[Federal Register Volume 86, Number 38 (Monday, March 1, 2021)]
[Rules and Regulations]
[Pages 11857-11859]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-03958]



 ========================================================================
 Rules and Regulations
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains regulatory documents 
 having general applicability and legal effect, most of which are keyed 
 to and codified in the Code of Federal Regulations, which is published 
 under 50 titles pursuant to 44 U.S.C. 1510.
 
 The Code of Federal Regulations is sold by the Superintendent of Documents. 
 
 ========================================================================
 

  Federal Register / Vol. 86, No. 38 / Monday, March 1, 2021 / Rules 
and Regulations  

[[Page 11857]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 532

RIN 3206-AO15


Prevailing Rate Systems; Conduct of Local Wage Surveys

AGENCY: Office of Personnel Management.

ACTION: Interim final rule; request for comments.

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

SUMMARY: The Office of Personnel Management is issuing an interim final 
rule to amend regulations to allow for additional options to collect 
wage data during Federal Wage System full-scale and wage change 
surveys, namely, by personal visit, telephone, mail, or electronic 
means. This change is based on a majority recommendation of the Federal 
Prevailing Rate Advisory Committee and was initiated by a Department of 
Defense request for greater flexibility to obtain accurate and timely 
prevailing wage data in local labor markets during and after the 
national emergency caused by the COVID-19 health crisis.

DATES: The interim final rule is effective on March 31, 2021. Comments 
must be received on or before March 31, 2021.

ADDRESSES: You may submit comments, identified by docket number and/or 
Regulatory Information Number (RIN) and title, by the following method:
     Federal Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    All submissions received must include the agency name and docket 
number or RIN for this document. The general policy for comments and 
other submissions from members of the public is to make these 
submissions available for public viewing at http://www.regulations.gov 
as they are received without change, including any personal identifiers 
or contact information.

FOR FURTHER INFORMATION CONTACT: Mark Allen, by telephone at (202) 606-
2858 or by email at [email protected].

SUPPLEMENTARY INFORMATION: The Office of Personnel Management (OPM) 
received a request from the Department of Defense (DOD) to amend the 
regulatory provisions in part 532 of title 5, Code of Federal 
Regulations (CFR), which require in-person visits by data collectors to 
private industrial establishments for Federal Wage System (FWS) full-
scale wage surveys. This interim final rule amends sections 5 CFR 
532.201, 532.207, 532.235, and 532.247.
    Under sections 5343(a)(2) and (3) of title 5, United States Code, 
OPM designates a lead agency for each wage area to conduct wage 
surveys, analyze wage survey data, and develop and establish 
appropriate wage schedules and rates for prevailing rate employees. DOD 
is the designated lead agency for all FWS wage areas.
    Wage surveys are conducted every year. A full-scale wage survey is 
conducted one year, with data collectors required to make in-person 
visits to local private sector employers to collect wage data. The next 
year a wage change survey is conducted, with data collectors contacting 
participants from the prior full-scale wage survey to collect wage data 
on previously collected jobs.
    The overall objective of FWS wage surveys is to obtain the most 
accurate information possible to measure prevailing wage levels in each 
wage area and establish wage schedules in accordance with prevailing 
rate systems law. The preferred method for collecting wage data from 
private sector establishments during full-scale wage surveys is by 
personal visit to such establishments. Even though the preferred method 
continues to be personal visits, technological advances now provide new 
tools for data collection that were not available when the FWS pay 
system was established. There are now electronic tools, systems, 
devices, and resources that assist in gathering information in cost 
effective and reliable ways. Use of these new tools would provide DOD 
staff with opportunities to innovate and improve data collection 
methods.
    Labor participation at all levels is a requirement within the FWS, 
including for the collection and the analysis of the survey data. In 
all wage areas, local labor-management teams participate in the 
collection of data from private sector establishments. This will not 
change. As the lead agency for all wage areas, DOD will continue to 
work together with labor organizations during the data collection 
process even when in-person visits cannot be conducted. Labor 
participation will be facilitated through alternative data collection 
processes to include telephone, mail, and electronic means.
    The Federal Prevailing Rate Advisory Committee (FPRAC), the 
national labor-management committee responsible for advising OPM on 
matters concerning the pay of FWS employees, recommended this change by 
majority vote.

Waiver of Notice of Proposed Rule Making

    OPM is issuing this rulemaking as an interim final rule and has 
determined that, under the Administrative Procedure Act (APA), 5 U.S.C. 
553(b)(B), it would be impracticable and contrary to the public 
interest to delay a final regulation until a public notice and comment 
process has been completed. OPM also is waiving general notice of 
proposed rulemaking under the Civil Service Reform Act's parallel 
rulemaking provision, 5 U.S.C. 1103(b)(3), because the interim final 
rule is temporary in nature and necessary to be implemented 
expeditiously as a result of an emergency.
    The United States is experiencing a national emergency caused by 
the spread of the novel coronavirus SARS-CoV-2 and the respiratory 
disease it causes (COVID-19). OPM has established in regulation a 
timetable for when a local wage survey must begin in each FWS wage 
area. Due to this national emergency, DOD staff responsible for local 
wage survey activities have not been able to travel and collect local 
wage survey data. In addition, many private sector establishments where 
DOD wage survey staff normally collect wage data are not operating with 
human resources staff on site to meet in person. The current pandemic 
was not envisioned when the wage survey timetable was originally 
established and OPM does not have the ability under the law or 
regulation to

[[Page 11858]]

waive the annual wage survey requirements.
    This regulation will provide new tools for data collection that 
will assist DOD to gather information in cost effective and reliable 
ways even during a national or local emergency. The conclusion of a 
public notice and comment period before the rule is finalized would be 
impracticable because it would impede DOD from obtaining timely and 
accurate information to measure prevailing wage levels and establish 
wage schedules in accordance with prevailing rate systems law in those 
wage areas where a full-scale wage survey is required.
    President Trump declared a national emergency in response to the 
COVID-19 public health crisis on March 13, 2020. In efforts to limit 
spread of the disease and to protect employees' safety, DOD immediately 
implemented a travel ban, which made it impossible for data collectors 
to obtain survey data by personal visits to private sector 
establishments. The management members of FPRAC introduced a proposal 
at the Committee's July 16, 2020, meeting to amend the regulations in 5 
CFR part 532 to allow for the collection of data by alternate means. A 
final recommendation was adopted at FPRAC's September 17, 2020, 
meeting. Because of the need to issue timely wage schedules for FWS 
employees in accordance with current law and the regulatory timetable 
for conducting local wage surveys, there is insufficient time for OPM 
to complete a notice and comment rulemaking without negatively 
impacting the accuracy and timeliness of local prevailing wage 
determinations. The conclusion of a public notice and comment period 
before the rule is finalized would also be contrary to the public 
interest because it would result in wage schedules being based only on 
the minimum pay increase applicable under separate appropriations law 
and not on current local wage survey data.
    For these reasons, OPM has determined that the public notice and 
participation that the law ordinarily requires would, in this case, be 
impracticable and contrary to the public interest and that good cause 
exists to waive the general notice of proposed rulemaking pursuant to 5 
U.S.C. 553(b)(B) and delay its solicitation of comments from the public 
until after it issues an interim final rule. The interim final rule is 
temporary in nature, and expeditious timing is required because of the 
circumstances facing DOD during the COVID-19 emergency. OPM will 
promulgate a final rule as soon as practical after receiving public 
comments on the interim final rule.

Regulatory Impact Analysis

    OPM has examined the impact of this rule as required by Executive 
Order 12866 and Executive Order 13563, which direct agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public, 
health, and safety effects, distributive impacts, and equity). A 
regulatory impact analysis must be prepared for major rules with 
economically significant effects of $100 million or more in any 1 year. 
This rule has not been designated as a ``significant regulatory 
action,'' under Executive Order 12866.

Regulatory Flexibility Act

    OPM certifies that this rule will not have a significant economic 
impact on a substantial number of small entities.

Federalism

    We have examined this rule in accordance with Executive Order 
13132, Federalism, and have determined that this rule will not have any 
negative impact on the rights, roles and responsibilities of State, 
local, or tribal governments.

Civil Justice Reform

    This regulation meets the applicable standard set forth in 
Executive Order 12988.

Unfunded Mandates Act of 1995

    This rule will not result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any year and it will not significantly or uniquely 
affect small governments. Therefore, no actions were deemed necessary 
under the provisions of the Unfunded Mandates Reform Act of 1995.

Congressional Review Act

    The Congressional Review Act (5 U.S.C. 801 et seq.) requires rules 
(as defined in 5 U.S.C. 804) to be submitted to Congress before taking 
effect. OPM will submit to Congress and the Comptroller General of the 
United States a report regarding the issuance of this action before its 
effective date, as required by 5 U.S.C. 801. This action is not major 
as defined by the Congressional Review Act (CRA) (5 U.S.C. 804).

Paperwork Reduction Act

    While this rule does not impose any new reporting or record-keeping 
requirements subject to the Paperwork Reduction Act, the following 
collections will be affected: Establishment Information Form (DD 1918), 
Wage Data Collection Form (DD 1919), and Wage Data Collection 
Continuation Form (DD 1919C)--OMB Control Number: 3206-0036.
    The wage survey methodology required of DOD when using these forms 
is not being updated. The survey and burden times associated with this 
survey remain the same and, therefore, the forms do not need to be 
resubmitted for OMB review. We do not expect the respondent burden to 
increase or decrease through this change in procedure. In the long 
term, DOD may be able to save on some travel costs but given that the 
decision to use alternative data collection methods than in-person 
visits will reside with the local wage survey committee any cost 
savings are currently unknowable.

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.
Alexys Stanley,
Regulatory Affairs Analyst.

    Accordingly, OPM is amending 5 CFR part 532 as follows:

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.

PART 532--PREVAILING RATE SYSTEMS

0
2. Amend Sec.  532.201 by revising the definitions of ``Full-scale 
survey'' and ``Wage change survey ``to read as follows:


Sec.  532.201  Definitions.

* * * * *
    Full-scale survey means a survey conducted at least every 2 years 
in which data are collected from a current sampling of establishments 
in the private sector by personal visit of data collectors. With the 
unanimous consent of the members of a Local Wage Survey Committee, data 
may also be obtained from a private sector establishment or 
establishments during a full-scale wage survey by telephone, mail, or 
electronic means.
* * * * *
    Wage change survey means a survey in which rate change data are 
collected

[[Page 11859]]

from the same establishments and for the same establishment occupations 
represented in the full-scale survey. These data may be collected by 
telephone, mail, electronic means, or personal visit.

0
3. Amend Sec.  532.207 by revising paragraphs (a) through (c) to read 
as follows:


Sec.  532.207  Time schedule for wage surveys.

    (a) Wage surveys shall be conducted on a 2-year cycle at annual 
intervals.
    (b) A full-scale survey shall be made in the first year of the 2-
year cycle and shall include development of a current sample of 
establishments and the collection of wage data by visits to 
establishments. With the unanimous consent of the members of a Local 
Wage Survey Committee, data may also be obtained from a private sector 
establishment or establishments during a full-scale wage survey by 
telephone, mail, or electronic means.
    (c) A wage-change survey shall be made every other year using only 
the same employers, occupations, survey jobs, and establishment weights 
used in the preceding full-scale survey. Data may be collected by 
telephone, mail, electronic means, or personal contact.
* * * * *

0
4. Amend Sec.  532.235 by revising paragraph (a) and paragraph (b) 
introductory text to read as follows:


Sec.  532.235  Conduct of full-scale wage survey.

    (a) Wage survey data shall not be collected before the date the 
survey is ordered by the lead agency.
    (b) Data collection for a full-scale wage survey shall be 
accomplished by personal visit to private sector establishments. With 
the unanimous consent of the members of a Local Wage Survey Committee, 
data may also be obtained from a private sector establishment or 
establishments during a full-scale wage survey by telephone, mail, or 
electronic means. The following required data shall be collected:
* * * * *

0
5. Amend Sec.  532.247 by revising paragraphs (a) through (c) to read 
as follows:


Sec.  532.247  Wage change surveys.

    (a) Wage change surveys shall be conducted in each wage area in 
years during which full-scale wage surveys are not conducted.
    (b) Data shall be collected in wage change surveys only from 
establishments which participated in the preceding full-scale survey. 
Information concerning pay adjustments of general application in effect 
for jobs matched in each establishment which participated in the 
preceding full-scale survey shall be obtained.
    (c) Data may be obtained in wage change surveys by telephone, mail, 
electronic means, or personal visit. The chairperson of the local wage 
survey committee shall determine the manner in which establishments 
will be contacted for collection of data. Data may be collected by the 
local wage survey committee members or by data collectors appointed and 
assigned to two member teams in accordance with Sec.  532.233(e) of 
this subpart.
* * * * *
[FR Doc. 2021-03958 Filed 2-26-21; 8:45 am]
BILLING CODE 6325-39-P