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Federal Register / Vol. 86, No. 169 / Friday, September 3, 2021 / Rules and Regulations
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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.
553bB, 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 Acts parallel rulemaking provision, 5
U.S.C. 1103b3, 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 OPMs 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 116260. OPM, as administrator of the FEHB Program and Tribal FEHB
Program, has reached out to the U.S.
Department of Interiors 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 3 Memorandum 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/.

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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 OPMs 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 laws 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
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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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