06-1606. Prevailing Rate Systems; Environmental Differential Pay for Asbestos Exposure

AGENCY:

Office of Personnel Management.

ACTION:

Final rule.

SUMMARY:

The Office of Personnel Management is issuing a final rule to implement a statutory change 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:

The final rule is effective on February 22, 2006.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

On April 27, 2005, the Office of Personnel Management (OPM) published an interim rule (70 FR 21613) to incorporate the Occupational Safety and Health Administration (OSHA) permissible exposure limit (PEL) 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 (Pub. L. 108-136, November 24, 2003). The interim rule revised the asbestos category in appendix A to subpart E of 5 CFR part 532 to implement section 1122 for prevailing rate employees and required Federal agencies to apply occupational safety and health standards consistent with the OSHA PEL standard for asbestos. The 60-day comment period ended on June 27, 2005. OPM received comments from an agency, a labor organization, and an institute dedicated to occupational and environmental health research.

The labor organization and the institute objected to the use of the OSHA PEL standard to determine an employee's pay entitlement under the FWS EDP asbestos category. The labor organization stated that it is a well-documented, scientific fact that no exposure to airborne asbestos fibers is safe. The institute asserted that there is a preponderance of data indicating that there is no threshold below which there is no risk of exposure to asbestos, and only the constraints of what OSHA considers feasible in terms of monitoring and abatement prevents OSHA from setting a lower PEL for asbestos exposure. The institute expressed the belief that exposure to asbestos at any level is hazardous.

OPM agrees that exposure to airborne concentrations of asbestos fibers is hazardous; consequently, OPM's paramount concern is the protection of employees from the hazards of exposure to airborne asbestos. Under OPM's Operating Manual for administering the FWS, Federal agencies must take positive action to eliminate danger and risks that contribute to or cause hazards for which EDP categories are established. The existence of EDP categories is not intended to condone work practices that circumvent Federal safety laws, rules, and regulations.

OSHA, the Federal agency responsible for establishing regulatory standards concerning hazards in the workplace, last reduced the PEL for airborne concentrations of asbestos fibers in 1994. The current OSHA PEL for asbestos is 0.1 fibers per cubic centimeter (0.1f/cc) of air, determined as an 8-hour time-weighted average. OPM's interim regulations amended the asbestos category in for EDP to comply with section 1122, which amended section 5 U.S.C. 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.”

OPM remains committed to protecting the health and safety of the Federal workforce. OPM's regulation is a tool for determining EDP entitlement only and does not relieve agencies of their responsibility to create and maintain safe and healthful workplaces. Employees whose assigned work is not directly connected with the risk of exposure, and who might be incidentally exposed to the hazard, should be removed from the area or circumstances presenting the hazard. Agencies must continue to aggressively eliminate asbestos and other potential health hazards from the workplace. Agencies must comply with the entire OSHA PEL standard for asbestos, not only because it provides an objective, measurable standard, but also because its purpose is the protection of employees from a significant risk of exposure to airborne concentrations of asbestos fibers. Based on the intent of the 2003 statute and the safeguards discussed above, we have not made any changes in the final regulations based on these two comments.

In the final comment, an agency requested that we delete the clause “and protective devices or safety measures have not practically eliminated the potential for such personal illness or injury” at the end of the first sentence in the asbestos category in appendix A. The agency suggested that this phrase is no longer necessary because, pursuant to the 2003 statute, the second and third sentences in the asbestos category have now established a clearly defined standard for payment of EDP. We agree that the term “practically eliminated” is redundant, and we have made the suggested change in the final regulations. The OSHA standard provides very detailed training requirements, engineering controls, work practices, health monitoring and housekeeping procedures, etc. These additional requirements, when applied by employers together with the PEL, reduce health and safety risks for employees below the level that would occur if the PEL alone were applicable.

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.

Linda M. Springer,

Director.

Accordingly, the interim rule amending 5 CFR part 532 which was published at 70 FR 21613 on April 27, 2005, is adopted as a final rule with the following change:

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
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8	16. Asbestos. Working in an area where airborne concentrations of asbestos fibers may expose employees to potential 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.
*         *         *         *         *         *         *