[Federal Register: February 22, 2006 (Volume 71, Number 35)]
[Rules and Regulations]
[Page 8921-8923]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22fe06-2]
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OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 532
RIN 3206-AK64
Prevailing Rate Systems; Environmental Differential Pay for
Asbestos Exposure
AGENCY: Office of Personnel Management.
ACTION: Final rule.
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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, (202) 606-2838; e-
mail pay-performance-policy@opm.gov; or FAX: (202) 606-4264.
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.
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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.
0
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
0
1. The authority citation for part 532 continues to read as follows:
Authority: 5 U.S.C. 5343, 5346; Sec. 532.707 also issued under
5 U.S.C. 552.
0
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
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Differential rate Category for which
(percent) payable Effective date
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* * * * * * *
8...................... 16. Asbestos. Working Nov. 24, 2003.
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,
Sec. Sec. 1910.1001
or 1926.1101.
Regulatory changes in
Sec. Sec. 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.
* * * * * * *
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[[Page 8923]]
[FR Doc. 06-1606 Filed 2-21-06; 8:45 am]
BILLING CODE 6325-39-P