[Federal Register Volume 59, Number 124 (Wednesday, June 29, 1994)]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-15695]
Federal Register / Vol. 59, No. 124 / Wednesday, June 29, 1994 /
[[Page Unknown]]
[Federal Register: June 29, 1994]
VOL. 59, NO. 124
Wednesday, June 29, 1994
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 550
RIN 3206-AE31
Pay Administration (General); Hazard Pay Differentials
AGENCY: Office of Personnel Management.
ACTION: Final rule.
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SUMMARY: The Office of Personnel Management (OPM) is issuing final
regulations on the hazardous duty pay differential program for General
Schedule employees, as amended by the Federal Employees Pay
Comparability Act of 1990 (FEPCA). The final rule delegates authority
to agencies to authorize payment of a differential to an employee when
the hazardous duty has been taken into account in the classification of
his or her position, clarifies when a hazard has been taken into
account in the classification of a position, and clarifies the
circumstances under which a hazard pay differential may be terminated.
EFFECTIVE DATE: The final rule is effective on July 29, 1994.
FOR FURTHER INFORMATION CONTACT:Frank Hong, (202) 606-2858.
SUPPLEMENTARY INFORMATION: On May 3, 1991, (56 FR 20343) the Office of
Personnel Management (OPM) published interim regulations to implement
section 203 of the Federal Employees Pay Comparability Act of 1990
(FEPCA), Public Law 101-509, November 5, 1990. Section 203 amended
section 5545(d) of title 5, United States Code, which contains the
legal basis for paying General Schedule employees a differential for
duty involving unusual physical hardship or hazard.
The 60-day comment period ended on July 1, 1991. An employees'
professional association commented favorably on the FEPCA changes in
general. Other more specific comments were received from five Federal
agencies, one labor organization, and three individuals. Following are
summarized comments and revisions in the interim regulations.
Delegation of Authority
In response to draft interim regulations, two agencies recommended
that OPM delegate authority to agencies to authorize payment of a
hazardous duty pay (HDP) differential to an employee even though the
hazardous duty has been taken into account in the classification of his
or her position. As part of our effort to delegate decisionmaking
authority to Federal managers and supervisors where appropriate, OPM
has decided to delegate authority to agencies to authorize payment of
an HDP differential under these circumstances for the following
reasons.
First, agencies have direct and detailed knowledge of their
workplaces, occupations, positions, job duties, and possible safety
measures to reduce hazards to less than significant levels. Second,
agencies currently have responsibility to apply the existing HDP
categories to their own workplace situations, determine whether the
work duty is covered by a particular HDP category, and decide whether
the differential may (or may not) be paid to the employee based on the
classification of his or her position. Third, the exercise of this
responsibility requires the same expertise in the classification
aspects of the HDP program as the evaluation of the qualifying
conditions requires.
OPM has specified two conditions in Sec. 550.904(b) that must exist
before payment of an HDP differential may be approved by an agency:
(1) The actual circumstances of the specific hazard or physical
hardship have changed from that taken into account and described in the
position description; and
(2) Using the knowledge, skills, and abilities that are described
in the position description, the employee cannot control the hazard or
physical hardship; thus, the risk is not reduced to a less than
significant level.
The qualifying conditions for payment of a differential may be
present even though the hazardous duty may be performed with
considerable frequency. When the two conditions are met, payment for
the hazardous duty would be authorized (provided other regulatory
requirements are met). The final regulations also include certain
minimal recordkeeping and reporting requirements related to the
delegation of this authority.
Hazardous Duty and Classification of the Position
In most situations, payment of a differential is prohibited when
the hazardous duty has been taken into account in the classification of
the employee's position. The interim regulations added the phrase
``without regard to whether the hazardous duty or physical hardship is
grade controlling, unless a waiver has been approved by OPM.'' Three
agencies and two individuals believed that the differential should be
payable unless the hazardous duty serves as the primary basis for grade
level in the classification process. Adopting this recommendation would
overturn OPM's long-standing interpretation of the statutory phrase
``the classification of which takes into account.''
The commenters provided the following example. When a hazard is
recognized in Factor Evaluation System (FES) factors 8, physical
demands, and/or 9, work environment, the hazard is a factor considered
in establishing the grade of the position. In this example, the
commenters noted, the hazard typically has a limited effect on the
overall classification of the position and usually does not increase
the grade level of the position.
However, OPM notes that limited consideration of a hazardous duty
in FES factors 8 and/or 9 may be appropriate where the hazard is at a
low level. Moreover, factors 8 and/or 9 may not describe in great
detail how a hazard relates to the whole position. Furthermore, in some
cases, a hazardous duty may be considered in the narrative standard for
the occupation and may be the same for all job levels, and, therefore,
may not require further consideration in the classification of the
position. In other cases, a hazardous duty may be classified by analogy
to an existing described and classified hazard and documented
accordingly in the evaluation statement.
Nevertheless, the FES example illustrates some of the difficulties
with the classification process in regard to the HDP program.
Eligibility for payment of a differential is no longer restricted to
the performance of an irregular or intermittent hazardous duty.
Therefore, the determination that payment of a differential is not
warranted depends on the classification of the position (provided that
the agency involved has determined that the hazardous work situation
involved does match one of the categories in appendix A).
In OPM's view, a hazardous duty is taken into account in the
classification of a position when the duty is a part of the knowledge,
skills, and abilities required of the incumbent of the position. In
other words, the incumbent of the position is able to influence the
hazardous duty--i.e., exercise knowledge, skill, and ability to reduce
the risk of the hazard. Therefore, OPM has clarified Sec. 550.904(c) by
adding the following phrase: ``that is, the knowledge, skills, and
abilities required to perform that duty are considered in the
classification of the position.''
Termination of a Differential
The labor organization requested that a differential not be
discontinued when the hazard has been reduced to a negligible level or
the physical discomfort or distress has been adequately alleviated, but
that the differential be discontinued only when the hazard or hardship
is completely eliminated. OPM cannot make such a change because the
statute authorizes payment of a differential for duty involving unusual
physical hardship or hazard, but not for negligible hazard or
adequately alleviated discomfort or distress.
An agency requested that OPM clarify the term ``negligible level''
used in Sec. 550.906(b) of the interim regulations to describe the
level of risk at which the differential shall be discontinued. The
agency requested that the HDP regulations incorporate terms used in the
Occupational Safety and Health Administration's (OSHA's) health
standards or other generally accepted standards that are required in
the workplace. By law, Federal agencies are required to follow OSHA
safety and health standards in order to protect employees from a
significant risk of material health or functional impairment that may
be experienced because of hazard in the workplace.
OPM agrees that the term ``negligible level'' should be clarified
by substituting a term closely related to the term ``significant risk''
used in the OSHA standards. Therefore, the final rule has been amended
to provide that hazard pay shall be discontinued when ``[s]afety
precautions have reduced the element of hazard to a less than
significant level of risk, consistent with generally accepted standards
that may be applicable, such as those published by the Occupational
Safety and Health Administration, Department of Labor.'' This change in
regulatory language is intended to clarify rather than change the
meaning of the regulations.
Miscellaneous Comments
Concerning the establishment of hazard pay differentials, the labor
organization requested that employees and their representatives be
provided with standing to request amendments to part 550, subpart I,
appendix A--Schedule of Pay Differentials Authorized for Hazardous
Duty. Since an individual or organization may request that OPM
establish a new differential on OPM's own motion, it is not necessary
to amend the regulations to accomplish this objective.
The labor organization and one individual requested that employees
and their representatives be provided with standing to request payment
of a differential in unusual situations when the hazard has been taken
into account in classification. No changes in the regulations are
needed. An individual or organization may request that an agency
consider such action.
One agency and the labor organization objected to the requirement
in Sec. 550.903(b)(5) that an agency include an estimate of annual cost
with a request for an additional category under appendix A. The agency
believed that preparation of the estimate would delay the request for
no apparent value. The labor organization believed that consideration
of cost is not authorized by the law and that the requirement for such
an estimate is arbitrary and an abuse of administrative discretion. OPM
is retaining this provision because the information is needed to
evaluate the cost of the HDP program.
One agency requested that a study be conducted of non-Federal pay
practices to determine how inconsistencies between the separate Federal
programs for General Schedule and prevailing rate employees could be
eliminated. OPM recognizes that significant disparities exist between
these programs and will attempt to address these disparities as its
resources permit. However, such a study is not required prior to the
issuance of final rules governing the program changes made by FEPCA.
Two individuals questioned the way the phrase ``irregular or
intermittent'' was defined in the past in the HDP program and
maintained that the use of the correct dictionary definitions would
have made it unnecessary to delete this phrase. OPM believes the
statute as amended by FEPCA removes any possible ambiguity attributable
to this phrase in the previous statute.
Regulatory Flexibility Act
I certify that these regulations will not have a significant
economic impact on a substantial number of small entities because they
apply only to Federal agencies and employees.
List of Subjects in 5 CFR Part 550
Administrative practice and procedure, Claims, Government
employees, Wages.
U.S. Office of Personnel Management.
James B. King,
Director.
Accordingly, the interim rule published at 56 FR 20343 on May 3,
1991, amending 5 CFR part 550, is adopted as a final rule with the
following changes:
PART 550--PAY ADMINISTRATION (GENERAL)
Subpart I--Pay for Duty Involving Physical Hardship or Hazard
1. The authority citation for subpart I continues to read as
follows:
Authority: 5 U.S.C. 5545(d), 5548(b).
2. In Sec. 550.902, a definition of head of an agency is added in
alphabetical order to read as follows:
Sec. 550.902 Definitions.
* * * * *
Head of an agency means the head of an agency or an official who
has been delegated the authority to act for the head of the agency in
the matter concerned.
3. Section 550.904 is revised to read as follows:
Sec. 550.904 Authorization of hazard pay differential.
(a) An agency shall pay the hazard pay differential listed in
appendix A of this subpart to an employee who is assigned to and
performs any duty specified in appendix A of this subpart. However,
hazard pay differential may not be paid to an employee when the
hazardous duty or physical hardship has been taken into account in the
classification of his or her position, without regard to whether the
hazardous duty or physical hardship is grade controlling, unless
payment of a differential has been approved under paragraph (b) of this
section.
(b) The head of an agency may approve payment of a hazard pay
differential when--
(1) The actual circumstances of the specific hazard or physical
hardship have changed from that taken into account and described in the
position description; and
(2) Usi.ng the knowledge, skills, and abilities that are described
in the position description, the employee cannot control the hazard or
physical hardship; thus, the risk is not reduced to a less than
significant level.
(c) For the purpose of this section, the phrase ``has been taken
into account in the classification of his or her position'' means that
the duty constitutes an element considered in establishing the grade of
the position--i.e., the knowledge, skills, and abilities required to
perform that duty are considered in the classification of the position.
(d) The head of the agency shall maintain records on the use of the
authority described in paragraph (b) of this section, including the
specific hazardous duty or duty involving physical hardship; the
authorized position description(s); the number of employees paid the
differential; documentation of the conditions described in paragraph
(b) of this section; and the annual cost to the agency.
(e) So that OPM can evaluate agencies' use of this authority and
provide the Congress and others with information regarding its use,
each agency shall maintain such other records and submit to OPM such
other reports and data as OPM shall require.
4. In Sec. 550.906, paragraph (b) is revised to read as follows:
Sec. 550.906 Termination of hazard pay differential.
* * * * *
(b) Safety precautions have reduced the element of hazard to a less
than significant level of risk, consistent with generally accepted
standards that may be applicable, such as those published by the
Occupational Safety and Health Administration, Department of Labor; or
* * * * *
[FR Doc. 94-15695 Filed 6-28-94; 8:45 am]
BILLING CODE 6325-01-M
