[Federal Register Volume 85, Number 58 (Wednesday, March 25, 2020)]
[Rules and Regulations]
[Pages 16907-16910]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-06015]


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OFFICE OF PERSONNEL MANAGEMENT

48 CFR Parts 1603 and 1652

RIN 3206-AN56


Federal Employees Health Benefits Acquisition Regulations: Self 
Plus One and Contract Matrix Update

AGENCY: Office of Personnel Management.

ACTION: Final rule.

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SUMMARY: The Office of Personnel Management (OPM) is making a technical 
correction to the Federal Employees Health Benefits Acquisition 
Regulations (FEHBAR) to add the self plus one enrollment type to 
carrier advertising instructions. OPM is also updating and amending the 
Federal Employees Health Benefits (FEHB) Program contract clause 
matrix.

DATES: This rule is effective March 25, 2020.

FOR FURTHER INFORMATION CONTACT: Michael W. Kaszynski, Senior Policy 
Analyst, at [email protected].

SUPPLEMENTARY INFORMATION: On April 2, 2019, OPM issued proposed 
regulations to the FEHBAR (84 FR 12569) to list a self plus one 
enrollment type in carrier advertising instructions. The proposed rule 
clarified that carriers are required to list all current enrollment 
types when advertising their health plans enrollment codes and premium 
rates to enrollees. This change is a technical correction and does not 
alter current FEHB family member eligibility guidelines.
    Section 706 of the Bipartisan Budget Act of 2013 amended chapter 89 
of title 5 United States Code by adding a self plus one enrollment type 
for Federal employees and annuitants under the FEHB Program. The self 
plus one enrollment type became available during the 2015 Open Season 
for the 2016 plan year and was codified in a final rule at https://www.federalregister.gov/documents/2015/09/17/2015-23348/federal-employees-health-benefits-program-self-plus-one-enrollment-type. A self 
plus one enrollment covers the enrollee and one eligible family member, 
designated by the enrollee. Eligible family members under a self plus 
one enrollment include a spouse or eligible child as set forth in Sec.  
890.302 of title 5 CFR.
    This final rule amends the FEHBAR at 48 CFR part 1603 to list a 
self plus one enrollment type in the advertising instructions. OPM 
considers this change a technical correction as it does not change the 
operational requirements of the FEHB Program and does not alter current 
FEHB family member eligibility guidelines.
    This final rule also updates and amends the contract clause matrix 
to align with current FAR and FEHBAR requirements. OPM publishes 
applicable contract clauses and clause headings in the FEHBAR. 
Annually, OPM determines which Federal Acquisition Regulation (FAR) and 
FEHBAR contract clauses are applicable to FEHB carrier contracts and 
includes them in these contracts.
    The proposed regulation provided notice to interested stakeholders 
that OPM is updating the FEHBAR contract clause matrix at 48 CFR 
1652.370. This final regulation updates the contract clause matrix to 
align with current FAR and FEHBAR requirements and include clauses 
currently incorporated in all Federal Employees Health Benefits (FEHB) 
Program carrier contracts.

Response to Comments

    The 30-day comment period for the proposed rule ended on May 2, 
2019. OPM received comments from a citizen and an association of FEHB 
health organizations. The citizen commenter, who supports the 
regulatory change, asserted that is important that federal

[[Page 16908]]

workers have a clear ability to see self and self plus one codes.
    OPM also received comments from an association of health 
organizations. The association expressed support for OPM's update to 
the FEHBAR matrix and suggested a few technical corrections. The 
commenter stated that the title at FAR 52.204-7 should read ``Award 
Management.'' This change has been incorporated into this final rule.
    The commenter also proposed a change at FAR 52.203-19 (Prohibition 
on Requiring Certain Internal Confidentiality Agreements or Statements) 
to apply this clause to only community rated carrier contracts. FAR 
3.909-3(b)(1) directs us to include the clause at 52.203-19, 
Prohibition on Requiring Certain Internal Confidentiality Agreements or 
Statements, in all solicitations and resultant contracts, other than 
personal services contracts with individuals. Therefore, no change has 
been made to the final rule based on this comment.
    The commenter stated that FAR Clause 52.204-9, captioned 
``Personnel Identity Verification of Contractor Personnel'' applies to 
experience rated carrier contracts based on their use of OPM's letter 
of credit system but suggested that the clause does not apply to 
community rated carriers. OPM agrees with this comment. Accordingly, 
the ``T'' has been removed from community rated carrier contracts 
column of the matrix for this clause.
    The commenter recommended that we adopt FAR 52.204-23 (Prohibition 
on Contracting for Hardware, Software, and Services Developed or 
Provided by Kaspersky Lab and Other Covered Entities) for both 
community rated and experience rated carrier contracts. We agree that 
this is an appropriate change, so we have added the clause to the 
matrix for both experience rated and community rated carrier contracts.
    The commenter also proposed that we update the FEHBAR Truth in 
Negotiations Act (TINA) threshold. The FEHBAR contract clauses that 
reference the TINA dollar threshold state that the threshold shall be 
adjusted by the same amount and at the same time as any change to the 
threshold for application of the Truth in Negotiations Act pursuant to 
41 U.S.C. 254b(a)(7). Therefore, the clauses are self-updating and 
there is no need to further update the FEHBAR.

Regulatory Impact Analysis

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distribute impacts, and equity). Executive 
Order 13563 also emphasizes the importance of quantifying both costs 
and benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This rule is not a significant regulatory action under 
E.O. 12866.

Reducing Regulation and Controlling Regulatory Costs

    This final rule is not an E.O. 13771 regulatory action because is 
not significant under E.O. 12866.

Regulatory Flexibility Act

    The Office of Personnel Management certifies that this rule will 
not have a significant economic impact on a substantial number of small 
entities.

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.

Civil Justice Reform

    This regulation meets the applicable standard set forth in 
Executive Order 12988.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by state, local, and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any year and it will not significantly or uniquely 
affect small governments. Therefore, no actions were deemed necessary 
under the provisions of the Unfunded Mandates Reform Act of 1995.

Congressional Review Act

    This action pertains to agency management, personnel, and 
organization and does not substantially affect the rights or 
obligations of no agency parties and, accordingly, is not a ``rule'' as 
that term is used by the Congressional Review Act (Subtitle E of the 
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA). 
Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.

Paperwork Reduction Act

    Notwithstanding any other provision of law, no person is required 
to respond to, nor shall any person be subject to a penalty for failure 
to comply with a collection of information subject to the requirements 
of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), 
unless that collection of information displays a currently valid Office 
of Management and Budget (OMB) Control Number. This rule involves an 
OMB approved collection of information subject to the PRA--OMB No. 
3206-0160, Health Benefits Election Form. The public reporting burden 
for this collection is estimated to average 30 minutes per response, 
including time for reviewing instructions, searching existing data 
sources, gathering and maintaining the data needed, and completing and 
reviewing the collection of information. The total burden hour estimate 
for this form is 9,000 hours. The systems of record notice for this 
collection is: OPM/Central 1 Civil Service Retirement and Insurance 
Records, available at https://www.opm.gov/information-management/privacy-policy/sorn/opm-sorn-central-1-civil-service-retirement-and-insurance-records.pdf.

List of Subjects in 48 CFR Parts 1603 and 1652

    Government employees, Government procurement, Health insurance, 
Reporting and recordkeeping requirements.

Office of Personnel Management.
Alexys Stanley,
Regulatory Affairs Analyst.

    Accordingly, OPM amends title 48, Code of Federal Regulations, 
parts 1603 and 1652, as follows:

PART 1603--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF 
INTEREST

0
1. The authority citation for part 1603 continues to read as follows:

    Authority:  5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.


0
2. In Sec.  1603.7002, paragraph (e) is revised to read as follows:


1603.7002  Additional guidelines.

* * * * *
    (e)(1) Not give instructions on enrollment. Statements on 
enrollment procedures, requirements, or eligibility shall be limited to 
those such as: To sign up, fill out a Health Benefits Election Form 
(Standard Form 2809) from your personnel office indicating the 
enrollment you want or use your agency's electronic enrollment system.
    (2) The enrollment codes for (plan's name) are:

(i) Self Only __ Enrollment Code __
(i) Self Plus One __ Enrollment Code __

[[Page 16909]]

(iii) Self and Family __ Enrollment Code __

    (3) The form must then be returned to your personnel office before 
the (date) deadline. Your (plan's name) coverage will begin the first 
pay period in January, (year). If you are a retired Federal employee 
and need forms, contact the Office of Personnel Management, 1900 E 
Street NW, Attn: Retirement Benefits Branch, Washington, DC 20415 or 
visit www.opm.gov/forms.
* * * * *

PART 1652--CONTRACT CLAUSES

0
3. The authority citation for part 1652 continues to read as follows:

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.


0
4. Section 1652.370 is revised to read as follows


1652.370   Use of the matrix.

    (a) The matrix in this section lists the FAR and FEHBAR clauses to 
be used with contracts based on cost analysis and contracts based on a 
combination of cost and price analysis. Carriers shall submit initial 
applications and requests for renewals on the basis that the new 
contract or contract renewal will include the clauses indicated.
    (b) Certain contract clauses are mandatory for FEHBP contracts. 
Other clauses are to be used only when made applicable by pertinent 
sections of the FAR or FEHBAR. An ``M'' in the ``Use Status'' column 
indicates that the clause is mandatory. An ``A'' indicates that the 
clause is to be used only when the applicable conditions are met.
    (c) Clauses are incorporated in the contract either in full text or 
by reference. If the full text is to be used, the matrix indicates a 
``T''. If the clause is incorporated by reference, the matrix indicates 
an ``R''.

                                               FEHBP Clause Matrix
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                                                                                    Use with         Use with
              Clause                          Title               Use status       experience    community rated
                                                                                rated contracts     contracts
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FAR 52.202-1......................  Definitions..............               M                T                T
FAR 52.203-3......................  Gratuities...............               M                T                T
FAR 52.203-5......................  Covenant Against                        M                T                T
                                     Contingent Fees.
FAR 52.203-7......................  Anti-Kickback Procedures.               M                T                T
FAR 52.203-12.....................  Limitation on Payments to               M                T                T
                                     Influence Certain
                                     Federal Transactions.
FAR 52.203-13.....................  Contractor Code of                      M                T                T
                                     Business Ethics and
                                     Conduct.
FAR 52.203-17.....................  Contractor Employee                     M                T                T
                                     Whistleblower Rights and
                                     Requirement to Inform
                                     Employees of
                                     Whistleblower Rights.
FAR 52.203-19.....................  Prohibition Requiring                   M                T                T
                                     Internal Confidentiality
                                     Agreements or Statements.
FAR 52.204-7......................  System For Award                        M                T                T
                                     Management.
FAR 52.204-9......................  Personnel Identity                      M                T   ...............
                                     Verification of
                                     Contractor Personnel.
FAR 52.204-21.....................  Basic Safeguarding of                   M                T                T
                                     Contractor Information
                                     Systems.
FAR 52.204-23.....................  Prohibition on                          M                T                T
                                     Contracting for
                                     Hardware, Software, and
                                     Services Developed or
                                     Provided by Kaspersky
                                     Lab and Other Covered
                                     Entities.
FAR 52.209-9......................  Updates of Publicly                     M                T   ...............
                                     Available Information
                                     Regarding Responsibility
                                     Matters.
1652.203-70.......................  Misleading, Deceptive, or               M                T                T
                                     Unfair Advertising.
1652.204-70.......................  Contractor Records                      M                T                T
                                     Retention.
1652.204-71.......................  Coordination of Benefits.               M                T                T
1652.204-72.......................  Filing Health Benefit                   M                T                T
                                     Claims/Court Review of
                                     Disputed Claims.
1652.204-73.......................  Taxpayer Identification                 M                T                T
                                     Number.
1652.204-74.......................  Large Provider Agreements               M                T   ...............
FAR 52.209-6......................  Protecting the                          M                T                T
                                     Government's Interest
                                     When Subcontracting With
                                     Contractors Debarred,
                                     Suspended, or Proposed
                                     for Debarment.
FAR 52.215-2......................  Audit & Records--                       M                T                T
                                     Negotiation.
FAR 52.215-10.....................  Price Reduction for                     M                T   ...............
                                     Defective Cost or
                                     Pricing Data.
FAR 52.215-12.....................  Subcontractor Certified                 M                T   ...............
                                     Cost or Pricing Data.
FAR 52.215-15.....................  Pension Adjustments and                 M                T   ...............
                                     Asset Reversions.
FAR 52.215-18.....................  Reversion or Adjustment                 M                T   ...............
                                     of Plans for
                                     Postretirement Benefits
                                     (PRB) Other Than
                                     Pensions.
1652.215-70.......................  Rate Reduction for                      M                T                T
                                     Defective Pricing or
                                     Defective Cost or
                                     Pricing Data.
1652.215-71.......................  Investment Income........               M                T   ...............
1652.216-70.......................  Accounting and Price                    M   ...............               T
                                     Adjustment.
1652.216-71.......................  Accounting and Allowable                M                T   ...............
                                     Cost.
FAR 52.219-8......................  Utilization of Small                    M                T                T
                                     Business Concerns.
FAR 52.222-1......................  Notice to the Government                M                T                T
                                     of Labor Disputes.
FAR 52.222-3......................  Convict Labor............               M                T                T
FAR 52.222-4......................  Contract Work Hours and                 M                T                T
                                     Safety Standards Act--
                                     Overtime Compensation.
FAR 52.222-21.....................  Prohibition of Segregated               M                T                T
                                     Facilities.
FAR 52.222-26.....................  Equal Opportunity........               M                T                T
FAR 52.222-29.....................  Notification of Visa                    A                T                T
                                     Denial.
FAR 52.222-35.....................  Equal Opportunity for                   M                T                T
                                     Veterans.
FAR 52.222-36.....................  Equal Opportunity for                   M                T                T
                                     Workers With
                                     Disabilities.

[[Page 16910]]

 
FAR 52.222-37.....................  Employment Reports on                   M                T                T
                                     Veterans.
FAR 52.222-50.....................  Combating Trafficking in                M                T                T
                                     Persons.
FAR 52.222.54.....................  Employment Eligibility                  M                T                T
                                     Verification.
1652.222-70.......................  Notice of Significant                   M                T                T
                                     Events.
FAR 52.223-6......................  Drug-Free Workplace......               A                T                T
FAR 52.223-18.....................  Encouraging Contractor                  M                T                T
                                     Policies to Ban Text
                                     Messaging While Driving.
1652.224-70.......................  Confidentiality of                      M                T                T
                                     Records.
FAR 52.227-1......................  Authorization and Consent               M                T                T
FAR 52.227-2......................  Notice and Assistance                   M                T                T
                                     Regarding Patent and
                                     Copyright Infringement.
FAR 52.229-4......................  Federal, State and Local                M                T                T
                                     Taxes (State and local
                                     Adjustments.
1652.229-70.......................  Taxes--Foreign Negotiated               A                T                T
                                     Benefits Contracts.
FAR 52.232-8......................  Discounts for Prompt                    M                T                T
                                     Payment.
FAR 52.232-17.....................  Interest.................               M                T                T
FAR 52.232-23.....................  Assignment of Claims.....               A                T                T
FAR 52.232-33.....................  Payment by Electronic                   M                T                T
                                     Funds Transfer--System
                                     for Awards Management.
1652.232-70.......................  Payments--Community-Rated               A   ...............               T
                                     Contracts.
1652.232-71.......................  Payments--Experience-                   A                T   ...............
                                     Rated Contracts.
1652.232-72.......................  Non-Commingling of FEHBP                M                T   ...............
                                     Funds.
1652.232-73.......................  Approval for Assignment                 M                T                T
                                     of Claims.
FAR 52.233-1......................  Disputes.................               M                T                T
FAR 52.233-4......................  Applicable Law for Breach               M                T                T
                                     of Contract Claim.
FAR 52.239-1......................  Privacy or Security                     M                T                T
                                     Safeguards.
FAR 52.242-1......................  Notice of Intent to                     M                T   ...............
                                     Disallow Costs.
FAR 52.242-3......................  Penalties for Unallowable               M                T   ...............
                                     Costs.
FAR 52.242-13.....................  Bankruptcy...............               M                T                T
1652.243-70.......................  Changes--Negotiated                     M                T                T
                                     Benefits Contracts.
FAR 52.244-5......................  Competition in                          M                T   ...............
                                     Subcontracting.
FAR 52.244-6......................  Subcontracts for                        M                T   ...............
                                     Commercial Items.
1652.244-70.......................  Subcontracts.............               M                T   ...............
1652.245-70.......................  Government Property                     M                T                T
                                     (Negotiated Benefits
                                     Contracts).
FAR 52.246-25.....................  Limitation of Liability--               M                T   ...............
                                     Services.
1652.246-70.......................  FEHB Inspection..........               M                T                T
FAR 52.247-63.....................  Preference for U.S.-Flag                M                T                T
                                     Air Carriers.
1652.249-70.......................  Renewal and Withdrawal of               M                T                T
                                     Approval.
1652.249-71.......................  FEHBP Termination for                   M                T                T
                                     Convenience of the
                                     Government--Negotiated
                                     Benefits Contracts.
1652.249-72.......................  FEHBP Termination for                   M                T                T
                                     Default--Negotiated
                                     Benefits Contracts.
FAR 52.251-1......................  Government Supply Sources               A                T   ...............
FAR 52.252-4......................  Alterations in Contract..               A                T                T
FAR 52.252-6......................  Authorized Deviations in                M                T                T
                                     Clauses.
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[FR Doc. 2020-06015 Filed 3-24-20; 8:45 am]
 BILLING CODE 6325-63-P