05-8331. Prevailing Rate Systems; Environmental Differential Pay for Asbestos Exposure

AGENCY:

Office of Personnel Management.

ACTION:

Interim rule with request for comments.

SUMMARY:

The Office of Personnel Management is issuing an interim regulation to implement a change in law that requires the use of the Occupational Safety and Health Administration permissible exposure limit standard for concentrations of airborne asbestos fibers for an environmental differential pay category that covers Federal prevailing rate (wage) employees.

DATES:

This interim regulation is effective on April 27, 2005. The Office of Personnel Management must receive comments by June 27, 2005.

ADDRESSES:

Send or deliver comments to Donald J. Winstead, Deputy Associate Director for Pay and Performance Policy, Strategic Human Resources Policy Division, Office of Personnel Management, Room 7H31, 1900 E Street NW., Washington, DC 20415-8200; e-mail [e-mail]; or fax: [phone].

FOR FURTHER INFORMATION CONTACT:

Madeline Gonzalez, [phone]; e-mail [e-mail]; or fax: [phone].

SUPPLEMENTARY INFORMATION:

The Office of Personnel Management (OPM) is issuing an interim regulation to incorporate the Occupational Safety and Health Administration (OSHA) permissible exposure limits (PELs) standard for concentrations of airborne asbestos in the Federal Wage System (FWS) environmental differential pay (EDP) category for asbestos, as required by section 1122 of the National Defense Authorization Act for 2004 (Public Law 108-136, November 24, 2003).

OPM establishes EDP categories under section 5343(c)(4) of title 5, United States Code, which provides that EDP may be paid for “duty involving unusually severe working conditions or unusually severe hazards.” Section 1122 of Public Law 108-136 amended section 5343(c)(4) by adding “and for any hardship or hazard related to asbestos, such differentials shall be determined by applying occupational safety and health standards consistent with the permissible exposure limit promulgated by the Secretary of Labor under the Occupational Safety and Health Act of 1970.” This change in law became effective on November 24, 2003.

The FWS EDP categories are contained in appendix A to subpart E of part 532 of title 5, Code of Federal Regulations. The current rule covering asbestos exposure for FWS employees provides that Federal agencies may pay their prevailing rate employees a differential for “[w]orking in an area where airborne concentrations of asbestos fibers may expose employees to potential illness or injury and protective devices or safety measures have not practically eliminated the potential for such personal illness or injury.” This interim regulation would revise part 532 to implement section 1122 for prevailing rate employees and require Federal agencies to apply occupational safety and health standards consistent with the permissible exposure limit (PEL) promulgated by the Secretary of Labor under the Occupational Safety and Health Act of 1970 as published in title 29, Code of Federal Regulations, §§ 1910.1001 or 1926.1101 (construction work only). Any OSHA regulatory change in the PELs for asbestos will be applied automatically to OPM's regulations effective on the first day of the first pay period beginning on or after the effective date of the change in the PELs.

Waiver of Notice of Proposed Rulemaking and Delay in Effective Date

Pursuant to section 553(b)(3)(B) and (d)(3) of title 5, United States Code, I find that good cause exists to waive the general notice of proposed rulemaking to comply with the change in law required by Public Law 108-136, which was enacted on November 24, 2003. The waiver of the requirements for proposed rulemaking and of the delay in the effective date are necessary to comply with the change in law in a timely manner.

Regulatory Flexibility Act

I certify that this regulation will not have a significant economic impact on a substantial number of small entities because it affects only Federal agencies and employees.

E.O. 12866, Regulatory Review

This rule has been reviewed by the Office of Management and Budget in accordance with Executive Order 12866.

List of Subjects in 5 CFR Part 532

• Administrative practice and procedure
• Freedom of information
• Government employees
• Reporting and recordkeeping requirements
• Wages

Office of Personnel Management.

Dan G. Blair,

Acting Director.

Accordingly, the Office of Personnel Management amends 5 CFR part 532 as follows:

PART 532—PREVAILING RATE SYSTEMS

1. The authority citation for part 532 continues to read as follows:

Authority: 5 U.S.C. 5343, 5346; § 532.707 also issued under 5 U.S.C. 552.

2. In appendix A to subpart E of part 532, category 16 in the table titled “Part II—Payment on Basis of Hours in Pay Status” is revised to read as follows:

Appendix A to Subpart E of Part 532—Schedule of Environmental Differentials Paid for Exposure to Various Degrees of Hazards, Physical Hardships, and Working Conditions of an Unusual Nature

Part II—Payment on Basis of Hours in Pay Status

Differential rate (percent)	Category for which payable	Effective date
*         *         *         *         *         *         *
8	16. Asbestos. Working in an area where airborne concentrations of asbestos fibers may expose employees to potential illness or injury and protective devices or safety measures have not practically eliminated the potential for such personal illness or injury. This differential will be determined by applying occupational safety and health standards consistent with the permissible exposure limit promulgated by the Secretary of Labor under the Occupational Safety and Health Act of 1970 as published in title 29, Code of Federal Regulations, §§ 1910.1001 or 1926.1101. Regulatory changes in §§ 1910.1001 or 1926.1101 are hereby incorporated in and made a part of this category, effective on the first day of the first pay period beginning on or after the effective date of the changes	Nov. 24, 2003.

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