90 FR 100 pgs. 22211-22213 - World Trade Center (WTC) Health Program; Expanded Eligibility for Pentagon and Shanksville, Pennsylvania Responders
Type: RULEVolume: 90Number: 100Pages: 22211 - 22213
Pages: 22211, 22212, 22213Docket number: [Docket No. CDC-2024-0067; NIOSH-353]
FR document: [FR Doc. 2025-09411 Filed 5-23-25; 8:45 am]
Agency: Health and Human Services Department
Official PDF Version: PDF Version
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
42 CFR Part 88
[Docket No. CDC-2024-0067; NIOSH-353]
RIN 0920-AA86
World Trade Center (WTC) Health Program; Expanded Eligibility for Pentagon and Shanksville, Pennsylvania Responders
AGENCY:
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
ACTION:
Final rule.
SUMMARY:
On September 11, 2024, CDC published in the Federal Register an interim final rule with request for comment to update existing regulations governing the WTC Health Program to align with statutory changes. The interim final rule expanded eligibility criteria for enrollment of new Pentagon and Shanksville responders, capped at 500 new members, and made various conforming amendments to the WTC Health Program regulations. In this final rule, CDC responds to public comment and finalizes the revisions to the regulation.
DATES:
This rule is effective on May 27, 2025.
FOR FURTHER INFORMATION CONTACT:
Rachel Weiss, Public Health Analyst, National Institute for Occupational Safety and Health, 1090 Tusculum Avenue, MS: C-46, Cincinnati, OH 45226; telephone: (404) 498-2500 (this is not a toll-free number); email: NIOSHregs@cdc.gov.
SUPPLEMENTARY INFORMATION:
I. Public Participation
Interested parties were invited to participate in this rulemaking by submitting written views, opinions, recommendations, and data on the interim final rule published on September 11, 2024 (89 FR 73592). Two comments were submitted to the rulemaking docket during the 30-day comment period, both from interested individuals who are not members of the WTC Health Program. The two comments are summarized in Section III.
II. Background
Title I of the James Zadroga 9/11 Health and Compensation Act of 2010 (Zadroga Act), as amended, revised the Public Health Service Act (PHS Act) to establish the WTC Health Program (Program), which is administered by the National Institute for Occupational Safety and Health (NIOSH), within CDC. The WTC Health Program provides medical monitoring and treatment to eligible responders to the September 11, 2001, terrorist attacks in New York City, at the Pentagon, and in Shanksville, Pennsylvania, and to eligible survivors of the New York City attacks. In this rulemaking, the Administrator of the WTC Health Program and the Secretary of HHS finalize revisions of the implementing regulation for the Program to align with the statutory changes to the PHS Act.
A. WTC Health Program Statutory Authority
Title I of the Zadroga Act? 1 (Pub. L. 111-347, as amended by Pub. L. 114-113, Pub. L. 116-59, Pub. L. 117-328, and Pub. L. 118-31) added Title XXXIII to the PHS Act, codified at 42 U.S.C. 300mm-300mm-64, establishing the WTC Health Program within HHS. All references to the Administrator in this document mean the Director of NIOSH, within CDC, or his or her designee.
Footnotes:
1 ?Those portions of the Zadroga Act found in titles II and III of Public Law 111-347 do not pertain to the WTC Health Program and are codified elsewhere.
B. Regulatory Background
[top] Following the enactment of the Zadroga Act, the HHS Secretary promulgated 42 CFR part 88 to establish implementing regulations for the WTC Health Program within NIOSH. The Zadroga Act prescribed eligibility criteria for Pentagon and Shanksville, Pennsylvania responders and required the Administrator to establish the dates
Footnotes:
2 ?42 U.S.C. 300mm-21(a)(2)(C)(i)(I) and (II).
3 ? World Trade Center Health Program Eligibility Requirements for Shanksville, Pennsylvania and Pentagon Responders, Interim Final Rule, 78 FR 18855, March 28, 2013.
• Were active or retired members of a fire or police department (fire or emergency personnel), worked for a recovery or cleanup contractor, or were volunteers; and
• Performed rescue, recovery, demolition, debris cleanup, or other related services, either at the Pentagon site of the September 11, 2001, terrorist attacks, for at least 1 day beginning September 11, 2001, and ending on November 19, 2001, or at the Shanksville, Pennsylvania site for at least 1 day beginning September 11, 2001, and ending on October 3, 2001.
Since 2013, the WTC Health Program has enrolled 1,544 Pentagon responders and Shanksville, Pennsylvania responders, combined but not including those new members enrolled pursuant to the September 11, 2024 interim final rule.
In 2023, Congress identified a gap in coverage for the population of employees of the Department of Defense (DOD) or other Federal agencies, certain DOD and Federal agency contractors, and regular or reserve uniformed service members who responded to the Pentagon and Shanksville sites; these personnel did not previously meet the statutory eligibility criteria in the Zadroga Act because of their specific types of employment. Congress included language to address these coverage gaps and expand eligibility criteria for responders at the Pentagon and Shanksville, Pennsylvania sites in the National Defense Authorization Act, 2024 (Pub. L. 118-31, December 22, 2023) (2024 NDAA).
On September 11, 2024, the Administrator of the WTC Health Program and the HHS Secretary amended part 88 to operationalize changes to Title XXXIII of the PHS Act due to the 2024 NDAA. The agency published an interim final rule with immediate effective date to quickly implement the expanded eligibility criteria for Pentagon and Shanksville responders. Specifically, the amendments to WTC Health Program regulations in 42 CFR part 88 made by the interim final rule included expanding eligibility criteria for Pentagon and Shanksville responders, adding a numerical limit on Pentagon and Shanksville responders enrolled under the new eligibility criteria, updating the language in the regulation regarding the numerical limit on certain newly enrolled WTC responders and certified-eligible survivors, and updating and adding new definitions. An interim final rulemaking was conducted because the agency determined that there was good cause to waive public notice and comment prior to publication as the rulemaking merely implemented the statutory changes. The agency determined it would have been contrary to the public interest to delay the ability of eligible individuals to access treatment for health conditions related to their 9/11 response activities. No opposition to the expanded eligibility requirements was anticipated and the agency did not exercise any discretion in further defining certain employees who may be eligible for the Program or clarify any additional limits on the number of individuals from these categories who would be eligible. Postponement of the implementation of the new eligibility criteria could have resulted in harm to Pentagon and Shanksville responders currently coping with one or more health conditions covered by the WTC Health Program or who are at risk for developing such a condition. Thus, notice and comment procedures were waived in the interest of protecting the health of these responders and allowing them to apply for enrollment in the WTC Health Program as soon as possible. Since publication of the interim final rule, the Administrator of the WTC Health Program welcomed 69 new members pursuant to the expanded eligibility criteria as of April 23, 2025. The interim final rule public comment period and Paperwork Reduction Act emergency information collection request were open for 30 days, until October 11, 2024.
III. Summary of Public Comments
On September 11, 2024, the Administrator of the WTC Health Program and the HHS Secretary published an interim final rule operationalizing the 2024 NDAA amendments and expanding those groups eligible for enrollment as responders at the Pentagon and Shanksville, Pennsylvania sites. Two public comments were submitted to the rulemaking docket, both supportive of the rulemaking.
Public comment: Of the two supportive public comments, one expressed disappointment that the number of new Pentagon and Shanksville enrollees is capped at 500 and asked for the agency's rationale.
Agency response: As discussed above, Congress enacted the 2024 NDAA to amend Title XXXIII of the PHS Act to expand eligibility criteria for responders to the September 11, 2001, terrorist attacks at the Pentagon and Shanksville, Pennsylvania sites. NDAA amendments codified in 42 U.S.C. 300mm-22(a)(4)(A)(ii) specify that the "total number of individuals who may be enrolled under [the expanded eligibility criteria] shall not exceed 500 at any time." Accordingly, the agency has no discretion to increase or decrease that limit in WTC Health Program regulations and no change has been made in response to this comment.
IV. Summary of Final Rule
No changes have been made to the final regulatory text, either in response to public comment or at the agency's discretion. With this rulemaking, and for the reasons discussed in the interim final rule, amendments to 42 CFR part 88 are finalized as described below.
Authority Citation
The authority citation for 42 CFR part 88 was updated to reflect recent amendments to Title I of the Zadroga Act (Pub. L. 111-347, as amended by Pub. L. 114-113, Pub. L. 116-59, Pub. L. 117-328, and Pub. L. 118-31). The statutory citation now reads 42 U.S.C. 300mm-300mm-64.
Section 88.1 Definitions
The statutory definitions of the terms Federal agency and uniformed services were added to the existing Definitions section, 42 CFR 88.1. In the existing definitions of Act and WTC Health Program, the statutory authority citation was updated to reflect recent amendments to the Zadroga Act.
Section 88.4 Eligibility Criteria-WTC Responders
[top] The existing Pentagon responder eligibility criteria in 42 CFR 88.4(b) were modified to include the new statutory criteria for the three new classes of eligible responders at the Pentagon site. For clarity, the existing language in paragraph (b)(1) identifying classes of eligible Pentagon responders was broken into new paragraphs, designated (b)(1)(i) through (iii). New paragraphs (b)(1)(iv) through (vi) were added to include the three new classes of eligible Pentagon responders. New paragraph (b)(1)(iv) identifies employees
The existing Shanksville, Pennsylvania responder eligibility criteria in §?88.4(c) were also revised to add the new statutory criteria for the three new classes of eligible responders at the Shanksville, Pennsylvania site. For clarity, the existing language identifying classes of eligible Shanksville responders in paragraph (c)(1) was broken into new paragraphs, designated (c)(1)(i) through (iii). New paragraphs (c)(1)(iv) through (vi) were added to include the three new classes of eligible Shanksville responders. New paragraph (c)(1)(iv) identifies employees of the DOD or any other Federal agency; paragraph (c)(1)(v) identifies employees of DOD contractors or other Federal agency contractors who worked during the period beginning on September 11, 2001, and ending on September 18, 2001; and paragraph (c)(1)(vi) identifies members of regular and reserve components of the uniformed services. Language in existing paragraph (c)(2) describing eligible response activities, time periods, and duration of work was split into two paragraphs, resulting in a revised paragraph (c)(2) and a new paragraph (c)(3).
Section 88.6 Enrollment Decision-WTC Responders
In 42 CFR 88.6, existing paragraph (c) establishes conditions under which the WTC Health Program may deny enrollment of responders. In paragraph (c)(2)(i), the numerical limit on new WTC responder enrollment was replaced with new language indicating that this limit is established in the Zadroga Act, as amended. Language in paragraph (c)(2)(i) describing the Administrator's discretion regarding whether to close Program enrollment in the event that sufficient funds are not available to enroll new members was moved to a new paragraph (c)(2)(iii) without change. New text in paragraph (c)(2)(ii) reflects the new statutory limit of 500 total WTC responders who may be enrolled pursuant to the expanded Pentagon and Shanksville, Pennsylvania eligibility criteria in §§?88.4(b)(1)(iv) through (vi) and 88.4(c)(1)(iv) through (vi), respectively.
Section 88.12 Enrollment Decision-Certified-Eligible Survivors
In 42 CFR 88.12, existing paragraph (b)(3) establishes conditions under which the WTC Health Program may deny certified-eligible survivor status. The numerical limit in paragraph (b)(3)(i) was replaced with new language indicating that the limit on certified-eligible survivor enrollment is specified in the Zadroga Act, as amended. Language in existing paragraph (b)(3)(i), describing the Administrator's discretion regarding whether to close Program enrollment in the event that sufficient funds are not available to enroll new members, was moved to a new paragraph (b)(3)(ii) without change.
List of Subjects in 42 CFR Part 88
Administrative practice and procedure, Cancer, Diseases, Firefighters, Health, Health care, Mental health programs, Law enforcement officers, Lung diseases, Occupational safety and health, Volunteers, Workers' compensation.
Accordingly, the interim final rule amending 42 CFR part 88, which published on September 11, 2024 (89 FR 73592), is adopted as a final rule without change.
John J. Howard,
Administrator, World Trade Center Health Program and Director, National Institute for Occupational Safety and Health, Centers for Disease Control and Prevention, Department of Health and Human Services.
Robert F. Kennedy, Jr.,
Secretary, Department of Health and Human Services.
[FR Doc. 2025-09411 Filed 5-23-25; 8:45 am]
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