[Federal Register Volume 59, Number 124 (Wednesday, June 29, 1994)]
[Unknown Section]
[Page 0]
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.

-----------------------------------------------------------------------

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