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Rules and Regulations Federal Register

62325 

Vol. 79, No. 201 

Friday, October 17, 2014 

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 fulltime 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 

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62326 Federal Register / Vol. 79, No. 201 / Friday, October 17, 2014 / Rules and Regulations 

1Note 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). 

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 preconditions 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. 

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 

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Federal Register / Vol. 79, No. 201 / Friday, October 17, 2014 / Rules and Regulations 62327 

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 noncareer 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 selfgovernance’’ 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). 

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62328 Federal Register / Vol. 79, No. 201 / Friday, October 17, 2014 / Rules and Regulations 

2The 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. 

3This estimate includes FEHB premium 

payments but not administrative costs to employing 

agencies. We lack data to quantify the latter. 

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 fulltime 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

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. 

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 ruleinduced 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), 

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Federal Register / Vol. 79, No. 201 / Friday, October 17, 2014 / Rules and Regulations 62329 

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 nonPostal 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 nonPostal 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] 

BILLING CODE 6325–63–P 

NUCLEAR REGULATORY 

COMMISSION 

10 CFR Part 50 

[NRC–2013–0053] 

RIN 3150–AJ18 

Definition of a Utilization Facility 

AGENCY: Nuclear Regulatory 

Commission. 

ACTION: Direct final rule. 

SUMMARY: The U.S. Nuclear Regulatory 

Commission (NRC) is amending its 

regulations to add SHINE Medical 

Technologies, Inc.’s (SHINE) proposed 

accelerator-driven subcritical operating 

assemblies to the NRC’s definition of a 

‘‘utilization facility.’’ In 2013, SHINE 

submitted a two-part construction 

permit application for a medical 

radioisotope production facility that 

SHINE proposes to build in Janesville, 

Wisconsin. The proposed acceleratordriven subcritical operating assemblies, 

to be housed in SHINE’s irradiation 

facility, would be used to produce 

molybdenum-99 (Mo-99), a radioisotope 

used in medical imaging and other 

radioisotopes used for medical 

purposes. This rule allows NRC staff to 

conduct an efficient and effective 

licensing review of the SHINE 

construction permit application and any 

subsequent operating license 

application. 

DATES: This final rule is effective 

December 31, 2014, unless a significant 

adverse comment is received by 

November 17, 2014. If the rule is 

withdrawn as a result of such 

comments, timely notice of the 

withdrawal will be published in the 

Federal Register. Comments received 

after this date will be considered if it is 

practical to do so, but the NRC is able 

mstockstill on DSK4VPTVN1PROD with RULES