC), for at least 90 days. 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 appointment. OPM proposed this modification in a notice of proposed rulemaking on July 29, 2014. The proposed rule had a 30 day comment period during which OPM received 100 comments. Responses to Comments on the Proposed Rule OPM received comments from individual members of the public, Federal employees, Federal agencies, Federal shared service providers, tribal organizations, and public employee unions. The majority of the comments were positive. Many members of the public, Federal employees, and their families expressed appreciation for the coverage changes. This rule would create a more even playing field for similarly situated employees. Some Federal agencies expressed concern about the effect on the budget of this coverage change, stating they may revisit their staffing models (such as hiring a different mix of temporary, seasonal, and intermittent staff) to accommodate the rule change. OPM recognizes that agencies will have to budget for FEHB government contributions for those newly eligible employees who elect to participate. OPM also recognizes that agencies may reconsider staffing arrangements in light of this rule change. OPM continues to believe that this coverage change is consistent with the Federal government's role as a model employer. One commenter suggested that newly eligible temporary, seasonal, and intermittent employees receive a lower government contribution than is available to currently eligible employees. OPM understands that such a change would lessen the regulation's impact on agency budgets. However, OPM's goal is to make affordable health insurance more widely available to full-time employees and therefore declines to lower the government contribution. Several commenters raised concerns that employing agencies may limit appointments to fewer than 90 days or limit work hours to fewer than 130 hours in a month to avoid providing health insurance to temporary, seasonal, and intermittent employees. OPM believes employing agencies will use available staffing authorities to meet the needs of their workload, rather than changing staffing models in light of this rule. One commenter was concerned that certain agencies with large seasonal workforces will be affected more than others that do not use seasonal hiring authorities. OPM recognizes that this is true, but continues to believe that this coverage change is consistent with the Federal government's role as a model employer. One commenter was concerned that the money saved by increasing retirement contributions of new permanent staff will be spent on new benefits for temporary employees. The changes in retirement benefits is independent of this rulemaking, which OPM believes is the best way to align access to health benefits across different classes of workers. Two commenters raised concerns about whether seasonal Federal employees could afford FEHB premiums. It is important to note that these newly eligible employees will receive the same government contribution as currently eligible Federal employees. OPM believes that the government contribution to FEHB is sufficient. OPM received numerous questions from Federal entities, including agencies and shared service providers, about implementation of the proposed rule. These question topics included timing, necessary system changes, division of responsibilities between the agency and shared service provider, and identification of newly eligible employees. These matters are important for implementation, but are outside the scope of this regulation and will be handled in forthcoming OPM guidance. A commenter asked if those temporary, seasonal, and intermittent employees who separate from service would be eligible for the 31-day continuation of coverage that is available to other FEHB enrollees when eligibility terminates. The answer is yes: the 31-day continuation of coverage will be available to the enrollee on the same terms as it is for other FEHB enrollees. One commenter asked if FEHB coverage under this proposal would qualify toward the 5-year continuous coverage requirement prior to retirement. FEHB coverage for these newly eligible employees will count toward the requirement that Federal retirees maintain FEHB coverage for 5 years before retirement in order to continue FEHB enrollment into retirement. Note that employees carrying FEHB into retirement must also be eligible to participate in a qualifying retirement plan. This FEHB rule does not change any employee's eligibility to participate in a qualifying retirement program. Two commenters asked about the IRC section 6056 requirements for large employers to report on availability of health insurance to full-time employees. Those requirements fall outside the scope of this rule. OPM plans to issue guidance to Federal agencies and payroll providers on IRC section 6056 reporting in a separate communication. One commenter asked about whether this modification would apply to students and interns working for Federal agencies. Consistent with current policy, a paid student or intern who meets the criteria for coverage will be eligible to enroll in an FEHB plan. One commenter asked about whether Special Assistant United States Attorneys (SAUSAs) would be included. To the extent that a SAUSA works in a pay status meeting the criteria for coverage, the SAUSA will be eligible to enroll in an FEHB plan. Suggestions To Amend the Proposed Rule OPM received nearly identical comments from several tribal organizations expressing concern with the proposed language at § 890.301(k) that would allow certain non-Federal government entities to request a waiver from the changes in this rule. The proposed rule language stated that such a waiver would be granted at the sole discretion of the OPM Director if the non-Federal employer demonstrates that the modification would interfere with the employer's self-governance. These comments requested that waivers should be automatic and without pre-conditions for Tribal employers. OPM recognizes that Tribal governments are sovereign and that tribes have the best understanding of their governmental, employment, and financial needs. OPM has taken that into account in this final rule-making with respect to the change in coverage and has modified § 890.301(k) regarding tribal employers. Several tribal organizations also requested that OPM clarify the application of the common law employee standard to tribal employers. This common law employee standard is used to determine which employees of tribal employers may be eligible to enroll in FEHB. The proposed rule was limited to a modification of FEHB eligibility for certain temporary, seasonal, and intermittent employees and thus this clarification is outside the scope of this rule. One commenter raised a concern regarding employees who work 15 or fewer hours per week because they can receive a full Government contribution to FEHB rather than the pro-rated share available to those working from 16 to 32 hours per week. This is governed by definitions in the Federal Employee's Part-Time Career Employment Act, which is outside the scope of this rule. Several commenters pointed out that the definition of a full-time employee in IRC section 4980H is different from the definition in the Federal Employee's Part-Time Career Employment Act of 1978. OPM is aware of these differing statutory definitions of part-time and full-time, but it is outside the scope of this regulation to change these definitions. Several commenters asked whether FEHB government contributions would be pro-rated for these newly eligible employees working between 16 and 32 hours per week, as they are for permanent employees. The Federal Employee's Part-Time Career Employment Act excludes temporary and intermittent employees from the definition of “part-time employment.” As such, agencies are not authorized to pro-rate government contributions for newly eligible temporary or intermittent employees. One commenter suggested that the 130 hour per calendar month full-time standard be converted to a biweekly pay period standard, since many Federal agencies use a bi-weekly pay period rather than a month for purposes of pay and timekeeping. OPM assumes that agencies will continue to use their current methods of pay period-based timekeeping. The 130 hour per month standard in OPM's proposed rule is generally consistent with definitions and methodology outlined in IRS rulemaking under IRC section 4980H. 1 Agencies will be responsible for implementing this rule as appropriate for their systems and therefore OPM believes a regulatory change is not necessary. 1 Note that under IRC section 4980H final regulations, a different hour of service monthly equivalency will apply for an employer using the weekly rule available under the monthly measurement method to determine full-time employee status. See 26 CFR 54.4980H-1(a)(21)(iii) and 54.4980H-3(c)(3). Several commenters suggested that OPM should extend other Federal employee health benefits that do not have a government contribution, such as dental and vision insurance, long-term care insurance, and health care flexible spending accounts to temporary, seasonal, and intermittent Federal employees. These suggestions are outside the scope of this rule. One commenter proposed a different organizational structure for the regulations. OPM believes our original construction is satisfactory and declines to make the suggested change. One commenter suggested that OPM clarify that FEHB coverage will begin on the first day of employment for these newly eligible employees. For most new employees, coverage is effective on the first day of the first pay period after the employee submits enrollment paperwork. This will be the same for new employees included in this coverage modification. For those who are currently employed as a temporary, seasonal, or intermittent employee, this rule becoming effective will serve as a qualifying life event

(QLE)and coverage will become effective according to the existing rules for QLEs. Several commenters expressed concern that the projected January 2015 implementation date does not allow sufficient time for the system changes to capture, track, and monitor the data necessary for this change. Some suggested a more delayed implementation schedule. OPM recognizes the challenges in implementation and is committed to work with agencies and payroll providers on implementation challenges. The rule is intended to be effective no later than January 2015. Changes From Proposed Rule OPM has made several changes to this final rule. The proposed rule used a modified version of the term “regularly scheduled administrative workweek,” which already has a different meaning in other parts of title 5, Code of Federal Regulations. As such, this final regulation eliminates that term and instead refers to “the total hours in pay status (including overtime hours) plus qualifying leave without pay hours.” This new language should avoid confusion with existing regulatory terms. This final rule clarifies in § 890.102(j)(3) that an employee enrolled under 890.103(j) will be eligible to remain enrolled in FEHB unless the employee exceeds 365 days in nonpay status. This clarification aligns enrollment rules for this newly eligible population with rules for existing FEHB enrollees. One commenter stated that proposed § 890.102(j)(1)(ii) is confusing. The proposed provision read “If the employing office expects the employee to work for fewer than 90 days, the employee will be eligible to enroll after the completion of a 90 day waiting period.” Accordingly, OPM has amended it to state “If the employing office expects the employee to work for fewer than 90 days and the employee actually works for fewer than 90 days, the employee will generally be ineligible to enroll in FEHB because the employee will not be employed at the end of the waiting period applicable to these employees. However, if the expectation changes and the employee is expected to work for 90 days or more, that individual is eligible to enroll upon notification by the employing office, but enrollment (including the effective date of coverage) must be no later than the end of the waiting period ending on the 91st day after the first day of employment.” OPM received several comments suggesting changes to how this modification would affect non-career United States Postal Service

(USPS)employees. OPM understands that the USPS currently offers affordable employer provided health benefits coverage, separate and apart from FEHB for a majority of its full-time non-career employees, and is working toward implementing this coverage for the rest of these employees. OPM further understands that the category of USPS employees referred to as full-time non-career employees generally corresponds to the category of employees affected by the modification of FEHB eligibility under this final rule. Because the terms and conditions of employment for the class of employees that is affected by this rule already includes, or is anticipated to soon include, an offer of affordable employer provided health benefits coverage, OPM has exempted USPS employees from this final rule. OPM received a comment that use of the phrase “employer's need for self-governance” as a justification for waiver of paragraph

(j)was confusing. OPM has changed this phrase to “employer's need to manage its workforce.” Provisions of the Final Rule This final rule modifies eligibility by authorizing enrollment in a FEHB health plan for certain non-Postal Federal employees on temporary appointments and certain non-Postal employees working on seasonal and intermittent schedules. Currently, most employees on temporary appointments become eligible for FEHB coverage after completing 1 year of current continuous employment and, once eligible for coverage, do not receive an employer contribution to premium. Employees working on seasonal schedules for less than 6 months in a year and those working intermittent schedules are excluded from eligibility regardless of the work hours for which they are expected to be scheduled. Some limited exceptions were made to these exclusions for temporary firefighters and emergency response workers in 5 CFR 890.102(h) and (i). Under this final regulation, non-Postal employees on temporary appointments, non-Postal employees on seasonal schedules who will be working less than six months per year, and non-Postal employees working intermittent schedules will be eligible to enroll in a FEHB health plan if the employee is expected to work a full-time schedule of 130 or more hours in a calendar month. If the employing office expects the employee to work at least 90 days, the employee is eligible to enroll upon notification of the employee's eligibility by the employing office. If the employing office expects the employee to work fewer than 90 days, that individual is considered to be in a 90 day waiting period and is generally ineligible to enroll (because the individual will not be employed at the end of the waiting period). If the expectation changes to at least 90 days, the employee will be eligible to enroll upon notification from the employing office, but no later than the 91st day of employment. Temporary, seasonal, and intermittent employees who are expected to work a schedule of less than 130 hours in a calendar month will not be eligible to enroll in a FEHB health plan. Temporary, seasonal, and intermittent employees for whom the expectation of hours of employment changes from less than 130 hours per calendar month to 130 hours or more per calendar month would become eligible to enroll in an FEHB health plan upon notification from the employing office. This final rule allows newly eligible employees (employees on an appointment limited to 1 year and employees working on a seasonal or intermittent schedule) to initially enroll under the FEHB program with a Government contribution to premium if they are expected to be employed on a full-time schedule and are expected to work for at least 90 days. Those expected to work fewer than 90 days will be considered in a 90 day waiting period and therefore ineligible to enroll (because the individual will not be employed at the end of the waiting period), unless that expectation changes during the 90 days. Some temporary employees who have completed 1 year of continuous employment are already eligible for FEHB coverage but without a Government contribution to premium. This final rule allows these employees to enroll in a FEHB plan under 5 CFR 890.102(j) (with a Government contribution to premium) if the employee is determined by his or her employing office to be newly eligible for FEHB coverage under this regulation. Enrollments for employees newly eligible pursuant to this rule will be accepted during a 60-day period after the employing office notifies employees of their eligibility to enroll in a FEHB health plan. Coverage will become effective as provided for by 5 CFR 890.301. Employing offices must promptly determine eligibility of new and current employees and upon determining eligibility, promptly offer employees an opportunity to enroll in the FEHB Program so that coverage becomes effective no later than January 2015. While this final regulation modifies FEHB coverage for certain categories of Federal employees, there are other employers who are entitled to purchase FEHB coverage for their own employees or whose employees are otherwise entitled to enroll in FEHB coverage. These other employers may have made or are planning to make other arrangements to provide health insurance for their temporary, seasonal, and intermittent employees. Accordingly, the OPM Director may waive application of this final rule when the employer of an individual not covered by 5 U.S.C. 8901(1)(A) demonstrates to OPM that this rule's requirements would have an adverse impact on the employer's ability to effectively manage its workforce. We expect such instances to be rare. Tribal employers participating in FEHB may waive application of this final rule simply by notifying OPM. 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 to the list of groups eligible to enroll under the FEHB Program. Executive Orders 13563 and 12866, Regulatory Review OPM has examined the impact of this rule as required by Executive Order 12866 on Regulatory Planning and Review (September 30, 1993) and Executive Order 13563 on Improving Regulation and Regulatory Review (January 18, 2011). Baseline FEHB Eligibility and Federal Government Employer Shared Responsibility This final rule would modify eligibility to enroll in a FEHB plan to certain temporary, seasonal, and intermittent employees who are identified as working full-time. In order to estimate rule-induced impacts, it is necessary to assess the number of full-time Federal employees who are not currently eligible to participate in the FEHB program or are not currently eligible to have the government pay a portion of their premium, and thus may be affected by the final rule. The following categories of Federal employees are either excluded by regulation from participating in the FEHB Program or are not currently eligible to have the government pay a portion of their premium: • *Temporary employees with less than a year of service.* Per OPM regulations, most of these individuals are not eligible to enroll in FEHB. In 2012 OPM published a regulation extending FEHB eligibility to certain temporary firefighters and some personnel performing emergency response functions. • *Seasonal employees.* Seasonal employees working six months or fewer are generally prohibited by regulation from enrolling in FEHB. • *Intermittent employees.* Intermittent employees are generally prohibited by regulation from enrolling in FEHB. In 2012, however, OPM published a regulation extending FEHB eligibility to certain intermittent employees engaged in emergency response and recovery work. • *Temporary employees with more than a year of service.* Per statute, these employees can enroll in an FEHB plan if they pay the entire premium with no Government contribution. OPM has worked with Federal payroll providers to assess how many full-time non-Postal Federal employees are without access to FEHB. The data show that all responding executive agencies have a small number of full-time employees (as defined in Section 4980H of the IRC) without access to FEHB. The number without access varies from agency to agency. Within agencies, the number varies from month to month. Some large departments hire full-time temporary or seasonal employees only for a few months of the year. The agencies included in our data, in aggregate, offer FEHB to at least 95 percent of full-time employees (as defined in IRC section 4980H) (and their dependents) for all months. Across civilian, non-Postal, executive agencies and all months of the year, our data indicate that there are 300,000 full-time (as defined in IRC section 4980H) employee-months currently ineligible for FEHB (0.9 to 2 percent of the Federal workforce). The Federal government and its agencies are subject to employer shared responsibility under IRC section 4980H like other applicable large employers. The employer shared responsibility payments only apply if a full-time employee (generally defined as an employee with 130 hours of service in a month) receives a premium tax credit in connection with the purchase of health insurance through an Exchange. We do not know whether the Federal full-time employees not yet eligible for FEHB would, in the absence of this rule, be eligible for premium tax credits in connection with coverage purchased on an Exchange because we lack information on other available sources of health coverage or household income. Even in the extremely unlikely case that all 300,000 full-time employee-months without FEHB did receive a premium tax credit in connection with coverage purchased on an Exchange, the total assessable payment incurred by the Federal agencies would be well below the threshold, set by Executive Order 12866, for economic significance, which is $100 million. 2 2 The relevant employer payment would be $250 per month (or $3,000 per year), as indexed, only for those full-time employees who receive a premium tax credit in connection with coverage purchased on an Exchange. Impacts of the Final Rule Agencies may incur additional FEHB costs; a rough quantification of these potential costs appears below. We do not know how many individuals without an offer of FEHB, which varies widely from month to month, would enroll in FEHB if it were available. Our similar recent regulations changing FEHB coverage to certain temporary firefighters and disaster recovery workers resulted in very limited take-up, ranging from approximately 10 to 20 percent. We estimate, using enrollment-weighted averages, that FEHB coverage currently costs the government about $700 per full-time worker per month for affected agencies. 3 Given this average cost estimate, if those currently without FEHB eligibility become eligible and the portion of newly eligible employees who enroll is between 10 and 20 percent, this modification would generate costs to the Federal government of well below the threshold for economic significance, which is $100 million. 3 This estimate includes FEHB premium payments but not administrative costs to employing agencies. We lack data to quantify the latter. The premium payments newly made by the Federal government are appropriately categorized as costs to society if rule-induced increases in FEHB enrollment would be associated with providing additional medical services to newly-enrolled individuals. To the extent that increases in enrollment do not change how society uses its resources, then premium payments by the government would instead be transfers between members of society. Recipients of these transfers could include newly-enrolled individuals, if they would have paid (or paid more) for medical services or for health insurance premiums in the absence of the rule, or providers and charities, if the effect of the rule is a decrease in uncompensated care. We lack exact data to quantify rule-induced public health benefits or to refine our estimates of costs and transfers. 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. Katherine Archuleta, Director. For the reasons set forth in the preamble, OPM is amending title 5, chapter I, Code of Federal Regulations as follows: PART 890—FEDERAL EMPLOYEES HEALTH BENEFITS PROGRAM 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 adding paragraphs

(j)and

(k)to read as follows: § 890.102 Coverage. (j)(1) Notwithstanding paragraphs (c)(1), (2), and

(3)of this section, a non-Postal employee working on a temporary appointment, a non-Postal employee working on a seasonal schedule of less than 6 months in a year, or a non-Postal employee working on an intermittent schedule, for whom the employing office expects the total hours in pay status (including overtime hours) plus qualifying leave without pay hours to be at least 130 hours per calendar month, is eligible to enroll in a health benefits plan under this part as follows:

(i)If the employing office expects the employee to work at least 90 days, the employee is eligible to enroll upon notification of the employee's eligibility by the employing office, and

(ii)If the employing office expects the employee to work for fewer than 90 days and the employee actually works for fewer than 90 days, the employee will generally be ineligible to enroll in FEHB because the employee will not be employed at the end of the waiting period applicable to these employees. However, if the expectation changes and the employee is expected to work for 90 days or more, that individual is eligible to enroll upon notification by the employing office, but enrollment (including the effective date of coverage) must be no later than the end of the waiting period ending the 91st day after the first day of employment.

(2)An employee working on a temporary appointment, an employee working on a seasonal schedule of less than 6 months in a year, or an employee working on an intermittent schedule for whom the employing office expects the total hours in pay status (including overtime hours) plus qualifying leave without pay hours to be less than 130 hours per calendar month is generally ineligible to enroll in a health benefits plan under this part. If the expectation of hours of employment changes to 130 hours or more per month for a non-Postal employee, that employee is eligible to enroll in a health benefits plan under this part as described in paragraph (j)(1)(i) of this section.

(3)Once an employee is enrolled under this paragraph (j), eligibility will not be revoked, regardless of his or her actual work schedule or employer expectations in subsequent years, unless the employee separates from Federal service, receives a new appointment (in which case eligibility will be determined by the rules applicable to the new appointment), or exceeds 365 days in nonpay status in accordance with § 890.303(e) (subject to extension, if applicable, for qualifying leave without pay as defined at paragraph (j)(4) of this section).

(4)For purposes of this paragraph (j), “qualifying leave without pay hours” means hours of leave without pay for purposes of taking leave under the Family and Medical Leave Act, for performance of duty in the uniformed services under the Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. 4301 et seq., for receiving medical treatment under Executive Order 5396 (Jul. 7 1930), and for periods during which workers compensation is received under the Federal Employees Compensation Act, 5 U.S.C. chapter 81.

(5)Each temporary employee who is initially eligible for FEHB coverage on the basis of this paragraph

(j)is entitled to enroll in accordance with § 890.301(a). A temporary employee who is currently eligible under 5 U.S.C. 8906a (with no Government contribution) but who is not enrolled on November 17, 2014, and who would also meet eligibility requirements on the basis of paragraph (j), is entitled to enroll (with a Government contribution) on the basis of paragraph

(j)in accordance with § 890.301(h)(4)(ii). A temporary employee who is enrolled under 5 U.S.C. 8906a (with no Government contribution) on November 17, 2014, and who would also meet eligibility requirements on the basis of paragraph (j), is entitled to change enrollment (with a Government contribution) on the basis of paragraph

(j)in accordance with § 890.301(h)(4)(ii).

(k)The Director, upon written request of an employer of employees other than those covered by 5 U.S.C. 8901(1)(A), may, in his or her sole discretion, waive application of paragraph

(j)of this section to its employees when the employer demonstrates to the Director that the waiver is necessary to avoid an adverse impact on the employer's need to manage its workforce. However, a Tribal employer participating under 25 U.S.C. 1647b may provide a written notification to the Director that it has chosen not to apply paragraph

(j)of this section for its workforce. 3. Amend § 890.301 as follows: a. Revise the heading of paragraph (h).b. Redesignate paragraph (h)(4) as paragraph (h)(4)(i). c. Add paragraph (h)(4)(ii). The revision and addition read as follows: § 890.301 Opportunities for employees who are not participants in premium conversion to enroll or change enrollment; effective dates.

(h)*Change in employment status or entitlement to Government contribution.* * * *

(4)* * *

(ii)A change in entitlement to Government contribution as a result of becoming eligible for coverage under § 890.102(j). [FR Doc. 2014-24652 Filed 10-14-14; 11:15 am]

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