[Federal Register Volume 77, Number 139 (Thursday, July 19, 2012)]
[Rules and Regulations]
[Pages 42417-42418]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-17623]

Rules and Regulations
                                                Federal Register

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Federal Register / Vol. 77, No. 139 / Thursday, July 19, 2012 / Rules 
and Regulations

[[Page 42417]]


5 CFR Part 890

RIN 3206-AM66

Federal Employees Health Benefits Program Coverage for Certain 

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 (FEHB) regulations to make certain firefighters hired 
under a temporary appointment eligible to be enrolled in a health 
benefits plan under the FEHB.

DATES: This rule is effective July 17, 2012. OPM must receive comments 
on or before September 17, 2012.

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: This interim final rule immediately extends 
eligibility for health insurance coverage under the Federal Employees 
Health Benefits (FEHB) program to temporary firefighters and fire 
protection personnel. The federal government has a critical need to 
hire and quickly deploy qualified firefighters and other fire 
protection personnel to areas of the country where disasters caused by 
man 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 to bring firefighting personnel on board, as 
these authorities provide the flexibility they need to quickly increase 
their firefighting workforce to address 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 appointment. Under 
current OPM regulations, individuals serving under temporary 
appointments have generally been excluded from coverage, with limited 
exceptions not relevant here. Accordingly, the only circumstances under 
which temporary employees previously could secure coverage under the 
FEHB program are those set forth in 5 U.S.C. 8906a, which allows 
temporary employees who have completed one full year of continuous 
employment to secure coverage at their own expense. Temporary 
firefighters and fire protection personnel do not generally qualify for 
coverage under 5 U.S.C. 8906a because they do not work for full one-
year periods. Thus, they are not eligible for coverage under the FEHB 
program at all. This regulation would for the first time provide FEHB 
coverage 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 
    OPM believes that the extension of this coverage is 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. 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. U.S. Dep't of Homeland Sec., 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; 
    Although firefighters are eligible for worker's 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 they face 
for their Federal service and enhances the quality of their lives by 
ensuring they have access to the medical benefits necessary to promote 
prevention and early intervention and 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 a critical need this year, 
as in many years, for experienced firefighting personnel. They 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 will provide additional 
assurances that these Departments will continue to successfully recruit 
and retain qualified firefighters and fire protection personnel for 
this and future fire seasons. OPM is committed to making the process 
for signing up for FEHB coverage simple and streamlined so that the 
firefighters covered by this

[[Page 42418]]

rule can secure their new benefits with minimal burden. We are working 
closely with the Departments of Agriculture and Interior to ensure 
firefighters are able to promptly enroll for FEHB coverage.
    OPM recognizes that there may be other groups of employees not 
currently covered by the FEHB program because of the temporary nature 
of their appointments, 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 who are 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. OPM 
will issue guidance to assist agencies in implementing this provision. 
Agencies may submit requests to OPM under this provision after OPM 
issues its guidance.
    Finally, OPM is also soliciting comments from the public regarding 
whether it should explicitly provide FEHB coverage under subsection (h) 
to additional employees who are currently ineligible under the 
provisions of subsection (c), but who perform similar emergency 
response services, including certain 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)) to respond to major 
disasters and emergencies declared by the President.

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 interest. We have determined that this 
standard is satisfied.
    The United States is experiencing an active wildfire season. Not 
only are tens of thousands of acres in Western states being blackened, 
but the wildfires are creating significant environmental damage and 
health hazards. Water quality, for example, is being compromised up to 
100 miles from the burn. Big fires have significant consequences, 
especially for air quality. A series of large wildfires in Canada in 
1995 created massive plumes of carbon monoxide that drifted south 
through Boston, New York and Washington. The 2003 wildfire season in 
California caused such a substantial increase in particulate matter, 
carbon monoxide and nitrous oxide that the fires polluted the air 
quality outside and inside homes as well. Forest fires can also result 
in large releases of sediment into rivers and streams, which can clog 
reservoirs and undermine the quality of drinking water. Therefore, the 
federal government has a critical need to hire and deploy qualified 
firefighters to serve the American people.
    Moreover, the firefighters and fire protection personnel are 
putting their lives on the line and voluntarily exposing themselves to 
hazardous working conditions every day. They have an immediate need for 
health insurance coverage to obtain preventive care and to allow for 
early detection of potentially serious conditions, in addition to 
addressing any health issues that arise during this fire season. 
Allowing these men and women the opportunity to obtain health insurance 
coverage will help them to protect themselves and their families.
    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 temporary 
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 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.
John Berry,

    Accordingly, OPM is amending 5 CFR part 890 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 to be amended by adding 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) and (2) 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.

[FR Doc. 2012-17623 Filed 7-17-12; 8:45 am]