[Federal Register Volume 71, Number 35 (Wednesday, February 22, 2006)]
[Rules and Regulations]
[Pages 8921-8923]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-1606]


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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 [email protected]; 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.

[[Page 8922]]

    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
------------------------------------------------------------------------
   Differential rate        Category for which
       (percent)                 payable              Effective date
------------------------------------------------------------------------
 
                              * * * * * * *
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