This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents.

Rules and Regulations Federal Register

49461 

Vol. 86, No. 169 

Friday, September 3, 2021 

1Sabrina A. McCarthy, Office of the Solicitor, 

U.S. Department of the Interior, to John O’ Brien, 

Director, Healthcare and Insurance, Office of 

Personnel Management (June 1, 2012). 

OFFICE OF PERSONNEL 

MANAGEMENT 

5 CFR Part 890 

RIN 3206–AO18 

Access to Federal Employees Health 

Benefits (FEHB) for Employees of 

Certain Tribally Controlled Schools 

AGENCY: Office of Personnel 

Management. 

ACTION: Interim final rule; request for 

comments. 

SUMMARY: The Office of Personnel 

Management (OPM) is issuing an 

interim final rule to expand eligibility 

for enrollment in the Federal Employees 

Health Benefits (FEHB) Program to 

additional tribal employees. The 

Consolidated Appropriations Act, 2021 

(FY21 CAA) amended section 409 of the 

Indian Health Care Improvement Act 

and expanded entitlement to Indian 

tribes or tribal organizations carrying 

out programs under the Tribally 

Controlled Schools Act of 1988 (TCSA) 

to purchase coverage, rights, and 

benefits under the FEHB Program for 

their employees. 

DATES: 

Effective date: This rule is effective on 

September 3, 2021. 

Comment date: OPM must receive 

comments on or before November 2, 

2021. 

ADDRESSES: You may submit comments, 

identified by docket number and/or 

Regulatory Information Number (RIN) 

and title, by the following method: 

• Federal Rulemaking Portal: http://

www.regulations.gov. Follow the 

instructions for submitting comments. 

All submissions received must 

include the agency name and docket 

number or RIN for this document. The 

general policy for comments and other 

submissions from members of the public 

is to make these submissions available 

for public viewing at http://

www.regulations.gov as they are 

received without change, including any 

personal identifiers or contact 

information. 

FOR FURTHER INFORMATION CONTACT: Julia 

Elam, Program Analyst, at julia.elam@

opm.gov or (202) 606–2128. 

SUPPLEMENTARY INFORMATION: 

FEHB Program Background 

The FEHB Program was established in 

1960 and is the largest employersponsored health insurance program in 

the United States. As of March 2021, 

there were approximately 8.2 million 

covered individuals in the FEHB 

Program. Covered individuals, as 

defined in 5 CFR 890.101, include 

employees of the Federal government, 

annuitants, members of their families, 

former spouses, and miscellaneous 

groups, enumerated in 5 U.S.C. 8901; 

United States Postal Service employees 

and annuitants, pursuant to 39 U.S.C. 

1005; tribal employees of tribal 

employers, pursuant to 25 U.S.C. 1647b; 

and separated employees and former 

dependents who are eligible for 

Temporary Continuation of Coverage 

under 5 U.S.C. 8905a. 

For the 2021 plan year, there are 276 

plan choices across the entire FEHB 

Program. The actual number of options 

available to any given enrollee depends 

on the individual’s geographic location 

but will include a minimum of 18 

nationwide plan choices, as well as 

local and regional plans. OPM 

estimates, using the 2020 head count, 

that total 2021 premiums are 

approximately $59 billion. 

Authority for This Rulemaking 

Section 1114 of the Consolidated 

Appropriations Act, 2021 (Pub. L. 116– 

260) amended Section 409 of the Indian 

Health Care Improvement Act (25 U.S.C. 

1647b) to extend entitlement to Indian 

tribes or tribal organizations carrying 

out programs under the Tribally 

Controlled Schools Act of 1988 (TCSA) 

(25 U.S.C. 2501 et seq.) to purchase 

coverage, rights and benefits under the 

FEHB Program for their employees. 

The FEHB Program is administered by 

OPM in accordance with Title 5 Chapter 

89, United States Code and 

implementing regulations (title 5, parts 

890, 892 and Title 48, Chapter 16). 

The Patient Protection and Affordable 

Care Act (ACA) (Pub. L. 111–148) and 

the Health Care and Education 

Reconciliation Act of 2010 (Pub. L. 111– 

152), as amended extended entitlement 

to Indian tribes and tribal organizations 

carrying out programs under the Indian 

Self-Determination and Education 

Assistance Act (ISDEAA) (Pub. L. 93– 

638), and urban Indian organizations 

carrying out programs under Title V of 

the Indian Health Care Improvement 

Act (IHCIA) to purchase coverage, 

rights, and benefits under the FEHB 

Program for their employees, defined in 

the FEHB regulations as ‘‘tribal 

employees.’’ As the administrator of the 

FEHB Program, OPM extended 

eligibility to tribal employees of entitled 

tribal employers within the meaning of 

section 409 of the IHCIA. Tribal 

employers began purchasing FEHB for 

their employees on March 22, 2012 with 

coverage effective on May 1, 2012. As of 

April 2021, 125 tribes participate in the 

FEHB Program, and there are 32,178 

tribal employees for a total of 64,208 

covered lives. 

Tribally Controlled Schools and FEHB 

Eligibility 

In 2010, section 409 of the IHCIA did 

not explicitly extend entitlement to 

tribes and tribal organizations operating 

schools pursuant to the TCSA. After the 

extension of FEHB to tribal employers 

in 2012, OPM received applications 

from tribal schools carrying out 

agreements under Public Law 100–297, 

commonly referred to as ‘‘297 grant 

schools’’ (hereinafter referred to as 

‘‘TCSA grant schools’’). OPM’s 

understanding was that Public Law 

100–297 contracts did not fall within 

the ISDEAA or Title V of the IHCIA. In 

April 2012, OPM sent a letter to the 

Interior Department’s Office of the 

Solicitor seeking the Solicitor’s opinion 

regarding its conclusion that tribes or 

tribal organizations carrying out 

programs under Public Law 100–297 

were not entitled to purchase FEHB. In 

June 2012, the Office of the Solicitor 

within the Interior Department 

confirmed that tribal employers who 

receive grants pursuant to Public Law 

100–297 were not ‘‘ipso facto eligible to 

purchase Federal Employee Health 

Benefit (FEHB) . . .’’ 1

Under Public Law 116–260, tribes or 

tribal organizations carrying out 

programs under the TCSA became tribal 


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49462 Federal Register / Vol. 86, No. 169 / Friday, September 3, 2021 / Rules and Regulations 

2A tribal employer includes an Indian tribe or 

tribal organization carrying out at least one program 

under the ISDEAA; an Indian tribe or tribal 

organization carrying out at least one program 

under the TCSA; and an urban Indian organization 

carrying out at least one program under title V of 

the IHCIA. 

employers within the meaning of 

section 409 of the IHCIA and are 

entitled to purchase coverage, rights, 

and benefits under the FEHB Program 

for their tribal employees. Accordingly, 

under 25 U.S.C. 1647b, tribally 

controlled schools include both TCSA 

grant schools and schools operating 

under the ISDEAA (Pub. L. 93–638) or 

a ‘‘638 contract.’’ Tribes or tribal 

organizations operating schools under 

638 contracts were already entitled to 

purchase FEHB since the extension of 

FEHB to tribal employers in 2012. 

Currently, there are 128 tribally 

controlled schools with approximately 

4,533 employees. Three of these tribally 

controlled schools operate under 638 

contracts schools, and the remainder are 

TCSA grant schools. Tribal employees, 

as defined at 5 CFR 890.1402, across the 

125 TCSA grant schools are now eligible 

for FEHB. Section 1114 of the FY21 

CAA is expected to make FEHB 

accessible to approximately 4,328 tribal 

employees of entitled TCSA grant 

schools. 

Tribal Consultation 

Under Executive Order 13175, OPM 

has an obligation to engage in ‘‘regular 

and meaningful consultation and 

collaboration with tribal officials in the 

development of Federal policies that 

have tribal implications.’’ OPM 

continues to be committed to effective 

consultation and collaboration with 

tribes and tribal organizations. 

OPM conducted extensive 

consultation with tribes and tribal 

organizations in 2011 and 2012 before 

implementation of the Tribal FEHB 

Program. OPM representatives attended 

more than 20 tribal conferences and 

meetings to provide information and 

consultation about the Program. In 

addition, OPM hosted training sessions 

for interested tribes and tribal 

organizations on numerous occasions. 

OPM also published a series of policy 

papers regarding the implementation of 

the Tribal FEHB Program, and tribes, 

tribal organizations, and urban Indian 

organizations were given an opportunity 

to provide feedback on these papers. A 

Tribal Technical Workgroup was 

established to support the 

implementation of the Tribal FEHB 

Program. Other tribal consultative 

actions included collaborating with the 

Department of Health and Human 

Services (HHS) to conduct in-person 

briefings for tribal communities across 

the country, focusing on the 

implementation of the ACA. 

Consultation for the Tribal FEHB 

Program is detailed in the proposed 

rule, 81 FR 59907, and the final rule, 81 

FR 95397, which are the implementing 

regulations for section 409 of the IHCIA, 

and set forth the conditions for 

coverage, rights, and benefits under the 

FEHB Program for certain tribal 

employers who are entitled to purchase 

FEHB coverage for their tribal 

employees. Public Law 116–260 has 

tribal implications by broadening the 

category of eligible tribal employees of 

tribally controlled schools that are 

entitled to purchase FEHB coverage for 

their tribal employees. 

On March 24, 2021, OPM issued a 

Dear Tribal Leader Letter (DTLL) that 

outlined proposed consultation topics 

and provided background on OPM’s 

mission and activities. OPM also posted 

a public notice of the Consultation on 

its website and on the National Congress 

of American Indians (NCAI)’s 

consultation site, and OPM created a 

new page dedicated to current and 

future consultation activities. On April 

16, 2021, OPM held a virtual tribal 

consultation with tribes about federal 

human resources policies and programs; 

ways to improve consultation and 

sustain strong partnerships with Tribal 

governments; access to Federal 

employee benefits, including the FEHB 

Program and the newly eligible tribal 

employees of entitled tribally controlled 

schools under the FY21 CAA; and 

recruitment and hiring. A Dear Tribal 

Principals Letter was also issued on 

May 20, 2021 announcing a Listening 

Session detailing FEHB enrollment, 

which was held on June 8, 2021. 

The public comment period for the 

interim final rule is an important 

opportunity to receive meaningful 

feedback about the entitlement of 

tribally controlled schools to purchase 

FEHB coverage for their tribal 

employees. Upon publication of the 

interim final rule, OPM will provide 

notification to Tribal Leaders, 

stakeholders, and other interested 

parties alerting them of the publication 

of the rule and the process for 

submitting formal comments. OPM has 

begun outreach to and will continue to 

assist newly entitled tribally controlled 

schools after the final rule is in effect. 

Discussion of the Proposed Changes 

This rule will clarify that newly 

entitled TCSA grant schools are subject 

to FEHB regulations, as set forth in 

subpart N of 5 CFR 890 by including 

them in the definition of ‘‘tribal 

employer,’’ and newly eligible tribal 

employees are subject to applicable 

provisions in the regulations. There are 

technical corrections and clarifications 

such as amending the definitions of 

‘‘billing unit’’ and 5 CFR 890.1402 to 

tribe or tribal organization carrying out 

programs under the TCSA and 

including the term ‘‘tribally controlled 

school’’ in 5 CFR 890.1402. In addition, 

the definition of paymaster has been 

revised to clarify that OPM may 

designate more than one entity to 

perform the responsibilities of the 

paymaster. There is also the inclusion of 

tribally controlled schools throughout 

subpart N in Part 890, the regulatory 

provisions on FEHB,2 as defined in 5 

CFR 890.1402. The newly entitled 

tribally controlled schools are also 

included throughout section 5 CFR 

890.1404, which details a tribal 

employer’s election and agreement to 

purchase FEHB. These technical 

amendments are included at 5 CFR 

890.1404(a)(1), (a)(2), (b)(5), (b)(9), and 

(e)(1). 

Expected Impact of Proposed Changes 

While this rule identifies TCSA grant 

schools as tribal employers entitled to 

purchase FEHB coverage for their tribal 

employees, pursuant to Public Law 116– 

260, OPM does not believe this 

regulation will have a large impact on 

the broader health insurance markets. 

Currently, there are an estimated 4,533 

eligible tribal employees of tribally 

controlled schools, including TCSA 

grant schools and ‘‘638 contract 

schools.’’ Eligible tribal employees are 

full-time common law employees as 

determined by a tribal employer. There 

are an estimated 4,328 newly eligible 

tribal employees at TCSA grant schools. 

The impact on carriers is relatively 

small, as tribal enrollments make up 

0.78 percent of enrollments in the FEHB 

Program. As of April 2021, the total 

tribal enrollment in the FEHB Program 

is 32,178 with a total of 64,208 covered 

lives. Overall, as of March 2021 there 

are over 4.1 million separate 

enrollments in the FEHB Program, 

providing health insurance to about 8.2 

million Federal employees, annuitants, 

certain tribal employees, and their 

family members covered by the FEHB 

Program. 

For states with larger AI/AN 

populations, OPM does not expect an 

outsized impact on local carriers as 

local carriers plans generally reflect the 

cost of their area. OPM does not 

anticipate that the newly eligible tribal 

employees will be significantly more 

expensive than other current FEHB 

enrollees in the same geographic region. 

For example, OPM estimates, for tribally 

controlled schools in which data is 


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Federal Register / Vol. 86, No. 169 / Friday, September 3, 2021 / Rules and Regulations 49463 

3Memorandum on Tribal Consultation and 

Strengthening Nation-to-Nation Relationships, 

January 26, 2021, at https://www.whitehouse.gov/ 

briefing-room/presidential-actions/2021/01/26/ 

memorandum-on-tribal-consultationandstrengthening-nation-to-nation-relationships/. 

available, that in states with large AI/ 

AN populations, such as New Mexico, 

Arizona, and South Dakota, only about 

1,899 tribal employees are eligible at 

TCSA grant schools. Therefore, OPM 

does not anticipate a material impact if 

these tribal enrollees were to enroll in 

FEHB coverage. For FEHB nationwide 

fee-for-service (FFS) plans, there will 

not be enough new enrollees in this 

group to have a material impact. 

Waiver of Proposed Rulemaking 

OPM is issuing this rulemaking as an 

interim final rule and has determined 

that, under the Administrative 

Procedure Act (APA), 5 U.S.C. 

553(b)(B), it would be impracticable, 

unnecessary, and contrary to the public 

interest to delay a final regulation until 

a public notice and comment process 

has been completed. For the same 

reasons, under the Civil Service Reform 

Act’s parallel rulemaking provision, 5 

U.S.C. 1103(b)(3), OPM is waiving 

general notice of proposed rulemaking 

because the interim final rule is 

temporary in nature and necessary to be 

implemented expeditiously as a result 

of an emergency. OPM will promulgate 

a final rule as soon as is practical after 

receiving public comments on the 

interim final rule. The conclusion of a 

public notice and comment period 

before the rule is finalized would be 

impracticable because it would impede 

due and timely execution of OPM’s 

functions: 

This rule will facilitate the purchase 

of FEHB by entitled tribes or tribal 

organizations carrying out programs 

under the TCSA that became entitled to 

purchase FEHB on December 27, 2020, 

pursuant to the enactment of Public Law 

116–260. OPM, as administrator of the 

FEHB Program and Tribal FEHB 

Program, has reached out to the U.S. 

Department of Interior’s Bureau of 

Indian Education to identify entitled 

tribally controlled schools that may 

apply for the FEHB Program. Outreach 

included identifying the entitled tribally 

controlled schools to communicate with 

them about tribal employees’ eligibility, 

enrollment, and key dates for enrolling 

in FEHB; issuing a Dear Tribal Leader 

Letter to announce an OPM wide 

consultation with Tribal Leaders in 

accordance with the Presidential 

Memorandum on Tribal Consultation 3

and conducting an OPM wide 

consultation with Tribal Leaders to 

improve the ways OPM can partner with 

Tribal governments and provide 

services to tribal members and 

employees on April 16, 2021; issuing a 

separate letter to tribally controlled 

school principals about their 

entitlement to purchase FEHB for their 

tribal employees; and working with the 

paymaster to expedite processing of the 

newly entitled tribally controlled 

schools. 

To the extent that a public notice and 

comment process would furnish general 

public information about the 

entitlement of tribes or tribal 

organizations carrying out programs 

under the TCSA and the conditions for 

coverage, rights, and benefits under the 

FEHB Program for employees of tribal 

employers, it is unnecessary in light of 

OPM’s outreach to Tribal Leaders and 

tribally controlled schools operated by 

tribes and tribal organizations. Four 

eligible tribally controlled schools 

elected to begin purchasing FEHB 

coverage for their tribal employees on 

May 1, 2021 with an insurance coverage 

effective date of May 1, 2021. As of July 

2021, 7 tribally controlled schools have 

enrolled in the FEHB Program. 

Although OPM has engaged in these 

outreach efforts, given the law’s 

effective date of December 27, 2020, 

there is an immediate need for this 

interim final rule in order to establish 

and regulate relations between tribal 

employees and their employers, and 

between tribal employers and OPM, and 

to ensure that proper processes for 

purchase of FEHB coverage by tribally 

controlled schools and enrollment of 

tribal employees are followed. 

The expeditious implementation of 

these rules is necessary to support the 

administration of the purchase of FEHB 

coverage by TCSA grant schools and 

enrollment of their tribal employees. In 

addition, implementation of these rules 

will serve to protect the rights of newly 

eligible tribal employees by placing 

TCSA grant schools and tribal 

employees on immediate notice that 

such processes have been implemented 

to eliminate any doubt that might exist 

regarding the immediate ability of 

tribally controlled schools to purchase 

FEHB covered for their tribal employees 

and for tribal employees to enroll. 

Failure to expeditiously implement 

these rules could lead to confusion and 

administrative challenges due to a lack 

of awareness about the manner in which 

this new coverage may be purchased 

and tribal employees may enroll, as well 

as an unnecessary delay in providing 

healthcare coverage. 

On December 28, 2016, OPM 

promulgated a final rule, 81 FR 95397, 

that established how FEHB enrollment 

under the Tribal FEHB Program is 

administered, including eligibility; 

tribal employer and tribal employee 

contribution to premiums; the process 

by which tribal employers will access 

the program; the process by which tribal 

employees will elect coverage, and 

circumstances for termination and 

cancellation of enrollment; tribal 

employers responsibilities such as 

communicating notice of termination of 

enrollment, and accompanying rights 

and obligations, to their tribal 

employees. This interim final rule 

includes technical amendments to 

clarify that newly entitled TCSA grant 

schools are now tribal employers, and 

tribal employees of those schools are 

subject to the regulations in subpart N 

in Part 890, setting forth the conditions 

for coverage, rights, and benefits under 

the FEHB Program for employees of 

tribal employers. 

This interim final rule is urgently 

needed to establish that tribally 

controlled schools are newly subject to 

the same regulations as existing tribal 

employers and to assist them in 

understanding the requirements of the 

Tribal FEHB Program. The interim final 

rule includes TCSA grant schools as 

tribal employers who must follow the 

same processes as other tribal 

employers. For example, they must 

provide certification and documentation 

demonstrating that the tribal employer 

is entitled to purchase FEHB as an 

Indian tribe or tribal organization 

carrying out at least one program under 

Tribally Controlled Schools Act of 1988. 

They are also subject to the regulations, 

including, but not limited to, the 

following: election and agreement to 

purchase FEHB; current deposit of 

premium payments and collection of the 

administrative fee; acknowledging that 

participation in FEHB makes the tribal 

employer subject to Federal Government 

audit with respect to such participation; 

and administering the program in 

accordance with the subpart N. 

For these reasons, OPM has 

determined that the public notice and 

participation that the APA ordinarily 

requires would, in this case, be 

impracticable, unnecessary, and 

contrary to the public interest and that 

good cause exists for waiving proposed 

rulemaking and delaying its solicitation 

of comments from the public until after 

it issues an interim final rule. OPM will 

promulgate a final rule as soon as 

practical after receiving comments on 

the interim final rule. 

Regulatory Impact Analysis 

Executive Orders 12866 and 13563 

direct agencies to assess all costs and 

benefits of available regulatory 

alternatives and, if regulation is 


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49464 Federal Register / Vol. 86, No. 169 / Friday, September 3, 2021 / Rules and Regulations 

4 Id. 

5See U.S. Senate. To Allow Tribal Grant Schools 

to Participate in the Federal Employee Health 

Benefits Program (S. Rep. No. 116–54). Available at 

https://www.govinfo.gov/content/pkg/CRPT116srpt54/html/CRPT-116srpt54.htm. 

6 Id. 

7See Written Testimony of Cecelia Firethunder, 

President of the Oglala Lakota Nation Education 

Coalition. House Indigenous Peoples of the United 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distribute impacts, and equity). 

This rule is a significant regulatory 

action under E.O. 12866. As of July 

2021, 7 tribally controlled schools have 

enrolled in the FEHB Program. 

Currently, there are an estimated 4,328 

newly eligible employees of 297 grant 

schools and 205 eligible tribal 

employees at 638 contract schools. 

Need for Regulatory Action 

The FY21 CAA amended section 409 

of the IHCIA, codified at 25 U.S.C. 

1647b, and expanded entitlement to 

tribes and tribal organizations carrying 

out programs under the TCSA to 

purchase coverage, rights and benefits 

under the FEHB Program for their tribal 

employees. As the administrator of the 

FEHB Program, OPM has extended 

eligibility to tribal employees of TCSA 

grant schools that have purchased FEHB 

coverage within the meaning of section 

409 as amended. Issuance of Federal 

regulations without delay is necessary 

to apply the existing rules that govern 

the relationship between OPM and 

tribal employers, and between the tribal 

employers and their tribal employees 

who have already elected to enroll in 

FEHB. Therefore, OPM has good cause 

to issue interim final rules that will 

protect the interests of all stakeholders, 

memorialize processes and procedures, 

and provide transparency. 

Currently, there are an estimated 

4,328 newly eligible employees of TCSA 

grant schools and 205 eligible tribal 

employees at three ‘‘638 contract 

schools.’’ Of these, 125 are tribally 

controlled schools where FEHB was 

previously not available, and 3 are other 

schools for which FEHB eligibility has 

previously been expanded. 

At these affected schools, 

administrators will potentially take 

steps to update their health insurance 

offerings in line with expanded FEHB 

eligibility. This may include 

familiarization with FEHB policies, 

planning, enrolling schools, and 

providing information to staff on plan 

options. To the extent that this results 

in effort above and beyond normal effort 

associated with administering the health 

insurance selection process, this will 

generate costs for these schools. 

However, OPM lacks data to estimate 

the extent to which this rule will 

generate such costs. 

This rule may affect expenses paid by 

tribal employers toward health 

insurance premiums for employees. 

Under 5 CFR 890.1413(b), tribal 

employers are required to contribute to 

the premium for tribal employees at 

least the same as the Federal 

government does for its employees and 

may contribute more, up to 100 percent 

of the premium costs. Under 5 U.S.C. 

8906, the Federal government 

contribution is statutorily defined as the 

lesser of 72 percent of the weighted 

average of all premiums or 75 percent of 

the plan premium. The Senate Report 4

mentioned previously suggests that 

some tribal employers currently pay a 

substantial fraction of health insurance 

premiums, and that access to FEHB will 

appreciably reduce premiums. To the 

extent that this is the case, there will be 

a reduction in premium payments paid 

by tribal employers. We lack data to 

estimate the magnitude of these effects 

since they depend upon the number of 

enrollees who shift health insurance 

decisions as a result of the rule, the 

characteristics of the newly chosen 

health plans, and the portion of the 

premium paid by the employer. 

In addition, tribal employers are 

responsible for the costs associated with 

administering the Tribal FEHB Program. 

The administrative fee covers costs for 

the paymaster to process tribal 

employee FEHB enrollments and collect 

and remit premiums. It also covers costs 

associated with dedicated OPM staff 

who process new tribe applications; 

oversee the paymaster; answer FEHB 

Program questions; and issue FEHB 

Program guidance through Tribal 

Benefits Administration Letters (TBALs) 

released and distributed to tribal 

employers. For fiscal year 2021, the 

administrative fee is $5.63 per enrollee 

per month. 

There is an immediate need for 

affordable health insurance for tribally 

controlled schools. According to a 2019 

Senate Report,5 many Bureau of Indian 

Education (BIE) grant schools face 

challenges covering the cost of benefits 

for their employees because they do not 

have access to lower-cost options 

through the FEHB Program. Another 

urgent concern is that American Indian/ 

Alaska Natives (AI/AN) experience 

health disparities, and, according to the 

Centers for Disease Control and 

Prevention (CDC), AI/AN have 

experienced disproportionate rates of 

infection and mortality during the 

COVID–19 pandemic. 

Furthermore, according to the NCAI 

and the National Indian Health Board, 

many BIE grant schools utilize a portion 

of their educational services funding to 

pay for health insurance and other 

benefits, which reduces financial 

resources for textbooks, teacher’s aides, 

and extracurricular programs.6 Access 

to affordable health insurance could 

also reduce the financial burden on 

tribally controlled schools such that 

resources can be redirected for the 

benefit of students. Another benefit is 

that TCSA grant schools are provided 

with equal opportunity to enroll in the 

FEHB Program. 

Ultimately, tribal schools assess the 

cost of participating in the FEHB 

Program and decide if it provides net 

benefits to their schools. For those 

tribally controlled schools that choose 

to participate it can be assumed that the 

benefits outweigh the costs of 

participation, and the Senate Report 

referenced above suggests that this may 

be the case for many affected schools. 

As noted above, we lack data to estimate 

the magnitude of these effects, and we 

seek public comment on data or 

methods to estimate these impacts. 

Effects on Tribal Employees 

There are an estimated 4,328 newly 

eligible employees at tribally controlled 

schools. As discussed above, this rule 

may result in tribal employers updating 

coverage options for employees to 

include FEHB plans. To the extent that 

this is the case, these employees may 

update their health insurance choices. 

This may result in some expended effort 

by affected employees, although the 

extent to which individuals will engage 

in effort above and beyond the baseline 

effort associated with health plan 

selection is unclear. The Senate Report 

referenced above suggests that this rule 

may result in appreciable differences in 

plan offerings and selections, although 

we lack data to estimate the potential 

impact. 

To the extent that individuals adjust 

their health insurance choices, they may 

experience benefits. While the exact 

benefits of health insurance are difficult 

to quantify for tribal employees of 

tribally controlled schools, evidence 

supports that extending access to FEHB 

coverage for newly eligible individuals 

could have positive benefits. For 

example, Cecelia Firethunder, President 

of the Oglala Lakota Nation Education 

Coalition (OLNEC), provided testimony 

at a legislative hearing on H.R. 895, the 

Tribal School Federal Insurance Parity 

Act, suggesting that access to FEHB 

coverage may allow access to lower cost 

insurance options for their employees.7


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Federal Register / Vol. 86, No. 169 / Friday, September 3, 2021 / Rules and Regulations 49465 

States Subcommittee Legislative Hearing on H.R. 

895, the Tribal School Federal Insurance Parity Act 

(July 16, 2019), available at https://

www.congress.gov/116/meeting/house/109791/ 

witnesses/HHRG-116-II24-Wstate-FirethunderC20190716.pdf. 

8See Kaiser Family Foundation, Medicaid and 

American Indians and Alaska Natives, September 7, 

2017, https://www.kff.org/medicaid/issue-brief/ 

medicaid-and-american-indians-and-alaskanatives/. 

9See ‘‘Suicides Among American Indian/Alaska 

Natives—National Violent Death Reporting System, 

18 States, 2003–2014.’’ Morbidity and Mortality 

Weekly Reports, 67(8). March 2, 2018. Centers for 

Disease Control and Prevention. Available at 

https://www.cdc.gov/mmwr/volumes/67/wr/pdfs/ 

mm6708a1-H.pdf. 

10 Id. 

This may, in turn, increase utilization of 

medical services for these individuals, 

resulting in net benefits to society to the 

extent that they provide benefits net of 

the costs of delivering these medical 

services. Although this increased 

utilization would represent a cost, it 

may result in a net benefit depending on 

the extent to which it improves health 

outcomes. OPM lacks data to estimate 

these impacts, and we request comment 

on data or methods to estimate potential 

impacts. 

Access to FEHB for more tribal 

employees may help to reduce health 

disparities. According to a Kaiser 

Family Foundation report published in 

2017, among nonelderly adults, AI/AN 

are more likely than other adults to 

report being in fair or poor health, being 

overweight or obese, and having 

diabetes.8 In addition, suicide 

disproportionately affects AI/AN, and in 

a CDC study, AI/AN decedents had 

lower odds than did White decedents of 

having received a mental health 

diagnosis or mental health treatment.9

Recently, health disparities have been 

highlighted for AI/AN, who have 

experienced disproportionate rates of 

infection and mortality during the 

COVID–19 pandemic.10 For persons 

aged 20–29 years, 30–39 years, and 40– 

49 years, the COVID–19 mortality rates 

among AI/AN were 10.5, 11.6, and 8.2 

times, respectively, those among White 

persons.10 Increasing access to 

affordable healthcare is a way to 

improve access to medical and mental 

health services and may mitigate 

inequities. This rule may mitigate health 

inequities to the extent that it increases 

access to medical care. 

Effects on Other Parties 

As described above, one expected 

impact of this rule is that affected tribal 

employees will gain access to health 

insurance plans with lower health 

insurance premiums. A reduction in 

those premiums reflects transfers 

between various parties involved in 

these transactions. The clearest effect is 

a transfer toward parties paying for 

health benefits absent the expansion of 

FEHB benefits, which largely include 

tribal employers and employees. This 

transfer is most likely to come initially 

from reductions in payments to health 

insurance providers or from offsetting 

increases in FEHB health insurance 

premiums. We expect that, due to 

medical loss ratio13 regulations, 

premiums largely reflect medical costs 

experienced by those insured by the 

plan. As a result, we expect that the rule 

will largely initially result in a transfer 

from those paying FEHB premiums 

(including enrollees and the Federal 

government) in the baseline to entities 

who experience premium reductions 

under this rule. As described above, we 

expect these effects to be quite small. 

However, we lack data to estimate the 

magnitude of these effects, and request 

public comment on data or methods to 

estimate any potential impacts. 

Alternative Regulatory Approaches 

OPM is unaware of feasible 

alternatives to this rule, as this 

regulation aligns FEHB eligibility with 

the FY21 CAA, which amended section 

409 of the IHCIA. Currently, OPM 

regulations do not include FEHB 

eligibility for Indian tribes or tribal 

organizations carrying out programs 

under the TCSA, and this rule expands 

eligibility along these lines. We request 

public comment on alternative 

approaches to this rule which would 

generate net benefits for the public. 

Regulatory Flexibility Act 

I certify that this regulation 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 or Tribal 

governments of more than $100 million 

annually. Thus, no written assessment 

of unfunded mandates is required. 

Congressional Review Act 

Subtitle E of the Small Business 

Regulatory Enforcement Fairness Act of 

1996 (also known as the Congressional 

Review Act) (5 U.S.C. 801 et seq.) 

requires rules (as defined in 5 U.S.C. 

804) to be submitted to Congress before 

taking effect. OPM will submit to 

Congress and the Comptroller General of 

the United States a report regarding the 

issuance of this action before its 

effective date, as required by 5 U.S.C. 

801. OMB’s Office of Information and 

Regulatory Affairs has determined that 

this is not a ‘‘major rule’’ as defined by 

the Congressional Review Act (5 U.S.C. 

804(2)). 

Paperwork Reduction Act of 1995 (44 

U.S.C. Chapter 35) 

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 for the FEHB Program, 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–23, ‘‘FEHB 

Program Enrollment Records,’’ available 

at https://www.federalregister.gov/d/ 

2021-01259. 

List of Subjects in 5 CFR Part 890 

Administrative practice and 

procedure, Government employees, 

Health facilities, Health insurance, 

Health professions, Hostages, Indians, 

Iraq, Kuwait, Lebanon, Military 

personnel, Reporting and recordkeeping 

requirements, Retirement. 

Office of Personnel Management. 

Alexys Stanley, 

Regulatory Affairs Analyst. 

Accordingly, OPM amends title 5, 

Code of Federal Regulations part 890 as 

follows: 


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49466 Federal Register / Vol. 86, No. 169 / Friday, September 3, 2021 / Rules and Regulations 

PART 890—FEDERAL EMPLOYEES 

HEALTH BENEFITS PROGRAM 

■ 1. The authority citation for part 890 

is revised to read as follows: 

Authority: 5 U.S.C. 8913; Sec. 890.102 also 

issued under sections 11202(f), 11232(e), and 

11246 (b) of Pub. L. 105–33, 111 Stat. 251; 

Sec. 890.111 also issued under section 

1622(b) of Pub. L. 104–106, 110 Stat. 521 (36 

U.S.C. 5522); Sec. 890.112 also issued under 

section 1 of Pub. L. 110–279, 122 Stat. 2604 

(2 U.S.C. 2051); Sec. 890.113 also issued 

under section 1110 of Pub. L. 116–92, 133 

Stat. 1198 (5 U.S.C. 8702 note); Sec. 890.301 

also issued under section 311 of Pub. L. 111– 

3, 123 Stat. 64 (26 U.S.C. 9801); Sec. 

890.302(b) also issued under section 1001 of 

Pub. L. 111–148, 124 Stat. 119, as amended 

by Pub. L. 111–152, 124 Stat. 1029 (42 U.S.C. 

300gg–14); Sec. 890.803 also issued under 50 

U.S.C. 3516 (formerly 50 U.S.C. 403p) and 22 

U.S.C. 4069c and 4069c–1; subpart L also 

issued under section 599C of Pub. L. 101– 

513, 104 Stat. 2064 (5 U.S.C. 5561 note), as 

amended; and subpart M also issued under 

section 721 of Pub. L. 105–261 (10 U.S.C. 

1108), 112 Stat. 2061; 25 U.S.C. 1647b. 

Subpart N—Federal Employees Health 

Benefits for Employees of Certain 

Indian Tribal Employers 

■ 2. Amend § 890.1402 in paragraph (a) 

by revising the definitions of ‘‘billing 

unit,’’ ‘‘paymaster,’’ and ‘‘tribal 

employer’’ and adding a definition for 

‘‘tribally controlled schools’’ in 

alphabetical order to read as follows: 

§ 890.1402 Definitions and deemed 

references. 

(a) * * * 

Billing unit is a subdivision of the 

tribal employer’s workforce that aligns 

tribal employees for purposes of 

administering FEHB enrollment and 

collection of payment. A billing unit 

may be either governmental or 

commercial or a combination of both. So 

long as a tribal employer purchases 

FEHB for at least one billing unit that is 

an Indian Tribe or tribal organization 

carrying out at least one program under 

the Indian Self-Determination and 

Education Assistance Act (ISDEAA) or 

Tribally Controlled Schools Act of 1988 

(TCSA), or an urban Indian organization 

carrying out at least one program under 

title V of the Indian Health Care 

Improvement Act (IHCIA), the tribal 

employer may purchase FEHB for other 

billing units without regard to its 

programs. 

* * * * * 

Paymaster is the entity or entities 

designated by OPM as responsible for 

receiving FEHB premiums from the 

tribal employer, forwarding premiums 

to the Employees Health Benefits Fund, 

and maintaining enrollment records for 

all participating tribal employers. 

* * * * * 

Tribal employer is an Indian tribe or 

tribal organization (as those terms are 

defined in 25 U.S.C. chapter 18, ‘‘Indian 

Health Care’’) carrying out at least one 

program under the Indian SelfDetermination and Education 

Assistance Act or the TCSA (25 U.S.C. 

2501 et seq.); or an urban Indian 

organization (as that term is defined in 

25 U.S.C. chapter 18, ‘‘Indian Health 

Care’’) carrying out at least one program 

under title V of the Indian Health Care 

Improvement Act. The tribe, tribal 

organization, or urban Indian 

organization is a tribal employer 

provided that it certifies entitlement to 

purchase FEHB according to the process 

described in subpart N. FEHB benefits 

that tribal employers are entitled to 

purchase for their tribal employees are 

set forth in this subpart and to the 

extent there exists any ambiguity or 

inconsistency between this subpart and 

other subparts of this part, the terms of 

this subpart will govern FEHB benefits 

available for purchase by tribal 

employers. 

Tribally controlled school is a school 

(as the term is defined in section 2511 

of 25 U.S.C. chapter 27, ‘‘Tribally 

Controlled School Grants’’) that is 

operated by an Indian tribe or a tribal 

organization, enrolling students in 

kindergarten through grade 12, 

including a preschool; is not a local 

educational agency; and is not directly 

administered by the Bureau of Indian 

Affairs. 

* * * * * 

■ 3. Amend § 890.1404 by revising 

paragraphs (a)(1) and (2), (b)(5) and (9), 

and (e)(1) to read as follows: 

§ 890.1404 Tribal employer election and 

agreement to purchase FEHB. 

(a) * * * 

(1) A tribal employer must purchase 

FEHB for at least one billing unit 

carrying out programs or activities 

under the tribal employer’s ISDEAA or 

IHCIA contract or TCSA grant. 

(2) For so long as a tribal employer 

continues to purchase FEHB for at least 

one billing unit carrying out programs 

or activities under a tribal employer’s 

ISDEAA or IHCIA contract or TCSA 

grant, the tribal employer may purchase 

FEHB for one or more billing units 

without regard to whether they are 

carrying out programs or activities 

under the tribal employer’s ISDEAA or 

IHCIA contract or TCSA grant. 

(b) * * * 

(5) A certification and documentation 

demonstrating that the tribal employer 

is entitled to purchase FEHB as either: 

An Indian tribe or tribal organization 

carrying out at least one program under 

the Indian Self-Determination and 

Education Assistance Act or Tribally 

Controlled Schools Act of 1988; or an 

urban Indian organization carrying out 

at least one program under Title V of the 

Indian Health Care Improvement Act; 

* * * * * 

(9) Agreement to provide notice to 

OPM in the event that the tribal 

employer is no longer carrying out at 

least one program under the ISDEAA or 

title V of IHCIA or the Tribally 

Controlled Schools Act of 1988; and 

* * * * * 

(e) * * * 

(1) An Indian tribe or tribal 

organization carrying out at least one 

program under the Indian SelfDetermination and Education 

Assistance Act or under the Tribally 

Controlled Schools Act of 1988; or 

* * * * * 

[FR Doc. 2021–19042 Filed 9–2–21; 8:45 am] 

BILLING CODE 6325–64–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 800 

[Doc. No. AMS–FGIS–20–0001] 

RIN 0581–AD94 

Fees for Supervision of Official 

Inspection and Weighing Services 

Performed by Delegated States and 

Designated Agencies, Miscellaneous 

Fees for Other Services, and Removal 

of Specific Fee References 

AGENCY: Agricultural Marketing Service, 

Department of Agriculture (USDA). 

ACTION: Final rule. 

SUMMARY: This final rule revises 

regulations under authority of the 

United States Grain Standards Act 

(USGSA) by implementing a 

standardized formula model for 

calculating Federal Grain Inspection 

Service (FGIS) supervision fees. The 

revision enables FGIS to adjust 

supervision fees annually in order to 

maintain an appropriate operating 

reserve as required by the USGSA. As 

with other Agricultural Marketing 

Service (AMS) fee-based programs, AMS 

will publish annual FGIS fee updates in 

the Federal Register and post updated 

fee schedules on its website. The 

revision also eliminates or revises 

certain registration and duplication fees 

charged by FGIS. 


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