Allowances and Differentials; Uniform Allowances

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