[Federal Register Volume 59, Number 164 (Thursday, August 25, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-20843]


  Federal Register / Vol. 59, No. 164 / Thursday, August 25, 1994 /
  
[[Page Unknown]]

[Federal Register: August 25, 1994]


                                                   VOL. 59, NO. 164

                                          Thursday, August 25, 1994

OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 591

RIN 3206-AE36

 

Allowances and Differentials; Uniform Allowances

agency: Office of Personnel Management.

action: Final rule.

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

summary: The Office of Personnel Management (OPM) is issuing final 
rules to provide procedures for an agency to establish a higher initial 
maximum uniform allowance rate in exceptional circumstances. Such a 
rate is applicable in certain situations where the typical basic 
uniform required by the agency for the affected category of civilian 
Federal employees involves a high initial outlay of funds.

effective date: September 26, 1994.

for further information contact: Bruce W. Valoris, (202) 606-2858.

supplementary information: On May 5, 1993, the Office of Personnel 
Management (OPM) published proposed regulations (58 FR 26694) that 
would apply to an employee who is required to wear a uniform by 
statute, regulation, or an agency's written administrative procedures. 
OPM invited interested parties to comment during a 60-day period 
following the publication of the proposed regulations. During the 
comment period, OPM received comments from seven agencies, two labor 
organizations, and three employees. Of these commenters, four agencies 
and one employee supported the regulations as proposed. A summary of 
the comments and a description of the revisions in the proposed 
regulations follow.

Definitions

    One agency was confused about the definition of ``uniform'' and 
believed the proposed regulatory language implied that shoes, boots, 
and hats were mandatory items. OPM did not intend to make these items a 
mandatory part of a uniform. The agency also requested a clearer 
definition of ``protective equipment.'' OPM has clarified the 
definition of ``uniform'' and has provided a statutory cross-reference 
for protective equipment (5 U.S.C. 7903).
    Another agency did not understand the meaning of the term 
``category of employees.'' The proposed term was used to refer to a 
group of employees for whom an agency is establishing a higher initial 
maximum uniform allowance. The agency asked whether the term means an 
occupational group, a type of appointment, an organizational category 
or refers to how often the uniform is worn. To clarify this matter, OPM 
has added a new definition of ``category of employees'' to the final 
regulations to clarify that the term means any group of employees 
designated by an agency that has the same basic uniform requirements.

Governmentwide Maximum Uniform Allowance Rate

    A labor organization commented that the provision authorizing a 
Governmentwide maximum uniform allowance rate was somewhat ambiguous. 
The labor organization was concerned that the proposed regulation might 
allow an agency the option of not paying an annual maintenance uniform 
allowance to an employee in the years following the payment of a higher 
initial uniform allowance. The proposed regulation stated that unless a 
higher initial rate is payable, the head of the agency shall pay an 
allowance not to exceed $400 a year or furnish a uniform at a cost not 
to exceed $400 a year. In other words, while a higher initial rate is 
an exception to the annual maintenance rate, the agency head is 
required to pay a uniform allowance rate when all the regulatory 
requirements are met. Therefore, OPM believes no change is necessary in 
the proposed regulation authorizing a Governmentwide maximum uniform 
allowance.

Notification Process

    One agency would prefer to avoid the requirement to publish a 
higher initial maximum uniform allowance rate in the Federal Register 
for public notice and comment. Instead, the agency would like freedom 
to implement changes in agency requirements regarding uniforms without 
any restrictions. While OPM agrees that agencies need flexibility to 
administer uniform allowances, OPM believes that the requirement for 
advance publication and consideration of comments is not overly 
burdensome. Rather, such publication will foster the development of 
well-defined agency policies and will provide other agencies, 
employees, interested parties, and the public an opportunity to 
consider and comment on Federal civilian uniform allowance policies 
that may require a high initial outlay of funds. Therefore, OPM has not 
changed the proposed regulation in this regard.
    Two agencies objected to the proposed requirement in 
Sec. 591.104(c) that OPM must approve the continuation of a higher 
initial maximum rate in the year following the 1st year the employee 
becomes subject to wearing a uniform. The agencies argued that the 
purpose of continuing a higher initial rate for more than 1 year is to 
spread an extremely high cost over a 2-year period--necessary only in 
the most unusual situations--and that the process would be 
administratively burdensome. OPM agrees. The final regulations allow an 
agency to pay an allowance for an extremely high-cost minimum basic 
uniform over a 2-year period. This means that agencies may continue to 
pay the amount of the higher initial maximum uniform allowance rate in 
the year following the year the employee first becomes subject to 
wearing a uniform. However, the agency must publish its intention to 
continue the payments for a 2nd year in the Federal Register in 
accordance with Sec. 541.104(c). The agency may choose to publish its 
intent in the initial Federal Register notice, or it may republish the 
following year.

New Style or Type of Basic Uniform

    Several commenters would like agencies to be able to establish a 
higher initial maximum uniform allowance rate the 1st year a new style 
or type of minimum basic uniform is required by an agency if the cost 
of replacing the obsolete uniform is especially high. The commenters 
maintain that workers who are required to purchase new basic uniforms 
involving a high initial outlay of funds should be allowed to benefit 
from the proposal.
    OPM agrees with the commenters that replacement of the obsolete 
basic uniform when costs are high should be included in the higher 
initial allowance rate. Therefore, we have added paragraph 
Sec. 591.104(h) to provide that an agency may use the higher initial 
maximum uniform allowance procedures to establish a higher initial 
maximum uniform allowance rate when a new style or type of minimum 
basic uniform is required for a category of employees.
    In a related comment, one agency inquired whether the proposed 
procedures for a 2nd year of a higher initial rate under 
Sec. 591.104(c) were intended to address obsolescence of uniform 
components. It is unlikely that such obsolescence would regularly occur 
the year following the year the employee first becomes subject to a 
requirement to wear a uniform or the year following the obsolescence of 
a minimum basic uniform. OPM has clarified the regulations regarding 
obsolescence by adding paragraph Sec. 591.104(h) concerning the 
replacement of an obsolete basic uniform.

Providing a Complete Uniform

    One agency requested that another higher initial allowance be 
allowed at the agency's discretion for individual employee needs, such 
as a dress uniform, a maternity uniform, a different size, or a uniform 
burned in a fire. Similarly, a labor organization was concerned that 
the proposed regulations provide relief only for the 1st year the 
employee becomes subject to the uniform requirement. However, the labor 
organization noted that it may take several years to acquire the full 
complement of required uniform items and suggested extending the higher 
allowance until the employee acquires the full complement of required 
uniform items.
    The final regulations provide that agencies may spread the higher 
initial maximum uniform allowance rate over 2 years for a category of 
employees when the minimum basic uniform is very costly. We believe the 
combination of the higher initial maximum uniform allowance rate and 
the ongoing maintenance allowance are sufficient to meet individual 
needs. Therefore, a change in the regulations is not necessary.
    OPM notes that under Sec. 591.104(d)(3), an agency's published 
notice must list the specific uniform items required by an affected 
category of employees to ensure that needed items are included and that 
the selected higher rate represents the average total uniform cost. For 
example, possible basic uniform items for a hypothetical category of 
employees required to serve outdoors part of the time could be: Three 
shirts, two slacks or skirts, two pairs of boots, one outerwear 
garment, one pair of gloves, and one hat. If a second year higher 
initial uniform allowance is required because of great expense, the 
agency may implement an extension of Sec. 591.104(c).

Agency Administrative Matters

    Two agencies and an employee raised several administrative 
questions that, they suggest, should be resolved in the regulations. 
One agency asked whether moving an unused initial higher allowance 
amount from the initial year into the following year would require OPM 
approval. A higher initial maximum uniform allowance rate applies to 
the year an employee first becomes subject to a uniform requirement 
(and may apply to the year following that year under Sec. 591.104(c)). 
In unusual situations, when an employee who has not purchased the 
designated uniform has not also been required to wear it, the higher 
initial allowance could be canceled and reauthorized when the employee 
actually becomes subject to the uniform requirement.
    The other agency stated it would like the regulations to include 
the methods for paying a recurring uniform maintenance allowance. This 
would include rules to state the increments in which the allowance 
would be paid (e.g., biweekly, quarterly, or annually), to whom it 
should be paid (e.g., the vender, the employee, or another method), and 
the appropriate conditions for each method of payment. OPM believes 
these administrative matters are best determined by each agency in 
consideration of the methods that best fit the needs of the agency and 
its employees.
    The employee was concerned about circumstances in which it would be 
inappropriate to wear the designated uniform. For example, could the 
uniform be worn off duty, or could various parts of the uniform be worn 
along with personal clothing? Agency policy and employee discretion 
should determine the proper wearing of a required uniform. OPM does not 
believe it is necessary or desirable to regulate this matter.

Increase in Governmentwide Maximum Uniform Allowance

    An agency commented that it believed OPM was obligated to establish 
annual inflationary rates for the Governmentwide maximum uniform 
allowance rate based on the provisions of the Federal Employees Pay 
Comparability Act of 1990 (FEPCA). Under section 5902 of title 5, 
United States Code, as revised by FEPCA, OPM ``may, from time to time, 
by regulation adjust the maximum amount for the cost of uniforms and 
the maximum allowance for uniforms under section 5901.'' The agency 
suggested that the method for such an adjustment should be included in 
the final rule.
    While it is possible for OPM to establish a regulatory formula to 
implement section 5902, OPM believes such an approach is not required 
by law and that an adjustment to the maximum uniform allowance is not 
necessary at this time because the maximum uniform allowance was 
adjusted recently by statute (FEPCA). In addition, even a regulatory 
method for adjustment in the Governmentwide maximum uniform allowance 
rate would not obviate the need for a higher initial maximum uniform 
allowance when the required uniform involves a high initial outlay of 
funds. Therefore, OPM has not revised the regulations in this regard.

Eligibility for a Uniform Allowance

    An employee believed that certain officer technicians should 
receive appropriate remuneration under the uniform allowance program in 
section 5902 of title 5, United States Code, because they are required 
to wear their military uniform while performing their Federal civilian 
jobs. This comment applies to the administration of the uniform 
allowance program within an agency and not the construction of the 
regulations themselves. Therefore, OPM believes these regulations are 
not an appropriate place to address the employee's question and agency 
policies related to this matter.

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 591

    Government employees, Travel and transportation expenses, Wages.

U.S. Office of Personnel Management.
James B. King,
Director.
    Accordingly, OPM is amending part 591 of title 5 of the Code of 
Federal Regulations as follows:

PART 591--ALLOWANCES AND DIFFERENTIALS

    1. The authority citation for part 591 is revised to read as 
follows:

    Authority: 5 U.S.C. 5903, 5941, and 5942; E.O. 10000, 3 CFR, 
1943-1948 Comp., p. 792; E.O. 12510, 3 CFR, 1985 Comp., p. 338; E.O. 
12748, 3 CFR, 1991 Comp., p. 316.

    2. Subpart A is added to read as follows:

Subpart A--Uniform Allowances

Sec.
591.101  Purpose.
591.102  Definitions.
591.103  Governmentwide maximum uniform allowance rate.
591.104  Higher initial maximum uniform allowance rate.

Subpart A--Uniform Allowances


Sec. 591.101  Purpose.

    This subpart prescribes the regulations authorized by section 5903 
of title 5, United States Code, for the payment of uniform allowances.


Sec. 591.102  Definitions.

    Agency means an ``Executive agency,'' as defined in 5 U.S.C. 105.
    Employee means an employee in or under an agency.
    Category of employees means any group of employees designated by an 
agency that has the same basic uniform requirements.
    Head of 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.
    Uniform means a specified article or articles of clothing that may 
include, but is not limited to, such items as shoes, boots, hats, 
shirts, slacks, skirts, or outerwear an employee is required by an 
agency to wear to provide a distinctive and easily identifiable 
appearance in performing his or her job. A ``uniform'' does not include 
protective equipment required for the employee's safety under 5 U.S.C. 
7903 or normal business or work attire purchased at the discretion of 
the employee.
    Year means any period of 12 consecutive months designated by an 
agency as the basis for applying the maximum uniform allowance rates 
established under this part.


Sec. 591.103  Governmentwide maximum uniform allowance rate.

    Unless a higher initial maximum uniform allowance rate is payable 
under Sec. 591.104 to an employee who is required by statute, 
regulation, or an agency's written administrative procedures to wear a 
uniform, the head of each agency concerned, out of funds available, 
shall--
    (a) Pay an allowance for a uniform not to exceed $400 a year; or
    (b) Furnish a uniform at a cost not to exceed $400 a year.


Sec. 591.104  Higher initial maximum uniform allowance rate.

    (a) The head of an agency may establish one or more initial maximum 
uniform allowance rates greater than the Governmentwide maximum uniform 
allowance rate established under Sec. 591.103.
    (b) A higher initial maximum uniform allowance rate established 
under this section may not exceed the average total uniform cost for 
the minimum basic uniform for the affected employees and, except as 
provided in paragraph (c) of this section, applies only to the year in 
which the employee becomes subject to a requirement to wear the 
uniform.
    (c) An agency that establishes one or more higher initial maximum 
uniform allowance rates under this section may divide the cost of the 
minimum basic uniform and continue a higher initial maximum uniform 
allowance for the year following the year the employee first becomes 
subject to the requirement to wear the uniform, provided the agency 
publishes a notice of its intention to continue such payments in the 
Federal Register for notice and comment.
    (d) Before establishing a higher initial maximum uniform allowance 
rate under this section, an agency shall publish in the Federal 
Register for notice and comment--
    (1) A description and justification of the circumstances requiring 
a higher initial maximum uniform allowance rate;
    (2) An estimate of the number of employees affected;
    (3) The specific items required for the basic uniform and the 
average total uniform cost for the affected employees;
    (4) The amount of the proposed higher initial maximum uniform 
allowance rate to be paid during the year the employee first becomes 
subject to the uniform requirement;
    (5) The proposed effective date of the higher initial maximum 
uniform allowance rate; and,
    (6) The intent of the agency (if any) to divide the cost of a 
minimum basic uniform and continue to make higher initial maximum basic 
uniform allowance payments in the year following the year the employee 
first becomes subject to the uniform requirement.
    (e) So that OPM can evaluate agencies' use of this authority and 
provide the Congress and others with information regarding the use of a 
higher initial maximum uniform allowance rate, each agency concerned 
shall maintain such other records and submit to OPM such other reports 
and data as OPM shall require.
    (f) When OPM determines that an agency is using this authority 
inappropriately, OPM may require its prior approval before that agency 
establishes any future higher initial maximum uniform allowance rate.
    (g) An agency may increase a higher initial maximum uniform 
allowance rate only as a result of an increase in the average total 
uniform cost for the affected employees. Before effecting an increase 
under this paragraph, an agency shall follow the notice and comment 
procedures required by paragraph (d) of this section.
    (h) To establish a higher initial maximum uniform allowance rate 
applicable to the initial year a new style or type of minimum basic 
uniform is required for a category of employees, an agency shall use 
the higher initial maximum uniform allowance procedures provided under 
this section.

[FR Doc. 94-20843 Filed 8-24-94; 8:45 am]
BILLING CODE 6325-01-M